B.S. Levez v T.H. Jennings (Harlow Pools) Ltd.
Date: 1998-12-01
18 The first point to note is that, according to established case-law, in the absence of Community rules governing the matter it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness) (see, to that effect, Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5; Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 13 and 16; Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v SPF [1995] ECR I-4705, paragraph 17; Case C-261/95 Palmisani v INPS [1997] ECR I-4025, paragraph 27; Case C-246/96 Magorrian and Cunningham [1997] ECR I-7153, paragraph 37; and paragraph 16 of the judgment of 15 September 1998 in Joined Cases C-279/96, C-280/96 and C-281/96 Ansaldo Energia and Others [1998] ECR I-5025).
19 The Court has thus recognised that it is compatible with Community law for national rules to prescribe, in the interests of legal certainty, reasonable limitation periods for bringing proceedings.   It cannot be said that this makes the exercise of rights conferred by Community law either virtually impossible or excessively difficult, even though the expiry of such limitation periods entails by definition the rejection, wholly or in part, of the action brought (see, in particular, Palmisani, paragraph 28; Case C-188/95 Fantask and Others [1997] ECR I-6783, paragraph 48; and Ansaldo Energia, paragraphs 17 and 18).
25 It should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, which means that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it (see, in particuar, Case C-30/93 AC-ATEL Electronics Vertriebs [1994] ECR I-2305, paragraph 16).
26 Accordingly, it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see Case 17/81 Pabst & Richarz [1982] ECR 1331, paragraph 12, and AC-ATEL Electronics Vertriebs, paragraph 17).
31 Where an employer provides an employee with inaccurate information as to the level of remuneration received by employees of the opposite sex performing like work, the employee so informed has no way of determining whether he is being discriminated against or, if so, to what extent. Consequently, by relying on the rule at issue in that situation, the employer would be able to deprive his employee of the means provided for by the Directive of enforcing the principle of equal pay before the courts (see, mutatis mutandis, Case 109/88 Danfoss [1989] ECR 3199, paragraph 13).
33 Furthermore, it does not appear that application of the rule at issue in the circumstances of the case before the national court can reasonably be justified by principles such as legal certainty or the proper conduct of proceedings.
34 The answer to the first question must therefore be that Community law precludes the application of a rule of national law which limits an employee's entitlement to arrears of remuneration or damages for breach of the principle of equal pay to a period of two years prior to the date on which the proceedings were instituted, there being no possibility of extending that period, where the delay in bringing a claim is attributable to the fact that the employer deliberately misrepresented to the employee the level of remuneration received by persons of the opposite sex performing like work.
Question 2
37 As stated in paragraph 18 of this judgment, in the absence of Community rules governing the matter it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions (Ansaldo Energia, paragraph 27).
39 In principle, it is for the national courts to ascertain whether the procedural rules intended to ensure that the rights derived by individuals from Community law are safeguarded under national law comply with the principle of equivalence (see also, to that effect, Palmisani, paragraph 33).
40 However, the Court can provide the national court with guidance as to the interpretation of Community law, which may be of use to it in undertaking such an assessment.
41 The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar (see, mutatis mutandis, paragraph 36 of the judgment of 15 September 1998 in Case C-231/96 Edis [1998] ECR I-4951).
42 However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought, like the main action in the present case, in the field of employment law (see, to that effect, Edis, paragraph 36).
43 In order to determine whether the principle of equivalence has been complied with in the present case, the national court - which alone has direct knowledge of the procedural rules governing actions in the field of employment law - must consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Palmisani, paragraphs 34 to 38).
44 Furthermore, whenever it falls to be determined whether a procedural rule of national law is less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts (see, mutatis mutandis, Van Schijndel and Van Veen, paragraph 19).
46 On that point, it should be noted that the Act is the domestic legislation which gives effect to the Community principle of non-discrimination on grounds of sex in relation to pay, pursuant to Article 119 of the Treaty and the Directive.
47 Accordingly, as the Advocate General rightly pointed out in paragraph 48 of his Opinion, the fact that the same procedural rules - namely, the limitation period laid down by section 2(5) of the Equal Pay Act - apply to two comparable claims, one relying on a right conferred by Community law, the other on a right acquired under domestic law, is not enough to ensure compliance with the principle of equivalence, as the United Kingdom Government maintains, since one and the same form of action is involved.
48 Following the accession of the United Kingdom to the Communities, the Act constitutes the legislation by means of which the United Kingdom discharges its obligations under Article 119 of the Treaty and, subsequently, under the Directive.  The Act cannot therefore provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence.
50 If it transpires, on the basis of the principles set out in paragraphs 41 to 44 of this judgment, that a claim under the Act which is brought before the County Court is similar to one or more of the forms of action listed by the national court, it would remain for that court to determine whether the first-mentioned form of action is governed by procedural rules or other requirements which are less favourable.
51 On that point, it is appropriate to consider whether, in order fully to assert rights conferred by Community law before the County Court, an employee in circumstances such as those of Mrs Levez will incur additional costs and delay by comparison with a claimant who, because he is relying on what may be regarded as a similar right under domestic law, may bring an action before the Industrial Tribunal, which is simpler and, in principle, less costly.
53 In view of the foregoing, the answer must be that Community law precludes the application of a rule of national law which limits an employee's entitlement to arrears of remuneration or damages for breach of the principle of equal pay to a period of two years prior to the date on which the proceedings were instituted, even when another remedy is available, if the latter is likely to entail procedural rules or other conditions which are less favourable than those applicable to similar domestic actions.  It is for the national court to determine whether that is the case.