Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena.
Date: 1978-06-15
12THE FIRST PART OF THE QUESTION RAISED BY THE COUR DE CASSATION SEEKS TO DISCOVER WHETHER THE PRINCIPLE OF EQUAL PAY LAID DOWN BY ARTICLE 119 MAY BE INTERPRETED AS REQUIRING GENERAL EQUALITY OF WORKING CONDITIONS FOR MEN AND WOMEN , SO THAT THE INSERTION INTO THE CONTRACT OF EMPLOYMENT OF AN AIR HOSTESS OF A CLAUSE BRINGING THE CONTRACT TO AN END WHEN SHE REACHES THE AGE OF 40 YEARS , IT BEING ESTABLISHED THAT NO SUCH LIMIT IS ATTACHED TO THE CONTRACT OF MALE CABIN ATTENDANTS WHO CARRY OUT THE SAME WORK , CONSTITUTES DISCRIMINATION PROHIBITED BY THE SAID PROVISION .
19IN CONTRAST TO THE PROVISIONS OF ARTICLES 117 AND 118 , WHICH ARE ESSENTIALLY IN THE NATURE OF A PROGRAMME , ARTICLE 119 , WHICH IS LIMITED TO THE QUESTION OF PAY DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS , CONSTITUTES A SPECIAL RULE , WHOSE APPLICATION IS LINKED TO PRECISE FACTORS .
20IN THESE CIRCUMSTANCES IT IS IMPOSSIBLE TO EXTEND THE SCOPE OF THAT ARTICLE TO ELEMENTS OF THE EMPLOYMENT RELATIONSHIP OTHER THAN THOSE EXPRESSLY REFERRED TO .
21IN PARTICULAR , THE FACT THAT THE FIXING OF CERTAIN CONDITIONS OF EMPLOYMENT - SUCH AS A SPECIAL AGE-LIMIT - MAY HAVE PECUNIARY CONSEQUENCES IS NOT SUFFICIENT TO BRING SUCH CONDITIONS WITHIN THE FIELD OF APPLICATION OF ARTICLE 119 , WHICH IS BASED ON THE CLOSE CONNEXION WHICH EXISTS BETWEEN THE NATURE OF THE SERVICES PROVIDED AND THE AMOUNT OF REMUNERATION .
22THAT IS A FORTIORI TRUE SINCE THE TOUCHSTONE WHICH FORMS THE BASIS OF ARTICLE 119 - THAT IS , THE COMPARABLE NATURE OF THE SERVICES PROVIDED BY WORKERS OF EITHER SEX - IS A FACTOR AS REGARDS WHICH ALL WORKERS ARE EX HYPOTHESI ON AN EQUAL FOOTING , WHEREAS IN MANY RESPECTS AN ASSESSMENT OF THE OTHER CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS INVOLVES FACTORS CONNECTED WITH THE SEX OF THE WORKERS , TAKING INTO ACCOUNT CONSIDERATIONS AFFECTING THE SPECIAL POSITION OF WOMEN IN THE WORK PROCESS .
26THE COURT HAS REPEATEDLY STATED THAT RESPECT FOR FUNDAMENTAL PERSONAL HUMAN RIGHTS IS ONE OF THE GENERAL PRINCIPLES OF COMMUNITY LAW , THE OBSERVANCE OF WHICH IT HAS A DUTY TO ENSURE .
27THERE CAN BE NO DOUBT THAT THE ELIMINATION OF DISCRIMINATION BASED ON SEX FORMS PART OF THOSE FUNDAMENTAL RIGHTS .
29ATTENTION MUST BE DRAWN IN THIS REGARD TO THE FACT THAT IN ITS JUDGMENTS OF 7 JUNE 1972 IN CASE 20/71 SABBATINI ( NEE BERTONI ) V EUROPEAN PARLIAMENT (( 1972 ) ECR 345 ) AND 20 FEBRUARY 1975 IN CASE 21/74 AIROLA V COMMISSION OF THE EUROPEAN COMMUNITIES (( 1975 ) ECR 221 ), THE COURT RECOGNIZED THE NEED TO ENSURE EQUALITY IN THE MATTER OF WORKING CONDITIONS FOR MEN AND WOMEN EMPLOYED BY THE COMMUNITY ITSELF , WITHIN THE CONTEXT OF THE STAFF REGULATIONS OF OFFICIALS .
30ON THE OTHER HAND , AS REGARDS THE RELATIONSHIPS OF EMPLOYER AND EMPLOYEE WHICH ARE SUBJECT TO NATIONAL LAW , THE COMMUNITY HAD NOT , AT THE TIME OF THE EVENTS NOW BEFORE THE BELGIAN COURTS , ASSUMED ANY RESPONSIBILITY FOR SUPERVISING AND GUARANTEEING THE OBSERVANCE OF THE PRINCIPLE OF EQUALITY BETWEEN MEN AND WOMEN IN WORKING CONDITIONS OTHER THAN REMUNERATION .
31AS HAS BEEN STATED ABOVE , AT THE PERIOD UNDER CONSIDERATION COMMUNITY LAW CONTAINED ONLY THE PROVISIONS IN THE NATURE OF A PROGRAMME LAID DOWN BY ARTICLES 117 AND 118 OF THE TREATY , WHICH RELATE TO THE GENERAL DEVELOPMENT OF SOCIAL WELFARE , IN PARTICULAR AS REGARDS CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS .
32IT FOLLOWS THAT THE SITUATION BEFORE THE BELGIAN COURTS IS GOVERNED BY THE PROVISIONS AND PRINCIPLES OF INTERNAL AND INTERNATIONAL LAW IN FORCE IN BELGIUM .