1 BY ORDER OF 25 JULY 1979 , RECEIVED AT THE COURT ON 10 AUGUST 1979 , THE COURT OF APPEAL IN LONDON REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY AND ARTICLE 1 OF COUNCIL DIRECTIVE NO 75/117 OF 10 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN ( OFFICIAL JOURNAL L 45 , P . 19 ).
2 IT APPEARS FROM THE FILE THAT THE RESPONDENT IN THE MAIN ACTION , MRS WENDY SMITH , WAS EMPLOYED AS FROM 1 MARCH 1976 BY MACARTHYS LIMITED , WHOLESALE DEALERS IN PHARMACEUTICAL PRODUCTS , AS A WAREHOUSE MANAGERESS AT A WEEKLY SALARY OF POUNDS 50 . SHE COMPLAINS OF DISCRIMINATION IN PAY BECAUSE HER PREDECESSOR , A MAN , WHOSE POST SHE TOOK UP AFTER AN INTERVAL OF FOUR MONTHS , RECEIVED A SALARY OF POUNDS 60 PER WEEK .
3 MRS WENDY SMITH BROUGHT PROCEEDINGS BEFORE THE INDUSTRIAL TRIBUNAL ON THE BASIS OF THE EQUAL PAY ACT 1970 . BY ITS DECISION OF 27 JUNE 1977 THAT TRIBUNAL HELD THAT THE APPLICANT WAS EMPLOYED ON LIKE WORK WITH HER PREDECESSOR AND ORDERED MACARTHYS TO PAY THE APPLICANT A SALARY EQUAL TO HIS SALARY .
4 MACARTHYS APPEALED TO THE EMPLOYMENT APPEAL TRIBUNAL , WHICH DISMISSED THE APPEAL BY ITS JUDGMENT OF 14 DECEMBER 1977 . THAT JUDGMENT , WHICH WAS BASED , AS WAS THE DECISION OF THE INDUSTRIAL TRIBUNAL , ON THE EQUAL PAY ACT , MADE REFERENCE ALSO TO ARTICLE 119 OF THE EEC TREATY AND TO THE JUDGMENT OF THE COURT OF JUSTICE OF 8 APRIL 1976 IN CASE 43/75 GABRIELLE DEFRENNE V SABENA ( 1976 ) ECR 455 WHICH WAS CONCERNED WITH THE INTERPRETATION OF THAT PROVISION .
5 A FURTHER APPEAL WAS BROUGHT BEFORE THE COURT OF APPEAL BY THE EMPLOYER . THE EMPLOYER CONTENDED THAT , ACCORDING TO ITS NATURAL AND ORDINARY MEANING , THE EQUAL PAY ACT MAKES IT IMPERMISSIBLE FOR A WOMAN TO COMPARE HER SITUATION WITH THAT OF A MAN FORMERLY IN THE EMPLOYMENT OF THE SAME EMPLOYER . IN ITS SUBMISSION , SUCH AN INTERPRETATION WOULD NOT BE INCONSISTENT WITH THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN LAID DOWN IN ARTICLE 119 OF THE EEC TREATY .
6 FOR HER PART , THE RESPONDENT IN THE MAIN ACTION CONTENDED THAT MACARTHYS ' INTERPRETATION WAS CONTRARY TO ARTICLE 119 AND TO ARTICLE 1 OF DIRECTIVE NO 75/117 IN THAT THE PRINCIPLE OF EQUAL PAY FOR EQUAL WORK IS NOT CONFINED TO SITUATIONS IN WHICH MEN AND WOMEN ARE CONTEMPORANEOUSLY DOING EQUAL WORK FOR THEIR EMPLOYER BUT THAT , ON THE CONTRARY , THAT PRINCIPLE ALSO APPLIES WHERE A WORKER CAN SHOW THAT SHE RECEIVES LESS PAY IN RESPECT OF HER EMPLOYMENT THAN SHE WOULD HAVE RECEIVED IF SHE WERE A MAN DOING EQUAL WORK FOR THE EMPLOYER OR THAN HAD BEEN RECEIVED BY A MALE WORKER WHO HAD BEEN EMPLOYED PRIOR TO HER PERIOD OF EMPLOYMENT AND WHO HAD BEEN DOING EQUAL WORK FOR HER EMPLOYER .
7 IN ORDER TO DECIDE THE DISPUTE THE COURT OF APPEAL FORMULATED FOUR QUESTIONS WORDED AS FOLLOWS : ' ' 1 . IS THE PRINCIPLE OF EQUAL PAY FOR EQUAL WORK , CONTAINED IN ARTICLE 119 OF THE EEC TREATY AND ARTICLE 1 OF THE EEC COUNCIL DIRECTIVE OF 10 FEBRUARY 1975 ( 75/117/EEC ), CONFINED TO SITUATIONS IN WHICH MEN AND WOMEN ARE CONTEMPORANEOUSLY DOING EQUAL WORK FOR THEIR EMPLOYER? 2 . IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE , DOES THE SAID PRINCIPLE APPLY WHERE A WORKER CAN SHOW THAT SHE RECEIVES LESS PAY IN RESPECT OF HER EMPLOYMENT FROM HER EMPLOYER : ( A ) THAN SHE WOULD HAVE RECEIVED IF SHE WERE A MAN DOING EQUAL WORK FOR THE EMPLOYER ; OR ( B ) THAN HAD BEEN RECEIVED BY A MALE WORKER WHO HAD BEEN EMPLOYED PRIOR TO HER PERIOD OF EMPLOYMENT AND WHO HAD BEEN DOING EQUAL WORK FOR THE EMPLOYER? 3 . IF THE ANSWER TO QUESTION 2 ( A ) OR ( B ) IS IN THE AFFIRMATIVE , IS THAT ANSWER DEPENDENT UPON THE PROVISIONS OF ARTICLE 1 OF THE SAID DIRECTIVE? 4 . IF THE ANSWER TO QUESTION 3 IS IN THE AFFIRMATIVE , IS ARTICLE 1 OF THE SAID DIRECTIVE DIRECTLY APPLICABLE IN MEMBER STATES? ' '
8 IT FOLLOWS FROM THE WORDING OF THESE QUESTIONS , AS MUCH AS FROM THE REASONS GIVEN IN THE ORDER MAKING THE REFERENCE , THAT THE QUESTIONS RELATING TO THE EFFECT OF DIRECTIVE NO 75/117 AND TO THE INTERPRETATION OF ARTICLE 1 THEREOF ONLY ARISE IF THE APPLICATION OF ARTICLE 119 OF THE TREATY SHOULD NOT PERMIT THE ISSUE RAISED IN THE PROCEEDINGS TO BE RESOLVED . IT IS THEREFORE APPROPRIATE TO CONSIDER FIRST HOW ARTICLE 119 IS TO BE INTERPRETED HAVING REGARD TO THE LEGAL SITUATION IN WHICH THE DISPUTE HAS ITS ORIGIN . THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY
9 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 119 THE MEMBER STATES ARE OBLIGED TO ENSURE AND MAINTAIN ' ' THE APPLICATION OF THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY FOR EQUAL WORK ' ' .
10 AS THE COURT INDICATED IN THE DEFRENNE JUDGMENT OF 8 APRIL 1976 , THAT PROVISION APPLIES DIRECTLY , AND WITHOUT THE NEED FOR MORE DETAILED IMPLEMENTING MEASURES ON THE PART OF THE COMMUNITY OR THE MEMBER STATES , TO ALL FORMS OF DIRECT AND OVERT DISCRIMINATION WHICH MAY BE IDENTIFIED SOLELY WITH THE AID OF THE CRITERIA OF EQUAL WORK AND EQUAL PAY REFERRED TO BY THE ARTICLE IN QUESTION . AMONG THE FORMS OF DISCRIMINATION WHICH MAY BE THUS JUDICIALLY IDENTIFIED , THE COURT MENTIONED IN PARTICULAR CASES WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE .
11 IN SUCH A SITUATION THE DECISIVE TEST LIES IN ESTABLISHING WHETHER THERE IS A DIFFERENCE IN TREATMENT BETWEEN A MAN AND A WOMAN PERFORMING ' ' EQUAL WORK ' ' WITHIN THE MEANING OF ARTICLE 119 . THE SCOPE OF THAT CONCEPT , WHICH IS ENTIRELY QUALITATIVE IN CHARACTER IN THAT IT IS EXCLUSIVELY CONCERNED WITH THE NATURE OF THE SERVICES IN QUESTION , MAY NOT BE RESTRICTED BY THE INTRODUCTION OF A REQUIREMENT OF CONTEMPORANEITY .
12 IT MUST BE ACKNOWLEDGED , HOWEVER , THAT , AS THE EMPLOYMENT APPEAL TRIBUNAL PROPERLY RECOGNIZED , IT CANNOT BE RULED OUT THAT A DIFFERENCE IN PAY BETWEEN TWO WORKERS OCCUPYING THE SAME POST BUT AT DIFFERENT PERIODS IN TIME MAY BE EXPLAINED BY THE OPERATION OF FACTORS WHICH ARE UNCONNECTED WITH ANY DISCRIMINATION ON GROUNDS OF SEX . THAT IS A QUESTION OF FACT WHICH IT IS FOR THE COURT OR TRIBUNAL TO DECIDE .
13 THUS THE ANSWER TO THE FIRST QUESTION SHOULD BE THAT THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY FOR EQUAL WORK , ENSHRINED IN ARTICLE 119 OF THE EEC TREATY , IS NOT CONFINED TO SITUATIONS IN WHICH MEN AND WOMEN ARE CONTEMPORANEOUSLY DOING EQUAL WORK FOR THE SAME EMPLOYER .
14 THE SECOND QUESTION PUT BY THE COURT OF APPEAL AND EXPRESSED IN TERMS OF ALTERNATIVES CONCERNS THE FRAMEWORK WITHIN WHICH THE EXISTENCE OF POSSIBLE DISCRIMINATION IN PAY MAY BE ESTABLISHED . THIS QUESTION IS INTENDED TO ENABLE THE COURT TO RULE UPON A SUBMISSION MADE BY THE RESPONDENT IN THE MAIN ACTION AND DEVELOPED BY HER BEFORE THE COURT OF JUSTICE TO THE EFFECT THAT A WOMAN MAY CLAIM NOT ONLY THE SALARY RECEIVED BY A MAN WHO PREVIOUSLY DID THE SAME WORK FOR HER EMPLOYER BUT ALSO , MORE GENERALLY , THE SALARY TO WHICH SHE WOULD BE ENTITLED WERE SHE A MAN , EVEN IN THE ABSENCE OF ANY MAN WHO WAS CONCURRENTLY PERFORMING , OR HAD PREVIOUSLY PERFORMED , SIMILAR WORK . THE RESPONDENT IN THE MAIN ACTION DEFINED THIS TERM OF COMPARISON BY REFERENCE TO THE CONCEPT OF WHAT SHE DESCRIBED AS ' ' A HYPOTHETICAL MALE WORKER ' ' .
15 IT IS CLEAR THAT THE LATTER PROPOSITION , WHICH IS THE SUBJECT OF QUESTION 2 ( A ), IS TO BE CLASSED AS INDIRECT AND DISGUISED DISCRIMINATION , THE IDENTIFICATION OF WHICH , AS THE COURT EXPLAINED IN THE DEFRENNE JUDGMENT , CITED ABOVE , IMPLIES COMPARATIVE STUDIES OF ENTIRE BRANCHES OF INDUSTRY AND THEREFORE REQUIRES , AS A PREREQUISITE , THE ELABORATION BY THE COMMUNITY AND NATIONAL LEGISLATIVE BODIES OF CRITERIA OF ASSESSMENT . FROM THAT IT FOLLOWS THAT , IN CASES OF ACTUAL DISCRIMINATION FALLING WITHIN THE SCOPE OF THE DIRECT APPLICATION OF ARTICLE 119 , COMPARISONS ARE CONFINED TO PARALLELS WHICH MAY BE DRAWN ON THE BASIS OF CONCRETE APPRAISALS OF THE WORK ACTUALLY PERFORMED BY EMPLOYEES OF DIFFERENT SEX WITHIN THE SAME ESTABLISHMENT OR SERVICE .
16 THE ANSWER TO THE SECOND QUESTION SHOULD THEREFORE BE THAT THE PRINCIPLE OF EQUAL PAY ENSHRINED IN ARTICLE 119 APPLIES TO THE CASE WHERE IT IS ESTABLISHED THAT , HAVING REGARD TO THE NATURE OF HER SERVICES , A WOMAN HAS RECEIVED LESS PAY THAN A MAN WHO WAS EMPLOYED PRIOR TO THE WOMAN ' S PERIOD OF EMPLOYMENT AND WHO DID EQUAL WORK FOR THE EMPLOYER .
17 FROM THE FOREGOING IT APPEARS THAT THE DISPUTE BROUGHT BEFORE THE NATIONAL COURT MAY BE DECIDED WITHIN THE FRAMEWORK OF AN INTERPRETATION OF ARTICLE 119 OF THE TREATY ALONE . IN THOSE CIRCUMSTANCES IT IS UNNECESSARY TO ANSWER THE QUESTIONS SUBMITTED IN SO FAR AS THEY RELATE TO THE EFFECT AND TO THE INTERPRETATION OF DIRECTIVE NO 75/117 .