61981J0061

SOCIAL POLICY - MEN AND WOMEN - PAY - EQUALITY - PRINCIPLE - IMPLEMENTATION BY THE MEMBER STATES - WORK TO WHICH EQUAL VALUE IS ATTRIBUTED - RIGHTS TO EQUAL PAY EVEN IN THE ABSENCE OF A SYSTEM OF JOB CLASSIFICATION - DUTIES OF THE MEMBER STATES

( EEC TREATY , ART . 119 ; COUNCIL DIRECTIVE 75/117/EEC , ART . 1 , FIRST PARAGRAPH )

THE GENERAL SCHEME AND CONTENT OF DIRECTIVE 75/117 , WHOSE ESSENTIAL PURPOSE IS TO IMPLEMENT THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN , INDICATE THAT IT IS THE RESPONSIBILITY OF THE MEMBER STATES TO GUARANTEE THE RIGHT TO RECEIVE EQUAL PAY FOR WORK OF EQUAL VALUE EVEN IN THE ABSENCE OF A SYSTEM OF JOB CLASSIFICATION . TO THAT END THEY MUST MAKE USE OF APPROPRIATE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS IN SUCH A WAY THAT ALL EMPLOYEES IN THE COMMUNITY MAY BE PROTECTED IN THESE MATTERS . IT FOLLOWS THAT WHERE THERE IS DISAGREEMENT AS TO THE APPLICATION OF THE CONCEPT OF ' ' WORK TO WHICH EQUAL VALUE IS ATTRIBUTED ' ' WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 1 OF THE DIRECTIVE , THE WORKER MUST BE ENTITLED TO CLAIM BEFORE AN APPROPRIATE AUTHORITY THAT HIS WORK HAS THE SAME VALUE AS OTHER WORK AND , IF THAT IS FOUND TO BE THE CASE , TO HAVE HIS RIGHTS UNDER THE TREATY AND THE DIRECTIVE ACKNOWLEDGED BY A BINDING DECISION . EACH MEMBER STATE MUST THEREFORE ENDOW AN AUTHORITY WITH THE REQUISITE JURISDICTION TO DECIDE WHETHER WORK HAS THE SAME VALUE AS OTHER WORK .

IN CASE 61/81

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOHN FORMAN , A MEMBER OF THE LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , REPRESENTED BY MRS G . DAGTOGLOU , OF THE TREASURY SOLICITOR ' S DEPARTMENT , ACTING AS AGENT , ASSISTED BY PETER SCOTT , QC , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BRITISH EMBASSY , 28 BOULEVARD ROYAL ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COUNCIL DIRECTIVE 75/117/EEC 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 , 1975 , P . 19 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 18 MARCH 1981 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE UNITED KINGDOM HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY BY FAILING TO ADOPT THE LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 75/117/EEC 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 , 1975 , P . 19 ), AS REGARDS THE ELIMINATION OF DISCRIMINATION FOR WORK TO WHICH EQUAL VALUE IS ATTRIBUTED .

2 THE FIRST ARTICLE OF THE DIRECTIVE , WHICH THE COMMISSION CONSIDERS HAS NOT BEEN APPLIED BY THE UNITED KINGDOM , PROVIDES THAT :

' ' THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN OUTLINED IN ARTICLE 119 OF THE TREATY , HEREINAFTER CALLED ' PRINCIPLE OF EQUAL PAY ' , MEANS , FOR THE SAME WORK OR FOR WORK TO WHICH EQUAL VALUE IS ATTRIBUTED , THE ELIMINATION OF ALL DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO ALL ASPECTS AND CONDITIONS OF REMUNERATION .

IN PARTICULAR , WHERE A JOB CLASSIFICATION SYSTEM IS USED FOR DETERMINING PAY , IT MUST BE BASED ON THE SAME CRITERIA FOR BOTH MEN AND WOMEN AND SO DRAWN UP AS TO EXCLUDE ANY DISCRIMINATION ON GROUNDS OF SEX . ' '

3 THE REFERENCE TO ' ' WORK TO WHICH EQUAL VALUE IS ATTRIBUTED ' ' IS USED IN THE UNITED KINGDOM IN THE EQUAL PAY ACT 1970 , AS AMENDED BY THE SEX DISCRIMINATION ACT 1975 . SECTION 1 ( 5 ) OF THE ACT PROVIDES THAT :

' ' A WOMAN IS TO BE REGARDED AS EMPLOYED ON WORK RATED AS EQUIVALENT WITH THAT OF ANY MEN IF , BUT ONLY IF , HER JOB AND THEIR JOB HAVE BEEN GIVEN AN EQUAL VALUE , IN TERMS OF THE DEMAND MADE ON THE WORKER UNDER VARIOUS HEADINGS ( FOR INSTANCE EFFORT , SKILL , DECISION ), ON A STUDY UNDERTAKEN WITH A VIEW TO EVALUATING IN THOSE TERMS THE JOBS TO BE DONE BY ALL OR ANY OF THE EMPLOYEES IN AN UNDERTAKING OR GROUP OF UNDERTAKINGS , OR WOULD HAVE BEEN GIVEN AN EQUAL VALUE BUT FOR THE EVALUATION BEING MADE ON A SYSTEM SETTING DIFFERENT VALUES FOR MEN AND WOMEN ON THE SAME DEMAND UNDER ANY HEADING . ' '

4 COMPARISON OF THOSE PROVISIONS REVEALS THAT THE JOB CLASSIFICATION SYSTEM IS , UNDER THE DIRECTIVE , MERELY ONE OF SEVERAL METHODS FOR DETERMINING PAY FOR WORK TO WHICH EQUAL VALUE IS ATTRIBUTED , WHEREAS UNDER THE PROVISION IN THE EQUAL PAY ACT QUOTED ABOVE THE INTRODUCTION OF SUCH A SYSTEM IS THE SOLE METHOD OF ACHIEVING SUCH A RESULT .

5 IT IS ALSO NOTEWORTHY THAT , AS THE UNITED KINGDOM CONCEDES , BRITISH LEGISLATION DOES NOT PERMIT THE INTRODUCTION OF A JOB CLASSIFICATION SYSTEM WITHOUT THE EMPLOYER ' S CONSENT . WORKERS IN THE UNITED KINGDOM ARE THEREFORE UNABLE TO HAVE THEIR WORK RATED AS BEING OF EQUAL VALUE WITH COMPARABLE WORK IF THEIR EMPLOYER REFUSES TO INTRODUCE A CLASSIFICATION SYSTEM .

6 THE UNITED KINGDOM ATTEMPTS TO JUSTIFY THAT STATE OF AFFAIRS BY POINTING OUT THAT ARTICLE 1 OF THE DIRECTIVE SAYS NOTHING ABOUT THE RIGHT OF AN EMPLOYEE TO INSIST ON HAVING PAY DETERMINED BY A JOB CLASSIFICATION SYSTEM . ON THAT BASIS IT CONCLUDES THAT THE WORKER MAY NOT INSIST ON A COMPARATIVE EVALUATION OF DIFFERENT WORK BY THE JOB CLASSIFICATION METHOD , THE INTRODUCTION OF WHICH IS AT THE EMPLOYER ' S DISCRETION .

7 THE UNITED KINGDOM ' S INTERPRETATION AMOUNTS TO A DENIAL OF THE VERY EXISTENCE OF A RIGHT TO EQUAL PAY FOR WORK OF EQUAL VALUE WHERE NO CLASSIFICATION HAS BEEN MADE . SUCH A POSITION IS NOT CONSONANT WITH THE GENERAL SCHEME AND PROVISIONS OF DIRECTIVE 75/117 . THE RECITALS IN THE PREAMBLE TO THAT DIRECTIVE INDICATE THAT ITS ESSENTIAL PURPOSE IS TO IMPLEMENT THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY CONTAINED IN ARTICLE 119 OF THE TREATY AND THAT IT IS PRIMARILY THE RESPONSIBILITY OF THE MEMBER STATES TO ENSURE THE APPLICATION OF THIS PRINCIPLE BY MEANS OF APPROPRIATE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS IN SUCH A WAY THAT ALL EMPLOYEES IN THE COMMUNITY CAN BE PROTECTED IN THESE MATTERS .

8 TO ACHIEVE THAT END THE PRINCIPLE IS DEFINED IN THE FIRST PARAGRAPH OF ARTICLE 1 SO AS TO INCLUDE UNDER THE TERM ' ' THE SAME WORK ' ' , THE CASE OF ' ' WORK TO WHICH EQUAL VALUE IS ATTRIBUTED ' ' , AND THE SECOND PARAGRAPH EMPHASIZES MERELY THAT WHERE A JOB CLASSIFICATION SYSTEM IS USED FOR DETERMINING PAY IT IS NECESSARY TO ENSURE THAT IT IS BASED ON THE SAME CRITERIA FOR BOTH MEN AND WOMEN AND SO DRAWN UP AS TO EXCLUDE ANY DISCRIMINATION ON GROUNDS OF SEX .

9 IT FOLLOWS THAT WHERE THERE IS DISAGREEMENT AS TO THE APPLICATION OF THAT CONCEPT A WORKER MUST BE ENTITLED TO CLAIM BEFORE AN APPROPRIATE AUTHORITY THAT THIS WORK HAS THE SAME VALUE AS OTHER WORK AND , IF THAT IS FOUND TO BE THE CASE , TO HAVE HIS RIGHTS UNDER THE TREATY AND THE DIRECTIVE ACKNOWLEDGED BY A BINDING DECISION . ANY METHOD WHICH EXCLUDES THAT OPTION PREVENTS THE AIMS OF THE DIRECTIVE FROM BEING ACHIEVED .

10 THAT IS BORNE OUT BY THE TERMS OF ARTICLE 6 OF THE DIRECTIVE WHICH PROVIDES THAT MEMBER STATES ARE , IN ACCORDANCE WITH THEIR NATIONAL CIRCUMSTANCES AND LEGAL SYSTEMS , TO TAKE THE MEASURES NECESSARY TO ENSURE THAT THE PRINCIPLE OF EQUAL PAY IS APPLIED . THEY ARE TO SEE THAT EFFECTIVE MEANS ARE AVAILABLE TO TAKE CARE THAT THIS PRINCIPLE IS OBSERVED .

11 IN THIS INSTANCE , HOWEVER , THE UNITED KINGDOM HAS NOT ADOPTED THE NECESSARY MEASURES AND THERE IS AT PRESENT NO MEANS WHEREBY A WORKER WHO CONSIDERS THAT THIS POST IS OF EQUAL VALUE TO ANOTHER MAY PURSUE HIS CLAIMS IF THE EMPLOYER REFUSES TO INTRODUCE A JOB CLASSIFICATION SYSTEM .

12 THE UNITED KINGDOM HAS EMPHASIZED ( PARTICULARLY IN ITS LETTER TO THE COMMISSION DATED 19 JUNE 1979 ) THE PRACTICAL DIFFICULTIES WHICH WOULD STAND IN THE WAY OF IMPLEMENTING THE CONCEPT OF WORK TO WHICH EQUAL VALUE HAS BEEN ATTRIBUTED IF THE USE OF A SYSTEM LAID DOWN BY CONSENSUS WERE ABANDONED . THE UNITED KINGDOM BELIEVES THAT THE CRITERION OF WORK OF EQUAL VALUE IS TOO ABSTRACT TO BE APPLIED BY THE COURTS .

13 THE COURT CANNOT ENDORSE THAT VIEW . THE IMPLEMENTATION OF THE DIRECTIVE IMPLIES THAT THE ASSESSMENT OF THE ' ' EQUAL VALUE ' ' TO BE ' ' ATTRIBUTED ' ' TO PARTICULAR WORK , MAY BE EFFECTED NOTWITHSTANDING THE EMPLOYER ' S WISHES , IF NECESSARY IN THE CONTEXT OF ADVERSARY PROCEEDINGS . THE MEMBER STATES MUST ENDOW AN AUTHORITY WITH THE REQUISITE JURISDICTION TO DECIDE WHETHER WORK HAS THE SAME VALUE AS OTHER WORK , AFTER OBTAINING SUCH INFORMATION AS MAY BE REQUIRED .

14 ACCORDINGLY , BY FAILING TO INTRODUCE INTO ITS NATIONAL LEGAL SYSTEM IN IMPLEMENTATION OF THE PROVISIONS OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 SUCH MEASURES AS ARE NECESSARY TO ENABLE ALL EMPLOYEES WHO CONSIDER THEMSELVES WRONGED BY FAILURE TO APPLY THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN FOR WORK TO WHICH EQUAL VALUE IS ATTRIBUTED AND FOR WHICH NO SYSTEM OF JOB CLASSIFICATION EXISTS TO OBTAIN RECOGNITION OF SUCH EQUIVALENCE , THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT , BY FAILING TO INTRODUCE INTO ITS NATIONAL LEGAL SYSTEM IN IMPLEMENTATION OF THE PROVISIONS OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 SUCH MEASURES AS ARE NECESSARY TO ENABLE ALL EMPLOYEES WHO CONSIDER THEMSELVES WRONGED BY FAILURE TO APPLY THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN FOR WORK TO WHICH EQUAL VALUE IS ATTRIBUTED AND FOR WHICH NO SYSTEM OF JOB CLASSIFICATION EXISTS TO OBTAIN RECOGNITION OF SUCH EQUIVALENCE , THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ;

2 . ORDERS THE UNITED KINGDOM TO PAY THE COSTS .