61977J0149

1 . SOCIAL POLICY - MEN AND WOMEN WORKERS - PAY - EQUALITY - PRINCIPLE - SCOPE - LIMITS

( EEC TREATY , ART . 119 )

2 . COMMUNITY LAW - GENERAL PRINCIPLES OF LAW - FUNDAMENTAL PERSONAL RIGHTS - OBSERVANCE ENSURED BY THE COURT - DISCRIMINATION BASED ON SEX - PROHIBITION - POWERS OF THE COMMUNITY - LIMITS

1 . ARTICLE 119 OF THE EEC TREATY , 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 . IT CANNOT BE INTERPRETED AS PRESCRIBING , IN ADDITION TO EQUAL PAY , EQUALITY IN RESPECT OF THE OTHER WORKING CONDITIONS APPLICABLE TO MEN AND WOMEN .

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 .

2 . FUNDAMENTAL PERSONAL HUMAN RIGHTS FORM PART OF THE GENERAL PRINCIPLES OF COMMUNITY LAW , THE OBSERVANCE OF WHICH THE COURT HAS A DUTY TO ENSURE . THE ELIMINATION OF DISCRIMINATION BASED ON SEX FORMS PART OF THOSE FUNDAMENTAL RIGHTS . HOWEVER , IT IS NOT FOR THE COURT TO ENFORCE THE OBSERVANCE OF THAT RULE OF NON- DISCRIMINATION IN RESPECT OF RELATIONSHIPS BETWEEN EMPLOYER AND EMPLOYEE WHICH ARE A MATTER EXCLUSIVELY FOR NATIONAL LAW .

IN CASE 149/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION , BELGIUM , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

GABRIELLE DEFRENNE , A FORMER AIR HOSTESS , RESIDING IN BRUSSELS-JETTE ,

AND

SOCIETE ANONYME BELGE DE NAVIGATION AERIENNE SABENA , WHOSE REGISTERED OFFICE IS IN BRUSSELS ,

ON THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY ,

1BY JUDGMENT OF 28 NOVEMBER 1977 , RECEIVED AT THE COURT ON 12 DECEMBER 1977 , THE COUR DE CASSATION OF BELGIUM REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A PRELIMINARY QUESTION RELATING TO THE SCOPE OF THE PRINCIPLE PROHIBITING DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS LAID DOWN BY ARTICLE 119 OF THE TREATY .

2THAT QUESTION AROSE WITHIN THE CONTEXT OF AN ACTION BROUGHT BEFORE THE BELGIAN LABOUR COURTS BY THE APPELLANT IN THE MAIN ACTION , MISS GABRIELLE DEFRENNE , A FORMER AIR HOSTESS , AGAINST THE SOCIETE BELGE DE NAVIGATION AERIENNE SABENA FOLLOWING THE TERMINATION OF HER EMPLOYMENT , IN ACCORDANCE WITH THE TERMS OF HER CONTRACT , WHEN SHE REACHED THE AGE-LIMIT OF 40 YEARS .

3MISS DEFRENNE HAD ORIGINALLY BROUGHT AN ACTION BEFORE THE TRIBUNAL DU TRAVAIL , BRUSSELS , ON THE BASIS OF ARTICLE 119 OF THE EEC TREATY , THE OBJECT OF WHICH WAS TO ORDER SABENA TO PAY :

( 1 ) COMPENSATION BY REASON OF THE FACT THAT , AS A WOMAN WORKER , SHE HAD SUFFERED DISCRIMINATION IN THE MATTER OF PAY AS COMPARED WITH HER MALE COLLEAGUES CARRYING OUT THE SAME WORK AS CABIN STEWARDS ;

( 2 ) A SUPPLEMENTARY ALLOWANCE ON TERMINATION OF SERVICE , REPRESENTING THE DIFFERENCE BETWEEN THE ALLOWANCE ACTUALLY RECEIVED BY HER ON HER DEPARTURE AND THE ALLOWANCE WHICH WOULD HAVE BEEN RECEIVED BY A CABIN STEWARD AT THE AGE OF 40 WITH THE SAME SENIORITY WHO HAD BEEN DECLARED PERMANENTLY UNFIT FOR EMPLOYMENT ;

( 3 ) COMPENSATION FOR THE DAMAGE SUFFERED BY THE APPELLANT AS REGARDS HER PENSION .

4BY A JUDGMENT OF 17 DECEMBER 1970 THE TRIBUNAL DU TRAVAIL DISMISSED THAT ACTION IN ITS ENTIRETY AS UNFOUNDED .

5BY A JUDGMENT OF 23 APRIL 1975 ON THE APPEAL LODGED BY THE APPLICANT IN THE ORIGINAL ACTION THE COUR DU TRAVAIL , BRUSSELS , UPHELD THE JUDGMENT AT FIRST INSTANCE ON THE SECOND AND THIRD HEADS OF CLAIM .

6FOR THE PURPOSE OF GIVING JUDGMENT ON THE FIRST HEAD OF CLAIM THAT COURT REFERRED TO THE COURT OF JUSTICE TWO PRELIMINARY QUESTIONS WHICH FORMED THE SUBJECT OF CASE 43/75 ON 8 APRIL 1976 (( 1976 ) ECR 455 ).

7FOLLOWING THE PRELIMINARY RULING , THE COUR DU TRAVAIL BY A JUDGMENT OF 24 NOVEMBER 1976 AWARDED THE APPLICANT THE SUM OF BFRS 12 716 BY WAY OF THE ARREARS OF REMUNERATION CLAIMED , INCREASED BY INTEREST AND COSTS .

8MISS DEFRENNE LODGED AN APPEAL IN CASSATION AGAINST THE JUDGMENT OF THE COUR DU TRAVAIL AS REGARDS THE HEADS OF CLAIM WHICH IT HAD DISMISSED AND THE COUR DE CASSATION IN TURN REFERRED THE MATTER TO THE COURT OF JUSTICE UNDER ARTICLE 117 OF THE TREATY .

9IT MUST BE RECALLED AGAIN THAT , IN THE SAME CONTEXT , MISS DEFRENNE HAD BROUGHT AN ACTION BEFORE THE CONSEIL D ' ETAT OF BELGIUM AGAINST THE BELGIAN ROYAL DECREE OF 3 NOVEMBER 1969 ON RETIREMENT PENSIONS FOR CIVIL AVIATION AIR CREW , WHICH RELATED , IN PARTICULAR , TO THE VALIDITY OF A PROVISION OF THAT DECREE EXCLUDING AIR HOSTESSES FROM THE SCHEME IN QUESTION .

10FOR ITS PART THE CONSEIL D ' ETAT REFERRED TO THE COURT OF JUSTICE CERTAIN QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 119 OF THE TREATY , WHICH FORMED THE SUBJECT OF THE JUDGMENT OF 25 MAY 1971 IN CASE 80/70 (( 1971 ) ECR 445 ).

11IN ORDER TO RESOLVE THE QUESTIONS AT PRESENT BEFORE IT , THE COUR DE CASSATION HAS REFERRED TO THE COURT A PRELIMINARY QUESTION , WORDED IN TWO PARTS , WHICH REQUIRES CLEAR REPLIES INASMUCH AS IT RELATES , FIRST , TO THE DETERMINATION OF THE FIELD OF APPLICATION OF ARTICLE 119 OF THE TREATY AND , SECONDLY , TO THE POSSIBLE EXISTENCE OF A GENERAL PRINCIPLE OF COMMUNITY LAW , THE AIM OF WHICH IS TO ELIMINATE DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS AS REGARDS CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS OTHER THAN REMUNERATION IN THE STRICT SENSE .

THE FIRST PART OF THE QUESTION - SCOPE OF ARTICLE 119 OF THE EEC TREATY

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 .

13ACCORDING TO THE APPELLANT IN THE MAIN ACTION ARTICLE 119 MUST BE GIVEN A WIDE INTERPRETATION , INASMUCH AS IT IS ONLY A SPECIFIC STATEMENT OF A GENERAL PRINCIPLE AGAINST DISCRIMINATION WHICH HAS FOUND MANY EXPRESSIONS IN THE TREATY .

14IN PARTICULAR SHE CLAIMS THAT THE CONTESTED CLAUSE CONTAINED IN THE CONTRACT OF EMPLOYMENT OF AIR HOSTESSES , FIXING AN AGE-LIMIT OF 40 , IS SUBJECT TO THE RULE AGAINST DISCRIMINATION CONTAINED IN ARTICLE 119 BY REASON OF THE FACT THAT , FIRST , A WOMAN WORKER CAN RECEIVE PAY EQUAL TO THAT RECEIVED BY MEN ONLY IF THE REQUIREMENT REGARDING EQUAL CONDITIONS OF EMPLOYMENT IS FIRST SATISFIED AND , SECONDLY , THAT THE AGE-LIMIT IMPOSED ON AIR HOSTESSES BY THE CONTRACT OF EMPLOYMENT HAS PECUNIARY CONSEQUENCES WHICH ARE PREJUDICIAL AS REGARDS THE ALLOWANCE ON TERMINATION OF SERVICE AND PENSION .

15THE FIELD OF APPLICATION OF ARTICLE 119 MUST BE DETERMINED WITHIN THE CONTEXT OF THE SYSTEM OF THE SOCIAL PROVISIONS OF THE TREATY , WHICH ARE SET OUT IN THE CHAPTER FORMED BY ARTICLE 117 ET SEQ .

16THE GENERAL FEATURES OF THE CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS ARE CONSIDERED IN ARTICLES 117 AND 118 FROM THE POINT OF VIEW OF THE HARMONIZATION OF THE SOCIAL SYSTEMS OF THE MEMBER STATES AND OF THE APPROXIMATION OF THEIR LAWS IN THAT FIELD .

17THERE IS NO DOUBT THAT THE ELIMINATION OF DISCRIMINATION BASED ON THE SEX OF WORKERS FORMS PART OF THE PROGRAMME FOR SOCIAL AND LEGISLATIVE POLICY WHICH WAS CLARIFIED IN CERTAIN RESPECTS BY THE COUNCIL RESOLUTION OF 21 JANUARY 1974 ( OFFICIAL JOURNAL C 13 , P . 1 ).

18THE SAME THOUGHT ALSO UNDERLIES COUNCIL DIRECTIVE NO 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION AND WORKING CONDITIONS ( OFFICIAL JOURNAL L 39 , P . 40 ).

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 .

23IT IS , THEREFORE , IMPOSSIBLE TO WIDEN THE TERMS OF ARTICLE 119 TO THE POINT , FIRST , OF JEOPARDIZING THE DIRECT APPLICABILITY WHICH THAT PROVISION MUST BE ACKNOWLEDGED TO HAVE IN ITS OWN SPHERE AND , SECONDLY , OF INTERVENING IN AN AREA RESERVED BY ARTICLES 117 AND 118 TO THE DISCRETION OF THE AUTHORITIES REFERRED TO THEREIN .

24THE REPLY TO THE FIRST PART OF THE QUESTION MUST THEREFORE BE THAT ARTICLE 119 OF THE TREATY CANNOT BE INTERPRETED AS PRESCRIBING , IN ADDITION TO EQUAL PAY , EQUALITY IN RESPECT OF THE OTHER WORKING CONDITIONS APPLICABLE TO MEN AND WOMEN .

THE SECOND PART OF THE QUESTION - THE EXISTENCE OF A GENERAL PRINCIPLE PROHIBITING DISCRIMINATION BASED ON SEX IN CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS

25THE SECOND PART OF THE QUESTION ASKS WHETHER , APART FROM THE SPECIFIC PROVISIONS OF ARTICLE 119 , COMMUNITY LAW CONTAINS ANY GENERAL PRINCIPLE PROHIBITING DISCRIMINATION BASED ON SEX AS REGARDS THE CONDITIONS OF EMPLOYMENT AND WORKING CONDITIONS OF MEN AND WOMEN .

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 .

28MOREOVER , THE SAME CONCEPTS ARE RECOGNIZED BY THE EUROPEAN SOCIAL CHARTER OF 18 NOVEMBER 1961 AND BY CONVENTION NO 111 OF THE INTERNATIONAL LABOUR ORGANIZATION OF 25 JUNE 1958 CONCERNING DISCRIMINATION IN RESPECT OF EMPLOYMENT AND OCCUPATION .

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 .

33THE REPLY TO THE SECOND PART OF THE QUESTION MUST THEREFORE BE THAT AT THE TIME OF THE EVENTS WHICH FORM THE BASIS OF THE MAIN ACTION THERE WAS , AS REGARDS THE RELATIONSHIPS BETWEEN EMPLOYER AND EMPLOYEE UNDER NATIONAL LAW , NO RULE OF COMMUNITY LAW PROHIBITING DISCRIMINATION BETWEEN MEN AND WOMEN IN THE MATTER OF WORKING CONDITIONS OTHER THAN THE REQUIREMENTS AS TO PAY REFERRED TO IN ARTICLE 119 OF THE TREATY .

COSTS

34THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM , THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

35AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE COUR DE CASSATION OF BELGIUM , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR DE CASSATION OF BELGIUM BY JUDGMENT OF 28 NOVEMBER 1977 , HEREBY RULES :

ARTICLE 119 OF THE EEC TREATY CANNOT BE INTERPRETED AS PRESCRIBING , IN ADDITION TO EQUAL PAY , EQUALITY IN RESPECT OF THE OTHER WORKING CONDITIONS APPLICABLE TO MEN AND WOMEN .

AT THE TIME OF THE EVENTS WHICH FORM THE BASIS OF THE MAIN ACTION THERE WAS , AS REGARDS THE RELATIONSHIPS BETWEEN EMPLOYER AND EMPLOYEE UNDER NATIONAL LAW , NO RULE OF COMMUNITY LAW PROHIBITING DISCRIMINATION BETWEEN MEN AND WOMEN IN THE MATTER OF WORKING CONDITIONS OTHER THAN THE REQUIREMENTS AS TO PAY REFERRED TO IN ARTICLE 119 OF THE TREATY .