61981J0012

1 . SOCIAL POLICY - MEN AND WOMEN - PAY - EQUALITY - PRINCIPLE - DISCRIMINATION ARISING FROM TRAVEL FACILITIES PROVIDED FOR FORMER EMPLOYEES AFTER RETIREMENT

( EEC TREATY , ART . 119 )

2 . SOCIAL POLICY , MEN AND WOMEN - PAY - EQUALITY - PRINCIPLE - DIRECT EFFECT - DISCRIMINATION BASED ON DIFFERENCE OF SEX CAPABLE OF BEING ESTABLISHED BY NATIONAL COURT

( EEC TREATY , ART . 119 )

1 . THE FACT THAT AN EMPLOYER ( ALTHOUGH NOT BOUND TO DO SO BY CONTRACT ) PROVIDES SPECIAL TRAVEL FACILITIES FOR FORMER MALE EMPLOYEES TO ENJOY AFTER THEIR RETIREMENT CONSTITUTES DISCRIMINATION WITHIN THE MEANING OF ARTICLE 119 AGAINST FORMER FEMALE EMPLOYEES WHO DO NOT RECEIVE THE SAME FACILITIES .

2 . WHERE A NATIONAL COURT IS ABLE , USING THE CRITERIA OF EQUAL WORK AND EQUAL PAY , WITHOUT THE OPERATION OF COMMUNITY OR NATIONAL MEASURES , TO ESTABLISH THAT THE GRANT BY AN EMPLOYER OF SPECIAL TRAVEL FACILITIES SOLELY TO RETIRED MALE EMPLOYEES REPRESENTS DISCRIMINATION BASED ON DIFFERENCE OF SEX , THE PROVISIONS OF ARTICLE 119 OF THE TREATY APPLY DIRECTLY TO SUCH A SITUATION .

IN CASE 12/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HOUSE OF LORDS OF THE UNITED KINGDOM FOR A PRELIMINARY RULING IN THE ACTION PENDING BETWEEN

EILEEN GARLAND

AND

BRITISH RAIL ENGINEERING LIMITED

ON THE INTERPRETATION OF THE RULES OF THE EEC TREATY ON THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN IN CONNECTION WITH A DIFFERENCE IN TRAVEL BENEFITS ENJOYED BY MALE AND FEMALE EMPLOYEES AFTER RETIREMENT ,

1 BY ORDER DATED 19 JANUARY 1981 WHICH WAS RECEIVED AT THE COURT ON 22 JANUARY 1981 THE HOUSE OF LORDS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS AS TO THE INTERPRET ATION OF ARTICLE 119 OF THE TREATY , ARTICLE 1 OF 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 , P . 19 ) AND OF ARTICLE 1 OF COUNCIL DIRECTIVE 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 ).

2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF A DISPUTE BETWEEN AN EMPLOYEE OF BRITISH RAIL ENGINEERING LIMITED , A SUBSIDIARY OF THE BRITISH RAILWAYS BOARD , WHICH IS A BODY CREATED BY THE TRANSPORT ACT 1962 CHARGED WITH THE DUTY OF MANAGING THE RAILWAYS IN THE UNITED KINGDOM , AND HER EMPLOYER CONCERNING DISCRIMINATION ALLEGED TO BE SUFFERED BY FEMALE EMPLOYEES WHO ON RETIREMENT NO LONGER CONTINUE TO ENJOY TRAVEL FACILITIES FOR THEIR SPOUSES AND DEPENDENT CHILDREN ALTHOUGH MALE EMPLOYEES CONTINUE TO DO SO .

3 IT WAS SUBMITTED BEFORE THE HOUSE OF LORDS THAT THAT SITUATION WAS CONTRARY TO ARTICLE 119 AND THE DIRECTIVES IMPLEMENTING IT AND THE HOUSE OF LORDS THEREFORE REFERRED THE FOLLOWING TWO QUESTIONS TO THE COURT :

' ' 1 . WHERE AN EMPLOYER PROVIDES ( ALTHOUGH NOT BOUND TO DO SO BY CONTRACT ) SPECIAL TRAVEL FACILITIES FOR FORMER EMPLOYEES TO ENJOY AFTER RETIREMENT WHICH DISCRIMINATE AGAINST FORMER FEMALE EMPLOYEES IN THE MANNER DESCRIBED ABOVE , IS THIS CONTRARY TO :

( A ) ARTICLE 119 OF THE EEC TREATY?

( B)ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC?

( C)ARTICLE 1 OF COUNCIL DIRECTIVE 76/207/EEC?

2.IF THE ANSWER TO QUESTIONS 1 ( A ), 1 ( B ) OR 1 ( C ) IS AFFIRMATIVE , IS ARTICLE 119 OR EITHER OF THE SAID DIRECTIVES DIRECTLY APPLICABLE IN MEMBER STATES SO AS TO CONFER ENFORCEABLE COMMUNITY RIGHTS UPON INDIVIDUALS IN THE ABOVE CIRCUMSTANCES?

' '

QUESTION 1

4 TO ASSIST IN ANSWERING THE FIRST QUESTION IT IS FIRST OF ALL NECESSARY TO INVESTIGATE THE LEGAL NATURE OF THE SPECIAL TRAVEL FACILITIES AT ISSUE IN THIS CASE WHICH THE EMPLOYER GRANTS ALTHOUGH NOT CONTRACTUALLY BOUND TO DO SO .

5 IT IS IMPORTANT TO NOTE IN THIS REGARD THAT IN PARAGRAPH 6 OF ITS JUDGMENT OF 25 MAY 1971 IN CASE 80/70 DEFRENNE ( 1971 ) ECR 445 , AT P . 451 , THE COURT STATED THAT THE CONCEPT OF PAY CONTAINED IN THE SECOND PARAGRAPH OF ARTICLE 119 COMPRISES ANY OTHER CONSIDERATION , WHETHER IN CASH OR IN KIND , WHETHER IMMEDIATE OR FUTURE , PROVIDED THAT THE WORKER RECEIVES IT , ALBEIT INDIRECTLY , IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER .

6 ACCORDING TO THE ORDER MAKING THE REFERENCE FOR A PRELIMINARY RULING , WHEN MALE EMPLOYEES OF THE RESPONDENT UNDERTAKING RETIRE FROM THEIR EMPLOYMENT ON REACHING RETIREMENT AGE THEY CONTINUE TO BE GRANTED SPECIAL TRAVEL FACILITIES FOR THEMSELVES , THEIR WIVES AND THEIR DEPENDENT CHILDREN .

7 A FEATURE OF THOSE FACILITIES IS THAT THEY ARE GRANTED IN KIND BY THE EMPLOYER TO THE RETIRED MALE EMPLOYEE OR HIS DEPENDANTS DIRECTLY OR INDIRECTLY IN RESPECT OF HIS EMPLOYMENT .

8 MOREOVER , IT APPEARS FROM A LETTER SENT BY THE BRITISH RAILWAYS BOARD TO THE TRADE UNIONS ON 4 DECEMBER 1975 THAT THE SPECIAL TRAVEL FACILITIES GRANTED AFTER RETIREMENT MUST BE CONSIDERED TO BE AN EXTENSION OF THE FACILITIES GRANTED DURING THE PERIOD OF EMPLOYMENT .

9 IT FOLLOWS FROM THOSE CONSIDERATIONS THAT RAIL TRAVEL FACILITIES SUCH AS THOSE REFERRED TO BY THE HOUSE OF LORDS FULFIL THE CRITERIA ENABLING THEM TO BE TREATED AS PAY WITHIN THE MEANING OF ARTICLE 119 OF THE EEC TREATY .

10 THE ARGUMENT THAT THE FACILITIES ARE NOT RELATED TO A CONTRACTUAL OBLIGATION IS IMMATERIAL . THE LEGAL NATURE OF THE FACILITIES IS NOT IMPORTANT FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 119 PROVIDED THAT THEY ARE GRANTED IN RESPECT OF THE EMPLOYMENT .

11 IT FOLLOWS THAT WHERE AN EMPLOYER ( ALTHOUGH NOT BOUND TO DO SO BY CONTRACT ) PROVIDES SPECIAL TRAVEL FACILITIES FOR FORMER MALE EMPLOYEES TO ENJOY AFTER THEIR RETIREMENT THIS CONSTITUTES DISCRIMINATION WITHIN THE MEANING OF ARTICLE 119 AGAINST FORMER FEMALE EMPLOYEES WHO DO NOT RECEIVE THE SAME FACILITIES .

12 IN VIEW OF THE INTERPRETATION GIVEN TO ARTICLE 119 OF THE EEC TREATY , WHICH BY ITSELF ANSWERS THE QUESTION POSED BY THE HOUSE OF LORDS , THERE IS NO NEED TO CONSIDER POINTS ( B ) AND ( C ) OF QUESTION 1 WHICH RAISE THE SAME QUESTION WITH REFERENCE TO ARTICLE 1 OF DIRECTIVE 75/117/EEC AND OF DIRECTIVE 76/207/EEC .

QUESTION 2

13 SINCE QUESTION 1 ( A ) HAS BEEN ANSWERED IN THE AFFIRMATIVE THE QUESTION ARISES OF THE DIRECT APPLICABILITY OF ARTICLE 119 IN THE MEMBER STATES AND OF THE RIGHTS WHICH INDIVIDUALS MAY INVOKE ON THAT BASIS BEFORE NATIONAL COURTS .

14 IN PARAGRAPH 17 OF ITS JUDGMENT OF 31 MARCH 1981 IN CASE 96/80 JENKINS V KINGSGATE ( 1981 ) ECR 911 , AT P . 926 , THE COURT STATED THAT ARTICLE 119 OF THE TREATY APPLIES DIRECTLY TO ALL FORMS OF 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 , WITHOUT NATIONAL OR COMMUNITY MEASURES BEING REQUIRED TO DEFINE THEM WITH GREATER PRECISION IN ORDER TO PERMIT OF THEIR APPLICATION .

15 WHERE A NATIONAL COURT IS ABLE , USING THE CRITERIA OF EQUAL WORK AND EQUAL PAY , WITHOUT THE OPERATION OF COMMUNITY OR NATIONAL MEASURES , TO ESTABLISH THAT THE GRANT OF SPECIAL TRANSPORT FACILITIES SOLELY TO RETIRED MALE EMPLOYEES REPRESENTS DISCRIMINATION BASED ON DIFFERENCE OF SEX , THE PROVISIONS OF ARTICLE 119 OF THE TREATY APPLY DIRECTLY TO SUCH A SITUATION .

COSTS

16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THIS CASE IS , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

HEREBY RULES :

1 . WHERE AN EMPLOYER ( ALTHOUGH NOT BOUND TO DO SO BY CONTRACT ) PROVIDES SPECIAL TRAVEL FACILITIES FOR FORMER MALE EMPLOYEES TO ENJOY AFTER THEIR RETIREMENT THIS CONSTITUTES DISCRIMINATION WITHIN THE MEANING OF ARTICLE 119 AGAINST FORMER FEMALE EMPLOYEES WHO DO NOT RECEIVE THE SAME FACILITIES .

2 . WHERE A NATIONAL COURT IS ABLE , USING THE CRITERIA OF EQUAL WORK AND EQUAL PAY , WITHOUT THE OPERATION OF COMMUNITY OR NATIONAL MEASURES , TO ESTABLISH THAT THE GRANT OF SPECIAL TRAVEL FACILITIES SOLELY TO RETIRED MALE EMPLOYEES REPRESENTS DISCRIMINATION BASED ON DIFFERENCE OF SEX , THE PROVISIONS OF ARTICLE 119 OF THE TREATY APPLY DIRECTLY TO SUCH A SITUATION .