C-80/70

Social policy of the EEC — Men and women workers — Pay — Concept — Social security benefits — Retirement pensions — Schemes established by legislation — Exclusion — Discrimination

(EEC Treaty, Article 119)

The concept of pay as defined in Article sibly the public authorities contribute in 119 of the EEC Treaty does not include a measure determined less by the em­ social security schemes or benefits dir­ ployment relationship between the em­ ectly governed by legislation without any ployer and the worker than by considera­ element of agreement within the under­ tions of social policy. The part due from taking or the occupational branch con­ the employer in the financing of such cerned, which are obligatorily applicable schemes does not constitute a direct or to general categories of workers or which, indirect payment to the worker; the within the framework of such a general latter receives the benefits legally pre­ system established by legislation, relate scribed solely by reason of the fact that to certain categories of workers in par­ he fulfils the legal conditions required ticular. for their being granted. This applies especially to retirement Situations involving discrimination re­ pension schemes which give workers the sulting from the application of such a benefit of a legal system, the financing scheme are not subject to the require­ of which, workers, employers and pos- ments of Article 119.

In Case 80/70

Reference to the Court under Article 177 of the EEC Treaty by the Belgian Conseil d'État for a preliminary ruling in the action pending before that court between

composed of: R. Lecourt, President, A. M. Donner and A. Trabucchi, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore (Rapporteur) and H. Kutscher, Judges,

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure and the special conditions of application of Royal Decree No 50 of 24 October Miss Gabrielle Defrenne was engaged as 1967 concerning retirement pensions and an air hostess by the airline company survivor's pensions of employed work­ Sabena on 10 December 1951. ers (Moniteur belge of 10 December On 15 February 1968, the date on 1969, pp. 11903 to 11911). which she reached the age of 40 years, In support of this application Miss Miss Defrenne's contract was determined Defrenne claimed the infringement on under Article 5 of the contract of em­ the one hand of Article 14 of Royal De­ ployment of air crew of Sabena, which cree No 40 of 24 October 1967 on the provides that women shall cease to be work of women and on the other hand members of the crew on reaching the of Article 119 of the EEC Treaty. age of 40 years. By order dated 4 December 1970 lodged Miss Defrenne brought an action before at the Court Registry on 11 December, the Conseil de prud'hommes, Brussels, the Belgian Conseil d'État, section for damages for breach of contract. In­ d'administration, IIIrd Chamber, stayed dependently of this action, which is still the proceedings and referred the follow­ pending as an appeal before the Cour ing questions to the Court for a pre­ du travail, Brussels, Miss Defrenne made liminary ruling under Article 177 of the an application on 9 February 1970 to EEC Treaty: the Belgian Conseil d'État for annulment (a) Does the retirement pension granted of the Royal Decree of 3 November 1969 under the terms of the social security laying down special rules for civil avia­ financed by contributions from work­ tion air crews on entitlement to pension ers, employers and by State subsidy,

constitute a consideration which the tion of very general scope, to formulate worker receives indirectly in respect a global definition of a pension system of his employment from his em which is made up of different schemes ployer? and consequently requires separate and (b) Can the rules establish a different distinct definitions according to the in age-limit for men and women crew dividual scheme. In the present case an members in civil aviation? analysis is required of the retirement (c) Do air hostesses and stewards in pension scheme of air crew as laid down civil aviation do the same work?

sented by Marie-Thérèse Cuvelliez, Ad ticular piece of Community legislation. vocate of the Brussels Bar, the defendant It is proper however not to yield to for in the main action by Henri Wynants, malism incompatible with the true nature Advocate of the Brussels Bar and the of the procedure laid down by Article Commission by its Legal Adviser, Italo 177; it is clear that the Conseil d'État Telchini. intended to ask the Court of Justice

It is right to action, is of the opinion that the first ensure the uniform interpretation of question raised by the Conseil d'État Article 119 in the Community and to needs to be defined in order to avoid the this end to reserve its interpretation to Court's being led, by means of a ques- the Court of Justice.

The second question Court of Justice to decide, but one which ought to be left to the jurisdiction of Miss Defrenne considers that to come the court trying the main action. within the jurisdiction of the Court the second question must be interpreted as B — Substance meaning: Does equal pay, as laid down by Article 119 of the EEC Treaty, imply The first question or presuppose equal treatment, that is Miss Defrenne observes that in a general to say, equality in the working conditions way in modern law the concept of 'salary' between men and women doing equal has been considerably widened.

worker. A part is likewise made up of does not come within the scope of 'indirect salary' or 'social salary' (family Article 119 which refers only to pay. allowances, paid holidays, retirement The third question pensions, for example). The principle of equal pay enshrined in Article 119 of Miss Defrenne is of the opinion that the the EEC Treaty likewise applies to the third question raised by the Conseil components of the salary which depend d'État does not come within the juris on its social character.

DEFRENNE v BELGIUM

The em Actually, from the economic point of ployer is not the debtor. The payment view, this pension thus constitutes, of the contributions by the employer and within the meaning of Article 119 of the payment of the social benefits to the EEC Treaty, 'salary' in the form those entitled have their origin in the of deferred pay or at least a benefit paid law, the decree, the order or the regula 'in cash' which thе worker receives in tion, but not in the employment.

employer. Whether the concept of 'salary' is in In other countries of the Community air terpreted in accordance with Community hostesses are not excluded from the pen law or internal Belgian law and whether sion scheme for air crew. The Royal the legal or economic viewpoint is taken, Decree of 3 November 1969 creates an it is not possible to say that social inequality in burdens and involves dis security constitutes consideration which tortion in the conditions of competition. the worker receives in respect of his For all these reasons it is right to give employment from his employer: the em an affirmative reply to the first question. ployer does not finance the system alone; The Belgian State, represented by the the contributions and benefits paid have Minister for Social Security, states that their origin in the laws and regulations; Article 119 of the Treaty has only an the employment is only the reason for economic objective, since its aim is to the payment. avoid discrepancies in cost prices due to The first question therefore calls for an the employment of female labour less answer in the negative. well paid for the same work than male The Commission of the European Com labour. munities observes that the first question Moreover national laws establish a clear raised by the Conseil d'État relates distinction between the contract of em basically to the interpretation of the ployment sector and the social security concept of 'consideration . . . which the

JUDGMENT OF 25. 5. 1971 — CASE 80/70

nature neither the social security contri­ all matters governed by contract and butions from the employer nor the bene­ regulation bearing some relation to the fit paid by the social security institutions work. The strict nature of the principle should be regarded as salaries. laid down in Article 119 is linked to its As regards the concept of considera­ limited scope. Social security benefits tion . . . which the worker receives . . . in general and pensions in particular indirectly, in respect of his employment must be excluded from the scope of from his employer', the Commission re­ Article 119. fers to Convention No 100 of 1951 of the International Labour Office from The second question which it clearly appears that social secur­ Miss Defrenne is of the opinion that ity benefits are completely excluded the principle of equality laid down by from salary. The same conclusion arises Article 119 likewise includes the equal­ from a recommendation by the Commis­ ity in the conditions of employment in sion of 22 July 1960 to the Member the exercise of the right to employment. States concerning Article 119 of the This equality is infringed by the Royal Treaty and the reply by the Commission Decree in question. of 6 October 1966 to a written question The Belgian State maintains .that to the from a Member of the European Parlia­ extent that the conditions of employ­ ment. ment, including the age-limit, reflect in An interpretation or Article 119 from respect of air hostesses objective factors the point of view of its intention would other than that of sex, they cannot con­ lead to identical conclusions. travene either the spirit or the actual The basic objective of Article 119 is to provisions of the EEC Treaty. ensure to men and women in each Mem­ The present case is concerned with a ber State the same pay whether direct or contract of employment for a fixed term; indirect for the same work. It does not the question of the duration of the con­ establish a general principle of equality tract does not come within the terms between men and women extending to of Article 119.

Decree of 3 November 1969 concerning retirement pensions to civil aviation air crews—a decree issued within the framework of the general scheme for retirement pensions and survivor's pensions of workers—and more particu­ larly on a provision of this decree excluding air hostesses from the scheme in question.

4 According to the plaintiff in the main action this exclusion is contrary to the principle of equality laid down by Article 119, since the benefit of the pension forms part of the 'pay' as defined in the second paragraph of Article 119 as consideration which the worker receives indirectly from his employer.

5 Accordnig to the first paragraph of Article 119 of the EEC Treaty Member States are required to ensure the application of the principle that men and women should receive equal pay for equal work.

6 The provision in the second paragraph of the article extends the concept of pay to 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.

7 Although consideration in the nature of social security benefits is not there­ fore in principle alien to the concept of pay, there cannot be brought within this concept, as defined in Article 119, social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch con­ cerned, which are obligatorily applicable to general categories of workers.

8 These schemes assure for the workers the benefit of a legal scheme, the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship between the employer and the worker than by considerations of social policy.

The second and the third questions

14 The second question asks whether the rules applicable to the worker can 'establish a different age-limit for men and women crew members in civil aviation'.

15 The third question asks in addition whether air hostesses and stewards in civil aviation do 'the same work'.

16 In view of the answer given to the first question the other questions do not call for a reply.

Costs

17/18 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable as these proceed­ ings 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 Belgian Conseil d'État, the decision as to costs is a matter for that court.

2. The other questions do not call for a reply.

Lecourt Dormer Trabucchi

Monaco Mertens de Wilmars Pescatore Kutscher

Delivered in open court in Luxembourg on 25 May 1971.

A. Van Houtte R. Lecourt Registrar President

OPINION OF MR ADVOCATE-GENERAL