C-149/77

JUDGMENT OF THE COURT OF 15 JUNE 1978

Gabriellc Defrenne v Société Anonyme Belge de Navigation Aérienne Sabena (preliminary ruling requested by Cour de Cassation, Belgium) the

"Equal conditions of employment for men and women"

Cue 149/77

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 — —

interpreted as prescribing, in addition Community law, the observance of

to equal in respect of which the Court has a duty to pay, equality ensure. The elimination of discrimi­ the other working conditions

applicable to men and women. nation based on sex forms part of

fact those fundamental rights. However, The that the fixing of certain it is not for the Court to enforce the conditions of employment — such as non- have observance of that rule of a special age-limit may —

consequences is not discrimination in respect of pecuniary sufficient to bring such conditions relationships between employer and

within the field of application of employee which are a matter

Gabrielle Defrenne , a former air hostess, residing in Brussels-Jette,

and

Société ANONYME BELGE DE Navigation Aérienne Sabena , whose registered

office is in Brussels,

on the interpretation of Article 119 of the EEC Treaty,

THE COURT

the observations submitted under Article February 1968 in pursuance of the sixth

20 of the Protocol on the Statute of the paragraph of Article 5 of the contract of

Court of Justice of the EEC be employment entered into by air crew may summarized as follows: employed by Sabena, which stated that contracts held by women members of the crew were to terminate on the day

on which the employee in question I — Facts and written procedure reached the age of 40 years.

When Miss Defrenne left she received Miss Gabrielle Defrenne was engaged an allowance on termination of service

as a trainee air hostess by the Société equal to twelve month's remuneration.

judgment of the Court of Justice of 25 heads of claim (which sought an order

May 1971 (Case 80/70 [1971] ECR to Sabena to pay a supplementary 445), as a result of which the Conseil allowance on termination of service and

d'Etat dismissed Miss Defrenne's compensation for the damage suffered

application by a judgment of 10 as regards her pension). December 1971. By judgment of 28 November 1977 the

Miss Defrenne had brought Cour de Cassation, Belgium, Third previously an action before the Tribunal du Travail Chamber, decided, in pursuance of Article 177 of the EEC Treaty, to stay (Labour Tribunal), Brussels, on 13 March 1968 for Sabena the proceedings until the Court of an order to to

increased Justice had given a preliminary ruling pay appears of salary, an

appealed from that judgment to the women, and, in particular, does the

Cour du Travail (Labour Court), insertion into the contract of

Brussels. employment of an air hostess of a clause

By judgment of 23 April 1975 that court bringing the said contract to an end

when she reaches the age of 40 years, it upheld the judgment at first instance on being established that no such limit is the second and third heads of claim attached to the contract of male cabin relating to the allowance on termination attendants who are assumed to do the of service and the pension. As regards same work, constitute discrimination the first head of claim (arrears of salary) Cour du prohibitedby the said Article 119 of the the Travail, Brussels, requested

the Court of Justice to give a pre­ Treaty of Rome or by a principle of Community law if that clause may have liminary ruling on two questions in pecuniary consequences, particular, concerning the interpretation of Article as regards the allowance on termination 119 of the EEC Treaty. pension?"

JUDGMENT OF 15. 6. 1978 — CASE N9/77

Upon hearing the report of the Judge- types of discrimination which derive Rapporteur and the views of the directly from legislative provisions or

Advocate General the Court decided to collective labour agreements. The issue open the oral procedure without in this instance concerns precisely a

holding any preparatory inquiry. collective labour agreement which forms an integral part of the contract of

employment which contains, as regards

II — Written observations sub­ female cabin staff, a clause fixing an

ment as regards those workers, in which it comes into force. particular where such conditions involve The age-limit laid down in Miss consequences which are pecuniary Defrenne's contract of employment can discriminatory. be only regarded as indicating permanent physical unfitness, consisting (a) In very fact of reaching the age of accordance with the teleological in the method of interpretation and the 40 years. Permanent physical unfitness principle of effectiveness Article 119 is in fact expressly provided for in the

must be interpreted in accordance with contract of employment, both as regards

the aims of the Treaty and so as to take female and male staff. In those circum­

effect in a manner which corresponds to to award a lesser allowance to stances, those aims. the female staff on the ground of a

As is special type of physical unfitness shown by Articles 48 and 117 one

EEC is constitutes discrimination which has of the aims of the Treaty the consequences as regards the abolition of all discrimination as pecuniary allowance on termination of service. between the nationals of the Member States. Several judgments of the Court The principle that men and women

tionalities. It seems inconceivable, employment would lead to discrimi­

therefore, that the same equality should nation as regards salary between two

not exist as between the nationals of a workers doing equal work. single country as a result, in particular,

of discriminatory conditions of (b) The question before the Court of

employment. As regards Article 119 in Justice relates also to the existence of a

particular, the Court has acknowledged principle of Community law prohibiting its mandatory nature and direct discrimination between men and women

concerning general principles of law and After explaining the legal position in the protection of fundamental rights, it Italy as regards equal pay and noting must be noted that the principle of that the Italian Republic has fully equal pay for men and women is a implemented both Article 119 of the fundamental principle of the Treaty and Treaty and Council Directive No that the Staff Regulations of Officials of 75/117 of 10 February 1975 on the the Communities contain a general rule approximation of the laws of the against discrimination on grounds of Member States relating to the sex. If, in the case of officials of the application of the principle of equal pay European institutions, the general for men and women (Official Journal principle of law which prohibits discrimi­ L 45, p.19), the Government of the nation on grounds of sex forms part of Italian Republic states its interest in Community law to be applied by the seeing the principles of equality and Court of Justice, that same principle of values generally applied in all social the law must also apply to women workers Member States of the Community. employed in the Member States, since

they are covered by a guarantee of non-

(a) In order to ensure and maintain discrimination expressly laid down in the full and effective application of the Article 119 of the Treaty, which is only principle that men and women should a specific application of. the general receive equal pay it is necessary to principle. achieve the equality, in principle, of all

Furthermore, in the context of working conditions which have a direct Community law Article 119 can only be or indirect effect on pay. Article 119 understood as one of the formal also prohibits those types of indirect expressions of a principle that there discrimination as regards pay which are

grounds of sex. expression of a fundamental right.

(c) Thus, Article 119 of the EEC (c) The discrimination at issue in the

Treaty embraces the principle that there main action appears to be comparable,

shall be equal conditions of employment within the meaning of the case-law of "direct"

and in the matters covered by the the Court of Justice, to

Treaty — which include work — the discrimination: it derives from a con-

of a contract or, generally speaking, on performed by him or her shall not be the basis of rules of private law. affected by the sex of that employee. It does not purport to deal expressly or by

(d) In its judgment of 8 April 1976 the implication with any inequality of the

Court of Justice ruled that, having sexes in other respects such as the age at

regard to "important considerations of which an employee qualifies or ceases to

legal certainty affecting all the interests qualify for employment, or at which he involved", no retroactive effect should or she may retire and/or become attach to the recognition of the directly entitled to a pension.

applicable nature of Article 119, except In its judgment of 8 April 1976 the as regards the main anion within the Court of Justice distinguished expressly context of which its judgment was given between direct and overt discrimination and the other actions already pending. discrimi­ and indirect and disguised The Government of the Italian Republic nation. The former could be measured is — for reasons which it sets out in full by the national courts; in regard to — in favour of that view. A clause indirect and disguised discrimination the against retroactive effect might equally taking of appropriate measures at appear in the judgment of the Court in the present case: to state a principle of Community and national level would be required. The issues raised by the main law, according to which Article 119 of

therefore receive the following reply: treatment for men and women as

DEFRENNE v SABENA

regards access to employment, The Commission of the European vocational training and promotion and Communities observes that in support of

conditions (Official Journal her appeal the appellant before the working L 39, p. 40). It follows that Community Cour de Cassation isrelying both on

action in conjunction with national the infringement of Article 119 of the

legislation is the appropriate manner in EEC Treaty and on the breach of a

within the of obligations to achieve equal treatment meaning other than in the field such Article 119 must also be understood to of pay, mean that all conditions must obligations would not be directly working applicable so as to give rise to rights to be equal and whether the pecuniary which the courts of Member States consequences of the insertion into the

contract of employment of an air would be bound to give effect at the suit

of one individual against another. The hostess of a clause bringing the said

question in contract to an end, whereas no such of equality relation to

retirement age and pension entitlement clause is attached to the contract of

raises issues which are too complex for cabin attendants, must be regarded as

contract of employment of woman a to all conditions and a referring working clause bringing the contract to an end at conditions of employment, and, in an earlier age than a man doing the particular, to those relating to re­

discrimi­ same work does not constitute cruitment and dismissal, including social nation by the said Article 119 prohibited security benefits in general and pension or by any principle of Community law schemes in particular, which bear the which can be held to be directly closest resemblance to pay. However, applicable so as to confer on an the Court of Justice has ruled that "a individual a right which can be relied retirement pension established within

upon before a national court. the framework of a social security

JUDGMENT OF 15. 6. 1978 — CASE 149/77

scheme laid down by legislation does whether such an allowance on termi­

not constitute consideration which the nation of service is or is not in the

the same pay, whether direct or smaller amount, all other things being indirect, for the same work. It does not equal, in particular, seniority in the

lay down any general principle of service, that would clearly constitute

equality between men and women as discrimination within the meaning of

regards every factor which bears some Article 119. In the present case air

relationship to the work. The strict hostesses and cabin stewards both nature of the principle laid down by receive the same amount by way of the Article 119 is directly linked to the allowance on termination of service.

limited scope of its field of application. The difference between the only treatment of the female cabin staff and Thus, the question of the fixing of a

du Travail, Brussels, of Miss Defrenne's employment they receive an allowance

claim for compensation for the damage which is exactly equal and is calculated

suffered as regards her old-age pension. on the basis of the same criteria, without any distinction based on sex. As regards the allowance on termination

of service, Miss Defrenne maintains that Miss Defrenne is confusing two

that allowance is an indirect situations, both of which it is true give clearly consideration such as is referred to in rise to an allowance by the employer

Article 119 and that she ought therefore but which are totally different in nature

to compare — as it would be appro­ As things are at present, Miss Defrenne priate to do — situations which are can claim rights on the basis of a

absolutely identical for men and general principle of Community law women. It is therefore extremely only if such principle were recognized

difficult to give a final opinion on that as having direct effect. Having regard to point. The only thing which may be said its wording and vast content Article 117

is that discrimination in working cannot be regarded as being of that

conditions and conditions of employ­ nature.

ment is not, as such, covered by Article The above considerations relate only to 119 but that any discrimination which the rights guaranteed by Community results therefrom as regards pay may be law and to the obligations of the regarded as contrary to Article 119. Member States as regards its application. They do not prejudge either (b) As regards Articles 2, 3 and 117 of the lawful nature of the contested clause

advancement, and as regards working takings.

conditions, including pay", that as

regards pay it further adopted Directive (c) The reply to be given to the No 75/117 and, as regards the Cour de question submitted by the employment of women in general, Cassation of Belgium might be as Directive No 76/207. Social security is, follows: however, excluded from the latter, since Article 119 of the Treaty, which lays the gradual implementation of the down the principle that men and women principle of equal treatment in that field should receive equal pay for equal is to be brought about by subsequent

work, refers only to equal pay. That measures. In one of its recitals Directive provision prohibits only discrimination No 76/207 sets out almost word for word Article 117 of the EEC Treaty. which, for equal work, affects any form of factor in pay but does not or cover Having regard to the social objective of discrimination in conditions of the Treaty, therefore, Article 117 may­

employment and working conditions. be regarded as a general principle of

Community law, to be implemented in In accordance with Article 9 of Council order to complete equality of treatment Directive No 76/207 of 9 February between men and women, since it was 1976 the Member States must put into not completely achieved by Article 119. force the laws, regulations and

to in the main action will be prohibited sex, within a period of 30 months from at Community level. the notification of the directive.

JUDGMENT OF IS. 6. 1978 — CASE 149/77

III — Oral procedure its Legal Adviser, Marie-Josée Jonczy, Miss Defrenne, the appellant before submitted their oral observations and the

Cour de Cassation, represented by their replies to the questions raised by Jacqueline Heynderickx, of the Brussels the Court at the hearing on 2 May Bar, the Government of the United 1978. Kingdom, represented by Peter Denys Scott, and the Commission of the The Advocate General delivered his European Communities, represented by opinion at the hearing on 30 May 1978.

Decision

1 By judgment of 28 November 1977, received at the Court on 12 December

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.

DEFRENNE v SABENA

By a judgment of 17 December 1970 the Tribunal du Travail dismissed that action in its entirety as unfounded.

the Cour de Cassation in turn referred the matter to the Court of Justice under Article 117 of the Treaty.

9 It 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 in particular, to the validity of a related, provision of that

decree excluding air hostesses from the scheme in question.

10 For its pan the Conseil d'État 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).

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 who out the discrimi­ attendants carry same work, constitutes nation prohibited by the said provision.

13 According 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

context of the system of the social provisions of the Treaty, which are set

out in the chapter formed by Article 117 et seq.

16 The 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.

17 There is no doubt that the elimination of discrimination based on the sex of

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.

20 In these circumstances it is impossible to extend the scope of that article to

elements of the employment relationship other than those expressly referred

to.

21 In particular, the fact that the fixing of certain conditions of employment —

the special position of women in the work process. affecting

23 It is, therefore, impossible to widen the terms of Article 119 to the point,

first, jeopardizing of direct applicability which that provision must be the

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.

prohibiting discrimination based on sex in conditions of employment and

working conditions

25 The second part of the question asks whether, apart from the specific

provisions of 119, Community law contains any general principle Article

prohibiting discrimination based on sex as regards the conditions of employment and working conditions of men and women.

26 The Court has repeatedly stated that respect for fundamental personal

7 June 1972 Sabbatini (nee Bertoni) v European Parliament in Case 20/71

([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.

30 On 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.

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

34 The costs incurred by the Government of the United Kingdom, the

Government of the Italian Republic and the Commission of the European

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

Registrar President

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 30 MAY 1978 1

Mr President, hostess and 12 years later she was

Members of the Court, promoted to be air hostess-principal cabin attendant but on 15 February 1. For the third time the Court of 1968 she had to give up her post

Justice has before it a Defrenne case pursuant to the sixth paragraph of

and is called upon to resolve a problem Article 5 of the contract of employment

employment with the airline company claiming that Sabena should be ordered

Sabena. to pay to her certain arrears of salary additional termi­ and an allowance on Let me first summarize the facts of the nation of service and to compensate her case. for the damage she had allegedly Miss Defrenne was engaged by Sabena suffered with regard to her retirement

in December 1951 as a trainee air pension. Moreover in an action brought

1 — Translated from the Italian.