C-129/79

MRS WENDY SMITH, a former employee of Macarthys Ltd.

on the interpretation of Article 119 of the EEC Treaty und Article 1 of Council Directive N o 75/117/EEC of 10 February 1975 on the approxi- mation of the laws of the Member States relating to the application of the principle of equal pay for men and women,

MACARTHYS v SMITH

THE COURT

c o m p o s e d of: H . Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of C h a m b e r s ) , J. M e r t e n s de Wilmars, P. P e s c a t o r e , L o r d M a c k e n z i e Stuart, G. Bosco, T . K o o p m a n s and O . D u e , J u d g e s ,

A d v o c a t e G e n e r a l : F. C a p o t o r t i Registrar: A. V a n H o u t t e

Macarthys Ltd. appealed to the Court of The order of the Court of Appeal was Appeal, Civil Division, of the Supreme received at the Registry of the Court on Court of Judicature. 10 August 1979.

By order of 25 July 1979 that court In accordance with Article 20 of the decided, pursuant to Article 177 of the Protocol on the Statute of the Court of EEC Treaty, to stay proceedings until Justice of the EEC, written observations the Court of Justice should have given a were submitted on 1 October 1979 by preliminary ruling on the following Mrs Wendy Smith, the respondent in the questions: main action, represented by Anthony P. Lester Q.C., of Lincoln's Inn, instructed by John L. Williams, solicitor; on 18 " 1 . Is the principle of equal pay for October 1979 by the Commission of the equal work, contained in Article 119 European Communities, represented by of the EEC Treaty and Article 1 its Legal Adviser, Armando Toledano- of the EEC Council Directive of Laredo, acting as Agent, assisted by 10 February 1975 (75/117/EEC), Michael Beloff, Barrister, of Gray's Inn; confined to situations in which men and on 12 November 1979 by the and women are contemporaneously Government of the United Kingdom of doing equal work for their Great Britain and Northern Ireland, employer? represented by A. D. Preston, of the Treasury Solicitor's Department, acting as Agent, assisted by Peter Scott Q.C., of 2. If the answer to Question 1 is in the the Middle Temple. negative, does the said principle apply where a worker can show that she receives less pay in respect of her After hearing the report of the Judge- employment from her employer : Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any (a) than she would have received if preparatory inquiry. she were a man doing equal work for the employer; or

On the first and second questions situations in which men and women are contemporaneously doing equal work for their employer. On the contrary, the first paragraph of Article 119 applies generally to "men and women" and is not confined only to those men or women are able to compare their work (a) Article 119 of the EEC Treaty with the work of persons of the other sex pursues, according to the judgment of employed contemporaneously with them. the Court of 8 April 1976 (Case 43/75 Furthermore, the third paragraph of Defrenne [1976] ECR 455), a double Article 119 refers to "the same work" aim, both economic and social. For the and "the same job" as the bases of attainment of this double aim and for the comparison. It does not impose a full and effective enjoyment of the right temporal limitation upon the bases of to equal pay without discrimination the comparison so as to confine them to principle of equal pay necessarily has to contemporaneous jobs or work. apply to workers who are unable to compare their work with that of persons of the other sex, whether because workers of one sex are concentrated in certain sectors and categories of employment, or because they are doing supervisory, skilled or other work which is not done by other workers. If the principle of equal pay were confined to situations in which men and women are contemporaneously doing equal work for their employer, the double aim of Article 119 would be frustrated in those situations in which workers of one sex (c) Article 1 of Council Directive No are only doing "men's work" or 75/117/EEC of 10 February 1975 on the "women's work" or in which there is approximation of the laws of the only one job being done for the Member States relating to the application employer. Such a restrictive interpret- of the principle of equal pay for men and ation would result in manifest anomalies women (Official Journal 1975, L 45, and absurdities. Furthermore, such a p. 19) extended the narrow criterion of restriction on the principle of equal pay "equal work" in Article 119 of the would deprive it of substance, by Treaty, in accordance, in particular, with encouraging the segregation or Convention N o 100 on equal pay for concentration of workers of one sex in men and women for equal work particular sectors and categories of concluded by the International Labour employment. Organization on 29 June 1951. Article 1 (b) of that convention defines equal remuneration for work of equal value as referring to "rates of remuneration established without discrimination based on sex". Article 1 (1) of the directive applies generally to the elimination of all discrimination on grounds of sex; and (b) There is nothing in the language of Article 2 (1) of the Convention refers to Article 119 to suggest that the principle all workers. Moreover, both instruments, of equal pay should be confined to like Article 119 of the Treaty, use

(e) In its report to the Council of 16 (d) In order to determine whether a January 1979 on the state of application difference in treatment between men and as at 12 February 1978 of the principle women in any aspect or condition of of equal pay the Commission suggested remuneration constitutes discrimination that, for the comparison of two wages, on grounds of sex, in violation of the reference should be made to the wage principle of equal pay, it is appropriate normally paid by the undertaking to adopt a similar approach to that employing the worker for whom the followed by the European Court of comparison is made to an employee of Human Rights in its judgment of 23 July the opposite sex performing work of an 1968 (a case relating to certain aspects of equal value or, failing this, of a very the laws on the use of languages in similar value. education in Belgium, Series A, paragraph 10, page 34). The principle of equality of treatment is violated if a given difference of treatment has no objective and reasonable justification. Moreover, it is appropriate to compare the treatment of the alleged victim of sex (f) These principles have been discrimination by the employer and the recognized and implemented by the treatment of an actual or hypothetical United Kingdom Government in all worker of the other sex. The relevance legislation against unfair discrimination, of selecting a worker, whether contem- except in relation to sex discrimination in poraneously or previously employed on contractual terms under which a worker equal work, as a basis of comparison, is employed at an establishment within permits one to ascertain whether there the United Kingdom, and in particular in has been a difference of treatment the Race Relations Acts of 1968 and between men and women on grounds of 1976, the Fair Employment (Northern sex in any aspect or condition of a Ireland) Act 1976 and the Sex Discrimi- remuneration. Such a comparison is not nation Act 1975. All these statutes enable confined to contemporaneous employ- a comparison to be made in the ment, nor to successive employment; it employment field between the treatment may include a comparison between the of an alleged victim of discrimination manner in which the employer has and the treatment of other workers treated the alleged victim of sex dis- irrespective of whether such other crimination and the manner in which the workers are contemporaneously em- employer has treated or would treat a ployed, and indeed irrespective of

whether they are actual or hypothetical (a) An affirmative answer to the second comparisons. Unless such a comparison question is not dependent upon Article 1 is able to be made to ascertain whether of the directive. The language of that the ground or reason for unequal pay for provision and its aims as interpreted by equal work is the sex of the worker the Court in its judgment of 8 april 1976 concerned, it is impossible to ensure in the Defrenne case strongly reinforce application of the principle of equal pay the legal position in which Article 119 of to all workers and the elimination of all the Treaty puts the respondent in the discrimination on grounds of sex with main action; furthermore, the period for regard to remuneration. compliance by the Member States with the provisions of the directive has in the meantime expired.

(g) Where a woman is being treated Where, therefore, a female worker can less favourably as regards any aspect or show that she receives less pay in respect condition of her remuneration than she of her employment than she would have would have been if she were a man, received if she were a man doing equal there is no objective and reasonable justi- work for the employer, or than had been fication for the difference in treatment received by a male worker who had been between herself and a comparable male, doing equal work for the employer, she whether actual or hypothetical. is the victim of a form of direct discrimi- nation which may be detected on the basis of a purely legal analysis of the On the hird and fourth questions situation solely by means of the criterion laid down in Article 119 of the Treaty. In the event of Question 2 (a) or (b) being answered affirmatively by the (c) It would, however, be desirable to Court it is necessary to know whether have recourse to Article 1 of the directive that answer is dependent upon Article 1 as a source of interpretation of Article of the directive. The distinction between 119 and to make clear to the national Article 119 of the Treaty and Article 1 of courts whether or not that provision is the directive is important in the present directly applicable. case, if, and only if, the answer to Question 4 is in the negative, that is, if Article 1 of the directive is not to be (d) The answer to the last question considered directly applicable in the

JUDGMENT OF 27. 3. 1980 — CASE 129/79

provides further details regarding certain show that she receives less pay in aspects of the material scope of Article respect of her employment from her 119 of the Treaty and also adopts employer either: various provisions whose essential purpose is to improve the legal protection of workers who may be (a) than she would have received if wronged by failure to apply the principle she were a man doing equal work of equal pay laid down by Article 119. for the employer; or These aims cannot be effectively attained if individuals are prevented from relying upon the provisions of the directive (b) than had been received by a male before national courts and if those courts worker who had been employed are not in a position to take its prior to her period of employment provisions into consideration as an and who had been doing equal element of Community law which work for the employer. transcends any conflicting provision of national legislation. Moreover, the obligation imposed by Article 1 of the 3. The answer to Question 2 is not directive is unconditional and sufficiently dependent upon the provisions of clear and precise to be capable of Article 1 of the directive, but those creating direct effect in protecting the provisions are relevant and should be rights which Article 1 of the directive, interpreted and applied by the read together with Article 119 of the national courts of Member States in Treaty, vests in individuals. Article 1 of order effectively to implement the the directive is not subject to any principle of equal pay for equal work. exception; in accordance with the established case-law of the Court it had to be regarded as being directly 4. Article 1 of the directive is directly applicable on the expiry of the period applicable in Member States. laid down by the directive.

(c) To widen the direct effect of Article (a) The application of the principle of 119 beyond that already established by equality of pay without sex discrimi- the case-law of the Court or to give nation requires payment of "the rate for direct effect to Article 1 (1) of the the job". Where there is sufficient Directive No 75/117 would increase similarity between the job done by a man both the problems of interpretation by on the one hand and a woman on the United Kingdom legislation on equal pay other, then, whether the jobs be done and the number of disputes and simultaneously or successively, each is to litigations. be paid on the same basis as the other. There is no foundation in the unam- biguous words used in Article 119 of the Treaty or Article 1 of the directive for the requirement of contemporaneity. The Commission reminds the Court that Equal pay is to be given for equal work the implementation of the principle of and not only for equal work carried out equal pay without discrimination based at the same time as a person of the on sex is an integral part of the opposite sex with whom comparison is establishment and functioning of the made ("the comparator"). Common Market. With its ancestry in Articles 1 and 2 of ILO Convention No 100, the principle has a two-fold purpose, economic and social. The function of Directive No 75/117 was, inter alia, to reinforce the basic laws by standards aimed at facilitating the practical application of the principle of (b) Both Article 119 of the Treaty and equality in such a way that all employees Article 1 of the directive make it clear in the Community can be protected in that the implementation of the principle these matters. of equal pay is an aspect of the

The fundamental aim of the abolition of sex discrimination would be damaged if a woman always had to find an actual (d) The requirement of contempor- male comparator. aneity would lead to capricious results: thus an employer could dismiss all his male employees and replace them by female employees at lower wages. A On the third and fourth questions female employee in such a situation would be unable to make any claim for pay equal to that given to her dismissed A — Article 1 of Directive No 75/117 comparator. But if she overlapped with is directly applicable in the Member her male comparator in employment by States. even one day she could make such a claim. (a) The case-law of the Court established that the principle of equal pay set out in Article 119 of the Treaty is (e) The case-law of the Court, having directly applicable in the Member States recognized the applicability of Article where direct discrimination is involved. 119 to equal work carried out in the same establishment by men and women, does not make any qualification Article 1 of the directive is inextricably requiring contemporaneity. linked with Article 119 of the Treaty: its first paragraph, which is primarily relevant to the matter before the Court, is in effect a "definition section". To seek to draw a distinction between the (f) A difference in pay which is the situations in which Article 119 of the product of individual circumstances or Treaty and Article 1 of the directive are outside forces, and not discrimination enforceable involves separating two based on sex, obviously does not come things which are inherently inseparable. within the scope of Article 119 of the Since, as the Court has held, Article 119 Treaty or Article 1 of the directive. is directly applicable in the Member

States, Anicie 1 of the directive must aneously doing equal work for their necessarily be so also, and for the same employer. reasons. Question 2: The principle applies where a worker can show that she receives less (b) To deny the direct applicability of pay in respect of her employment from Article 1 of the directive in the Member her employer both: States would be equivalent to neutralizing its usefulness. If employees (a) than she would have received if she in Member States cannot take advantage were a man doing equal work for the of the clarification and reinforcement employer, and provided by Article 1 of the directive in (b) than had been received by a male the courts and tribunals of their own worker who had been employed country the aim of Article 119 will be prior to her period of employment frustrated. and who had been doing equal work for the employer. (c) The Court has itself recognized the unity of function and purpose of Article Question 3; The answers to Questions 1 119 of the Treaty and Article 1 of the and 2 are dependent upon the provisions directive. The direct applicability of of Article 1 of the directive inasmuch as, Article 1 of the directive is already as a matter of Community law, there is implied in the case-law of the Court. an inextricable link between the effect of Article 119 of the Treaty and Article 1 of B — In considering whether, under the directiv«. However, if the Court had Community law, a requirement of to consider Questions 1 and 2 at a date contemporaneity exists, it is appropriate, before the directive became effective as a since the date of the implementation of matter of Community law, it would have the directive, to take into account both answered the questions in the same Article 119 of the Treaty and Article 1 of manner. the directive. If this question had been Question 4 : Article 1 of the said directive put to the Court before the date of is directly applicable in Member States. implementation of the directive, at a time when the only relevant Community law was Article 119 of the Treaty, the absence of a requirement of contem- Ill — Oral procedure poraneity would have followed from the purpose of Article 119, its language, and Mrs Wendy Smith, the respondent in the the matters of common sense and policy main action, represented by Anthony P. elaborated above. Lester, Q.C., the Government of the United Kingdom, represented by Henry Brooke, Barrister of the Inner Temple, Suggested answers and the Commission, represented by The Commission considers that the Armando Toledano-Laredo and Michael questions posed by the Court of Appeal Beloff, Barrister, submitted oral should receive the following replies: argument and replied to questions from the Court at the sitting on 30 January Question 1: The principle of equal pay 1980. for equal work, contained in Article 119 of the Treaty and Article 1 of the The Advocate General delivered his directive, is not confined to situations in opinion at the sitting on 28 February which men and women are contempor- 1980.

5 A further appeal was brought before the Court of Appeal by the employer. The employer contended that, according to its natural and ordinary meaning, the Equal Pay Act makes it impermissible for a woman to compare

MACARTHYS v SMITH

her situation with that of a man formerly in the employment of the same employer. In its submission, such an interpretation would not be inconsistent with the principle of equal pay for men and women laid down in Article 119 of the EEC Treaty.

6 For her part, the respondent in the main action contended that Macarthys' interpretation was contrary to Article 119 and to Article 1 of Directive N o 75/117 in that the principle of equal pay for equal work is not confined to situations in which men and women are contemporaneously doing equal work for their employer but that, on the contrary, that principle also applies where a worker can show that she receives less pay in respect of her employment than she would have received if she were a man doing equal work for the employer or than had been received by a male worker who had been employed prior to her period of employment and who had been doing equal work for her employer.

7 In order to decide the dispute the Court of Appeal formulated four questions worded as follows:

" 1 . Is the principle of equal pay for equal work, contained in Article 119 of the EEC Treaty and Article 1 of the EEC Council Directive of 10 February 1975 (75/117/EEC), confined to situations in which men and women are contemporaneously doing equal work for their employer?

s It follows from the wording of these questions, as much as from the reasons given in the order making the reference, that the questions relating to the effect of Directive N o 75/117 and to the interpretation of Article 1 thereof only arise if the application of Article 119 of the Treaty should not permit the issue raised in the proceedings to be resolved. It is therefore appropriate to consider first how Article 119 is to be interpreted having regard to the legal situation in which the dispute has its origin.

T h e i n t e r p r e t a t i o n of A r t i c l e 119 of t h e E E C T r e a t y

9 According to the first paragraph of Article 119 the Member States are obliged to ensure and maintain "the application of the principle that men and women should receive equal pay for equal work".

io As the Court indicated in the Defrenne judgment of 8 April 1976, that provision applies directly, and without the need for more detailed implementing measures on the part of the Community or the Member States, to all forms of direct and overt 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. Among the forms of discrimination which may be thus judicially identified, the Court mentioned in particular cases where men and women receive unequal pay for equal work carried out in the same establishment or service.

n In such a situation the decisive test lies in establishing whether there is a difference in treatment between a man and a woman performing "equal work" within the meaning of Article 119. The scope of that concept, which is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question, may not be restricted by the introduction of a requirement of contemporaneity.

JUDGMENT OF 27. 3. 1980 — CASE 129/79

i6 The answer to the second question should therefore be that the principle of equal pay enshrined in Article 119 applies to the case where it is established that, having regard to the nature of her services, a woman has received less pay than a man who was employed prior to the woman's period of employment and who did equal work for the employer.

i7 From the foregoing it appears that the dispute brought before the national court may be decided within the framework of an interpretation of Article 119 of the Treaty alone. In those circumstances it is unnecessary to answer the questions submitted in so far as they relate to the effect and to the interpretation of Directive No 75/117.

Costs

is The costs incurred by the Government of the United Kingdom and by the Commission of the European Communities, which have submitted observ- ations to the Court, are not recoverable. As 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 Court of Appeal in London, the decision as to costs is a matter for that court.

On those grounds,

Mackenzie Stuart Bosco Koopmans Due

Delivered in open court in Luxembourg on 27 March 1980.

A. Van Houtte H . Kutscher Registrar President

O P I N I O N OF MR ADVOCATE GENERAL CAPOTORTI DELrVERED O N 28 FEBRUARY 1980 »

Mr President, weekly wage of £60 to a Mr Members of the Court, McCullough, who was the manager of one of their warehouses. On 1 March 1976, after that post of warehouse manager had been vacant for more than 1. This case gives the Court the oppor- four months, Mrs Wendy Smith was tunity of returning to the important issue employed to fill it at a weekly wage of of equal pay for men and women, as laid £50. Thereafter, relying upon the down in Article 119 of the Treaty of English legislation on equal pay (the Rome, which has already been Equal Pay Act 1970), Mrs Smith applied considered in the well-known judgment to the Industrial Tribunal in London for of 8 April 1976 in the case of Gabrielle an order that, in virtue of that Act, she De/renne v Sabena [1976] ECR 456. was entitled to the same salary as that which had been received by her prede- cessor. The facts are straightforward. The English company Macarthys Ltd., who are wholesale dealers in pharmaceutical By decision of 27 June the Tribunal, products, paid in 1974 and 1975 a although finding that the applicant's 1 — Translated from the Italian.