C-61/81

JUDGMENT OF 6. 7. 1982 — CASE 61/81

In Case 61/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by John Forman, a member of the Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montalto, a member of the Commission's Legal Department, Jean Monnet Building, Kirchbcrg, applicant, v

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, represented by Mrs G. Dagtoglou, of the Treasury Solicitor's Department, acting as Agent, assisted by Peter Scott, Q C , with an address for service in Luxembourg at the British Embassy, 28 Boulevard Royal, defendant,

APPLICATION for a declaration that the United Kingdom has failed to fulfil its obligations under 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, 1975, p. 19),

THE COURT,

I — Facts and w r i t t e n p r o c e d u r e (b) The relevant national legiilation

In the United Kingdom the Equal Pay Act 1970 as amended by the Sex (a) The relevant Community Uw Discrimination Act 1975 is the legislation which was adopted in the field governed The first paragraph of Article 119 of the by Directive 75/117. EEC Treaty provides as follows:

Section 1 (1) of the Act states the principle that any contract under which a "Each Member State shall during the woman is employed at an establishment first stage ensure and subsequently in Great Britain is to be deemed to maintain the application of the principle include a clause requiring equal pay for that men and women should receive men and women. Paragraph (2) of that equal pay for equal work." section distinguishes between the case of a woman employed on like work with a man in the same employment and that of a woman employed on work "rated as Article 1 of Directive 75/117 provides as equivalent" with that of a man in the follows: same employment. Section 1 (4) defines "like work" as work which is of "the same" or "a broadly similar" nature when the differences, if any, between the "The principle of equal pay for men and work done by the woman and that done women outlined in Article 119 of the by the man are not of practical Treaty, hereinafter called 'principle of importance in relation to terms and equal pay' means, for the same work or conditions of employment. for work to which equal value is attributed, the elimination of all dis- crimination on grounds of sex with As to work which is rated as equivalent, regard to all aspects and conditions of re- paragraph (5) provides that: muneration.

(c) Procedure " 1 . How have the Member States complied with the obligation resulting from Directive 75/117 in On 3 April 1979 the Commission wrote respect of work to which equal value to the United Kingdom Government a is attributed? What are the national letter initiating the procedure provided provisions adopted? Do those pro- for in the first paragraph of Article 169 visions, in the Commission's view, of the EEC Treaty. Since the constitute a correa application of Commission was not satisfied with the the directive? observations submitted on 19 June 1979 by the government in question it delivered to the United Kingdom on 2. Has the Commission any infor- 19 May 1980 a reasoned opinion, dated mation on the actual application of 8 May 1980, in accordance with the the directive, in particular by the above-mentioned provision. After stating couru? that in its opinion Article 1 of Directive 75/117 had been incorrectly applied in 3. Could the Commission give the the United Kingdom legislation, the Court deuils of the other methods, Commission invited the United Kingdom apart from the introduction of the to adopt, within a period of rwo months, system of compulsory evaluation to the measures needed to comply with the which it refers in point 14 of its' reasoned opinion. reply, making it possible to ascertain or determine whether work is of equal value?" In reply to the reasoned opinion the United Kingdom stated in a letter dated 3 November 1980 that it considered the The Commission's replies to the United Kingdom legislation to be wholly questions are dealt with at the end of this in conformity with the relevant report. Community provisions and that in the circumstances no measures whatsoever were necessary in order to comply with Article 119 of the Treaty and with II — C o n c l u s i o n s of the p a r t i e s Directive 75/117.

which equal value is attributed, the The Commission maintains that as a United Kingdom has failed to fulfil result of the distinction made in Section its obligations under that directive; 1 (4) and (5) of the United Kingdom Act a woman cannot obtain equal pay in respect of work which, although not the 2. Order the Government of the United same as, nevertheless has a value equal to Kingdom to pay the costs of the that of her male counterpart unless a job proceedings." evaluation scheme or study is applied in the establishment in which they are employed. Whilst paragraph (4) does not extend the concept of "like work" to The United Kingdom contends that the include the concept of work of "equal Court should: value", paragraph (5) of section 2 makes "equal value" dependent on the implementation in the establishment in " 1 . Dismiss the Commission's appli­ question of a job evaluation scheme, cation; which the employer is in no way bound to introduce. Although "like work" is defined in Section 1 (4) as including 2. Order the Commission to pay the work "of a broadly similar nature" that costs." does not, in the Commission's view, go far enough because "work to which equal value has been attributed will, more likely than not — and precisely because it has had the label 'equal value' Ill — Submissions and argu­ attributed to it — not be of a 'broadly m e n t s of t h e p a r t i e s similar nature' ".

JUDGMENT O F 6. 7. 1982 — CASE 61/81

The Commission's case implies that Moreover, the United Kingdom points Directive 75/117 requires Member States out that it forwarded the legislation in to adopt measures entitling any employee

COMMISSION v UNITED KINGDOM

to insist upon some form of job As a result the United Kingdom evaluation being carried out in order to considers that its legislation faithfully determine whether his or her job is equal reflects the meaning and intent of in value to another. Such a proposition is Directive 75/117 as defined above. After inconsistent with the wording of Article describing the various provisions which it 1, however, because it overlooks the has adopted in order to implement the words "to which equal value is principle of equal pav for men and attributed", which are plainly not the women, the United Kingdom concedes same as "work of equal value". From a that the Equal Pay Act "does not entitle review of the terms of Anicie 1 the a worker to insist upon a |ob evaluation, United Kingdom concludes that the but it does entitle (Section 1 (5)) a article does not provide that employees worker to insist on pay without dis- have the right to insist on having pay crimination based on sex". However, determined by a job classification such a right would be enforced even if scheme, and such a right cannot be the employer had not implemented the implied without doing violence to the results of a |ob evaluation study In language. If the directive is to have the support of that argument the United extended meaning advocated by the Kingdom cues the Case of O'Brien v Commission, Member States should first Sm-Chem Limited ([1980] Industrial discuss at least the basic points, relating Cases Reports 573). However, the to the criteria to be used for determining House of Lords remarked in that case when and to what extent an employee that: mav require his pay to be determined by means of a job classification scheme, before seeking to approximate their national provisions.

It maintains that the United Kingdom's insistence on the significance of that 1. Job evaluation schemes of this kind statement — which was the result of a are little used outside the United unilateral initiative neither approved nor Kingdom and therefore only a limned supported by the Council and which was percentage of the work-force within not discussed in any way by the Council the Community as a whole is covered. — not only fails to strengthen its That being so, where employees, even position but, on the contran - , weakens it. in the United Kingdom, are not doing In fact, by making such an explanatory the same work, or work which is statement the Member State concerned is broadly similar in nature, and are not trying, as far as possible, and at least on covered by a job evaluation scheme, a political level, to compensate for a they may not rely on the provision in deficiency in the text. As a matter of law the directive concerning "work to a unilateral statement by a Member State which equal value is attributed". cannot influence the interpretation of a pan of Community legislation. Moreover, what emerges from the statement is that it does not seek to 2. In the United Kingdom's defence demonstrate that equal pay in the United there is a considerable shift in Kingdom is dependent on the carrying emphasis in its argument as compared out of a job evaluation study, and only with the argument which it put with the employer's consent, but merely forward prior to the initiation of this indicates that the jobs must have been action. In the latter case the United evaluated before they may be considered Kingdom laid its main emphasis on to be of equal value, a proposition which the combined effect of the various the Commission wholly supports. provisions of the Equal Pay Act which satisfied, ostensibly, an acceptable interpretation of the directive whereas in its defence the United Kingdom places more emphasis on "a more Secondly, as far as the interpretation of critical appraisal of the precise words the directive is concerned, the Com- of the directive itself" which makes it mission maintains that the crux of the all the more easy to justify the issue between the parties is as follows: national provisions in question. does the adoption of a job evaluation scheme by agreement between the employer, and the employees and their representatives constitute a prerequisite The Commission maintains that to the operation of the principle of equal Directive 75/117 must in any case be pay (the United Kingdom's position) or interpreted in the light of its obiectives as may any (female) worker require, at all defined by the Court of Justice in the events, equal pay for work which is Defrenne judgment (cited above). different, but of equal value, even if Positively, this means that Article 1 of

the directive obliges the Member States in adopting a provision which simply to adopt the measures needed to enable a reproduces the objectives of the direc- female worker to argue, for the purpose tive, particularly in view of the facility of combating any discrimination based with which other Member States have on sex, that two jobs, even though achieved that obligation. different, may be of equal value. On the negative side, the Commission's position implies that the United Kingdom's argument, which, in the Commission's view, restricts the scope of the first paragraph of Article 1 of Directive 75/117 by placing the emphasis on the words "is attributed" and linking them Lastly, as to the reference made by the to the second paragraph, is abusive and United Kingdom to considerations of a not consistent with the principle of practical nature, the Commission "has equality contained in Article 119 of the not seized why the disadvantages (of Treatv. That is so by reason, on the one enabling a (female) worker to insist — hand, of the particular words used in and this would not necessarily involve Convention No 100 of the International introducing compulsory evaluation Labour Organization ("work of equal schemes — on no discrimination based value") and, on the other hand, of the on sex, in respect of work of an equal value) would greatly outweigh the objective of Directive 75/117 which is 'advantages' (of limiting equality of to approximate national provisions im- remuneration between the sexes to the plementing the principle of equal pay — restricted — number of cases where a and which would be thwarted if its re- job evaluation exists)". alization depended on the consent of the employer to the introduction of a job classification scheme, especially in view of the fact that the second paragraph of Article 1 of the directive emphasizes that where, but only where, a job classi- fication scheme is used certain conditions are to be respected, in particular application of the same criteria to men In its rejoinder the United Kingdom and women and the exclusion of any returns to the question of the status and discrimination based on sex. That view is content of the statement which it made when Directive 75/117 was adopted. It confirmed, moreover, by the Court in its contends that the statement was not judgment in Jenkins (quoted above), at intended to describe the situation paragraph 21 of the decision, in which it existing at the time in question in the stated that the provisions in the second United Kingdom, but to record the paragraph of Article 1 of Directive position which would be adopted by the 75/117 specify the conditions for United Kingdom after the directive applying the principle of equal pay where entered into force. Moreover, that was a job classification system is used for why it was able to accept the enactment determining pay. of the directive, for had any Member State or institution indicated that it would challenge the United Kingdom's position it might have been necessary to reconsider its acceptance of the draft directive. In the absence of any such According to the Commission there can challenge the United Kingdom "submits be no question of legislative difficulties

The Commission's position on the point, which consists in reasserting that workers must be able to insist upon the value of a On the subject of the terms and effect of particular job being compared with the Directive 75/117 the United Kingdom value of different jobs, would give rise replies point by point to the arguments to considerable difficulty in practice advanced by the Commission. First, it especially as regards the concept of the maintains that all job evaluation schemes "equitable basis" the use of which was in the United Kingdom are subject to the proposed by the Commission in its repon provisions prohibiting discriminations. on the application of equal pay for men and women on 12 February 1978, page 140. That test is derived from legislation adopted in the Netherlands on 20 March Next, the United Kingdom denies that 1975 and the Commission stated that it there has been a shift in emphasis in its should be possible for evaluation to be argument: it was the Commission which made on an equitable basis "without any chose to treat the United Kingdom's great difficulty" with the aid of a

COMMISSION » UNTTED KINGDOM

JUDGMENT OF 6. 7. 1982 — CASE 61/11

Denmark: There is no provision restricted as in the United Kingdom. As concerning work of equal value; the regards Denmark, the position remains Commission therefore sent a formal under constant review by the Com- letter of complaint to Denmark on 30 mission in order to establish whether the March 1979. In its reply of 11 June 1979 directive is being correctly applied there. that country argued that the expression "samme arbejde" used in its legislation had a much broader significance than the words "same work" and, in fact, 2. Reply to the second question extended to "work of equal value".

As to the actual application of the Nevertheless, the Commission decided directive by the national courts the that a reasoned opinion should be issued Commission refers once again to its but delayed its transmission pending a report for the main points. It adds that report by a legal expert as to whether the cases before the courts, which are in there was a substantive or purely any case relatively few in number, are linguistic problem. Since, notwithstand- based not on the directive itself but on ing the report, a number of points the national implementing legislation. remained unclear, the Commission decided on 10 December 1980 io leave this matter "in cold storage". 3. Reply to the third question

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study having been undertaken. The State courts to decide the matters referred to may also set up a system of official sur- them. veillance or less formal conciliation. The Commission concludes from the What is essential, in the view of the foregoing that, on a technical level, there Commission, is that, in the final count, are several possible ways in which the individuals should have the possibility of Equal Pay Act might be amended in succeeding in the argument that the two order to make it comply with Com- jobs in question are of equal value. munity law. In this respect it emphasizes that in the United Kingdom itself the The Commission then reviews the Equal Opportunities Commission and different systems adopted by the Member the Trades Union Congress have drafted States, relying for the most part on its proposals along those lines. As to which report. In Belgium, France, Italy and system, or combination of systems, Luxembourg, as also in the Federal would be preferable, the Commission Republic of Germany, many problems refers the Court to its report, in are resolved by works inspectorates, and panicular page 139. where a question falls to be resolved by the courts, the latter are not necessarily bound by the results of job evaluation V — Oral procedure schemes. In the Netherlands the question whether work is of equal value is At the sitting on 23 March 1982 the assessed on the basis of a reliable system Commission of the European Com- of job evaluation. Under the Irish munities, represented by its Agent, John legislation — which the Commission Forman, and the United Kingdom of believes to be an example of how the Great Britain and Northern Ireland, United Kingdom could comply with its represented by its Agent, Peter Scott QC obligations under Directive 75/117 — of the Middle Temple, presented oral any dispute on the subject of equal pay arguments and their replies to questions may be referred to one of the three which had been put to them by the Equality Officers who, after investigating Court. the matter, will issue a recommendation. Since such recommendations are not The Advocate General delivered his legally binding, it is ultimately for the opinion at the sitting on 25 May 1982.

In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex."

3 The reference to "work to which equal value is attributed" is used in the United Kingdom in the Equal Pay Act 1970, as amended by the Sex Dis- crimination Act 1975. Section 1 (5) of the Act provides that:

"A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on the worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading."

COMMISSION v UNITED KINGDOM

4 Comparison of those provisions reveals that the job classification system is, under the directive, merely one of several methods for determining pay for work to which equal value is attributed, whereas under the provision in the Equal Pay Act quoted above the introduction of such a system is the sole method of achieving such a result.

5 It is also noteworthy that, as the United Kingdom concedes, British legislation does not permit the introduction of a job classification system without the employer's consent. Workers in the United Kingdom are therefore unable to have their work rated as being of equal value with comparable work if their employer refuses to introduce a classification system.

9 It follows that where there is disagreement as to the application of that concept a worker must be entitled to claim before an appropriate authority that this work has the same value as other work and, if that is found to be the case, to have his rights under the Treaty and the directive acknowledged by a binding decision. Any method which excludes that option prevents the aims of the directive from being achieved.

10 That is borne out by the terms of Article 6 of the directive which provides that Member States are, in accordance with their national circumstances and legal systems, to take the measures necessary to ensure that the principle of equal pay is applied. They are to see that effective means are available to take care that this principle is observed.

ii In this instance, however, the United Kingdom has not adopted the necessary measures and there is at present no means whereby a worker who considers that this post is of equal value to another may pursue his claims if the employer refuses to introduce a job classification system.

12 The United Kingdom has emphasized (particularly in its letter to the Commission dated 19 June 1979) the practical difficulties which would stand in the way of implementing the concept of work to which equal value has been attributed if the use of a system laid down by consensus were abandoned. The United Kingdom believes that the criterion of work of equal value is too abstract to be applied by the courts.

COMMISSION Y UNTTED KINGDOM

i3 The Court cannot endorse that view. The implementation of the directive implies that the assessment of the "equal value" to be "attributed to particular work, may be effected notwithstanding the employer's wishes, it necessary in the context of adversary proceedings. The Member States must endow an authority with the requisite jurisdiction to decide whether work has the same value 'as other work, after obtaining such information as may be required.

1. Declares that, by failing to introduce into its national legal system in implementation of the provisions of Council Directive 75/117/EEC of 10 February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the

O P I N I O N OF MR VERLOREN VAN THEMAAT — CASE 61/81

principle of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists to obtain recognition of such equivalence, the United Kingdom has failed to fulfil its obligations under the Treaty;

2. Orders the United Kingdom to pay the costs.

Menens de Wilmars Bosco Touffait Due Pescatore Mackenzie Stuart O'Keeffe Koopmans Evening Chloros Grévisse

Delivered in open coun in Luxembourg on 6 July 1982.