C-157/86

OPINION OF MR LENZ —CASE 157/86

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 10 November 1987*

Mr President, those proceedings concern the interpretation Members of the Court, of the principle of 'equal pay for equal work'. It is not for this Court to verify the matter. Nor have any factors become apparent such as to cast doubt on that point. 1. The central question in the case before the Court this morning is whether the principle of 'equal pay for equal work' may also be applied to a situation where a lower wage is paid for work of a higher value. 5. In the second place it is evident that in particular the question whether this case is one of 'sex discrimination' has not been decided yet. The questions referred to the 2. Two further questions relate to the legal Court of Justice are, however, of a general basis of that principle and its direct applica­ nature and may be answered without a bility. decision on those factual issues which are a matter for the Irish courts. I may therefore turn to the reply to those questions.

3. These questions arose in the course of proceedings before the Irish courts concerning the Anti-Discrimination (Pay) Question 1 Act 1974 which entered into force on 31 December 1975.

did not concern like work or work of equal this case for the purposes of achieving value and that finding was confirmed by the proportionality between work and pay. The higher courts. In fact it must be assumed claim of the appellants in the main that the appellants' work is of higher value proceedings for pay which is equal to that than that of the stores labourer with which of the stores labourer in question represents a comparison was made. Consequently, a a claim for less than equal pay for equal strict interpretation of the wording of the work. principle laid down in Article 119 of the EEC Treaty indicates that that principle is not applicable. On the basis of such an interpretation, the respondent in the main proceedings has contended that the principle of equal pay cannot be applied in a case 10. The Court of Justice has already ruled such as this since that would lead to equal in the Defrenne case 2 judgment that the pay for unequal work which would be principle of equal pay laid down in Article 'unjust' and 'illogical'. 119 ofthe EEC Treaty is directly applicable. Since then it has confirmed that ruling and defined it more precisely. 3 According to that consolidated case-law, Article 119 of the EEC Treaty is directly applicable to all forms of discrimination which may be iden­ tified solely with the aid of the criteria of 8. Whether such a view is correct according 'equal work' and 'equal pay' referred to to Irish law is not to be decided here. by that provision, without national or However, it has been stated that the Anti- Community measures being required to Discrimination (Pay) Act was passed in define those criteria with greater precision order to implement the Community law in order to permit of their application. principle of 'equal pay for equal work'. The Among the forms of discrimination which representative of the appellants in the main may be thus identified by the courts, the proceedings pointed out in the course of the Court has mentioned, in particular, cases hearing that the Anti-Discrimination (Pay) where men and women receive unequal pay Act 1974 was passed in order to implement for equal work carried out in the same Directive 75 / 117 / EEC and that it was establishment or service, whether public or therefore brought into force on 31 private. 4 December 1975. The Act should conse­ quently be interpreted in accordance with Community law. However, under Community law the concept of 'equal work' includes 'work of equal value' 1 and that must be taken into account in applying the law. 11. The emphasis laid on cases where discrimination may be identified because unequal pay is received for equal work does not mean that Article 119 applies only to 9. It must be stressed that the application of 2 — Judgment of 8 April 1976 in Case 43/75 Defrenne v Société the principle of equal pay is not sought in anonyme belge de navigation aérienne Sabena [1976] ECR 455.

such situations. Direct discrimination may proceedings has admitted that it is unjust for also arise in other circumstances. lower pay to be received for work of higher value. Such inequality of treatment based on sex is hardly reconcilable with the social progress which is one of the aims of the EEC Treaty. 6 12. If, in the case before the Court, the difference in pay is based on the sex of the workers, that would constitute direct discrimination identifiable as a result of an analysis on the basis of the criteria ofequal work and equal pay. As the Irish 16. The legislative purpose of Article 119 of Government rightly stated, 5the principle of the EEC Treaty therefore requires that equal pay means no more than that a person provision to be applied to the case at issue. shall not be paid less for the same work or, Any other conclusion would undermine the by necessary implication, for work of effectiveness ('effet utile') of the provision. 7 greater value than a worker of the opposite As the Irish Government has rightly stated, sex. an employer would otherwise be able to escape his obligation to treat men and women workers equally by assigning additional or more onerous duties to workers of a particular sex, who could then 13. Consideration of the objective of Article be paid a lower wage. If such action were 119 of the EEC Treaty also indicates that it held to be compatible with Article 119 the is directly applicable. This point was made effect would be to institutionalize the possi­ by the Commission. The objectives of bility of abuse. Article 119 are twofold: to ensure equality of competition for undertakings within the Community and to further social aims.

18. It follows from my comments Question 3 concerning the first question that the principle of equal pay for equal work is 'If so, is Article 1 of the said directive derived directly from Article 119 of the directly applicable in Member States?' EEC Treaty. I have also stated that the claim for equal pay for work of higher value 20. The question whether Article 1 of the is covered by that principle. Consequently, directive is directly applicable is redundant there is no need for recourse to Article 1 of since the provisions in Article 1 concerning Council Directive 75 / 117 / EEC of 10 Article 119 of the EEC Treaty form part of February 1975 in order to answer the directly applicable Community law, as the 10 question before the Court. It must also be Court of Justice has already held. pointed out that Article 1 does not constitutean extension of the principle laid down in Article 119 of the EEC Treaty. In particular, it 'in no way alters the content or Costs scope of that principle'. 8Article 1 of the directive which, by reference to the concept 21. The costs incurred by the Irish 'work of equal value', goes beyond the Government and the Commission of the wording of Article 119 of the EEC Treaty, European Communities, which have provides further details regarding the submitted observations to the Court, are not material scope of the principle 9 and is recoverable. Since this case is, in so far as intended essentially to facilitate the practical the parties to the main proceedings are application of Article 119. concerned, in the nature of a step in the proceedings before the national court, the 19. The reply to the second question must decision as to costs is a matter for that therefore be in the negative. court.