C-326/96

LEVEZ v JENNINGS

OPINION OF ADVOCATE GENERAL LÉGER delivered on 12 May 1998 *

1. By the questions referred to the Court, the 3. That article lays down a principle which Employment Appeal Tribunal essentially asks 'forms part of the foundations of the Com­ whether the principle of equal pay for men munity'; it 'is directly applicable and may thus and women, laid down in Article 119 of the give rise to individual rights which the courts 2 EC Treaty and Directive 75/117/EEC, 1 pre­ must protect'. cludes application of a national rule of pro­ cedure which limits entitlement to arrears of remuneration, in the case of a woman in respect of whom that principle has been con­ travened, to a period of two years prior to the date on which she brings her claim.

4. The material scope of Article 119 is defined by Directive 75/117 which contains, in par­ ticular, various provisions designed to improve the protection available through the courts to Relevant Community legislation employees who may be adversely affected by failure to apply the principle of equal pay.

5. To that end, Article 2 of Directive 75/117 2. The first paragraph of Article 119 of the provides that Member States are to 'introduce Treaty requires Member States to ensure and into their national legal systems such mea­ subsequently maintain 'the application of the sures as are necessary to enable all employees principle that men and women should receive who consider themselves wronged by failure equal pay for equal work'. to apply the principle of equal pay to pursue their claims by judicial process after possible recourse to other competent authorities'. * Original language: French. 1 — 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 (OJ 1975 L 45, p. 19). 2 — Case 43/75 Defrenne [1976] ECR 455, paragraphs 12 and 24.

9. When, on leaving her job in March 1993, 3 — The appellant in the main proceedings emphasises in her written observations (footnote 4) that all provisions in the Mrs Levez discovered that — contrary to her Equal Pay Act referring to women apply equally to men.

I - 7838

LEVEZ v JENNINGS

12. That award was 'adjusted', however, after 15. She claims, first, that in denying the courts Jennings drew attention to the limitation any discretion to extend the limitation period period laid down in Section 2(5) of the Equal — either in the interests of fairness because of Pay Act, which provides: the particular circumstances of the case or in view of the employer's deceitful conduct — Section 2(5) of the Equal Pay Act fails to ensure full and effective protection for indi­ viduals seeking to rely on the principle of equal pay.

I - 7839

OPINION OF MR LÉGER — CASE C-326/96

on Community law must not be subject to proceedings were instituted, in circum­ rules of procedure which are less favourable stances where — than those governing similar domestic actions. Section 2(5) of the Equal Pay Act is a general rule which applies to all actions relying on the principle of equal pay for men and women, whether brought exclusively under the Equal Pay Act or under Article 119.

(a) that rule of national law applies to all claims for equal pay without sex discrimination, but to no other claims;

18. While recognising that '[t]he dispute is about a relatively small amount of money claimed by Mrs Levez for the period from 18th February 1991 to 17th September 1991', the Employment Appeal Tribunal took the view that '[t]he point of principle is, however, (b) rules which are in this respect more an important one. A decision in favour of favourable to claimants are applied Mrs Levez could have far-reaching implica­ to other claims in the field of 4 tions for many other cases'. It therefore employment law, including claims in referred the following questions to this Court: respect of breach of the contract of employment, racial discrimination in pay, unlawful deductions from wages, and sex discrimination in matters other than pay;

'(1) Is it compatible with Community law to apply, to a claim for equal pay for equal work without discrimination on grounds of sex, a rule of national law which limits (c) the national court has no discretion a claimant's entitlement to arrears of to extend the two-year period in any remuneration or damages for breach of circumstance, even where a claimant the principle of equal pay to a period of was delayed in bringing her claim two years prior to the date on which the because her employer deliberately misrepresented to her the level of remuneration received by men 4 — Order for reference, p. 2. performing like work to her own?

5 — Sec, in particular, Case 33/76 Reme [1976] ECR 1989, para­ 19. As the Employment Appeal Tribunal men­ graph 5, and Case 45/76 Cornel [1976] ECR 2043, paragraph 13; Case 68/79 Just [1980] ECR 501, paragraph 25; Case tions in its second question, the Court has 199/82 San Giorgio [1983] ECR 3595, paragraph 12; Case C-208/90 Emmott [1991] ECR I-4269, paragraph 16; Case consistently held that in the absence of Com­ C-62/93 BP Supergas [1995] ECR I-1883; Case C-188/95 munity rules of harmonisation it is for the Fantasie and Others [1997] ECR I-6783, paragraph 47; and Case C-246/96 Magorrian and Cunningham [1997] ECR domestic legal system of each Member State I-7153, paragraph 37.

I - 7841

OPINION OF MR LÉGER — CASE C-326/96

23. The first condition may be termed 'the The principle of equivalence principle of equivalence' or 'the principle of non-discrimination'; the second, 'the prin­ 6 ciple of effectiveness'.

26. The aim of this principle is that domestic law remedies should safeguard Community law 'without discrimination'; that is to say, exercise of a Community right before the national courts must not be subject to condi­ tions which are more strict (for example, in 24. In the present case, the Court is called on terms of limitation periods, conditions for to define the scope of those two conditions: recovering undue payment, rules of evidence) Question (1) — particularly Question (1)(c) than those governing the exercise of similar — ultimately concerns the principle of effec­ rights derived wholly from domestic law. tiveness and Question (2) clearly concerns the principle of equivalence, although the latter also figures largely in Question (1).

30. Although in some cases there is no dif­ ficulty in identifying 'similar' forms of 33. More recently, Advocate General Jacobs, domestic action, in other cases it is clearly in his Opinion in BP Supergas, pointed out 8 necessary to determine the ground of com­ the difficulties involved in such a process: parison, which in practice involves a policy '[i]t is not, in my view, necessary to engage in decision. the difficult and somewhat artificial exercise of seeking a comparable claim under national law'.

31. The greater the desire to facilitate exercise of a Community right, the wider the range of domestic actions accepted as valid compara­ tors.

34. The Court has not taken a different approach to the Advocates General: when faced with the same problem, it leaves deter­ mination of such matters to the national 32. Advocate General Mancini, faced with courts. Generally speaking, the Court takes the same problem, speculated as follows in the view that '... in principle, it is for the 7 his Opinion in San Giorgio: '[i]n what cir­ national courts to ascertain whether the pro­ cumstances can it be said that similarity exists cedural rules intended to ensure that the rights and that therefore different treatment is pro­ derived by individuals from Community law hibited?' In the circumstances of that case, he are safeguarded under national law ... comply decided on a broad interpretation of the prin­ with the principle of equivalence ...'. 9

ciple of equivalence or non-discrimination: 'I

8 — Paragraph 58. 7 — Point 11, at pp. 3633, 3634. 9 — Palmisani, paragraph 33.

39. It is possible, however, to identify a On that basis, the Court observed that 'the number of criteria to guide the Employment ordinary system of non-contractual liability Appeal Tribunal in its search for national rules ... is on the whole, in terms of its objective, of procedure which may be compared with those laid down by the Equal Pay Act.

10 — Ibid., paragraph 32. 11 — Ibid., paragraph 34. 12 — Ibid., paragraph 38.

I - 7844

LEVEZ v JENNINGS

The meaning of the expression 'similar 43. However straightforward that line of rea­ domestic actions' soning may appear, it presupposes that two separate principles of equal pay for men and women without discrimination on grounds of sex can exist concurrently at two different levels, national and Community. However, this is clearly not so. The protection provided for by the Equal Pay Act and that on which 40. Various comparators have been proposed employees may rely on the basis of Article in the course of the proceedings before the 119 of the Treaty, and incidentally Directive national court and subsequently before the 75/117, reflect one and the same principle. Court of Justice. 13

44. Moreover, this is borne out by the fact 41. Thus, the United Kingdom Government that, as the United Kingdom Government 15 submits — as did the amicus curiae before the acknowledges, the Equal Pay Act in fact Employment Appeal Tribunal — that 'for the constitutes the binding national measure trans­ purposes of the non-discrimination require­ posing Directive 75/117, which gives effect to ment, a claim under the Equal Pay Act is a the principle laid down in Article 119 of the form of action under domestic law which is Treaty. similar to a claim brought in reliance upon Article 119'. 14

The Employment Appeal Tribunal also points period laid down by Section 2(5) of the Equal out that the Equal Pay Act was again '... Pay Act — apply to two comparable forms amended in 1983 in order to comply with of action, one relying on a right conferred by Article 119 of the Treaty, particularly as regards Community law, the other on a right acquired 16 equal value claims'. Thus the Equal Pay under domestic law. It is only logical that, as Act is clearly the national implementing mea­ the Employment Appeal Tribunal points out sure for the Community principle that, in in Question 1(a), 'that rule of national law matters of pay, there should be no discrimi­ applies to all claims for equal pay without sex nation on grounds of sex. discrimination'.

46. It follows that actions brought under the Equal Pay Act are brought under a measure transposing into national law Directive 75/117, which gives effect to the principle of non­ discrimination laid down in Article 119 of the Treaty. 49. That ground of comparison cannot there­ fore be accepted.

52. The French Government and the Com­ 55. However, if the relevant criterion is to be mission submitted, as did Mrs Levez, that if the general principle of non-discrimination, it a comparison is to be made, the field of is not clear why the chosen comparator should domestic law with protection most akin to illustrate that principle only as it applies to that of the Equal Pay Act is that of the Race 18 race. The principle of non-discrimination has Relations Act 1976. many applications, which are protected and generally taken into account at the national level, in relation — to mention only a few examples — to nationality, sex, religion, hand­ icap, age ... Why, then, base a comparison on only one of those applications?

53. Albeit not entirely unfounded, this approach, which is also 'transversal' — in that it docs not focus on a particular branch of law, but rather on the broadest possible inter­ pretation of a principle (the general principle

56. Secondly, and more importantly, I fear 17 — Council Directive of 9 February 1976 (OJ 1976 L 39, p. 40). that the underlying argument rests on a false 18 — This legislation is a safeguard in the United Kingdom against racial discrimination in employment. It covers discrimina­ premiss. To adopt a 'transversal' approach — tion on grounds of colour, race, nationality or ethnic or along the lines proposed by the French Gov­ national origins (paragraph 3.29 of the Observations of the United Kingdom Government). ernment and the Commission and, to a lim-

I - 7847

OPINION OF MR LÉGER — CASE C-326/96

ited extent, those suggested by the United such, the object of her complaint. The prior Kingdom, already mentioned — would shift finding of discrimination in her case only the emphasis of the problem. served to justify the bringing of this action.

I - 7848

LEVEZ y JENNINGS

63. Let us imagine, for example, the situation 66. Moreover, the case-law of the Court sup­ of a man whose employment contract pro­ ports this approach. vides for remuneration on a profit-sharing basis, consisting in a fixed salary with a monthly bonus depending on results. If the employer did not pay him that bonus — part of his remuneration — he would be entitled to bring a claim for recovery of arrears, due in his case not because of an infringement of 19 the principle of equal pay, but because of the 67. Thus, in Gillespie and Others, it is by employer's breach of his obligations under reference to the fact that, throughout mater­ the employment contract. nity leave, the women employees remained linked 'just like any other worker' to their employer by a contract of employment or an employment relationship, that the Court took the view that they should receive any pay rise awarded before or during that period. In so doing, the Court adopted the 'vertical' approach — focusing on employment law and, specifically, on the contract of employ­ ment — rather than a 'transversal' approach, concentrating on discrimination on grounds of sex. In fact, the Court held that the plain­ 64. It is also useful at this point to refer to tiffs should be awarded the pay rises in ques­ the Race Relations Act, as the Commission tion, like their colleagues, not because the and the French Government suggested. The women in question were the victims of dis­ situation of a man bringing a claim for recovery crimination, but because they were employees of salary arrears because of discrimination on whose rights had been disregarded. grounds of race would also be comparable to the situation just described.

69. Consequently, it is my view that the term 'a similar domestic action' — in relation to a claim for pay arrears in reliance on the Com­ munity right to non-discrimination on grounds of sex in respect of the same work — 72. It is not for me to proceed at this stage must apply to a claim for pay arrears in reli­ to compare the various rules of procedure ance on provisions of domestic law, particu­ governing claims for arrears of remuneration larly employment law. in order to verify the truth of that statement. It is for the Employment Appeal Tribunal, which is acquainted with the mechanisms governing forms of action under domestic law, to determine whether similar actions are being treated differently, depending on whether the cause of action is discrimination 70. It is by reference to a similar domestic on grounds of sex, and therefore safeguarded action, thus construed, that it remains to by Community law, or whether the action is determine whether the procedural rules gov­ one not linked to Article 119 of the Treaty. erning such an action are more favourable than those laid down by domestic law — under Section 2(5) of the Equal Pay Act — to govern the exercise of rights derived from Community law.

73. Suffice it to say that, although a rule of procedure such as that at issue may at first The 'more favourable' character of a similar sight appear less favourable than a rule under domestic action which the period in respect of which arrears may be claimed can be extended to up to six years before the date on which the claim is 21 brought — or, a fortiori, a rule which does

74. In fact, it appears from the information in 77. Once again, I would emphasise that the the documents before the Court that claims question here is not whether the conditions brought under the Equal Pay Act may, in governing similar domestic actions are more other respects, be regarded as subject to time- favourable, which requires a thorough knowl­ limits which are more favourable than those edge of the national rules of procedure and applying to similar domestic actions. their implementation by the courts. I would merely point out that, should the Employ­ ment Appeal Tribunal find that, not only is it impossible in an action under the Equal Pay Act — unlike other similar domestic actions — to recover arrears of remuneration in respect of a period earlier than two years before the date on which a claim is brought, but also the time-limit for bringing such a claim is only in appearance more favourable than that applying to other forms of action, 75. Thus, the initiation of proceedings such since in the latter case the courts are empow­ as those brought by Mrs Levez is not subject ered to extend the time-limits, it can only to any time-bar, whereas, as a general rule, conclude that the principle of equivalence similar domestic actions must, if they are to between actions based on a Community right be admissible, be brought within three months and those based on a domestic law right is of the termination of the employment rela­ thereby contravened. 23 tionship, or the act of racial discrimina­ 24 tion.

26 81. Question (1 ) really consists of two ques­ 79. It should be noted at the outset that the tions. Essentially, the Court is asked whether Employment Appeal Tribunal need consider the fixing of a time-limit such as that laid this aspect — which is specifically the subject down by Section 2(5) of the Equal Pay Act of Question (1) — only if, on the basis of the makes it impossible to exercise rights con­ criteria set out above, it takes the view that it ferred by Community law — that is to say, can apply the national rule at issue without whether such a rule is consistent with the compromising the principle of equivalence. principle of effectiveness — particularly when In that event, it would remain for the Tri­ that time-limit cannot be extended by the bunal to satisfy itself that there was no con­ court or tribunal concerned, even in the case travention of the second condition attached of deceit on the part of the employer — in by the Court of Justice to the Member States' which case it is necessary, secondly, to con­ independence in matters of procedure. sider the discretion enjoyed by the national courts.

82. It should be recalled that the principle of On the other hand, if, on the basis of the cri­ effectiveness limits the scope of the principle teria set out above, the Employment Appeal that the Member States should enjoy inde­ Tribunal decided, in the light of the case-law 25 pendence in procedural matters, in so far as of the Court, that it should not apply the it requires that the rules governing domestic provision at issue because it was contrary to actions should not make it virtually impos- Community law, there would be no need to

87. In fact, Section 2(5) of the Equal Pay Act did not prevent Mrs Levez from relying on Community law; its effect was to limit the period in respect of which the pay arrears 84. Subsequently, the Court has consistently deemed due could be awarded. transposed the rule laid down in Steenhorst- Neerings — concerning time-limits for bringing proceedings before the national courts — to situations such as that in the present case, where national legislation limits the period in respect of which arrears may be paid, pointing out that such a rule '.., does not affect the right of individuals to rely on 88. In accordance with the case-law of the ... [Community law] in proceedings before Court, the national rule at issue must there­ the national courts ...; [i]t merely limits the fore be regarded as not having the effect of retroactive effect of claims made for the pur­ making it virtually impossible or excessively 29 difficult to exercise rights deriving from Com­ pose of obtaining the relevant benefits'. munity law.

27 — Pahnisani, paragraph 28. Sec also Rewe, paragraph 5, Comet, paragraph 17, and San Giorgio, paragraph 12. 30 — Case C-410/92 [1994] ECR I-5483, paragraph 23. See also 28 — Case C-338/91 Streenhorst-Neerings[1993] ECRI-5475,para­ Case C-394/93 Alonso-Pérez [1995] ECR I-4101, paragraph graph 22. 30. 29 — Ibid., paragraph 21. 31 — Johnson, paragraph 30.

I - 7853

OPINION OF MR LÉGER — CASE C-326/96

89. However, in the circumstances of this 92. Obviously, those are not the objectives case, that conclusion seems odd. pursued by the provision of the Equal Pay Act at issue here. As the United Kingdom Government recognises, it serves rather '... to prevent the courts and tribunals being required 35 to adjudicate upon old claims'. The time- limit at issue is thus justified at national level by the desire to encourage plaintiffs to dem­ onstrate the necessary diligence to enforce their rights as soon as possible. 90. The point that cannot be overlooked is that the judgments in Steenborst-Neerings, Johnson and Alonso-Pérez concerned the pay­ 32 ment of social security benefits. To be more precise, on each occasion the measure at issue was a 'national rule restricting the retroactive 33 effect of a claim for [social] benefits'.

I - 7854

LEVEZ v JENNINGS

95. In the case of Mrs Levez, strict enforce­ 97. I am therefore of the opinion that, ment of the limit set by Section 2(5) of the although the introduction of a retroactive Equal Pay Act does not entail very serious limit such as that laid down in Section 2(5) of financial consequences, since she 'only' loses the Equal Pay Act is not in itself open to the arrears due in respect of the period between criticism, if the national court has no power February 1991 and September 1991. There to extend the limit set and so mitigate the are situations, however, in which the financial rule's application in order to take account of 37 consequences could be much more serious. special circumstances in particular cases, such There are also situations in which strict a rule can make it virtually impossible or enforcement of that rule would prevent excessively difficult to enforce a right derived employees deceived by their employers from from Community law. 38 receiving any arrears at all.

37 — Consider, for instance, the case of a woman in the same situ­ ation as Mrs Levez, discriminated against in terms of salary, a fact hidden from her by her employer, but for a period of 15 years rather than a little over two years. Rigid appli­ 99. I conclude, therefore, that the fact that cation of the provision at issue would, at best, restrict any possible award of arrears to the last two years before she the national court is precluded from taking discovered the discrimination; arrears in respect of the pre­ account in individual cases of special circum­ vious 13 years, albeit due, could never be awarded. 38 — Consider, for example, the situation of a woman who has for stances justifying the delay in bringing an years been discriminated against in terms of pay who finally, action, in order to extend the retroactive limi­ over the two years preceding her initiation of proceedings, is paid on a non-discriminatory basis. If she docs not dis­ tation period laid down in Section 2(5) of the cover the discrimination until the end of those two years, and even if she brings an action immediately, strict enforce­ Equal Pay Act, is contrary to the principle ment of the rule at issue would mean that, even if the dis­ that Community law must be effective, and crimination were proved, she could not be awarded any arrears at all. certainly to the principle of equivalence.

I - 7855

OPINION OF MR LÉGER — CASE C-326/96

Conclusion

100. In the light of the foregoing, I propose that the Court reply to the Employ­ ment Appeal Tribunal as follows:

(1) Community law, in particular Article 119 of the EC Treaty, precludes the appli­ cation, to a claim for arrears of remuneration in reliance on the principle of equal pay for men and women in respect of the same work, of a national rule of procedure which limits the period prior to the lodging of that claim in respect of which the arrears due may be obtained, where that rule is less favour­ able than those governing similar domestic actions for recovery of salary arrears in reliance on provisions of national law, in particular employment law.