Instantie

Hof van Justitie EG

Samenvatting

Gabrielle Defrenne stelde cassatie in tegen het arrest van het
Arbeidshof ten aanzien van de verworpen onderdelen van de vordering. Het Hof
van Cassatie stelde een uit twee onderdelen bestaande prejudiciele vraag: a.
kan het in artikel 119 neergelegde beginsel van gelijke beloning aldus worden
uitgelegd dat het in het algemeen gelijke arbeidsvoorwaarden voor mannelijke
en vrouwelijke werknemers voorschrijft, zodat er sprake zou zijn van een in
gevolge deze bepaling verboden discriminatie, indien de arbeidsovereenkomst
van een stewardess een clausule bevat bepalende dat de overeenkomst afloopt
wanneer de werknemer de leeftijd van veertig jaar bereikt, zulks terwijl
vaststaat dat een zodanige bepaling ontbreekt in de overeenkomst van
mannelijke boordbedienden die dezelfde arbeid verrichten;

b. geldt buiten de specifieke bepalingen van artikel 119 in het
gemeenschapsrecht een algemeen beginsel dat discriminaties naar geslacht in
aanstellings- en andere arbeidsvoorwaarden van mannelijke en vrouwelijke
werknemers verbiedt.

Het Hof verklaarde voor recht:

Artikel 119 EEG-Verdrag, mag niet aldus worden uitgelegd dat het naast
de gelijkheid van beloning ook de gelijkheid van de andere op mannelijke en
vrouwelijk werknemers toepasselijke arbeidsvoorwaarden voorschrijft.

Ten tijde van de aan het hoofdgeding ten grondslag liggende feiten
bestond voor wat betreft de aan het nationale recht onderworpen
arbeidsbetrekkingen, geen regel van gemeenschapsrecht die discriminatie tussen
mannelijke en vrouwelijke werknemers in arbeidsvoorwaarden anders dan die
betreffende de in artikel 119 EEG-Verdrag bedoelde bezoldigingsregeling
verbood.

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(3) Compensation for the damage suffered by the appellant as regards her
pension.

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

5 By judgment of 23 April 1975 on the appeal lodged by the applicant in
the original action the Cour du Travail, Brussels, upheld the judgment at
first instance on the second and third heads of claim.

6 For the purpose of giving judgment on the first head of claim that
court referred to the Court de Justice two preliminary questions which formed
the subject of Case 43/75 on 8 April 1976 ([1976] ECR 455).

7 Following the preliminary ruling, the Cour du Travail by a judgment of
24 November 1976 awarded the applicant the sum of Bfrs 12 716 by way of the
arrears of remuneration claimed, increased by interest and costs.

8 Miss Defrenne lodged an appeal in cassation against the judgment of
the Cour du Travail as regards the heads of claim which it had dismissed and
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 related, in particular, to the validity of a provision of that
decree excluding air hostesses from the scheme in question.

10 For its part he Conseil d’Etat 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).

11 In order to resolve the questions at present before it, the Cour de
Cassation has referred to the court a preliminary question, worded in two
parts, which requires clear replies inasmuch as it relates, first, to the
determination of the field of application of Article 119 of the Treaty and,
secondly, to the possible existence of a general principle of Community law,
the aim of which is to eliminate discrimination between men and women workers
as regards conditions of employment and working conditions other than
remuneration in the srict sence.

The first part of the question -scope of Article 119 of the EEC Treaty

12 The first part of the question raised by the Cour de Cassation seeks
to 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 attendants who carry out the same work, constitutes discrimination
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 is found many expressions in
the Treaty.

14 In particular she claims that the contested clause contained in the
contract of employment of air hostesses, fixing an age-limit of 40, is subject
to the rule against discrimination contained in Article 119 by reason of the
fact that, first, a woman worker can receive pay equal to that received by men
only if the requirement regarding equal conditions of employment is first
satisfied and, secondly, that the age-limit imposed on air hostesses by the
contract of employment has pecuniary consequences which are prejudicial as
regards the allowance on termination of service and pension.

15 The field of application of Article 119 must be determined within 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 the
approximation of their laws in that field.

17 There is no doubt that the elimination of discrimination based on the
sex of workers forms part of the programme for social and legislative policy
which was clarified in certain respects by the Council Resolution of 21
January 1974 (Official Journal C 13, p. 1)

18 The same thought also underlies Council Directive No 76/207/EEC of 9
February 1976 on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational training and
promotion and working conditions (Official Journal L 39, p. 40).

19 In contrast to the provisions of Articles 117 and 118, which are
essentially in 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 immpossible 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 -such as a special age-limit- may have pecuniary consequences is
not sufficient to bring such conditions within the field of application of
Article 119, which is based on the close connexion which exists between the
nature of the services provided and the amount of remuneration.

22 That is a fortiori true since the touchstone which forms the basis of
Article 119 -that is, the comparable nature of the services provided by
workers of either sex- is a factor as regards which all workers are ex
hypothesi on an equal footing, whereas in many respects an assessment of the
other conditions with the sex of the workers, taking into account
considerations affecting the special of women in the work process.

23 It is, therefore, impossible to widen the terms of Article 119 to the
point, first, of jeopardizing the direct applicability which that provision
must be acknowledged to have in its own sphere and, secondly, of intervening
in an area reserved by Articles 117 and 118 the discretion of the authorities
referred to therein.

24 The reply to the first part of the question must therefore be that
Article 119 of the Treaty cannot be interpreted as prescribing, in addition to
equal pay, equality in respect of the other working conditions applicable to
men and women.

The second part of the question -the existance of a general principle
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 Article 119, Community law contains any general principle
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
human rights is one of the general principles of Community law, the observance
of which it has a duty to ensure.

27 There can be no doubt that the elimination of discrimination based on
sex forms part of those fundamental rights.

28 Moreover, the same concepts are recognized by the European Social
Charter of 18 November 1961 and by Convention No 11 of the International
Labour Organization of 25 June 1958 concerning discrimination in respect of
employment and occupation.

29 Attention must be drawn in this regard to the fact that in its
judgments of 7 June 1972 in Case 20/71 Sabbatini (nee Bertoni) v European
Parliament ([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 bythe Community itself, whithin the context of the Staff
Regulations of Officials.

30 On the other hand, as regards the relationship of employer and
employee which ar 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.

31 As has been stated above, at the period under consideration Community
law contained only the provisions in the nature of a programme laid down by
Articles 117 and 118 of the Treaty, which relate to the general development of
social welfare, in particular as regards conditions of employment and working
conditions.

32 It follows that the situation before the Belgian courts is governed
by the provisions and principles of internal and international law in force in
Belgium.

33 The reply to the second part of the question must therefore be that
at the time of the events which form the basis of the main action there was,
as regards the relationships between employer adn employee under national law,
no rule of Community law prohibiting discrimination between men and women in
the matter of working conditions other than the requirement 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
Communities, which have submitted observations to the Court, are not
recoverable.

35 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 Cour
de Cassation of Belgium, the decision on costs is a matter for that court.

On those grounds,

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 relationship 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.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 30 MAY 1978

Mr. President, Members of het Court,

1. For the third time the Court of Justice has before it a Defrenne case
and is called upon to resolve a problem relating to the interpretation of
Article 119 of the EEC Treaty which affirms “the principle that men and women
should receive equal pay for equal work”. As in the two previous cases the
reference for a preliminary ruling emanates froma Belgian court (in this
instance the Cour de Cassation) and has arisen in het context of an action
brought by Miss Defrenne after the termination of her contract of employment
with the airline company Sabena.

Let me first summarize the facts of the case.

Miss Defrenne was engaged by Sabena in December 1951 as a trainee air
hostess and 12 years later she was promoted to be air hostess-principal cabin
attendant but on 15 February 1968 she had to give up her post pursuant to the
sixth paragraph of Article 5 of the contract of emplyment entered into by air
crew employed by Sabena whereby in principle employment of female staff
terminates automatically when they reach the age of 40 years. Also pursuant to
that contract of employment Miss Defrenne received an allowance on termination
of service equivaltent to 12 month’s salary.

On 13 March 1968 Miss Defrenne brought behore the Tribunal du Travail
(Labour Tribunal), Brussels, an action claiming that Sabena should be ordered
to pay to her certain arrears of salary and an additional allowance on
termination of service and to compensate her for the damage she had allegedly
suffered with regard to her retirement pension. Moreover in action brought
before the Conseil d’Etat on 9 February 1970 Miss Defrenne sought ths
annulment of the Royal Decree of 3 November 1969 which laid down rules
governing the acquisition by flight personnel in civil aviation of the right
to a retirement pension but which excluded air hostesses from such a scheme.

In the context of those proceedings the Conseil d’Etat of Belgium
referred to the Court of Justice three questions relating to the
interpretation of Article 119 of the EEC Treaty asking the Court to rule first
whether the retirement pension granted under the terms of a statutory social
scheme “constitutes a consideration which the worker receives indirectly in
respect of his employment form his employer”. By judgment of 25 May 1971 the
Court of Justice confined itself to answering that question in the negative
(Case 80/70, Defrenne v Belgian State [1971] ECR 445). While it recognized
that “consideration in the nature of social security benefits is not ….. in
principle alien to the concept of pay, there cannot be brought within this
concept”, as defined in the second paragraph of Article 119 “in social
security schemes or benefits, in particular retirement pensions, directly
governed by legislation without any element of agreement within the
undertaking or the occupational branch concerned, which are obligatorily
applicable to general categories of workers”. In support of that ruling the
judgment stated that “these schemes assure for the workers the benefit of a
legal scheme, the financing of which workers, employers and possibly the
public authorities contribute in a measure determined less by the employment
relationship between the employer and the worker than by considerations of
social policy”. It accordingly found that “the part due from the employers in
the financing of such schemes does not consitute a direct or indirect payment
to the worker. Moreover the worker will normally receive the benefits legally
prescribed not by reason of the employer’s contribution but solely because the
worker fulfils the legal conditions for the grant of benefits”.

Four years after that judgment in the context of a civil action brought
by Miss Defrenne against Sabena the Cour du Travail (Labour Court), Brussels,
with regard to a claim for arrears of salary, referred to the Court of Justice
for a preliminary ruling two questions concerning the direct effect and the
implementation of the aforesaid Article 119. In the well-known judgment of 8
April 1976 the Court of Justice rules inter alia that the principle that men
and women should receive equal pay, which is laid down in the said article,
may be relied on before the national courts and that those courts have a duty
to ensure the protection of the rights which that provision vests in
individuals, in particular, in the case of those forms of discrimination which
have their origin in legislative provisions or collective labour agreements,
as well as where men and women receive unequal pay for equal work which is
carried out in the same establishment of service, whether private or public
(Case 43/75 [1976] ECR 456). The Court added that a preliminary distinction
must be drawn within the whole area of application of Article 119 between,
first, direct and over discrimination which may be identified solely with the
aid of the criteria based on equal work and equal pay referred to by the
article in question and, secondly, indirect and disguised discrimination which
can only be identified by reference to more explicit implementing provisions
of a Comunity of national character. The direct effect of the principle that
men and women should receive equal pay referred to in the first paragraph of
Article 119 if therefore restricted to direct and overt discrimination as
described above and at the same time the Court emphasized that the complete.

Rechters

Kutscher, Sorensen, Bosco, Donner, Mertens de Wilmars Pescatore,Mackenzie Stuart, O’Keeffe, Touffait