Instantie

Hof van Justitie EG

Samenvatting

Mevrouw Garland legde zich niet neer bij het feit dat haar werkgeefster,
British Rail Engineering, haar als vrouwelijke werkneemster
geenreisfaciliteiten ter beschikking stelde, terwijl mannelijke werknemers na
hun pensionering de reisfaciliteiten (voor zichzelf, hun echtgenote en
kinderen) behielden. Voor het House of Lords betoogde mevrouw Garland dat deze
situatie indruiste tegen artikel 119 EEG-Verdrag en de richtlijnen tot
uitvoering daarvan. Het House of Lords stelde twee pre-judiciele vragen: .

1. Indien de werkgever (hoewel daartoe niet contractueel verplicht)
voormalige werknemers na het bereiken van de pensioengerechtigde leeftijd
bijzondere reisfaciliteiten verleent die op de hierboven omschreven wijze
discriminerend zijn voor voormalige vrouwelijke werknemers, is dat dan in
strijd met

a. artikel 119 EEG-Verdrag

b. artikel 1 van ’s Raads richtlijn nr. 75/117/EEG?

c. artikel 1 van ’s Raads richtlijn nr. 76/207/EEG?

2. Indien het antwoord op vraag 1a, 1b of 1c bevestigend luidt, is
artikel 119 of een van de genoemde richtlijnen dan rechtstreeks toepasselijk
in de Lid-Staten, in die zin dat zij personen in bovengenoemde omstandigheden
afdwingbare gemeenschappelijke rechten verlenen?

Het EG-Hof verklaarde voor recht:

1. Wanneer een werkgever, zonder daartoe contractueel gehouden te zijn,
voormalige mannelijke werknemers na hun pensionering speciale reisfaciliteiten
toekent, levert dit discriminatie in de zin van artikel 119 op jegens
voormalige vrouwelijke werknemers aan wie niet dezelfde faciliteiten worden
toegekend.

2. Wanneer de nationale rechter in staat is, met behulp van de criteria
“gelijke arbeid” en “gelijke beloning” en zonder dat communautaire of
nationale maatregelen terzake bestaan, vast te stellen dat toekenning van
speciale reisfaciliteiten uitsluitend aan gepensioneerde mannelijke werknemers
discriminatie naar geslacht inhoudt, is artikel 119 EEG-Verdrag rechtstreeks
op een dergelijke situatie van toepassing.

Volledige tekst

I – Facts and written procedure

The appellant in the main action, Mrs. Garland, is a married women
employed by British Rail Engineering Limited, the whole of the shareholding in
which is held by the British Railways Board, a public authority charged by
statute with the duty of providing railway services in Great Britain.

During the period of their employment all employees of British Rail
Engineering enjoy certain valuable travel facilities which are also extended
to their spouses and dependent children.

On retirement former employees, men and women, continue to enjoy travel
facilities but they are reduced in comparison with those which they enjoyed
during the period of their employment. However, although male employees
continue to be granted facilities for themselves and for their wives and
dependent children as well, female employees no longer have such facilities
granted in respect of their families.

According to the House of Lords “these facilities are not enjoyed by
former employees as a matter of contractual right, but employees have a
legitimate expectation that they will enjoy them after retirement and it would
be difficult in practice for British Rail Engineering to withdraw them
unilaterally” without the agreement of the trade unions of which its employees
are members.

On 25 November 1976 Mrs. Garland complained to an industrial tribunal
that BritishRail Engineering was discriminating against her contrary to the
provisions of the Sex Discrimination Act 1975. The tribunal rejected Mrs.
Garland’s application and she then appealed to the Employment Appeal Tribunal
which, by a judgment of 11 November 1977, reversed the first decision.
following a new appeal, by a judgment of 4 April 1979 the Court of Appeal
annulled the second decision.

Only the provisions of the Sex Discrimination Act 1975 were invoked on
each occasion and the argument centred in particular on the interpretation of
section 6 (4) which excludes “provision in relation to death or retirement”
from certain provisions of the Act.

The issues of Community law were not raised until the case reached the
House of Lords. In view of those issues the House of Lords made an order dated
19 January 1981 in which it puts the following two questions to the Court:

“1. Where an employer provides (although not bound to do so by contract)
special travel facilities for former employees to enjoy after retirement which
discriminate against former female employees in the manner described above, is
this contrary to:

(a) Article 119 of the EEC Treaty?

(b) Article 1 of Council Directive 75/117/EEC?

(c) Article 1 of Council Directive 76/207/EEC?

2. If the answer to Questions 1(a), 1(b) or 1(c) is affirmative, is
Article 119 or either of the said directives applicable in Member States so as
to confer enforceable Community rights upon individuals in the above
circumstances?”

That order making the reference for a preliminary ruling was registered
at the Court on 22 January 1981.

In accordance with Article 20 of the Protocol on the Statute of the
Court of Justice of the EEC, written observations were submitted on 23 March
1981 by the Commission of the European Communities represented by John Forman,
a member of its Legal Department, acting as Agent, on 14 April 1981 by British
Rail Engineering represented by Anthony Scrivener QC and F. Marr Johnson, on
15 April 1981 byMrs. Garland, represented by Thomas Morison QC and Nicolas
Underhill, and on 21 April 1981 by the government of the United Kingdom,
represented by R.D. Munrow of the Treasury Solicitor’s Department, assisted by
Peter Scott QC.

Upon hearing the report of the Judge-Rapporteur and the views of the
Advocate General the Court decided to open the oral procedure without any
preparatory inquiry. It did however ask the representative of British Rail
Engineering to send it before 30 September 1981 the notices by which employees
are informed, behore or after their retirement, about the travel facilities in
question.

II – Written observations submitted under Article 20 of the Protocol on
the Statute of the Court

A- Observations of the appellant in the main action

The appellant in the main action deals with the questions put to the
Court mainly in relation to Article 119 of the EEC Treaty and Directive
75/117/EEC on equal pay and, in the alternative – in the event of the Court’s
rejecting the submissions on Article 119 and the directive on equalpay – in
relation to Directive 76/207/EEC on equal treatment.

(a) Article 119 and Directive 75/117 on equal pay

The appellant in the main action first of all considers whether “pay”
includes special travel facilities and submits that the case-law of the Court
and above all the opinions of Advocates General have conferred a wide ambit on
the definition. The benefits in question are “of considerable value”, they are
featured prominently in recruitment advertising, they form a “significant”
part of an employee’s remuneration and are granted as a result of the
employment relationship; consequently those benefits fall squarely within the
definition of Article 119 of the EEC Treaty.

The appellant in the main action then sets out to demonstrate that the
grant of those benefits to former employees comes within the ambit of Article
119 or the directive on equal pay. It relies on the judgment of 25 May 1971 in
Case 80/70 Gabrielle Defrenne (1971) ECR 445 and submits that, since the only
essential question is whether the benefit in issue is provided as a result of
the employment relationship, “it is immaterial whether its actual receipt is
deferred until after the termination of the employment”.

Lastly, the appellant in the main action submits that the grant of the
benefits in question to the employee’s family rather than to the employee
alone is also immaterial since, in human and economic terms, the interests of
the employee and those of his family are the same; Mr. Advocate General Warner
came to the same conclusion in his opinion in the Worringham case (judgment of
the court of 11 March 1981, Case 69/80(1981)ECR 767) when he stated “The
conferment of the right to those benefits on his dependants can, however, in
my opinion, properly be regarded as an advantage to the member arising from
his employment’.

The appellant in the main action submits that the benefit in question is
pay within the meaning of Article 119 of the Treaty and that Article 119 is
directly applicable. She believes that the principles formulated by the Court
in the Worringham case should apply in this case since the respondent in the
main action has admitted “both direct and overt discrimination, and has not
sought to argue that the discrimination is objectively justifiable on any
grounds other than sex”; its case has been based simply on the argument that
such discrimination is not unlawful by reason of the exception contained in
Section 6 (4) of the Sex Discrimination Act.

(b) Directive 76/207 on equal treatment

The appellant in the main action takes the same line of argument as that
which she took in regard to Article 119 and the directive on equal pay. She
therefore sets out to demonstrate first of all that if the special facilities
in question do not come within the definition of pay they must come within the
definition of “working conditions” provided for in that directive on equal
treatment since the two directives referred to in the order making the
reference for a preliminary ruling as well as the social security directive
together form a comprehensive code prohibiting discrimination in all aspects
of employment.

She further repeats her submission that the fact that the benefits in
question are granted to former employees does not prevent their forming part
of “working conditions” referred to in Article 5 of the directive on equal
treatment. In any event they are a present right vested in the employee during
his period of employment, although only to be enjoyed after retirement.

Finally, the appellant sonsiders that her previous submissions on the
grant of the benefits in question to families apply “a fortiori when the
relevant concept is ‘working conditions’ rather than ‘pay’.”

Therefore, should those travel benefits not be “pay” within the meaning
of Article 119 of the EEC Treaty and the directive on equal pay, they are in
any event “working conditions” within the meaning of the directive on equal
treatment.

That directive also has “direct effect”. The provisions of the directive
are sufficiently clear and precise and leave the Member States no relevant
margin of discretion in the performance of the obligations which it imposes.
If the obligations are not complied with, then, as Mr. Advocate General
Capotorti said, “the way would be open for the enforcement, in the community
system, of personal rights of individuals on the basis of the directive
itself” (opinion in Case 149/77 Defrenne v Sabena (1978) ECR 1365).

Although in the cases decided by the Court there has been no decision
clearly establishing that “a directive may have direct effect to confer right
on an individual against another individual rather than against the government
of a Member State”, the appellant submits that there is no good reason why a
directive should impose obligations only on the governments of Member States
especially since the purpose of the directive was to ensure that the
obligations as to equal treatment were imposed on both Member States and
individuals. Furthermore, since the respondent is a wholly-owned subsidiary of
a corporation created by statute for the purpose of operating the national
railway service, it is to be regarded as an emanation of the national
government.

The appellant appreciates that the period within which Member States
were obliged to comply with the directive in question by adopting the
provisions necessary for its implementation did not expire until August 1978,
that is to say after the making of the application in this case. However, the
discrimination complained of by the appellant is not merely a single act
occurring before that date but a continuous act which will not “bite”, until
the date in the future when the appellant retires. Therefore, the Court should
be prepared to consider the legal position at the material time rather than at
the time of the application, if they are different.

B + Observations of the Commission

After quoting the definition of “pay” set out in the second paragraph of
Article 119 of the EEC Treaty the Commission states that special travel
facilities granted to employees represent benefits in kind paid to workers
directly by the employer.

The Commission takes the view, first, that such benefits granted by an
employer to his employees should properly be treated as being “in respect of”
an employment. Secondly, special travel facilities, which also benefit an
employee’s spouse and children, nevertheless represent consideration in kind
which a worker receives directly from the employer in respect of his
employment. Thirdly, the fact that the benefits continue to be enjoyed beyond
the active working life of an employee and into retirement does not prevent
him from receiving them in respect of his employment because they would hardly
be “in respect of retirement”. Consequently the Commission accepts that “the
concept of equal pay extends to special travel facilities granted to spouses
and dependent children of employees which continue into retirement”.

Relying on the judgment of 8 April 1976 in Case 43/75 Defrenne (1976)
ECR 455 the Commission submits that the concept of equal pay may “be taken
advantage of before the national courts by employees vis-a-vis their employers
on the basis of the direct effect of Article 119″.

Finally, the Commission considers that if its arguments are correct it
would follow that neither Directive 75/117 nor Directive 76/207 would find
application in the case at hand.

The Commission accordingly suggests the following reply to the questions
raised by the House of Lords:

“Special travel facilities enjoyed by the spouses and dependent children
of employees which continue on the retirement of the employee constitute ‘pay’
within the meaning of the second paragraph of Article 119 of the EEC Treaty.
In this connection Article 119 may be relied upon before the national
courts.”

C – Observations of the respondent in the main action

The respondent in the main action first of all submits that the special
travel facilities in question do not constitute “pay” within the meaning of
that expression as used in Article 119 of the EEC Treaty and Article 1 of
Council Directive 75/117/EEC; consequently, the alleged discrimination is not
a contravention of either of those provisions. The respondent argues that such
facilities are not “consideration in cash” or “other consideration in kind,
which the worker receives in respect of his employment from his employer”,
first because they are provided as a matter of consession by British Rail
Engineering and not pursuant to any agreement between employer and worker and,
secondly, because they are incapable of assessment in financial terms. A
fortiori the receipt of such facilities by a retired employee shows that the
provision of such facilities after retirement forms part of the provisions
which an employer makes voluntarily for the retirement of that employee; it
forms no part of the “pay” which that employee earned during his working
years.

The respondent also submits that the facilities in question do not
constitute “working conditions” either, within the meaning of Article 1 of
Council Directive 76/207.

According to the respondent it is not arguable that the provision of
special travel facilities relates to matters of access to employment,
promotion or vocational training. The argument must be that those facilities
are part of the “working conditions” of an employee; that expression must be
construed as indicating that the conditions in question must relate to the
work being carried out by the employee at the material time. Viewed in this
light the provision of free travel between an employee’s place of work and his
home is a “working condition”. However, discrimination in relation to the
provison of other travel facilities would not be discrimination in regard to
an employee’s “working conditions”; it would only be discrimination in regard
to the facilities which the employer afforded to an employee outside his work.
In any event, there cannot possibly be discrimination in regard to an
employee’s “working conditions” after that employee retires from work since
there can be no “working conditions” if the employee is no longer working.

In view of the answers proposed to Questions 1(a), (b) and (c), Question
2 does not arise, but even if those questions were answered in the
affirmative, the respondent submits in the alternative that neither Article
119 nor either of the directives is directly applicable in Member States so as
to confer enforceable Community rights upon individuals in the circumstances
outlined in the order making the reference for a preliminary ruling.

In conclusion the respondent submits that the questions referred to the
Court should be answered as follows:

“1. Where an employer provides (although not bound to do so by contract)
special travel facilities for former employees to enjoy after retirement which
discriminate against former female employees, such provision is not contrary
to Article 119 of the EEC Treaty or Council Directive 75/117/EEC or
76/207/EEC.

2. In the circumstances, Question 2 does not arise.”

D – Observations of the United Kingdom

As far as the nature of the facility in question is concerned, the
United Kingdom states that it could be varied or stopped by British Rail
Engineering at any time but emphasizes that in practice that would be
difficult and would need to be discussed first with the trade unions
concerned. It also pints out that the facility is to the greater benefit of
women than men since women retire five years before men.

The United Kingdom thengoes on to examine successively the three
provisons referred to i the questions of the House of Lords.

Article 119

That article signifies that men and women should receive equal pay for
equal work. According to the United Kingdom the test of whether there is
unlawful discrimination based on sex is whether the relationship between pay
on the one hand and work or work’s value on the other is different because of
the worker’s sex. The nature of the facility in question is such that neither
its cost nor its value can be compared with the amount or value of the work
done to earn it by male and female employees. It is true that the facility may
be described as arising out of the worker’s employment and that without that
employment it would not have been granted, but “once the benefit cannot be
related to the work, the principle of Article 119 cannot be invoked”.
Furthermore, and in any event, such a facility provided after a worker has
retired is not within Article 119 at all. That article is meant to affect
legal relationships only and is not intended to cover gratuitous gestures by
the employer.

As regards the direct applicability of Article 119, the United Kingdom
submits with reference to the judgment of 31 March 1981 in Case 96/80 Jenkins
(1981) ECR 911 that even if free travel facilities after retirement are pay
for the purpose of Article 119, the provisons of that article cannot be
applied directly “without the aid of national or Community measures which
resolve the questions of how to approach the differing retiring ages and life
expectations which directly affect the cost of the benefit to the employer and
its value to the employee”.

Article 1 of Council Directive 75/117

Again with reference to the Jenkins judgment, cited above, the United
Kingdom states that if the benefit in question is not pay for the purpose of
Article 119 – which it had tried to demonstrate – Directive 75/117 “is
irrelevant”.

If on the other hand the benefit is pay for the purpose of Article 119
of the EEC Treaty a question might in theory arise as to the effect of the
directive. The United Kingdom here reminds the court that “it does not
consider that directives can have the effect of imposing obligations upon
individuals. Directives are addressed only to Member States and purport to
impose obligations only upon those States”. Furthermore Article 1 of Directive
75/117 contains no provisions which are capable of conferring rights or
imposing obligations on individuals as the terms of the directive do not even
refer to retirement benefits and afford no guidance as to how they should
apply to such matters. It is plain that individuals may not rely upon
directives “as having horizontal effect so as to create rights inter se which
may be enforced as a matter of law”.

Article 1 of Council Directive 76/207

In the submission of the Government of the United Kingdom this directive
does not touch the lawfullness of the provision of free travel facilities
after retirement since, of the items referred to in Article 1 of the
directive, the only one which could conceivably be relevant is social security
but as matters of social security are excluded from the directive, the
benefits in question do not come within the scope of that directive.

For the same reasons as those advanced in relation to Directive 75/117
the Government of the United Kingdom submits that Directive 76/207 does not
have direct effect either, especially as Article 5 “plainly shows that
detailed legislation is contemplated to give effect to the general principle
with which the directive is concerned”. What is more, since the time-limit in
Article 9 (1)of that directive expired on 12 August 1978, that is to say after
the proceedings in the present case were commenced, “no question of the
application of this directive can in any event arise in the present
proceedings”.

Accordingly, in the view of the Government of the United Kingdom, the
Court should answer the quesions referred to it by the House of Lords as
follows:

“Travel facilities voluntarily granted by an employer to employees after
their retirement are not pay within the meaning of Article 119 of the EEC
treaty and, if they were, discrimination on the grounds of sex in the granting
of such facilities would not give rise to rights enforceable by an individual
against his employer or former employer.

2. Such facilities are not within the provisions of Article 1 of Council
Directive 75/117/EEC or Article 1 of Council Directive 76/207/EEC and, if they
were, those articles would not give rise to rights enforceable by an
individual against his employer or former employer.”

III – Oral procedure

At the hearing on 7 October 1981 the Plainriff in the main action,
represented by C. Carr, Barrister, Lincoln’s Inn; the defendant in the main
action, represented by A. Scrivener, QC Gray’s Inn; the United Kingdom,
represented by P. Scott QC, Middle Temple; and the Commission of the European
Communities, represented by J.Forman, acting as Agent, presented oral argument
and their answers to questions put by the Court.

The Advocate General delivered his opinion at the hearing on 8 December
1981.

DECISION

1 By order date 19 January 1981 which was received at the Court on 22
January 1981 the House of Lords referred to the Court for a preliminary ruling
under Article 177 of the EEC Treaty two questions as to the interpretation of
Article 119 of the Treaty, Article 1 of 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, p. 19) and of Article 1 of Council Directive 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).

2. Those questions were raised in the context of a dispute between an
employee of British Rail engineering Limited, a subsidiary of the British
Railways Board, which is a body created by the Transport Act 1962 charged with
the duty of managing the railways in the United Kingdom, and her employer
concerning discrimination alleged to be suffered by female employees who on
retirement no longer continue to enhoy travel facilities for their spouses and
dependent children although male employees continue to do so.

3. It was submitted before the House of Lords that that situation was
contrary to Article 119 and the directives implementing it and the House of
Lords therefore referred the following two questions to the Court:

“1. Where an employer provides (although not bound to do so by contract)
special travel facilities for former employees to enjoy after retirement which
discriminate against former female employees in the manner described above, is
this contrary to:

(a) Article 119 of the EEC Treaty?

(b) Article 1 of Council Directive 75/117/EEC?

(c) Article 1 of Council Directive 76/207/EEC?

2. If the answer to Questions 1 (a), 1 (b) or 1 (c) is affirmative, is
Article 119 or either of the said directives directly applicable in Member
States so as to confer enforceable Comunity rights upon individuals in the
above circumstances?

QUESTION 1

4 To assist in answering the first question it is first of all necessary
to investigate the legal nature of the special travel facilities at issue in
this case which the employer grants although not contractually bound to do
so.

5 It is important to note in this regard that in paragraph 6 of its
judgment of 25 May 1971 in Case 80/70 Defrenne [1971] ECR 445, at p. 451, the
Court stated that the concept of pay contained in the second paragraph of
Article 119 comprises any other consideration, whether in cash or in kind,
whether immediate or future, provided that the worker receives it, albeit
indirectly, in respect of his employment from his employer.

6 According to the order making the reference for a preliminary ruling,
when male employees of the respondent undertaking retire from their employment
on reaching retirement age they continue to be granted special travel
facilities for themselves, their wives and their dependent children.

7 A feature of those facilities is that they are granted in kind by the
employer to the retired male employee of his dependants directly or indirectly
in respect of his employment.

8 Moreover, it appears from a letter sent by the British Rialways Board
to the trade unions on 4 December 1975 that the special travel facilities
granted after retirement must be considered to be an extension of the
facilities granted during the period of employment.

9 It follows from those considerations that rail travel facilities such
as those referred to by the House of Lords fulfil the criteria enabling them
to be treated as pay within the meaning of Article 119 of the EEC Treaty.

10 The argument that the facilities are not related to a contractual
obligation is immaterial. The legal nature of the facilities is not important
for the purposes of the application of Article 119 provided that they are
granted in respect of the employment.

11 It follows that where an employer (although not bound to do so by
contract) provides special travel facilities for former male employees to
enjoy after their retirement this constitutes discrimination within the
meaning of Article 119 against former female employees who do not receive the
same facilities.

12 In view of the interpretation given to Article 119 of the EEC Treaty,
which by itself answers the question posed by the House of Lords, there is no
need to consider points (b) and (c) of Question 1 which raise the same
question with reference to Article 1 of Directive 75/117/EEC and of Directive
76/207/EEC.

QUESTION 2

13 Since Question 1 (a) has been answered in the affirmative the
questions arises of the direct applicability of Article 119 in the Member
States and of the rights which individuals may invoke on that basis before
national courts.

14 In paragraph 17 its judgment of 31 March 1981 in Case 96/80 Jenkins v
Kingskate [1981] ECR 911, at p. 926, the Court stated that Article 119 of the
Treaty applies directly to all forms of 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, without national or Community measures being required
to define them with greater precision in order to permit of their
application.

15 Where a national court is able, using the criteria of equal work and
equal pay, without the operation of Community or national measures, to
establish that the grant of special transport facilities solely to retired
male employees represent discrimination beased on difference of sex, the
provisions of Article 119 of the Treaty apply directly to such a situation.

COSTS

16 The costs incurred by the Commission of the European Communities and
the Government of the United Kingdom of Great Britain and Norhern Ireland,
which have submitted observations to the Court, are not recoverable.

At this case is, in so far as the parties to the main action are
concerned, in the nature of a step in the proceedings before the national
court, the decision as to costs is a matter for that court.

On those grounds,

THE COURT

hereby rules:

1. Where an employer (although not bound to do so by contract) provides
special travel facilities for former male employees to enjoy after their
retirement this constitutes discrimination within the meaning of Article 119
against former female employees who do not recieve the same facilities.

2. Where a national court is able, using the criteria of equal work and
equal pay, without the operation of Community or national measures, to
establish that the grant of special travel facilities solely to retired male
employees represents discrimination based on difference of sex, the provisions
of Article 119 of the treaty apply directly to such a situation.

Rechters

Bosco, Touffait, Due, Pescatore, Mackenzie Stuart, O’Keeffe, Koopmans,Chloros, Grevisse