Law cases: Defrenne v Sabena(No2) Bilka v Von Hartz 1

Defrenne v Sabena (No2) 1976 Judgement of European Court of Justice in case C-43/75 2

Subjects and facts Subjects and facts Gabrielle Defrenne: Belgian flight attendant. Sabena: Belgian airlines. Cour du Travail (Bruxelles) Gabrielle Defrenne worked as flight attendant for the Sabena airlines. From the 15 th of February 1963 to the 1 st of February 1966,Sabena paid her less than her male colleagues who did the same work. She appealed the Cour du Travail of Bruxelles,and then this Court appealed to the Court of Justice using the procedure of art 177 EEC. 3

Court of Justice judgement’s The Court of Justice ascertain that there was a clear violation of art.119 EEC. The judgment is based on two fundamental questions. First of all,we have to see what exactly the art.119 EEC says. 4

Law provision of art 119 EEC Art. 119 Treaty of EEC(art.157 TFEU): 1. Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. 2. For the purpose of this Article, 'pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer. 5

Equal pay without sex discrimination What exactly equal pay without sex discrimination means? The third clause of art. 119 EEC give us a clear answer. 3.Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. 6

The first question of the judgement As we said,the judgement of the Court was based on two question. The first question asked if the art.119 introduces directly in the national law of each member State,the principle of equal pay without sex discrimination. Moreover it asked if the workers have the right to do a legal action in the national courts if this principle is violated. The European Court of Justice stated that the art.119 had a double purpose. First of all,it is necessary to avoid that the companies of the member States that apply this principle could be disadvantaged in the competition with the companies of the member States that don’t apply the same principle. The article is not only about economic union,but it must promote and guaranteed the constant improvement of living condition for people and workers. In fact this article is included in the chapter of social policy. So the Court said that the workers could bring the article 119 before the national courts,and these courts must ensure the protection of this right. 7

The second question of the judgement The second question asked if the art.119 is applicable in the member States by the measures adopted by the EEC or if this article must be in the matter of exclusive jurisdiction of national legislature. To solve this problem is fundamental to see the date from which the article must be directly effecacy. In fact,the Court states that the application of art. 119 must be fully guaranteed from the 1 st of January 1962 for the oldest member States and from the 1 of January 1973 for the new member States. In particular,the Court stated that the application of the principle of equal pay is a matter reserved to the national jurisdiction due to both national and european rules. 8

Remark of England and Ireland The direct efficacy of the art.119 could has some consequences about the economy because the judgement of the Court could give rise to some claim with a backdated effect from the date in which this effect must be guaranteed. So this situation could create some heavy financial consequences for some companies that could even failed. This was the question remarked by England and Ireland. 9

Clarifications The direct effect of art.119 can not be used to support claims concerning pay periods previous the date of this judgement (1976),except for the workers who had already done legal proceedings or made an equivalent claim. 10

Bilka v Weber Von Hartz Judgement of the European Court of Justice,May 13 th

Subjects and facts Karin Weber Von Hartz: ex shop assistant of Bilka Bilka:Danish chain of hypermarkets BGB 12 Bilka had a complementary pension (company pension) for all the full-time employees and also for the part-time workers if they had worked full-time for 15 years in a period of 20. Karin Weber worked from 1961 to 1976,but only 11 years full-time. So she could not had this type of pension. Weber appealed the BGB arguing that Bilka violated the principle of equal pay (Art.119 EEC) because generally women choose part-time job to take care of the family more than men (indirect discrimination). Then BGB appealed the European Court of Justice using the procedure of art 177 EEC.

Court of Justice judgement’s 13 The judgement is based on 3 fundamental questions. These questions are all about the correct application of the art.119 EEC (slides 5 and 6).

First question The first question asked if Bilka violated the art.119. First of all,the Court said that the pension is a form of overall pay («any other consideration»)as the article said in paragraph 2. The Court stated that generally the exclusion operated by Bilka was a violation of the art.119,except if the company could prove that the exclusion was based only on non-discriminatory and justified factors (i.g. economic reasons). In fact Bilka said that the different treatment was justified for economic reasons. 14

Second question With the second question,the Court asked if the exclusion operated by Bilka was justified by the aim to discourage part-time job (in order to have workers also in the afternoons and on Satudays). The Court stated that the company had to prove that the tools to discourage part-time job should be justified by an effective interest of the company and in addiction they should be appropriate and necessary to achieve it. In this case, the interest of the company did not imposed this choice. 15

Third question Here,the Court asked if the employer should organize company pension taking into account the difficulties encountered by workers with family (for example,considering full-time the part-time period during which a mother takes care of her child). The Court stated that art.119 does not require that the employer has to do it,because this article is only referred to sex discrimination and not to working conditions. 16

Final considerations As we have seen in these two law cases,the principle of equal pay for men and women for the same job is one of the most important principle contained in the Treaty. The protection is not only reserved to european jurisdiction,but also the national courts must ensure that this principle is respected in their own country. 17