1. law for gender-based pay discrimination. Consequently,
1. Compensation for the appellant’s crippled pension.1
Yet, the action was dismissed as unfounded at the date of 17th December 1970, with the decision being upheld on the second and, respectively, the third heads adjacent to the claim by the Court de Travail on 23rd April 1975. So as to reach a decision on the first head, the Court de Travail forwarded two preliminary questions to the European Court of Justice, which subsequently constituted the subject of the case 43/75, on 8th April 1976. Ensuing from the dismissal of parts of the claim, Mrs. Defrenne pursued an appeal to the Cour the Cassasion against the Cour de Travail, with the former court referring a preliminary question to the ECJ.
DEFRENNE’S CASE 43/75 – SETTING A PRECEDENT
From hereafter, Defrenne’s case 43/75 stands as the crux of this paper for the ruling of the ECJ is of paramount importance in three respects that are going to be further analysed in the upcoming sections.
What renders Mrs. Defrenne case as a novelty is a series of precedents it set: ‘1) it added to the developing jurisprudence on the direct effect of Treaty provisions, 2) it dealt with the difficult policy issue of retroactivity in claims for damages; and, perhaps most importantly, 3) it laid the foundations for the future development of EC sex equality law and formed the basis of the European Court of Justice’s relationship with what has become known as «the social dimension»’2.
Being initially devised with no particular social aim, ‘Article 119 of the Treaty of Rome was originally included in the Treaty to alleviate French concerns that its strong devotion in domestic law to the equal pay principle would not disadvantage French businesses in the common market’3. However, in spite of the economic foundation, in Defrenne II, the ECJ argued that seemingly economic provisions like Article 119 also entails social implications.
As stated above, Mrs. Defrenne’s litigation could not be palliated by any existent Belgian law for gender-based pay discrimination. Consequently, the focus was shifted on Article 119 EC listing the principle that men and women ‘should receive equal pay for equal work.’4 In continuation, the Belgian appeal court referred the case to the ECJ comprising a dual inquiry. On the one hand, the field of application of Article 119 of the Treaty, and on the other hand, the existence of a principle in Community law against discrimination of women workers with regards to issues other than remuneration. More precisely, it was sought to establish whether ‘its Article 119 inclusion in the Treaty introduced the principle of equal pay for equal work directly into the national law of each Member State, thereby entitling workers to institute proceedings before national courts to ensure its observance and, if so, from which date. Second, the Cour du Travail asked if Article 119 was directly applicable in Member States or whether its application depended on it being adopted by national law’5.
The primal legal argument underpinning Mrs. Defrenne plea was that Article 119 ought to be interpreted as encapsulating an overt principle of equality in treatment of men and women without being confined to the provision of solely equal pay for equal work embedded in the Treaty of Rome as following: ‘For the purpose of this Article, “pay” means the ordinary basic it minimum wage or salary and any other consideration, whether n cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.’6 Accordingly, the imposition of an employment age limit for one gender only is implicitly prohibited by Article 119, most prominently because such a measure engenders pecuniary consequences impinging on both the allowance available on termination of service and pension.
1 Defrenne v Sabena.” XpertHR.co.uk, XpertHR, www.xperthr.co.uk/law-reports/defrenne-v-sabena/52260/ .
2 Smith, Rhona K. M., et al. “Social Policy: Case 43/75 Defrenne v Societe Anonyme Belge De Navigation Aerienne (SABENA).” Conversion Course Companion for Law: Core Legal Principles and Cases for CPE/GDL, Longman, 2008, pp. 152.
3 Pavone, Tommaso. “EU Case Law Outline.” Scholar Princeton, 2014, https://scholar.princeton.edu/sites/default/files/tpavone/files/eu_case_law_outline_based_on_craig_de_burca_2011.pdf .
4 Treaty of Rome Title III, Social Policy. Chapter 1, Social Provision, Article 119, 1957, p. 43
5 Smith, Rhona K. M., et al. “Social Policy: Case 43/75 Defrenne v Societe Anonyme Belge De Navigation Aerienne (SABENA).” Conversion Course Companion for Law: Core Legal Principles and Cases for CPE/GDL, Longman, 2008, pp. 153.