• In the case of Case 43/75 Defrenne v Sabena [1976] ECR 455, The European Court of Justice established the horizontal application of direct effect of the equal pay provision.
  • This case extended the principles established in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
  • This EU case is about gender discrimination, equal pay and European Economic Community law.

Facts of the Case

  • C, a flight attendant in Belgium, contested that she should not have to retire by 40 unlike men.
  • She contended this rule enforced by D breached Article 119 of the Treaty of the European Community (now falls under Article 157 of the Treaty of the Functioning of the European Union).

Issues

  • The main question of this case is whether the National Courts should enforce the equal pay principle.
  • What conditions of employment does Article 119 of the European Economic Community cover?

Held by European Court of Justice

  • C’s claim allowed – Article 119 of the Treaty of the European Community could be enforced against private parties.

Judge R. Lecourt

Equal pay principle

  • Men working for an airline getting paid more than the female employees doing the same task was not a matter against the state but rather a corporation.
  • Individuals may rely on EU law in all circumstances.

Advocate-General A. Trabucchi

Article 119

  • “The aim of article 119 is to avoid a situation in which undertakings established in states which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-community competition as compared with undertakings established in stats which have not yet eliminated discrimination against women workers as regards pay.”
  • Article 119 of the European Economic Community is intended “to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasised by the preamble to the Treaty”.
  • “The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.”

Editor’s Notes

  • This case illustrated direct effect is horizontal in cases as well as vertical because the State has an obligation to enforce duties and protect any rights set out.

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