Defrenne v Sabena (No 2) Case 43/75, [1976] ECR 455
Facts
Gabrielle Defrenne had worked as a flight attendant for the Belgian airline Sabena. She pursued claims arising from unequal treatment of female cabin crew, including differences in pay for equivalent work. In these proceedings, the Brussels labour court asked whether Article 119 of the EEC Treaty could be relied upon directly in a dispute with the airline. The questions concerned the enforceability of equal pay and its temporal effects. They were distinct from treating every aspect of retirement and employment conditions as automatically covered by the Treaty’s pay provision.
Legal Issue
Could the Treaty equal-pay obligation be invoked directly against a private employer, and what limits applied to claims for pay periods before the judgment?
Held
The Court held that Article 119 was directly effective for forms of discrimination that courts could identify by applying the Treaty criteria, including unequal pay for equal work within the same establishment or service. Its application was not confined to public employers or discriminatory legislation: it extended to private employment relationships. The equal-pay objective had both economic and social importance. However, significant legal-certainty considerations justified limiting reliance on the judgment for earlier pay periods, subject to protection for workers who had already brought proceedings or equivalent claims. The ruling did not convert the pay provision into a general Treaty code governing every difference in employment conditions.
⭐ Legal Principle
The Treaty equal-pay provision can have horizontal direct effect against a private employer. Directly identifiable unequal pay for equal work is judicially enforceable, subject to the temporal limitation imposed in Defrenne itself.
Significance
Defrenne demonstrates that the absence of horizontal direct effect for directives does not apply automatically to Treaty provisions. It is therefore a useful contrast with Marshall. The judgment also illustrates exceptional temporal limitation of a ruling’s effects. Students should distinguish the equal-pay claim from other Defrenne litigation and avoid assuming that every employment inequality fell within Article 119, now Article 157 TFEU.
Common exam questions about this case
Why is Defrenne different from Marshall on horizontal effect?
Defrenne relied on a Treaty provision, while Marshall concerned a directive. The reasons limiting directives’ ability to impose obligations on private individuals do not automatically apply to Treaty rules. The legal source and the provision’s content must therefore be identified before deciding whether private litigation is possible.
Did the Court reopen every historical pay claim?
No. It restricted reliance on the judgment for pay periods before its delivery, while preserving the position of workers who had already brought proceedings or equivalent claims. That exceptional limitation reflected legal certainty. The existence of direct effect and the temporal reach of the remedy were treated separately.
Can Article 119 resolve every unequal employment condition?
The judgment concerned equal pay. Other employment conditions, including retirement arrangements, required their own legal analysis. A strong answer identifies whether the disputed benefit or treatment falls within pay and then applies the relevant rule, rather than treating the case as a general ban covering all employment differences.