Sex discrimination in the European Court of Justice

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The case law of the European Court of Justice on matters of sex discrimination considerably expanded the scope of Article 141. More recently, in applying the principle of equality, the court has shown uncharacteristic restraint. Prior to the treaty of Amsterdam, the then Article 119 of the EC Treaty provided: “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. For the purpose of this Article, ‘pay’ means the ordinary basic 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.” This was amended by the Amsterdam Treaty and became Article 141: “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.” It has been observed[1] that “although the wording has seemingly broadened, this reflects the jurisprudence of the ECJ [emphasis supplied] and the central principle remains the same.

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During the “first stage” referred to in Art.119 (1958-62), it was thought that implementation of the principle of equal pay would be by national measures. When some of the then six member states failed to do this, the Commission took no enforcement action against them. However, in Case 43/75 Defrenne v Sabena (No.2), a Belgian air hostess claimed compensation for discrimination based on the fact that she received less pay than cabin stewards doing the same work. The Court de Travail asked the Court of Justice if Art.119 could be relied upon in national courts independently of national legislation. The court held that Art.119 was directly effective and gave rise to individual rights which national courts must protect in cases of discrimination. These could be identified by the courts solely with the aid of the “equal pay/equal work” criteria contained within the Article itself. However, it was acknowledged that “the complete implementation of the aim…may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community and national level.” Following representations from the UK and Irish governments, concerned that direct enforcement from the end of the first stage might prove financially catastrophic to certain undertakings, it was held, somewhat expediently, that the decision was to have prospective effect. The first UK equal pay case to be referred to the Court of Justice itself brought about a broadening in the perceived application of the Treaty principle. In Case 129/79 Maccarthys Ltd v Smith, a claim was brought on the basis that a woman was paid £10 per week less than the man who had occupied the same position four months previously. The limitations of Defrenne were recognised in that the comparison in that case had been straightforward but that there might exist situations in which a pay difference between two workers occupying the same post at different times might be explicable by factors unconnected with discrimination on the grounds of sex.

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