The Gazette 1976

Ma r ch

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GAZETTE

The case which occasioned this judgment was that of Mile. Gabrielle Defrenne, a Belgian air hostess, who claimed pension rights from Sabena, the Belgian national airline, equal to those granted to stewards. She invoked Article 119 of the Treaty of Rome which states: "Each Member State shall, during the first stage (of the transitional period ending in 1962), ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work." It defines what it means by work and pay. Her victory should gain her B.Frs. 12,500 (£160). She had to resign automatically at age 40 under Regulations. Articles 119 does not apply directly to National Law The vital issue was whether Article 119 applied directly to the national law of Member States and from what date. Member Governments argued that the Article implied only a constitutional commitment to introduce equal pay legislation, but this view has been restrictively rejected by the Court. Mile. Defrenne's pension claim was turned down by the Court of Justice in 1971 on the grounds that pensions did not fall within the admissable definition of pay. However, it then had to rule on a reference from the Brussels Labour Court asking whether Mile. Defrenne was entitled to equal salary and severance money and this was the specific item behind the present ruling. Employers in the U.K. have been bound by law to give equal pay to women from December 29, when the Equal Pay Act 1970 came fully into force. This Act was backed from the same date by the Sex Discrimination Act and the two pieces of legis- lation taken together broadly make it unlawful to distinguish between men and women when advertising for, paying, promoting or sacking an employee. This means that the EEC judgment is only relevant to the U.K. in relation to the period between the date the U.K. joined the EEC and the end of December. Under the Equal Pay Act the same rate of pay and other conditions of employment must be given to men and women who are doing the same, or broadly simi- lar, work for the same or, an associated employer, or who hare doing jobs which, although different, have been given an equal value under a job evaluation scheme. The U.K. Government considers that, while some- what vague, these criteria are far more specific than the even more vague "equal pay for equal work" rule adopted by the EEC, which is regarded in the U.K. as too general to be realistically applied by law.

(4) The provisions relating to establishment and the supply of services apply to other organisations other than public authorities which regulate economic activity, such as sporting associations. (5) According to the Commission's interpretation in the case against the French Government, the establishment rules of the Community also extend to the transport sector. If the Court upholds this view, it will have resounding repercussions in the transport law of the Member States. It is clearly for the Irish Government to indicate the legislation which it considers repealed by virtue of being discretionary, as it would be an impossible task for an Irish lawyer to guess the present position. European Court compromises on equal pay Defrenne v. Sabena— Case 43 /75 (Preliminary Report). Luxembourg, April 8. The European Court of Justice, the Common Market's Supreme Court of Appeal, has ruled that women have a clear right under the Treaty of Rome to claim equal pay backdated to 1962 in the case of the original Member State and to 1973 in the case of the three new Members. However, because of the economic implications of backdating (the Court says some companies might be driven to bankruptcy) it has ruled that only workers with cases actually pending can exercise this right. All other workers can claim equal pay only from the date of the ruling—April 8, 1976. The Court has thus decided to face both ways. By introducing a compromise into a legal ruling — admitting the clear right of backdating, but refusing all but a handful with cases before National Courts to exercise it — it is certain to raise considerable protest about its ability to withstand political pressure from Member States in cases with broad implications. In his summing up a month ago, Sig. Alberto Trabucchi, the Advocate-Generale, specifically argued that the economic implications of backdating sub- mitted to the Court by Britain and Ireland were irrelevant to the judgment. The seven judges who pronounced the ruling, how- ever, refer plainly to the British claim in their justifi- cation of the verdict. Britain had suggested that backdating could "over- turn the economic and social situation in the U.K." while the Dublin Government said the cost of back- dating in the State sector alone in Ireland would be about £35m. British estimates of the total cost of backdating ranged as high as £1 million. Dilatoriness in enacting equal pay legislation The Court, in its ruling, refers to the dilatoriness of Member States in enacting equal pay legislation and comments on the failure of the Brussels Com- mission to take any Member State to court for failure to observe Treatv of Rome obligations under Article 169. This had given Member Governments the impres- sion that the Treaty meant much less than it said on equal pay.

Courts of Justice of the European Communities (Perjury) Act 1975

The effect of this Act is that anyone who, by virtue of swearing anything which he knows to be false or does not believe to be true, before the Court of Justice of the European Community in Luxembourg, shall be guilty of perjury. In such an event, proceed- ings for this offence may be instituted anywhere within the State, and for this purpose, the offence shall be deemed to have been committed in the place where the proceedings are taken. 53