The Gazette 1976

GAZETTE

1 9 76

(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legislation which it considers repealed by virtue of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

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.

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.

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.