Opinion of mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. After the solemn declarations made by the Heads of State and of Government in Paris in 1972 on the importance of the social aspects of European integration, here we have a private individual, a female worker, who succeeds in obtaining from her national court a reference for a preliminary ruling on the interpretation of the provision in the EEC Treaty which establishes the principle of equal treatment for men and women in the field of employment. A reference which in itself is of very modest financial importance provides an opportunity for this Court to clarify certain aspects of the protection which fundamental rights are entitled to receive within the framework of the Community structure.

2. The questions referred to the Court are in the following terms:

3. Article 119 is not a complete innovation: it must be viewed both in the light of internationally recognized principles and in the light of the EEC Treaty.

4. This brings us to the wording of Article 119. The first paragraph reads as follows: 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.

5. The obligation imposed on the Member States, to which the rule is formally addressed, consists of an obligation to act subject to a specific time-limit (end of the first stage).

6. But another question arises. In contrast to the other articles of the Treaty which the Court has hitherto declared to have immediate effect and which are concerned with matters on which there is a direct legal relationship between the State and its subjects (customs or taxation law and the right of establishment), Article 119, despite the fact that it is restricted to imposing an obligation on the States, is primarily concerned with the relationship between individuals. The discrimination which the provision sets out to prohibit will, in the majority of cases, consist of discriminatory action by a private undertaking against women workers.

7. I therefore feel able to conclude that the principle of equal pay, which by its very nature is of direct concern to individuals, is, within the limits which I have indicated above, capable of producing direct effects in respect of such individuals and enables them to rely upon it in the national courts without need for it to be subject to adoption of relevant legislative measures by the States.

8. To summarize my comments, at this point, let me say that the words in Article 119: Each Member State (shall… ensure), taken from Convention No 100 and which are explained by the fact that the putting into effect of Article 119 requires, on the part of the authorities of the Member States (and of the so-called social partners, namely the employers, the workers and their respective organizations), constant action in order to ensure that the realization of the principle is not placed in jeopardy even in the event of a technological development or a change in economic policy, have nevertheless a much deeper significance in the Treaty of Rome; the words refer not only to the Member State as a sovereign body bound by an international treaty, as was also the case under Convention No 100 but, in addition, all the competent authorities of the State, including the courts, which have a duty to apply the provisions of the

9. I can now bring the considerations I have mentioned to bear on the national law which raised doubts in the minds of the Cour du travail, Brussels.

10. A final argument against the direct effect of Article 119 is put forward by the Governments of the United Kingdom and of the Irish Republic, both of whom appear to be peculiarly sensitive to what might be called the cost of the operation.

For the foregoing reasons I am of the opinion that the Court should rule as follows:

Inasmuch as Article 119 of the EEC Treaty is concerned with pay in the strict sense of the word and with work which is not merely similar but is the same, the article has, with effect from 1 January 1962, introduced into the national law of the original Member States of the Community the principle of equal pay for men and women, and has by itself directly conferred rights on the workers concerned, which national courts must protect; such protection is not subject to prior adoption of rules for its implementation either by the States or by the Community.

1 Translated from the Italian

2 Translator's note: but not of the English text of the Convention