Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. For the third time the Court of Justice has before it a Defrenne case and is called upon to resolve a problem relating to the interpretation of Article 119 of the EEC Treaty which affirms the principle that men and women should receive equal pay for equal work. As in the two previous cases the reference for a preliminary ruling emanates from a Belgian court (in this instance the Cour de Cassation) and has arisen in the context of an action brought by Miss Defrenne after the termination of her contract of employment with the airline company Sabena.

2. By judgment of 23 April 1975 the Cour du Travail, Brussels, had meanwhile rejected the other claims made by Miss Defrenne in which she sought an order that Sabena should pay an additional allowance on termination of service and compensation for the damage suffered with regard to her pension. The applicant lodged an appeal in cassation against that judgment. By order of 28 November 1977 the Belgian Cour de Cassation referred to the Court of Justice the following preliminary question:

3. I should like first to emphasize a point which might be considered rather elementary but which, in my opinion, we should do well not to lose sight of: the real subject-matter of Article 119 is the problem of remuneration not of working conditions in general. This is evident first from the text of the article, the first paragraph of which refers to the principle of equal pay and the second paragraph of which gives an exact definition of the term used in the following words: For the purpose of this article, pay means the ordinary basic or 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. The same conclusion may be drawn secondly from a comparison between Articles 117 and 118 on the one hand and Article 119 on the other: the first paragraph of Article 117 refers to improved working conditions and an improved standard of living for workers (the need for which is recognized by the Member States) and the matters listed in Article 118 include labour law and working conditions but no allusion to working conditions in general is to be found in Article 119. Certainly working conditions include pay; confirmation of this, if it be necessary, is to be found in the Council Resolution of 21 January 1974 concerning a social action programme, point 4 of which lays down inter alia action to be undertaken to achieve equality between men and women … as regards working conditions, including pay However whereas working conditions other than pay and holidays with pay are referred to only in Articles 117 and 118, pay is specifically covered by Article 119 and paid holidays by Article 120. That is the way in which Chapter 1 of Title III (social policy) of the EEC Treaty is arranged.

4. We have seen that the court making the order for reference did not confine itself to referring to Article 119 of the EEC Treaty; it also raised the hypothesis that the rule that working conditions should be equal, without discrimination on grounds of sex, may be inferred from a general principle of Community law. We must therefore also examine that hypothesis. In my view that examination should be on the following lines: we must ascertain whether the Community principle that there should be no discrimination, which has been upheld in numerous decisions of the Court of Justice, is so formed, from the point of view of its content and the persons to whom it applies, as to give to each individual within the Community the right not to be discriminated against on grounds of sex in the determination of working conditions.

5. In support of her view that the prohibition on discrimination on the grounds of sex has direct effect with regard to all aspects of working conditions Miss Defrenne has also referred to the decided cases of the Court of Justice which, in applying the Staff Regulations of Officials of the Communities, has ensured equality of treatment for male and female officials. In its judgments of 7 June 1972 in Case 20/71 (Sabbatini (nee Bertoni) v European Parliament [1972] ECR 345) and Case 32/71 Chollet (née Bauduin) v Commission [1972] ECR 363) which both concern the position with regard to the expatriation allowance in the case of marriage the Court ruled that the matter must be governed by uniform criteria irrespective of the sex of the person concerned; consequently, by rendering the retention of the allowance subject to the acquisition of the status of head of household, which the Staff Regulations generally confer on married male officials, the Council had created an arbitrary difference of treatment. Also with regard to the expatriation allowance the judgments of the Court of 20 February 1975 in Case 21/74 (Airola v Commission (1975] ECR 221) and Case 37/74 (Van den Broeck v Commission [1975] ECR 235) confirmed that the concept of nationals contained in the Staff Regulations of Officials must be interpreted in such a way as to avoid any unwarranted difference of treatment as between male and female officials who are, in fact, placed in comparable situations. Such unwarranted difference of treatment would result from an interpretation of the concept of nationals, on which the grant or continuance of the expatriation allowance depends, as also embracing the nationality which was imposed by law on an official of the female sex by virtue of her marriage.

6. I have already had occasion to recall that the subject of working conditions is expressly mentioned in Articles 117 and 118 of the Treaty of Rome. I therefore think it is necessary to turn our attention to those articles, to determine their meaning and effects and thus to ascertain to what extent they may contribute to resolving the present problem.

7. A development of great importance occurred two years ago with the issue of Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (Official Journal L 39 of 14 February 1976, p. 40). The directive implements one of the more pressing actions included in the aforesaid social action programme contained in the Council Resolution of 21 January 1974. Furthermore it is linked to Article 117 as is shown by the terms used in the third recital in the preamble to the directive where it is stated that equal treatment for male and female workers constitutes one of the objectives of the Community, in so far as the harmonization of living and working conditions while maintaining their improvement are inter alia to be furthered.

8. For all the reasons set out above I propose that the Court of Justice should rule as follows in answer to the question referred to it for a preliminary ruling by the Belgian Cour de Cassation by judgment of 28 November 1977:

1 Translated from the Italian.