JUDGMENT OF 6. 7. 1982 — CASE 61/81 COMMISSION v UNITED KINGDOM

In Case 61/81

THE COURT, composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: P. VerLoren van Themaat Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

(a) The relevant Community Uw

(b) The relevant national legiilation

(c) Procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

IV — Written replies submitted by the Commission in response to the questions asked by the Court

1. Reply to the first question

2. Reply to the second question

3. Reply to the third question

V — Oral procedure

Decision

Costs

I —. Facts and written procedure

(a). The relevant Community Uw

(b). The relevant national legiilation

(c). Procedure

1. How have the Member States complied with the obligation resulting from Directive 75/117 in respect of work to which equal value is attributed? What are the national provisions adopted? Do those provisions, in the Commission's view, constitute a correa application of the directive?

2. Has the Commission any information on the actual application of the directive, in particular by the couru?

3. Could the Commission give the Court deuils of the other methods, apart from the introduction of the system of compulsory evaluation to which it refers in point 14 of its' reply, making it possible to ascertain or determine whether work is of equal value?

II —. Conclusions of the parties

1. Declare that, by failing to adopt the laws, regulations or administrative provisions needed to comply with Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to to the application of the principle of equal pay for men and women, as regards work to which equal value is attributed, the United Kingdom has failed to fulfil its obligations under that directive;

2. Order the Government of the United Kingdom to pay the costs of the proceedings.

1. Dismiss the Commission's application;

2. Order the Commission to pay the costs.

III —. Submissions and arguments of the parties

1. Job evaluation schemes of this kind are little used outside the United Kingdom and therefore only a limned percentage of the workforce within the Community as a whole is covered. That being so, where employees, even in the United Kingdom, are not doing the same work, or work which is broadly similar in nature, and are not covered by a job evaluation scheme, they may not rely on the provision in the directive concerning work to which equal value is attributed.

2. In the United Kingdom's defence there is a considerable shift in emphasis in its argument as compared with the argument which it put forward prior to the initiation of this action. In the latter case the United Kingdom laid its main emphasis on the combined effect of the various provisions of the Equal Pay Act which satisfied, ostensibly, an acceptable interpretation of the directive whereas in its defence the United Kingdom places more emphasis on a more critical appraisal of the precise words of the directive itself which makes it all the more easy to justify the national provisions in question.

IV —. Written replies submitted by the Commission in response to the questions asked by the Court

1. Reply to the first question

2. Reply to the second question

3. Reply to the third question

V —. Oral procedure

1. By application lodged at the Court Registry on 18 March 1981 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the United Kingdom had failed to fulfil its obligations under the Treaty by failing to adopt the laws, regulations or administrative provisions needed to comply with Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (Official Journal L 45, 1975, p. 19), as regards the elimination of discrimination for work to which equal value is attributed.

2. The first aniele of the directive, which the Commission considers has not been applied by the United Kingdom, provides that:

3. The reference to work to which equal value is attributed is used in the United Kingdom in the Equal Pay Act 1970, as amended by the Sex Discrimination Act 1975. Section 1 (5) of the Act provides that:

4. Comparison of those provisions reveals that the job classification system is, under the directive, merely one of several methods for determining pay for work to which equal value is attributed, whereas under the provision in the Equal Pay Act quoted above the introduction of such a system is the sole method of achieving such a result.

5. It is also noteworthy that, as the United Kingdom concedes, British legislation does not permit the introduction of a job classification system without the employer's consent. Workers in the United Kingdom are therefore unable to have their work rated as being of equal value with comparable work if their employer refuses to introduce a classification system.

6. The United Kingdom attempts to justify that state of affairs by pointing out that Article 1 of the directive says nothing about the right of an employee to insist on having pay determined by a job classification system. On that basis it concludes that the worker may not insist on a comparative evaluation of different work by the job classification method, the introduction of which is at the employer's discretion.

7. The United Kingdom's interpretation amounts to a denial of the very existence of a right to equal pay for work of equal value where no classification has been made. Such a position is not consonant with the general scheme and provisions of Directive 75/117. The recitals in the preamble to that directive indicate that its essential purpose is to implement the principle that men and women should receive equal pay contained in Article 119 of the Treatv and that it is primarily the responsibility of the Member States to ensure the application of this principle by means of appropriate laws, regulations and administrative provisions in such a way that all employees in the Communitv can be protected in these matters.

8. To achieve ihat end the principle is defined in the first paragraph of Article 1 so as to include under the term the same work, the case of work to which equal value is attributed, and the second paragraph emphasizes merely that where a job classification system is used for determining pay it is necessary to ensure that it is based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.

9. It follows that where there is disagreement as to the application of that concept a worker must be entitled to claim before an appropriate authority that this work has the same value as other work and, if that is found to be the case, to have his rights under the Treaty and the directive acknowledged by a binding decision. Any method which excludes that option prevents the aims of the directive from being achieved.

10. That is borne out by the terms of Article 6 of the directive which provides that Member States are, in accordance with their national circumstances and legal systems, to take the measures necessary to ensure that the principle of equal pay is applied. They are to see that effective means are available to take care that this principle is observed.

11. In this instance, however, the United Kingdom has not adopted the necessary measures and there is at present no means whereby a worker who considers that this post is of equal value to another may pursue his claims if the employer refuses to introduce a job classification system.

12. The United Kingdom has emphasized (particularly in its letter to the Commission dated 19 June 1979) the practical difficulties which would stand in the way of implementing the concept of work to which equal value has been attributed if the use of a system laid down by consensus were abandoned. The United Kingdom believes that the criterion of work of equal value is too abstract to be applied by the courts.

13. The Court cannot endorse that view. The implementation of the directive implies that the assessment of the equal value to be attributed to particular work, may be effected notwithstanding the employer's wishes, it necessary in the context of adversary proceedings. The Member States must endow an authority with the requisite jurisdiction to decide whether work has the same value as other work, after obtaining such information as may be required.

14. Accordingly, by failing to introduce into its national legal system in implementation of the provisions of Council Directive 75/117/EEC ot 10 February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay for men and women for work to which equal value is attributed and tor which no svstem of job classification exists to obtain recognition of such equivalence, the United Kingdom has failed to fulfil its obligations under the Treaty.

15. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the defendant has failed in its submissions, it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that, by failing to introduce into its national legal system in implementation of the provisions of Council Directive 75/117/EEC of 10 February 1975 such measures as are necessary to enable all employees who consider themselves wronged by failure to apply the principle of equal pay for men and women for work to which equal value is attributed and for which no system of job classification exists to obtain recognition of such equivalence, the United Kingdom has failed to fulfil its obligations under the Treaty;

2 Orders the United Kingdom to pay the costs.