The case of Defrenne v Sabena (No 2) (1976) Case 43/75 is a landmark judgement by the European Court of Justice (ECJ) that significantly contributed to the development of EU law regarding the direct effect of Treaty provisions, particularly those concerning gender equality in the workplace.
It is one of the foundational cases for establishing the enforceability of EU law at the national level, even in disputes between private parties. The case involved Gabrielle Defrenne, a female flight attendant employed by the Belgian national airline Sabena, who was forced to retire at the age of 40, a policy that applied exclusively to female flight attendants.
This was in contrast to male employees, who did not face such restrictions. The judgement in this case not only addressed the issue of equal pay but also had far-reaching implications on the horizontal and vertical direct effect of EU law, particularly in the context of social policy.
Facts of Defrenne v Sabena
Gabrielle Defrenne worked as a flight attendant for Sabena, the Belgian national airline. Under Belgian national law at the time, female flight attendants were required to retire at the age of 40, while their male counterparts could continue working beyond that age. This policy led to a significant difference in pension rights between male and female employees. In 1968, Defrenne was forced to retire due to the policy, which she claimed was discriminatory.
Defrenne argued that this forced early retirement violated her rights to equal treatment under Article 119 of the Treaty of the European Economic Community (EEC), now known as Article 157 TFEU. She contended that the Belgian law was in conflict with the principle of equal pay for equal work, a fundamental provision in the EEC Treaty, which requires member states to ensure that male and female workers receive equal pay for equal work or work of equal value.
Defrenne’s primary legal argument was that the retirement policy violated the principle of gender equality enshrined in Article 119 of the EEC Treaty, and she sought to challenge the policy in the European Court of Justice.
Legal Issues
The central legal issue in Defrenne v Sabena case was whether Article 119 of the EEC Treaty, which prohibits discrimination based on gender in matters of pay, had direct effect. The question of direct effect had been established in the earlier case of Van Gend en Loos (1963), but its application in this case raised further complexities.
The question was whether an individual could invoke Article 119 in a dispute between private parties, or whether it only applied to state action or public law. The broader issue was the interpretation of the scope of the Treaty provisions related to equality and social policy, and whether these provisions were sufficiently clear and unconditional to allow for direct effect in disputes involving private individuals.
Defrenne v Sabena Judgement
The European Court of Justice delivered a judgement in favour of Gabrielle Defrenne, holding that Article 119 of the Treaty had horizontal direct effect. This meant that the provision could be invoked not only by individuals against the state but also in disputes between private parties, such as between an employer and an employee. The court held that Article 119 was sufficiently clear and unconditional to be directly applicable in such cases.
The Court recognised that Article 119 pursued a double aim. First, it aimed to prevent competitive disadvantages for companies in countries that had already implemented equal pay provisions compared to companies in countries that had not yet addressed gender-based pay discrimination. Second, it formed part of the EU’s broader social objectives, which were not purely economic but aimed at ensuring social progress and improving the living and working conditions of workers throughout the EU. The Court stressed that Article 119 was fundamental to the EU’s social policy and was intended to contribute to the improvement of social conditions for workers, in addition to ensuring the free movement of labour and goods within the internal market.
The ECJ’s ruling in Defrenne v Sabena thus marked a significant development in EU social law, reinforcing the horizontal direct effect of certain Treaty provisions. This case also established the principle that gender equality in the workplace was an integral part of the EU’s social and economic policies, which could be enforced directly by individuals in national courts.
The Court further held that the prohibition on gender discrimination extended beyond government actions and applied to all agreements and contracts, including collective agreements and individual employment contracts, between private parties. This expanded the reach of Article 119, making it a tool for individuals to challenge discriminatory practices in private sector employment.
Conclusion
The Defrenne v Sabena (No 2) case was a pivotal moment in the development of European Union law, particularly in relation to gender equality in the workplace and the direct effect of EU Treaty provisions. The European Court of Justice affirmed that Article 119 of the EEC Treaty, now Article 157 TFEU, not only had vertical direct effect (against the state) but also horizontal direct effect, enabling individuals to rely on it in disputes between private parties.
This case not only contributed to the evolution of anti-discrimination law within the EU but also highlighted the EU’s broader social goals of improving the living and working conditions of its citizens. The judgement in Defrenne v Sabena (No 2) reinforced the idea that the EU is not only an economic union but also a political and social entity, committed to ensuring equal rights for all its citizens. The case remains a foundational precedent for the direct effect of EU law, particularly in the fields of social policy and gender equality, and continues to influence subsequent rulings in this area.
