Defrenne v SABENA [1976]

European Law

Defrenne v SABENA [1976]

The effects of art.119 EC and the stark inequality between men and women in the workplace were brought together in a case that showcased both the power of law and the equitability of the European Community.

Employed as an air hostess in 1963 by Belgian Société Anonyme Belge de Navigation Aérienne (SABENA), the appellant was re-contracted as a cabin steward and air hostess under the title of cabin attendant, however the contractual caveat was that unlike her male counterparts she was expected to retire from her duties at the age of forty, while termination of her employment entitled her to twelve months severance pay without pension rights.

Having been forced to retire as per the contract, the appellant initiated discrimination proceedings on a number of grounds including the assertion of her right to equal pay under the terms of art.119 EC which explains that:

“1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

And yet despite her contentions the Tribunal du Travail of Brussels dismissed her claims outright before her appeal to the Cour du Travail of Brussels was further dismissed with the exception of inequality of salary, however despite the court’s ability to overrule its own legislation in favour of the Treaty article, it chose instead to seek a preliminary ruling from the European Court of Justice.

For clarity, in 1957 the Treaty of Rome included the express requirement that every Member State would ensure and maintain the application of the principle that men and women should receive equal pay for equal work, and while the initial adoption period was set at two years, Belgium never amended its own legislation to reflect the values of the Treaty Article until 1967, in which s.14 of Royal Decree 40 enabled women in such situations the rights to seek remedy within the national courts.

On this occasion the Belgian government’s defence was that while art.119 conferred powers to those women paid less than men in similar roles, the effect of that principle  fell solely within the limitations of public office and not private contracts, however the claimant countered that by all accounts the direct effect of art.119 EC had existed since 1957 and so provided her with retrospective rights of recovery. 

Once before the European Court of Justice, the Advocate General clarified that direct effect relied upon the clarity of the regulation, and so when addressing sexual inequality it was clear how the principle’s purpose relied upon the differences cited, thus the Court held that going forward the national courts were to refrain from reference to art.177 EC in order to seek preliminary rulings when there was sufficient cause within art.119 EC to overrule domestic legislation under the rule of Community law, while reminding the parties that:

“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.”

Birth of the Human Rights Act 1998

Insight | February 2017

Birth of the Human Rights Act 1998
Image: ‘Against Forgetting’ by Marcia Bushnell

The Human Rights Act was brought into being as a consequence of the European Convention on Human Rights (ECHR), which was first formulated by the Council of Europe in 1950.

Founded upon the Universal Declaration of Human Rights (as used by the United Nations), ten countries first rallied for its formation, including Belgium, Denmark, France, Ireland Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. The Convention took effect in September 1953, with the primary directive of protecting specific fundamental rights among Member States of the Council of Europe, while the core values of the UK constitution enjoyed presumptions of liberty, representative government and the rule of law.

Before the ECHR became intrinsic to domestic law, Ministers often found themselves abusing discretionary powers, which amounted to a constitution largely beyond reproach, relying instead upon collective political norms for enforcement. This protracted period of neglect gave rise to an increase in administrative jurisdiction, and during the 1980s the courts began to adopt a more concrete conception of the rule of law, preferring instead to propagate such values as ‘freedom of expression’ ‘equality’ and ‘freedom from destitution’. However, presumptions followed that common law infringement upon these values would deem statute intervention unlawful, and it soon became conventional thinking; particularly in the well known R v Secretary of State for the Home Department ex parte Brind, where the domestic courts held that as the ECHR was not part of English law, the government was able to restrict media coverage of Irish extremist groups, despite clear encroachment upon the right to freedom of expression, and a sadly failed appeal by the journalists fiercely defending that right.

In fact, it wasn’t until 1998 that the British constitution accepted that using convention as a means of entrusting civil liberties could no longer be tolerated, and so on 9 November 1998, the Human Rights Act 1998 was enacted by Royal assent. From 2 October 2000 onward, all rights and freedoms previously safeguard by the ECHR were now directly enforceable though UK common law, and the sovereignty of Parliament was agreed.

This upheaval in institutional law was particularly significant, in that for the first time English judicial authority was awarded greater scope for case interpretation, where historically such matters were determined through ministerial debate. This was however, a change that was not without its detractors, nor ignorant of an entrenched inclination to overlook common law in lieu of political fervour.