NOTES OF CASES
| Date | 01 January 1982 |
| Published date | 01 January 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02471.x |
NOTES
OF
CASES
EQUAL
PAY
IN
THE
EUROPEAN
COURT
THREE
recent cases before the European Court of Justice establish
that, contrary to judicial arguments, the Equal Pay Act 1970 and
Sex Discrimination Act 1975 do not satisfy Article 119 of the
E.E.C. Treaty. Because of this deficiency
“
directly enforceable
”
Community Law has become an important weapon for the victim
of sex discrimination.
To its credit, the Equal Opportunities Commission, recognising
this, has adopted a test case strategy, and utilising section 75 of the
1975 Act, has supported
a
number of key references to the European
Court.a The first three decisions considered here provide a very wide
interpretation
of
Article 119 but, despite explicit invitations by all
the English courts seeking preliminary rulings under Article 177
E.E.C.. the European Court has consistently refused to consider the
issue
of
the direct effectiveness of the Equal Pay and Equal Treat-
ment Directives which supplement the bare principle in Article 119.
Although this issue remains unresolved, these cases may explain
why the European Court has concentrated on
a
broad interpretation
of
the relatively straightforward principle of Article 119, rather
than considered controversial questions raised by the Directives.
Alacarthys
v.
Smith
has also renewed discussion of the relationship
and status of directly enforceable Community Law and “imple-
menting
”
national law. As the English courts are playing a leading
role in the development of the jurisprudence of the European Court
on
Sex
Discrimination, this warrants attention.
The plaintiff in
Macarthys
v.
Smith
had been employed as a
stockroom manager, in succession to
a
man, with a slightly different
job description and lower pay. Such discrimination does not appear
to be covered by section 1 of the Equal Pay Act which uses the
present tense. In the Court of Appeal5 Lord Denning interpreted
section 1 in the light of (his own wide interpretation of) Article 119,
so
as to apply. Lawton and Cumming-Bruce
L.JJ.
accepted that the
matter involved a consideration of Community Law but, unhappy
about the interrelation of national and Community rights, supported
a reference to the European Court.‘ Cumming-Bruce even sug-
gested that the Equal Pay Act should be interpreted in isolation from
1
Case 129179
Macarthys Ltd.
v.
Smith
[19801 E.C.R. 1275; [1980] 2 C.M.L.R.
205; [1981]
1
All E.R.
111;
Case 69/80,
Worringham and Humphreys
V.
Lloyds
Bunk
Ltd.
[1981] 2 C.M.L.R. 1; [1981] 2 All E.R. 434; Case 96/80,
lenkins
v.
Kingsgate (Clofhing t’roducfions) Ltd.
[
19811 2
C.M.L.R.
24.
2
Seo also
Garland
v.
British Rail Engineering Ltd.
[1979] I.C.R.
558
(H.L.);
[1981]
Burfon
V.
British Railways Board
119811 I.R.L.R. 16 (E.A.T.) and
Fifth
Annual Report
of
E.O.C.
(1981),
p.
4.
[19791
3
AU E.R. 325, 327.
3
7511171E.E.C.
O.J.
1915, L.45119.
4
76/207/E.E.C.
O.J.
1976, L.39140. At
pp.
334 and 335.
81
82
THE
MODERN
LAW REVIEW
[Vol.
45
Community Law, arguing that
“
the judgment (in Luxembourg) can-
not affect the meaning of an English statute.”
’
For this, he has been
roundly criticised
by
Professor Hood Philips who points out that
section
2
(4)
of
the European Communities Act specifically provides
that
“
any enactment passed or to be passed shall be construed and
have effect subject to the foregoing provisions
”
of section
2
(includ-
ing the
“
enforceable Community rights
”
of s.
2
(1)
).
Cumming-
Bruce L.J. took the unusual step
of
acknowledging the criticism, refer-
ring to
a
“
misunderstanding” (although its nature and by whom
were not specified), and agreed his statement was “too wide.”
However, Hood Philips cannot be correct in arguing that section
2
(4)
must be interpreted solely as a rule of construction, and not
so
as
to recognise in English law the requirement of Community Law
(recently reasserted
in
Simmenthal)
lo
that enforceable Community
rights must have supremacy over conflicting national legislation.
It
is
surely disingenuous to argue that the now famous passage in
Simmenthal
(quoted below) permits English courts to deny that
they have jurisdiction to accord supremacy
to
Community Law
over United Kingdom statutes, when it
is
remembered that the
Simrnentltal
judgment was given in just such a situation. The Pretore
de Susa had been faced with a directly enforceable rule
of
Com-
munity Law in conflict with a later Italian statute and with
a
ruling
of
the Italian Constitutional Court
l1
which expressly forbade the
ordinary courts from overriding Italian statutes until ruled uncon-
stitutional by the Constitutional Court itself. Under Italian constitu-
tional law, the Pretore de Susa did
not
have jurisdiction to declare
an Italian statute inoperative, but the European
Court
ruled that
“a
national court which is called upon, within the limits of its
jurisdiction, to apply provisions
of
Community Law is under
a
duty
to give full effect to those provisions,
if
necessary refusing of its
own motion to apply any conflicting provision
of
national legislation,
even if adopted subsequently.
.
.
.”
l2
Hood Philips’s interpretation
renders this passage pointless. The
“
limitation of jurisdiction
”
must refer to the limitation of subject-matter, not constitutional
propriety.
The
thrust
of
Simmenthal
is its insistence that Commu-
nity Law requires that supremacy be recognised as originating
directly from Community Law not indirectly from national imple-
menting laws
(ie.
the monist rather than dualist approach). There
is no particular sanctity in dualism: it may have been the English
judiciary’s dominant political philosophy but there are strong
At
p.
336.
8
(1980) 96
L.Q.R.
31,
34.
9
[1981]
1
All
E.R.
120,
121.
10
Amministrozione delle
Pinanre
dell0
Sfato
v.
Simmenthol
SPA,
Case
106111,
11
The hdusrrie Chimiche
Itolia
Centrule
case,
hdpment
No.
232
of
Italian
12
119781
E.C.R.
at
p.
645.
[1978]
E.C.R.
629: [1978]
3
C.M.L.L.
263.
Constitutional
Court,
October
30,
1975.
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