Retrospectivity Reconsidered

Abstract

In its judgment of 8 April 1976, Defrenne v. Sabena, the Court of Justice of the European Communities gave an interpretation to the provisions of Article 119 of the E.E.C. Treaty, on equal pay of male and female workers, which caused some stir. The Court held that the equal pay rule had direct effect, in the sense that any female worker could appeal to it in proceedings against her employer before courts or tribunals of any of the Member States. This ruling embodied a novel interpretation of Article 119: not only because the Court itself had not yet applied its doctrine of direct effect to this article, but also because most of the authors on the subject had come to a different conclusion. The Court seems to have been aware of the practical problems which might result from such a situation; it added some considerations on what it called the “temporal effect” of its judgment. Its decision “might,” it said, result in the introduction of claims by female workers dating back to the time when the direct effect of Article 119 came about (1963 for the “old” Member States!); therefore, it developed a certain number of reasons for deciding that “important considerations of legal certainty affecting all the interests involved” made it impossible to reopen the question as regards the past. Only workers who had already brought legal proceedings at the date of the judgment could benefit from the direct effect.