Defrenne v SABENA: A Landmark Case with Untapped Potential

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Table of Contents: I. Introduction. – II. Insights into the dossier: towards a contextualisation of the landmark case. – II.1. The actors involved and the “hidden” sources. – II.2. The legal and political context of the case. – III. Behind the famous Defrenne II: the debate between horizontal and vertical direct effect and the principle of non-retroactivity. – III.1. Vertical versus horizontal direct effect. – III.2. The non-retroactivity of the judgment. – IV. Conclusion.

Abstract: Case 43/75 Defrenne v SABENA (ECLI:EU:C:1976:56) was handed down by the Court of Justice in 1976. It is the second case of the Defrenne trilogy, and today is still cited as the landmark ruling establishing a woman’s right to equal treatment in the workplace. However, the recent release of the full dossier de procédure shows that the case was about more than that and was influenced by several factors. In this regard, the dossier offers valuable insights into the case, including valuable information about the actors involved, the social and political context, and the role of evidence. The opening of the archives also shows that the decision on horizontal direct effect of the provision was not straightforward and that other options were being discussed, notably the vertical direct effect of art. 119 EEC. Finally, the dossier offers more clarity regarding the issue of non-retroactivity, which was rapidly concluded in the final decision but takes up a large part of the dossier. Using the archives permits us to see that the landmark decision did not come out of the blue but emerged from a series of constituent elements.

Keywords: Defrenne II – dossier de procédure – art. 119 EEC – preliminary rulings – horizontal direct effect – non-retroactivity.

European Papers, Vol. 6, 2021, No 2, pp. 881-890
2499-8249 - doi: 10.15166/2499-8249/501

* PhD Researcher in European Law, European University Institute,


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