Defrenne v SABENA : a landmark case with untapped potential

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.