‘Flight Crew v. Cabin Crew – One of these things is not like the other’: A critical reflection on Air Nostrum C-314/23

1. Introduction

In October 2024, the Court of Justice (the Court) addressed a case concerning Air Nostrum, a Spanish regional airline, and allegations of sex discrimination related to daily subsistence allowances for pilots and cabin crew. The case was initiated by the Sindicato de Tripulantes Auxiliares de Vuelo de Líneas Aéreas (STAVLA), a union representing cabin crew, and the Spanish public prosecutor. ¹ They contended that the airline's practice of providing higher daily allowances to pilots, a predominantly male group, compared to cabin crew, a predominantly female group, constituted indirect sex discrimination. ²

Air Nostrum operates under two distinct collective agreements: one for pilots, and another for cabin crew. These agreements, negotiated separately with different unions, set varying daily subsistence allowances for the two groups. The cabin crew's agreement was signed by unions such as the General Workers’ Union (UGT), Workers’ Commissions Services Federation (CCOO), and the Workers’ Syndical Union (USO). The pilots’ agreement was signed by the Spanish Airline Pilots’ Union (SEPLA) and the Professional Airline Pilots’ Union (UPPA). These agreements provided for differing allowance amounts for each group. ³

The case was examined under Directive 2006/54/EC of the European Parliament and Council, which mandates equal treatment between men and women in employment and occupation. Specifically, Article 2(1)(e) defines ‘pay’ to include daily subsistence allowances, and Article 4 prohibits indirect discrimination on grounds of sex. ⁴

The Court ruled that Air Nostrum's practice of providing higher daily subsistence allowances to pilots compared to cabin crew did not constitute indirect sex discrimination. The Court emphasised that the differing roles and responsibilities of pilots and cabin crew justified the variation in allowances. ⁵

The case raised the following three issues, which will be discussed in this article.

Does the daily subsistence allowance constitute pay or working conditions?

Lastly, the article briefly remarks on occupational segregation in the aviation sector to emphasise the impact of the Court's oversight on incorporating the essence of substantive equality ⁶ in delivering the judgment.

2. Broader interpretation of pay

In this case, the Court interpreted the concept of pay broadly. ⁷ The daily subsistence allowance for the cabin crew was significantly lower than that of the flight crew. ⁸ Cabin crew members received between EUR 37.06 and EUR 59.06, and pilots received between EUR 65 and EUR 100. Further, under certain travel conditions, supplementary coefficients would apply for the flight crew that multiplied said allowance by 1.2 to 2. ⁹

The Spanish Workers’ Statute explicitly states that ‘allowances incurred as a consequence of his or her work […..] shall not be regarded as salary’. ¹⁰ Further, Article 2(1)(e) of the Directive 2006/54/EC explains that ‘pay for the same work shall be calculated based on the same unit of measurement’. The daily subsistence allowance was paid at a flat rate and was not tied to the value of work performed. ¹¹ This was opined by AG Szpunar in his Opinion on the case. ¹²

Historically, the Court has interpreted the notion of pay broadly. For instance, in Defrenne, ¹³ the Court emphasised that pay includes additional benefits arising from an employment relationship. ¹⁴ Similarly, in Garland, ¹⁵ a female worker was denied free travel benefits enjoyed by male retirees. In this context, the Court expanded the scope of pay to include employment-related non-cash/fringe benefits, thereby considering such unequal treatment as a violation of Article 157 (then, Article 119) of the TFEU. ¹⁶ The Court reiterated this in Barber (C-262/88), by stating that an occupational pension was also considered a part of pay. ¹⁷ In Lewen (C-333/97), the Court confirmed that Christmas bonuses are pay and cannot be withheld based on maternity leave. ¹⁸

It should be emphasised here that the reason for the broad interpretation of pay is to make sure that all components tied to the remuneration of an employee are devoid of discrimination, i.e., there is no direct or indirect discrimination by the employer regarding pay. Ultimately, the objective is to protect a group of employees from unequal treatment by misclassifying any employment-related cash or non-cash benefits. In doing so, the Court has previously evaluated unequal pay against the backdrop of indirect sex-based discrimination. ¹⁹

Two important observations can be inferred from the jurisprudence on the Court's approach to a broad interpretation of pay. Firstly, the Court has taken a purposive approach to broaden the interpretation of pay, in that the nature of allowance has been discussed within the context of its disproportionate impact on a particular group. Secondly, the components of pay assessed in these cases have been intrinsically linked to the employees’ contribution to work. Thus, the nexus between pay and work was explicitly established by the Court as a justification to include said components within the definition of pay. ²⁰

In Air Nostrum, the Court favoured a broad interpretation of the concept of pay, thereby evaluating the daily subsistence allowance as similar to other employment-related payments. It, therefore, established that since flight crew and cabin crew differ in their training and skills, the substantial difference in allowance was justified. ²¹ However, it failed to establish a nexus between the ‘nature of allowance’ in this matter and its ultimate purpose, which disproportionately affected one group (women).

The performance-based compensation measured on a particular skill set important for the job was not under dispute, rather flat rate daily subsistence allowance was in contention. Hence, the Court's point on different skill levels and qualifications undergone by flight and cabin crew seems unrelated. Of course, due to the broader interpretation of pay, the work needs to be assessed based on objective criteria including educational and training requirements, working conditions, skills and responsibility irrespective of differences in working patterns. ²² Since pilots and cabin crew members significantly differ in these aspects, it does not constitute work of equal value within the meaning of Article 4 of Directive 2006/54. ²³ Therefore, the matter as interpreted by the Court hinged entirely on the difference between pay and working conditions that, in this case, ultimately constricted the purpose of Equality Law. The Court in fact relied on the broad interpretation of pay, albeit in a manner favouring the letter of the law rather than the spirit, thereby diverging from its previous jurisprudence.

3. Indirect discrimination

If the plaintiff can produce statistical evidence to demonstrate that significantly more women than men are placed at a disadvantage by a provision which is sex-neutral in form, a presumption of indirect discrimination arises. In this case, the statistical evidence put forth by the trade union stated that ‘women represent 94% of cabin crew and men 93.71% of flight crew. ²⁴

It follows from Jenkins that a case for indirect discrimination arises if the statistics support that women shoulder a disproportionate burden of work in the private sphere. ²⁵ This was elaborated in Bilka-Kaufhaus, in that, if a provision is neutral in form but statistical evidence demonstrates that significantly more women than men are put at a disadvantage due to said provision, a presumption of indirect discrimination arises. ²⁶ Apart from the quantitative element, the Court's jurisprudence also emphasises the qualitative approach to determine indirect discrimination, ²⁷ in that ‘statistical evidence is only one factor among others to establish the existence of indirect sex discrimination’. ²⁸ It can be further substantiated with qualitative reasoning taking into consideration factors alluding to the detrimental effect of a particular provision for one group. The principle of proportionality with respect to qualitative and quantitative approaches, read with Article 14(1)(c) of the 2006/54/EC Directive, dictates an investigation into such statistical evidence as well as other factors that stem from structural inequality. In this case, such evidence highlights occupational segregation that should have been accounted for during adjudication. ²⁹ The Court considered such difference irrelevant due to lack of comparable work and somehow conflated the ‘comparison criterion’ required to make a claim for indirect discrimination under Directive 2006/54 and that required for the treatment of equal pay. ³⁰ Hence, even if the broad interpretation of pay may seem ‘inconclusively’ contextual, the Court failed to address indirect discrimination that effectively looked at the ‘comparative disadvantage’ experienced by a particular group.

It is also relevant to mention that such ‘comparative disadvantage’ must be identified not in the abstract but only ‘in relation to the provision, criterion or practice concerned giving rise to that particular disadvantage'. ³¹ In other words, the general aim of the measure in question must be taken into account. ³² In this case, the aim of the meal allowance was to compensate the employees at a flat rate, irrespective of their respective skills. The delinking of the ‘nature of work’ with the ‘nature of allowance’, hence, was not considered by the Court.

4. Collective bargaining agreement

Women in the labour market tend to negotiate less than their male counterparts when it comes to pay. ³³ Further, ‘collective bargaining tends to reflect the priorities and needs of the dominant worker(s) in a particular workplace or industry’. ³⁴ Unless collective bargaining agreements embed a gender equality perspective, such agreements might institutionalise discriminatory practices, thereby exacerbating gender segregation at work ‘and operating on a male norm of employment’. ³⁵

In this case, the Court refused to answer the question on the objective justification of difference in pay owing to separate collective bargaining agreements ³⁶ because it already concluded that there was no indirect discrimination based on sex within the meaning of Directive 2006/54. ³⁷ Hence, before touching upon the issue of the collective bargaining agreement, the Court made its decision. It ignored the power dynamics that come into play while negotiating collective bargaining agreements, especially in a highly feminised category in this case, i.e., cabin crew. ³⁸

The Court also did not delve into its previous jurisprudence which might have provided a better perspective in adding a substantive dimension to this case. For instance, in Enderby it was established that the existence of separate collective bargaining agreements for different categories of workers employed by the same company is not a justification for unequal treatment. The CJEU further emphasised the need to evaluate the existence or lack thereof of indirect sex discrimination against social and historical contexts. ³⁹ The following excerpt from the preliminary opinion by AG Lezn is pertinent:

The historical and social context of a ‘purely female profession’ is most probably sex-related. If an explanatory approach were accepted as sufficient justification, that would lead to the perpetuation of sexual roles in working life. Instead of the equality of treatment which is sought, there would be afforded a legal argument for maintaining the status quo. ⁴⁰

To sum up, Air Nostrum undermines the importance of reviewing the intersection of the collective bargaining agreement for the cabin crew (predominantly women) and that for the flight crew (predominantly men) against the backdrop of indirect discrimination and unequal treatment claims.

5. Broader implications and concluding remarks

In this case, the Court blatantly overlooked occupational segregation in the aviation sector, thereby delivering a judgment devoid of substantive equality. Cabin crew work is a ‘service based role’ that is predominantly occupied by women, and the flight crew are predominantely men. ⁴⁵ This is an example of horizontal segregation. ⁴⁶

In civil aviation, such segregation has a clear impact on the gender pay gap because ‘pilots are overwhelmingly men and cabin crew are overwhelmingly women’. ⁴⁷ The European civil aviation industry in particular is heavily divided based on gender lines, with women commonly concentrated in customer-facing roles that are not remunerated well. ⁴⁸ There was also a study specific to the Spanish labour market done in 2017, which found that women represent only 3.5% of the overall number of pilots. ⁴⁹ According to the study, ‘the three main reasons for such meagre percentage were: the absence of female references in the aviation sector, absence of a community or a group of female pilots and the limited visibility of professional female pilots’. ⁵⁰

It is also important to highlight that gender stereotypes significantly contribute to unequal pay. The role of flight attendants inherently involves ‘emotional labour’, which has led to the feminisation of cabin crew jobs. ⁵¹ ‘The pilot profession carries perceptions that are historically masculine. ⁵² Hence, preconceptions based on stereotypes about the capability and expected behaviour of women and men often influence the manner and accessibility of acquiring and using their skills, as well as the perceptions of their work. ⁵³ The purpose of highlighting such glaring statistics and the ensuing reasons is to showcase the vicious circle of occupational segregation that deepens due to constant institutional oversight. In order to achieve substantive equality, the Court should have focused on the societal imbalances and gender stereotypes embedded in the aviation sector that ultimately determine the skewed pay and working conditions.

Substantive equality contains a four-dimensional framework of equality that proposes to redress disadvantage, address stigma/stereotypes, enhance participation, and accommodate differences to achieve structural change. ⁵⁴ This concept, unlike the formal equality approach, positions the right to equality in the social context. ⁵⁵

Even though EU antidiscrimination law leans heavily towards the formal concept, in that ‘it focuses on individual rights and the merits of the case, rather than on justice between groups or systemic inequalities’, ⁵⁶ this position has significantly changed over the years. ⁵⁷ This article has touched upon judgments where the Court has gone beyond the formal approach and looked at the societal context while examining the provisions on indirect discrimination and equal pay, including in the context of collective bargaining agreements. For instance, this was the case in Bilka, Defrenne, Enderby and other cases such as Kalanke (Case C-450/93), Marschall (Case C-409/95), Seymour-Smith (Case C-167/97), and Roca Álvarez (Case C-104/09). Most recently, it was the case in the notable judgment delivered by the Court in TGSS (domestic worker unemployment), ⁵⁸ where the CJEU ruled that the exclusion of domestic workers from unemployment benefits constitutes indirect discrimination under Article 4(1) of Directive 79/7/EEC. ⁵⁹ This was a particularly transformative and unprecedented judgment because it invoked a policy debate on recognising the rights of domestic workers in the EU.

These cases provide a perspicacious glimpse into the Court's jurisprudence, imbibing elements of substantive equality in interpreting the EU anti-discrimination law. It frequently uses a substantive equality approach and address gender stereotypes and occupational segregation. Unfortunately, in this case, the decision provides a strict and formalistic view of the principle of gender equality.