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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT (Fifth Chamber)
4 December 1997 (1)
(Failure of a Member State to fulfil its obligations - Equal treatment for men
and women - Prohibition of nightwork)
In Case C-207/96,
Commission of the European Communities, represented by Marie Wolfcarius, of
its Legal Service, and Enrico Altieri, a national official on secondment to that
Service, acting as Agents, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Italian Republic, represented by Professor Umberto Leanza, Head of the
Department for Legal Affairs in the Ministry of Foreign Affairs, acting as Agent,
assisted by Oscar Fiumara, Avvocato dello Stato, with an address for service in
Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,
defendant,
APPLICATION for a declaration that, by not adopting within the prescribed period
the laws, regulations and administrative provisions necessary in order to comply
with Council Directive 76/207/EEC of 9 February 1976 on the implementation of
the principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions (OJ 1976
L 39, p. 40), and by retaining in national law rules prohibiting nightwork by women,
contrary to Article 5 of that directive, the Italian Republic has failed to fulfil its
obligations under Community law,
THE COURT (Fifth Chamber),
composed of: M. Wathelet, President of the First Chamber, acting for the President
of the Fifth Chamber, J.C. Moitinho de Almeida, D.A.O. Edward (Rapporteur),
P. Jann and L. Sevón, Judges,
Advocate General: C.O. Lenz,
Registrar: R. Grass,
having regard to the Report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on
30 September 1997,
gives the following
Judgment
- By application lodged at the Court Registry on 19 June 1996, the Commission of
the European Communities brought an action under Article 169 of the EC Treaty
for a declaration that, by not adopting within the prescribed period the laws,
regulations and administrative provisions necessary in order to comply with Council
Directive 76/207/EEC of 9 February 1976 on the implementation of the principle
of equal treatment for men and women as regards access to employment,
vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40;
'the Directive'), and by retaining in national law rules prohibiting nightwork by
women, contrary to Article 5 of the Directive, the Italian Republic has failed to
fulfil its obligations under Community law.
- Under Article 5 of the Directive, application of the principle of equal treatment
with regard to working conditions means that men and women must be guaranteed
the same working conditions without discrimination on grounds of sex
(paragraph 1). To that end, the Member States are to take the measures necessary
to ensure that provisions contrary to the principle of equal treatment are abolished
(paragraph 2(a)) or revised when the concern for protection which originally
inspired them is no longer well founded (paragraph 2(c)). Nevertheless,
Article 2(3) provides that the Directive is without prejudice to provisions
concerning the protection of women, particularly as regards pregnancy and
maternity.
- Under Article 9(1) of the Directive, the Member States were required to put into
force the laws, regulations and administrative provisions necessary in order to
comply with the Directive within a period of 30 months of its notification and, with
respect to Article 5(2)(c), within a period of four years. The latter period expired
on 14 February 1980.
- The Court held in Case C-345/89 Stoeckel [1991] ECR I-4047 that Article 5 of the
Directive is sufficiently precise to impose on Member States the obligation not to
lay down by legislation the principle that nightwork by women is prohibited, even
if that is subject to exceptions, where nightwork by men is not prohibited.
Furthermore, it has repeatedly held that Article 5 is sufficiently precise and
unconditional to be relied upon by an individual before a national court in order
to avoid the application of any national provision not conforming to Article 5(1),
which lays down the principle of equal treatment with regard to working conditions
(Stoeckel, cited above, paragraph 12; Case 152/84 Marshall v Southampton and
South-West Hampshire Health Authority [1986] ECR 723, paragraph 55).
- In Italy, Article 5(1) of Law No 903 of 9 December 1977 on Equal Treatment for
Men and Women at Work ('the Italian Law') provides:
'Women shall not be employed in factories or workshops between the hours of
midnight and 6.00 a.m. This prohibition shall not apply to women who occupy
managerial posts or are employed in the health services of the undertaking.'
- Under Article 5(2) and (3) of the Italian Law, that prohibition may, in certain
circumstances, be relaxed or disapplied by means of a collective or company-level
agreement, but no derogation is permitted for women during pregnancy and for a
certain period after they have given birth.
- The Italian Law thus maintains in force the prohibition on nightwork by women
laid down by Law No 1305 of 22 October 1952 which ratified Convention No 89
of 9 July 1948 of the International Labour Organization concerning Nightwork of
Women Employed in Industry ('the Convention').
- Article 3 of the Convention provides that women, whatever their age, are not to be
employed during the night in any public or private industrial undertaking, or in any
branch thereof, other than an undertaking in which only members of the same
family are employed.
- Having regard to the existence of the Convention, the Court stated in Case
C-158/91 Levy [1993] ECR I-4287 that the national court is under an obligation to
ensure that Article 5 of the Directive is fully complied with by refraining from
applying any conflicting provision of national legislation, unless the application of
such a provision is necessary in order to ensure the performance by the Member
State concerned of obligations arising under an agreement concluded with non-member countries prior to the entry into force of the EEC Treaty.
- Following the judgment in Stoeckel, cited above, the Italian Republic denounced
the Convention in February 1992, with effect from February 1993.
- In view of the judgments in Stoeckel and Levy and the Italian Republic's
denunciation of the Convention, the Commission took the view that the Italian
Government was required to adopt the measures needed to make the Italian Law
compatible with Article 5 of the Directive. Consequently, by letter dated
2 March 1994, it gave formal notice to the Italian Government to submit
observations within two months pursuant to the first paragraph of Article 169 of
the Treaty.
- Since that letter remained unanswered, the Commission issued a reasoned opinion
on 19 November 1995 in which it called on the Italian Republic to take the
necessary measures to comply with the opinion within two months from receipt
thereof.
- Since the Commission received no reply, it brought this action.
- The Commission's action, as formulated in the claims set out in its application, is
based on two complaints against the Italian Republic: first, it failed to adopt within
the prescribed period the laws, regulations and administrative provisions necessary
in order to comply with the Directive and, secondly, it infringed Article 5 of the
Directive by retaining the Italian Law after the denunciation of the Convention.
The first complaint
- The Italian Republic does not formally raise a plea of inadmissibility but points out
that the first complaint was formulated for the first time in the application where
it sets out the form of order sought.
- It should be noted that this complaint presupposes that the Italian Republic was
obliged to comply, as regards nightwork by women, with the Directive even before
it denounced the Convention.
- It is settled case-law that the purpose of the pre-litigation procedure is to give the
Member State concerned an opportunity, on the one hand, to comply with its
obligations under Community law and, on the other, effectively to put forward its
defence to the complaints made by the Commission. The subject-matter of an
action brought under Article 169 of the Treaty is thus delimited by the pre-litigation
procedure provided for by that article. Consequently, the action cannot be founded
on any complaints other than those formulated in the reasoned opinion (Case
C-96/95 Commission v Germany [1997] ECR I-1653, paragraphs 22 and 23).
- The Court has also held that the reasoned opinion must contain a cogent and
detailed exposition of the reasons which led the Commission to the conclusion that
the Member State concerned had failed to fulfil one of its obligations under the
Treaty (Commission v Germany, paragraph 24).
- In this case, although the Commission pointed out in the letter of formal notice and
in the reasoned opinion that the Italian Republic was required to adopt the
measures needed in order to bring domestic legislation into line with Community
law, it indicated that that obligation did not arise until the Italian Republic was no
longer bound by the Convention.
- The Commission claimed in its application, however, that the Italian Republic had
failed to fulfil its obligations under the Directive by not adopting, within the period
prescribed by the Directive, the laws, regulations and administrative provisions
necessary in order to comply with it.
- Since there was no cogent and detailed exposition, either in the pre-litigation
procedure or in the application, of the considerations which led the Commission
to take the view that the Italian Republic should have complied, as regards
nightwork by women, with the provisions of the Directive even before it had
denounced the Convention, the Italian Republic was unable effectively to put
forward its defence to that complaint.
- Accordingly, the first complaint must be rejected as inadmissible.
The second complaint
- The Commission submits that the Italian Republic has failed since 1993, when it
ceased to be bound by the Convention, to fulfil its obligations under Article 5 of
the Directive, by retaining in national law rules prohibiting nightwork by women.
- In its defence the Italian Republic contends, on the one hand, that the prohibition
on nightwork laid down by the Italian Law, which may be relaxed, or even
disapplied, in certain circumstances, has been retained in order to ensure
compliance with the personal and family requirements whose overriding importance
is made clear by Article 2(3) of the Directive and the Italian Constitution and, on
the other, that individuals may rely directly on Article 5 of the Directive in Italian
courts in order to have the Italian Law disapplied.
- It must first be noted that, even though the prohibition on nightwork laid down by
Article 5 of the Italian Law may be relaxed, or even disapplied, in certain
circumstances, the Italian Republic does not deny that, after it denounced the
Convention, Community law precluded retention of the prohibition in Italian law.
The Italian Republic states, moreover, that that incompatibility will be rectified as
soon as possible.
- Second, it is settled case-law that the incompatibility of national legislation with
Community provisions, even provisions which are directly applicable, can be finally
remedied only by means of national provisions of a binding nature which have the
same legal force as those which must be amended and also that the provisions of
a directive must be implemented with unquestionable binding force and with the
specificity, precision and clarity necessary to satisfy the need for legal certainty,
which requires that, in the case of a directive intended to confer rights on
individuals, the persons concerned must be enabled to ascertain the full extent of
their rights (Case C-197/96 Commission v France [1997] ECR I-1489, paragraphs
14 and 15).
- Retention of the Italian Law means that those to whom it is directed are in a
position of uncertainty as to their legal situation and exposed to unjustified criminal
proceedings. The obligation on national courts to secure the full effect of Article 5
of the Directive by not applying any contrary national provision cannot have the
effect of amending a statutory provision.
- It must therefore be held that, by retaining in national law rules prohibiting
nightwork by women, contrary to Article 5 of the Directive, the Italian Republic has
failed to fulfil its obligations under Community law.
Costs
29. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be
ordered to pay the costs. Since the Italian Republic has been essentially
unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber),
hereby:
1. Declares that, by retaining in national law rules prohibiting nightwork by
women, contrary to Article 5 of Council Directive 76/207/EEC of
9 February 1976 on the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational training
and promotion, and working conditions, the Italian Republic has failed to
fulfil its obligations under Community law;
2. Dismisses the remainder of the application as inadmissible;
3. Orders the Italian Republic to pay the costs.
|
WatheletMoitinho de Almeida
Edward
Jann Sevón
|
Delivered in open court in Luxembourg on 4 December 1997.
R. Grass
C. Gulmann
Registrar
President of the Fifth Chamber
1: Language of the case: Italian.
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URL: http://www.bailii.org/eu/cases/EUECJ/1997/C20796.html
