C-163/82

JUDGMENT OF 26. 10. 1983 — CASE 163/82

Member State cannot be criticized for following the actual entry of the child having adopted a number of specific into the adoptive family, That distinc­ provisions in relation to the most tion is justified by the legitimate important working conditions whilst concern to assimilate as far as possible confining itself in relation to other the conditions of entry of the child working conditions to a general into the adoptive family to those of provision covering all other working the arrival of a new-born child in the conditions not specifically mentioned, family during the very delicate initial unless it is shown that the result period. sought by the directive has not in fact been attained.

3. There is no infringement of Article 6 2. It is not possible to regard as dis­ of Directive 76/207 when the national crimination within the meaning of law implementing the directive limits Directive 76/207 the difference in the remedies provided thereby to treatment resulting from the ap­ infringement of certain provisions of plication of a provision of national the directive provided that the general law to the effect that the adoptive procedural rules of the national law father does not have the right given to allow any person to bring any of the the adoptive mother of maternity matters covered by the directive leave for the first three months before the courts.

In Case 163 / 82

COMMISSION OF THE EUROPEAN COMMUNITIES , represented by its Legal Adviser , Armando Toledano Laredo , acting as Agent , with an address for service in Luxembourg at the office of Oreste Montako , a member of the Legal Department of the Commission , Jean Monnet Building, Kirchberg ,

L 39, p. 40), the Italian Republic has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, O. Due, U. Everling and C. Kakouris, Judges,

Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

(a) any laws, regulations and ad­ Italian Law No 903 of 9 December 1977 ministrative provisions contrary on equal treatment between men and to the principle of equal treat­ women as regards employment (Gazzetta ment shall be abolished; Ufficiale [Official Gazette] No 343 of 17 December 1977, p. 9041) transposes the (b) any provisions contrary to the provisions of Articles 5 and 6 of the principle of equal treatment directive into Italian law in the following which are included in collective manner: agreements, individual contracts of employment, internal rules of "Article 1 undertakings or in rules govern­ Any discrimination on grounds of sex as ing the independent occupations regards access to employment, regardless and professions shall be, or may of methods of selection and in any sector be declared, null and void or or branch of activity whatsoever, at all may be amended; levels of the occupational hierarchy, is prohibited. (c) those laws, regulations and ad­ ministrative provisions contrary The discrimination referred to in the to the principle of equal preceding paragraph is likewise pro­ treatment when the concern for hibited if it is applied : protection which originally inspired them is no longer well 1. on the basis of marital or family founded shall be revised; and status, or pregnancy; that where similar provisions are 2. indirectly, through selection pro­ included in collective agreements cedures or the press or through any labour and management shall be other form of publicity indicating as a requested to undertake the requirement of recruitment that a desired revision." person shall be of a particular sex.

grading, duties and career development Articles 1 and 5 of this Law, and on is prohibited . . application by the worker or by a trade union acting on his behalf, the Pretore of Article 4 the place in which such conduct is Women may, even if they are eligible for alleged to have occurred, acting as a retirement, elect to continue working up Labour Court, after summoning the to the retirement age-limit applicable for parties within the two days next there men pursuant to law, regulation or after and opening a summary investi contract, provided that they inform their gation, shall if he finds the infringement employer at least three months before referred to in the application proved, the date on which they are to become make an order containing a statement of eligible for retirement. the reasons on which it is based and being immediately enforceable, requiring the person concerned to terminate such Article 6 unlawful conduct and declaring the same null and void.

Men with children, even if such children have been adopted by, or custody of Where the infringements referred to in them has been granted to, the father the first paragraph of this article are within the meaning of Article 314/20 of committed by public servants, the the Civil Code in lieu of the mother of provisions applicable with regard to the child who is working, or who has suspension of the operation of a measure received sole custody, shall be entitled to provided for in the last paragraph of the same right to take leave of absence Article 21 of Law No 1034 of 6 from work and to the allowances December 1971 shall apply." provided for in Article 7 and the second paragraph of Article 15 of Law No 1204 The Commission, being of the opinion of 30 December 1971 respectively. that Italian Law No 903 transposed the provisions of Articles 5 and 6 of the directive into Italian law to an extent and in a manner not in conformity with the

JUDGMENT OF 26. 10. 1983 — CASE 163/82

observations as provided for by Article On hearing the report of the Judge- 169 of the Treaty within two months. Rapporteur and the views of the The Commission alleges in substance Advocate General the Court decided to that the Italian law unjustifiably restricts open the oral procedure without any the concept of "conditions of work " to preparatory inquiry. which the principle of equal treatment applies, that it restricts the legal remedies provided for in Article 6 of the directive to certain specified cases of discrim­ II — Conclusions of the parties ination, and that it excludes men from the advantages enjoyed by women as regards the compulsory three months' leave in the case of adoption or the The Commission claims that the Court obtaining of custody of children with a should: view to adoption. "Declare that the Italian Republic, by On 10 November 1980 the Permanent not adopting within the prescribed Representative of Italy submitted that period the provisions needed to comply leave in the case of adoption did not with Council Directive 76 / 207 / EEC on form part of the working conditions and the implementation of the principle of that the principle of sexual equality had equal treatment for men and women as already been implemented in Italian law regards access to employment, vocational as far as the aspects not provided for by training and promotion, and working Law No 903 were concerned. conditions, has failed to fulfil one of its obligations under the EEC Treaty;

By letter of 4 May 1981 the Commission communicated to the Italian Republic the Order the Italian Republic to pay the reasoned opinion provided for in the first costs." paragraph of Article 169 of the Treaty, reiterating the contents of its letter of 30 July 1980 and urging Italy to adopt the The Italian Republic contends that the measures necessary to comply therewith Court should dismiss the application and within one month. order the applicant to pay the costs.

The Commission considers that the three months from the date on which the combined provisions of Articles 5 and 6 child is united with its adoptive family or of the directive require that the principle with the family in whose care it is of equal treatment be applied as regards placed, whilst under Article 7 of that working conditions and that the Law, the right to take leave of absence necessary measures must be adopted in from work and the allowances provided order to enable any person who for subsequent upon the compulsory considers himself aggrieved to have his leave of three months are allowed rights upheld by the courts, if necessaiy equally to men. Since women are eligible after recourse to other appropriate auth­ for those rights as regards a child who orities. In this instance, discrimination has not yet attained the age of six years, against men or women may be leave in such cases falls rather within the considered under the system provided terms of family law referred to by the for by Law No 903 (sanctions, right of provisions of Article 7 than of the appeal, repeal of contrary provisions, maternity safeguards referred to in the nullity of incompatible clauses) only as provisions of Article 6. regards the working conditions governed by the Law in question, that is to say, conduct calculated to infringe the pro­ visions of Articles 1 (access to employ­ ment) and 5 (prohibition of women's working during certain hours in manu­ facturing industry). The prohibition of As far as the action before the discrimination in areas which may be Constitutional Court is concerned, it is governed by different legislation, for clear to the Commission that the doubts instance Law No 300 of 20 May 1970 on expressed by the Tribunale di Milano in working conditions (Gazzetta Ufficiale, the context of the national legal order No 131, p. 3404), Article 15 of which, as confirm the Commission's view with amended, provides that agreements or regard to Article 6 of Law No 903 as measures which give rise to discrimi­ regards the implementation of the nation based on sex as regards Community directive. employment, dismissal, grading, transfer, disciplinary measures and other preju­ dicial measures are void, does not guarantee the individual right of men and women not to suffer defacto discrim­ ination, as was the intention of the In its defence the Italian Government directive, nor is it covered by the replies, first, that the criticism that the remedies provided for by Law No 903. text of Law No 903 does not include the expression "working conditions" appears to be extremely formalistia The directive gives no binding definition of that expression designed to lay down the mandatory content of the internal measures to be adopted. It would Furthermore, Article 6 of that Law therefore be wrong to attribute to the makes provision for discriminatory rules phrase the same authority and effect as a which are not compatible with Article 5 legal concept endowed with its own of the directive inasmuch as only women direct legislative scope, and requiring to and not men are eligible, by analogy be transposed as it stands into the laws with the scheme provided for in the case of the Member States. It is rather in the of maternity, for the compulsory leave of light of Article 5 (2), which lays down in

detail the implementing rules for which Directive 76/207 and falling outside the Member States are to be responsible, that prohibitions laid down in Law No 903 consideration should be given to the might arise in an undertaking or other question whether the latter have failed to place of work. fulfil their obligations or not. The emphasis in that provision is on the need for the introduction into internal law of legal provisions making unlawful any The Italian Government points out that conduct contrary to the principle of Article 6 of the directive, which requires equal treatment, regardless of whether that provision should exist for legal such conduct has been prescribed or remedies against harmful measures of a authorized by laws, regulations or discriminatory nature, makes no mention administrative provisions (which, if they of the procedure whereby such legal do exist, must be repealed) or whether protection is to be guaranteed, or of the they are the subject of agreements, way in which the courts may protect the collective agreements or individual con rights of the injured party.

However, that does not mean that and career structure (Article 3); it in both those situations and others provides that any agreement or measure connected with "working conditions" calculated to create discrimination be (not referred to in Article 15) it is tween workers on the grounds of sex, impossible to have recourse to the whole covering also matters concerning dis range of normal legal remedies which, in missal, in grading, duties, transfers, this case, are the procedures available disciplinary measures or other measures under labour or administrative law.

employment relationship. The Italian doubt that the prohibitions and other Government is of the opinion that for provisions contained in Law No 903 are this application to have a foundation in intended to protect workers who are law the Commission ought to have discriminated against, and that is directed its attention towards practical sufficient to enable the worker to ensure realities and indicated which examples the observance of those provisions by of discrimination incompatible with means of legal action.

As far as the first paragraph of Article 6 In the rejoinder the Italian Government of Law No 903 is concerned, the Italian maintains that the Commission cannot Government maintains that the provision evade its obligation to be more specific, is designed to place the adoptive mother especially when the action concerns a in the same position as the natural partial failure to fulfil the obligations mother in order to ensure that the of a Member State. The Commission's former has the same opportunity, in her interpretation of the obligations incum­ interest and in the interest of the child, bent upon a Member State as regards the of creating the emotional ties for which transposition into national law of the the earliest part of a child's life or, by directive in question is dubious and analogy, its entry into the adoptive subjective, whereas a review of the way family, has a decisive role to play. A in which such transposition is made must comparison with the directive shows that be based on strictly legal criteria derived provision to be wholly lawful and from a logical interpretation of the compatible with Article 2 (3). The Italian provisions of the directive. If such a Government considers that the Com­ standard were to prevail Member States' mission has failed to show the contrary freedom of choice as regards methods of in its argument based on a comparison of implementation would be practically the first paragraph of Article 6 of the deprived of any true value. Italian Law with Article 7, which extends to the adoptive father the right to take leave of absence from work in lieu of or As regards the complaint concerning in the absence of the mother when the compulsory leave in the case of adoption child has need of assistance, as in the or taking custody of a child the Italian case of sickness. In that respect the Government emphasizes that the Com­ legislature recognizes the fact that mission has merely given a demonstrable parents may each take the place of the confirmation of its own theory without other and for that reason places the replying to the arguments against it set working father (whether natural or out in the statement of defence. adoptive) in the same position as the working mother, whether natural or adoptive; such similarity of treatment is not provided for in the case criticized by the Commission, in which the possibility IV — Questions put by the Court of substitution between the parents was excluded, not without reason, by the legislature. The Court put the following questions to the Commission:

The answers were as follows : Article 15 of Italian Law No 903 creates a system of legal remedies confined to First question the types of discrimination referred to in Articles 3 and 4 of the directive, omitting entirely the working conditions covered "The Commission emphasizes, as it has by Article 5 and expressly referred to in already done in its pleadings, that the Article 6 of the directive. prohibition of discrimination provided for in Article 5 (1) of Directive 76 / 207 / EEC, like the prohibitions provided for Moreover, the defendant's reference to in Articles 3 and 4 in relation to access Article 24 of the Constitution of the to employment and vocational training Italian Republic is irrelevant since it and promotion, is intentionally broad cannot be regarded as covering the and comprehensive in scope. discrimination referred to in Article 5 of the directive but not applicable as regards that referred to in Articles 3 Italian Law No 903 of 9 December 1977 and 4. follows that comprehensive approach in relation to access to employment and vocational training and promotion In fact, as the defendant rightly states, (Article 1), but adopts an enumerative the directive did not at all disregard the approach in relation to· working normal judicial process; it was intended, conditions so that it covers only specific however, that special means of action matters (Article 2 covers remuneration; should be created in view of the special Article 4 relates to retirement) and passes and difficult, social and economic over others altogether. context.

the constitutionality of Article 6 of (Discriminatory measures): Any agree­ Law No 903 referred to in its reply ment or measure intended to: of 6 July 1981 to the reasoned opinion? (a) make a job subject to the condition 3. Does the Italian Republic consider that the worker belong, not belong that it was in an adequate position to or cease to belong to a trade union; comment during the stage prior to action on the second complaint made by the Commission, namely in (b) dismiss a worker, subject him to relation to the incomplete implemen­ discrimination in grading or the tation of Article 6 of the directive?" allocation of duties, in transfers, in disciplinary measures or otherwise adversely affect him by reason of his The answers were as follows: membership of a trade union, of his trade union activity or his taking part 1. "(...) Its obligations to implement in a strike shall be void. Article 5 of the directive are sufficiently and validly satisfied in relation to the complaints made by the Commission in The provisions of paragraph (b) shall the present case by the provisions of Law apply equally to agreements or measures No 903 of 9 December 1977 and Law intended to discriminate on grounds of No 300 of 20 May 1970. politics, religion, race, language or sex.

The most significant provisions in relation to the complaints made in the Article 19 of Law No 903/77: present case are herewith set out in full for the convenience of the Court. All legislative provisions contrary to the Article 2 of Law No 903/77: provisions of the present Law are hereby repealed. Domestic laws and adminis­ trative measures of the State and of other Women shall be entitled to the same public bodies incompatible with the remuneration as men for work which is provisions of the present Law shall cease the same or of the same value. to apply.

2 Articles -5 and 6 of the directive, which the Commission considers have not been adequately or correctly transposed into Italian law, provide as follows :

" 1 . Application of the principle of equal treatment with regard to working conditions, including the conditions regarding dismissal, means that men and women shall be guaranteed the same conditions without discrimi­ nation on grounds of sex.

2. To this end, Member States shall take the measures necessary to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

COMMISSION v ITALY

(b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;

4 Article 2 provides that women are to be entitled to the same remuneration as men for work which is the same or of the same value. Job classification systems for determining remuneration must apply the same criteria for men and for women.

JUDGMENT OF 26. 10. 1983 — CASE 163/82

5 Article 3 prohibits any discrimination between men and women as regards the assignment of grading, duties and career development. The leave provided for in Articles 4 and 5 of Law No 1204 of 30 December 1971 is treated for the purposes of career development as days worked when collective agreements do not specify any special conditions in that respect.

6 The first paragraph of Article 4 provides that even if they are eligible for retirement women may elect to continue working up to the retirement age- limit applicable for men. The other paragraphs thereof contain further provisions to which it is not necessary to refer for the purposes of the present judgment.

7 The Commission considers in the first place that the provisions of Law No 903 do not transpose the provisions of Article 5 of the directive into Italian law to an extent and in a manner in conformity with, the spirit and letter of the directive. The Law covers certain working conditions, such as remuneration, retirement age and the right to take leave from work in the case of adoption, but it does not cover all working conditions in spite of the wider nature of the provisions of Article 5 of the directive.

8 The Government of the Italian Republic replies that consideration of the provisions of the aforesaid Law No 903 shows that discrimination based on sex is prohibited in relation to access to employment, vocational guidance, vocational training, advanced vocational training and retraining (Article 1), remuneration and job classification systems 'for determining remuneration (Article 2), assignment of grading, duties and career development (Article 3), retirement age (Article 4) and entitlement to leave in certain circumstances (Article 6). The Government of the Italian Republic adds that Article 15 of Law No 300 of 20 May 1970 was amended by Article 13 of Law No 903 of 1977 so as to render void any agreement or measure based on sex aimed at dismissing a worker or adversely affecting him.

12 Article 6 of Law No 903 of 1977 provides that women who have adopted children or who have obtained custody thereof prior to adoption may claim the maternity leave referred to in Article 4 of Law No 1204 of 1971 and the financial benefits relating thereto for the first three months after the child enters the adoptive family or the family which has been given custody of it, provided the child is not more than six years of age at the time of the adoption or award of custody. The second paragraph of Article 6 adds that such women may also claim the leave provided for in the first paragraph of Article 7 of the Law of 1971 for a period of one year from the actual entry of the child into the family provided that the child is not more than three years of age, and the right to the leave provided for in the second paragraph of Article 7.

JUDGMENT OF 26. 10. 1983 — CASE 163/82

i3 Article 4 of Law No 1204 of 30 December 1971 provides tb.at women may not be employed :

(a) During the two months immediately preceding the expected date of confinement;

(b) If confinement takes place after that date, during the period between the expected dáte and the actual date of confinement;

(c) During the three months following confinement.

19 The Government of the Italian Republic contends that the procedure referred to in Article 15 of Law No 903 is an emergency one but emphazises that there is nothing in the directive which requires such a procedure for all cases of discrimination. Article 700 of the Italian Code of Civil Procedure, which is an entirely general rule of procedure, allows the measures required to avoid irremediable damage to be obtained urgently. That provision may be relied upon in all areas where the directive applies and which are not covered by Article 15 of Law No 903.

20 Article 24 of the Italian Constitution, moreover, provides that any person may bring proceedings to protect his rights and lawful interests. That is a constitutional principle of direct application, unchanging and well established in the sense that once the existence of a basic rule protecting an individual interest is established no specific legislative measure is needed to ensure protection thereof since such protection is universally and unconditionally afforded by Article 24 of the Constitution. Workers suffering discrimination may therefore rely on that constitutional provision to ensure observance of the provisions of Law No 903 by means of a court action.

21 The Commission has not contested the explanations given by the Government of the Italian Republic. In those circumstances the complaint cannot be upheld.

22 Since none of the complaints made by the Commission has been upheld the application must be dismissed in its entirety.

JUDGMENT OF 26. 10. 1983 — CASE 163/82

Costs

2. Orders the Commission to pay the costs.

Mertens de Wilmars Koopmans Bahlmann

Galmot Pescatore Mackenzie Stuart O'Keeffe

Bosco Due Everling Kakouris

Delivered in open court in Luxembourg on 26 October 1983.

P. Heim J. Mertens de Wilmars