C-165/82

In Case 1 6 5 / 8 2

C O M M I S S I O N O F T H E EUROPEAN C O M M U N I T I E S , represented by J o h n F o r m a n , a m e m b e r of its Legal D e p a r t m e n t , acting as Agent, having an address for service in L u x e m b o u r g a t the office of O r e s t e M o n t a k o , a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, applicant,

v

U N I T E D K I N G D O M O F G R E A T BRITAIN A N D N O R T H E R N IRELAND, r e p r e s e n t e d by J. D . H o w e s , T r e a s u r y Solicitor's D e p a r t m e n t , assisted by I. Glick, with an address for service in L u x e m b o u r g at t h e Embassy of t h e U n i t e d K i n g d o m , defendant,

A P P L I C A T I O N for a declaration that t h e United K i n g d o m has failed t o fulfil its obligations u n d e r the E E C T r e a t y b y failing t o enact within t h e

COMMISSION v UNITED KINGDOM

Facts and Issues

The facts of the case, the course of the principle is referred to as "the principle procedure and the submissions and of equal treatment" (Article 1 (1)). arguments of the parties may be summarized as follows: Article 2 of the directive reads as follows :

I — Facts and written procedure "1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on The purpose of Council Directive grounds of sex either directly or 76/207 is to put into effect in the indirectly by reference in particular Member States the principle of equal to marital or family status. treatment for men and women as regards access to employment, including pro- motion, and to vocational training and as 2. This directive shall be without regards working conditions. That prejudice to the right of Member

JUDGMENT OF 8. 1!. 1983 — CASE 165/82

States to exclude from its field of 2. T o this end, Member States shall application those occupational ac- take" the measures listed in the sub- tivities and, where appropriate, the sequent part of that provision. training leading thereto, for which, by reason of their nature or the The measures which the Member States context in which they are carried must take pursuant to Articles 3, 4 and 5 out, the sex of the worker are the following: constitutes a determining factor. J» ". . . the measures necessary to ensure that:

Article 3 of the directive provides: (a) any laws, regulations and ad- ministrative provisions contrary to " L Application of the principle of equal the principle of equal treatment shall treatment means that there shall be be abolished; no discrimination whatsoever on grounds of sex in the conditions, (b) any provisions contrary to the including selection criteria, for principle of equal treatment which access to all jobs or posts, whatever are included in collective agree- the sector or branch of activity, and ments, individual contracts of em- to all levels of the occupational ployment, internal rules of under- hierarchy. takings or in rules governing the independent occupations and professions shall be, or may be 2. To this end, Member States shall declared, null and void or may be take the measures" listed in the latter amended". part of that article.

Article 6 of the directive provides : (b) he applies to her a requirement or condition which applies or would "Member States shall introduce into apply equally to a man but — their national legal systems such (i) which is such that the pro- measures as are necessary to enable all portion of women who can persons who consider themselves comply with it is considerably wronged by failure to apply to them the smaller than the proportion of principle of equal treatment within the men who can comply with it, meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after and possible recourse to .other competent (ii) which he cannot show to be authorities." justifiable irrespective of the sex of the person to whom it is Article 9 of the directive provides that applied, the Member States must put into force the laws, regulations and administrative and provisions necessary in order to comply (iii) which is to her detriment with it within 30 months of its because she cannot comply notification. Since the directive was with it." notified to the Member States on 12 February 1976 the period expired on 12 Section 6 (1) and (2) concerns discrimi- August 1978. Paragraph (2) of that nation against those seeking employ- article provides that: . ment and employees. Nevertheless section 6 (3) exempts from those sub- "Member States shall periodically assess sections employment the occupational activities referred to in Article 2 (2) in order to decide, in the "(a) for the purposes of a private light of social developments, whether household, or there is justification for maintaining the (b) where the number of persons exclusions concerned. They shall notify employed by the employer, added the Commission of the results of this to the number employed by any assessment." associated employers of his, does not exceed five (disregarding any In the United Kingdom the directive was persons employed for the purposes implemented, with regard to Great of a private household)." Britain, by the Sex Discrimination Act 1975 (hereinafter referred to as "the Likewise section 20 of the Act provides Act") and, with regard to Northern that the provisions of section 6 (1) and Ireland, by the Sex Discrimination (2) (a) do not apply to midwives and that (Northern Ireland) Order 1976. For section 14 concerning vocational training practical purposes the content of these bodies does not apply to training as a legislative measures is identical. The Act midwife. entered into force on 12 November 1975. Section 77 (1) of the Act reads as follows : The definition of discrimination for the purposes of the Act is given in Part I. "A term of a contract is void where — Section 1 (1) in particular provides that (a) its inclusion renders the making of there is discrimination by a person the contract unlawful by virtue of against a woman if this Act, or

T h e Commission maintained that the Act The Commission claims that the Court was not in accordance with the should: provisions of the directive and on 29 July 1980 requested the Government of the " 1 . Declare that, by failing to adopt the United Kingdom to submit its obser- laws, regulations or administrative vations within a period of two months. provisions necessary to comply with Council Directive 76/207/EEC of 9 February 1976 on the implemen- In its reply of 30 October 1980 the tation of the principle of equal United Kingdom contended that the Act treatment for men and women as was in accordance with the provisions of regards access to employment, the directive and that with regard to vocational training and promotion, section 77 the amendments .requested by and working conditions, the United the Commission would not serve any Kingdom has failed to fulfil its practical purpose. It added that Article 2 obligations under that directive; (2) authorized derogations, of the type provided for by the legislature, from the 2. Order the Government of the United principle laid down in the directive. Kingdom to pay the costs of the proceedings." O n 9 October 1981 the Commission sent the Government of the United Kingdom The Government of the United Kingdom a reasoned opinion under the first contends that the Court should: paragraph of Article 169 of the Treaty. In its reply dated 29 January 1982 the " 1 . Dismiss the Commission's appli- United Kingdom Government adhered cation; to its view that its legislation was fully in compliance with the directive, whose aim 2. Order the Commission to pay the was achieved in the United Kingdom in costs of the proceedings." an appropriate and effective way in accordance with Article 189 of the Treaty. III — Submissions and argu- m e n t s of t h e p a r t i e s T h e Commission considered that the United Kingdom had failed to comply with its reasoned opinion and brought The Commission claims in the first place the matter before the Court by an that, although section 77 (1) of the Act application dated 28 May 1982. provides that a term of an individual contract is void in the circumstances set out in that subsection, similar provisions The application was received at the do not exist for collective agreements, Court Registry on 3 June 1982. internal rules of undertakings or rules governing the independent occupations Upon hearing the report of the Judge- and professions. Leaving aside those Rapporteur and the views of the cases where the provisions of a collective

agreement are legally enforceable where five or fewer persons are because they are expressly stated to be employed, from the general restriction of legally enforceable contracts or because discrimination contained in the Act are they have been incorporated into contrary to the terms of the directive, in individual contracts of employment, particular Articles 3, 4 and 5. The collective agreements are presumed by argument that these exceptions were statute not to have been intended by the introduced because such employment parties to be legally enforceable. often involves "close personal relationships" does not prevail over the requirement that Article 2 (2), as an exception to the general rule established by the directive, must be interpreted strictly and that the directive in any case The Commission does not consider that permits Member States to exclude only the provisions in question ensure that the certain occupational activities from its objective of the directive is being field of application.

States. In the view of the Commission, there is a fundamental difference between a legal situation which arises as As regards the exclusion of midwives a result of the annulment or amendment from the Act pursuant to section 20 the of a discriminatory provision causing United Kingdom states that full equal that provision to cease to exist and that treatment might in theory be restricted which is present in respect of a provision because the transitional provisions in which continues to exist even if, at law, paragraph 3 of Schedule 4 to the Act

that the terms of section 6 (3) of the Act, profession of gynaecologist has not given which exclude employment for the rise to similar problems and concludes purposes of a private household, or that Article 9 (2) is not relevant.

In its defence the United Kingdom replies section 13 (1) of the Act must be that in its view its legislation faithfully construed widely (cf. British Judo reflects the meaning and intent of the Association v Petty [1981] ICR 660). directive. In particular with regard to collective agreements, rules of under- takings and rules governing independent occupations and professions, it points out that it is not customary for collective agreements to be legally binding (cf. Ford

Further- such a case, the legislation in force more it remarks that, if the Com- renders void any discriminatory mission's point of view according to provision of a collective agreement which which Article 2 (2) means that an would otherwise apply, the enactment of exclusion may be admitted only for the measures suggested by the Com- reasons of authenticity which rule out mission would do nothing, according to the exercise of the employment by a the United Kingdom, to apply the member of the opposite sex, were right, principle of equal treatment. Similarly the sole ground of exclusion from the section 77 of the Act renders void any application of the principle of equal provision contrary to the principle of treatment would be contrary to the clear equal treatment, contained in the internal language of the said provision which rules of an undertaking or of the rules of excludes the application of that principle an occupational or professional body, for two separate and independent which is embodied in an individual reasons: the nature of the activities and

With regard to activities are carried out. The kind of independent occupations and professions employment in question frequently involves very close personal relationships

between employer and employee by who desire to employ assistants of the reason of the fact that the latter often same sex. lives in the household and may, for example, concern resident companions or personal maids. The United Kingdom considers that the employer is in that case entitled to regard the sex of the employee or prospective employee as a determining factor. Furthermore the concept of "employment for the purposes of a private household" is not imprecise and on the contrary conveys a With regard to midwives the United clear direction to industrial tribunals and Kingdom recalls that such discriminatory courts as to what is meant. Thus a family provisions as remain continue to be cook, gardener or chauffeur will usually necessary and justified under Article 2 come within the exceptions: but, for (2) of the directive by reason of the example, if the chauffeur is usually nature of midwifery and the context in employed not for the purposes of his which it is carried out. Nevertheless such employer's household but for his business provisions have been and continue to be the exception will not apply (cf. Heron assessed periodically in the light of social Corp. Ltdv Commis [1980] ICR 713). developments. The Commission's argu- ment that the profession of gynaecolo- gist has not given rise to problems in this area illustrates a lack of understanding of the respective roles of the gynaecolo- gist and of the midwife. Their work is different and the conditions in which the former practises are not identical with the context in which the midwife works. Gynaecologists rarely attend a patient alone, contact is nearly always in a consulting room, clinic, hospital room or the like in the presence of another person, usually a midwife or female attendant. The attendance of gynaecolo- gists and obstetricians is usually of short With regard to an employer who duration and intermittent whilst a employs not more than five employees midwife remains with the patient for (disregarding any persons employed for extended periods and at more frequent the purposes of a private household) the intervals. Care of a patient by the exception is carefully drawn so as not to midwife for at least 10 days after the include cases where associated employers delivery often takes place in the patient's maintain a number of small establish- home. Thus if women are not able to ments each of which may employ only choose a female midwife they put five or less but who together employ themselves and their new-born children more. That exception is justified and at risk by refusing the service of any comes within Article 2 (2) of the midwife. The United Kingdom considers directive because of the close personal that it is necessary to introduce the relationships that often exist in small concept of male midwives gradually, undertakings. Reference might be made having regard to the sensitivities and to the case of female owners and ma- beliefs of the peoples with different nagers of small shops, perhaps elderly, cultural backgrounds who live in the

With regard to the internal rules of undertakings the Commission raises the With regard to the employment of five question of a candidate for a pro- persons or less what is the position with fessional post faced with a discriminatory regard to the other small undertakings rule of the profession. According to the where such close personal relationships Commission such a person would have do not exist? That the "owner" or no redress under national law but under "manager" of a shop, even if "small", Community law such a rule must be, or should be permitted to discriminate may be declared null and void or may be might seem to suggest, according to the • amended. That obligation is not satisfied Commission, a scene from Dickensian either by sections 6 and 13 or by section England rather than from the European 15 to which the United Kingdom refers. Community of the 1980s.

The Commission considers that different With regard to midwives the Com- treatment within the meaning of Article mission remarks that it still fails to see 2 (2) of the directive is possible only how the discrimination against men can

COMMISSION v UNITED KINGDOM

In its rejoinder the United Kingdom repeats that the directive does not require legislation to annul, or enable the annulment or amendment of things which are already without legal effect, such as collective agreements in English law. Likewise it is incorrect to suggest that a candidate for a professional post faced with a discriminatory rule of his profession would be without redress. In so far as the employer, or prospective The United Kingdom does not accept employer, adopts such a rule as his own that its legislation in relation to private the candidate has redress against the households and small undertakings is employer (section 6 of the Act). In so far unclear: the Commission's suggestion as the rule affects the candidate's auth- that the language of a law must be orization or qualification for the post the unclear because it has been considered candidate has redress against the pro- by a court is absurd; by the same fessional body (section 13). reasoning the concepts in Article 2 (2) of the directive must also be not entirely

JUDGMENT OF 8. 11. 1983 — CASE 165/82

clear because they have been submitted nation arises out of the nature of the for consideration to the Court. occupational activity or the context in which it is carried out, that occupational activity comes within Article 2 (2).

COMMISSION v UNITED KINGDOM

the Equal Pay Act concern the sphere to (a) to extend to both men and women which Directive 76/207 relates — which any provision applying specifically to is different?" men only or to women only; and

Reply (b) to eliminate any resulting duplication in the provisions of the agreement (or pay structure) in such a way as 1. The United Kingdom does not not to make the terms and regard section 3 of the Equal Pay Act as conditions agreed for men, or those being primarily directed to fulfilment of agreed for women, less favourable in the United Kingdom's obligations under any respect than they would have Directive 76/207. been without the amendments, provided that the effect of the amendments is not to apply the 2. Section 3 was enacted primarily in provisions of the collective agree- order to ensure that discrimination in ment (or pay structure) to em- terms and conditions of employment ployees who were not previously resulting from the operation of collective covered by it. agreements or employers' pay structures that could not be dealt with under other provisions of the Equal Pay Act could The collective agreement (or pay none the less be dealt with by reference structure) may be referred to the Central to the discriminatory terms and Arbitration Committee by a party to the conditions contained in the collective agreement (or by the employer, where it agreement or the employer's pay is an employer's pay structure) or by the structure itself. Section 3 was necessary Secretary of State. Section 3 therefore because other provisions of that Act provides one way in which the principle (which was enacted five years before the of equal treatment for men and women Sex Discrimination Act and Directive as regards working conditions is 76/207) did not deal with cases where implemented in the United Kingdom. the individual did not have other employees of the other sex with whom directly to compare his or her terms or conditions. Questions 2 and 3

cularly women from the number of Reply ethnic minorities living in the United Following the widespread consultation Kingdom, may put themselves and their with health authorities, professional new-born children at risk by refusing bodies and other organizations on the professional attention if they are unable Report of Two Studies . on Male to choose a female midwife. Health Midwives the United Kingdom Govern- authorities will therefore be asked to ment has concluded that the present ensure that women are always given the restrictions on the training and opportunity to be attended by a female employment of men as midwives should midwife if they choose and to ensure now be lifted. that, where a male midwife is provided, adequate chaperoning is provided. Orders giving effect to this decision are being prepared under section 80 (1) (a) of and paragraph 3 of Schedule 4 to the V — Oral procedure Sex Discrimination Act 1975. It is anticipated that the changes effected by the Orders will come into operation by The parties presented oral argument at the end of August 1983. the sitting on 22 March 1983.

Paragraph 68 of the defence referred to The Advocate General delivered his the strong possibility that women, parti- opinion at the sitting on 7 June 1983.

Decision

, By application lodged at the Court Registry on 3 June 1982 the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that by failing to enact within the prescribed period the provisions needed 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 (Official Journal 1976, L 39, p. 40), the United Kingdom has failed to fulfil its obligations under the Treaty.

(c) Finally, by virtue of section 20 of the 1975 Act the prohibition of discrimination based on sex does not apply to the employment, promotion and training of midwives.

T h e first c o m p l a i n t

4 The Government of the United Kingdom considers that this complaint is unfounded. By virtue of section 18 of the Trade Union and Labour Relations Act 1974, any collective agreements made before 1 December 1971 or after the entry into force of that act are to be presumed not to have been intended by the parties to be legally enforceable unless they are in writing and contain a provision in which the parties express their intention that the agreements are to be legally enforceeable. In fact, collective agreements are not normally legally binding. The United Kingdom Government is not aware of there being any legally binding collective agreements at present in force in the United Kingdom.

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5 Even if collective agreements containing provisions contrary to the principle of equality of treatment do exist, those provisions in so far as they are not capable of amendment under section 3 of the Equal Pay Act 1970, would be rendered void by section 77 of the 1975 Act.

, The United Kingdom's argument to the effect that the non-binding character of collective agreements removes them from the field of application of that

COMMISSION v UNITED KINGDOM

directive cannot be accepted, even if account is taken of the United Kingdom's observation that individual contracts of employment entered into within the framework of a collective agreement are rendered void by section 77 of the 1975 Act.

10 Article 4 (b) of Directive 76/207 provides that the application of the principle of equal treatment in the areas to which it relates means that Member States must take the necessary measures to ensure that:

(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."

1 1 The directive thus covers all collective agreements without distinction as to the nature of the legal effects which they do or do not produce. The reason for that generality lies in the fact that, even if they are not legally binding as between the parties who sign them or with regard to the employment relationships which they govern, collective agreements nevertheless have important de facto consequences for the employment relationships to which they refer, particularly in so far as they determine the rights of the workers and, in the interests of industrial harmony, give undertakings satisfy or need not satisfy. The need to ensure that the directive is completely effective therefore requires that any clauses in such agreements which are incompatible with the obligations imposed by the directive upon the Member States may be rendered inoperative, eliminated or amended by appropriate means.

u Whilst it is undeniable that, for certain kinds of employment in private households, that consideration may be decisive, that is not the case tor all the kinds of employment in question.

,5 As regards small undertakings with not more than five employees, the United Kingdom has not put forward any argument to show that in any undertaking of that size the sex of the worker would be a determining factor by reason or the nature of his activities or the context in which they are carried out.

,6 Consequently, by reason of its generality, the exclusion provided for in the contested provision of the 1975 Act goes beyond the objective which may be lawfully pursued within the framework of Article 2 (2) of the directive.

The third complaint

,7 The Commission's third complaint relates to the fact that the 1975 Act ensures access to the occupation of midwife and to training tor that occupation only within certain limits. This is said to entail discrimination based on sex.

COMMISSION v UNITED KINGDOM

2i It is apparent from all the foregoing considerations that by failing to adopt in accordance with Directive 76/207 of 9 February 1976 the measures needed to ensure that any provisions contrary to the principle of equality of treatment contained in collective agreements or in the internal rules of undertakings or in the rules governing the independent professions or occu- pations are to be, or may be declared, void or be amended, and by excluding

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from the application of that principle employment for the purposes of a o r i a t e household and any case where the number of persons employed does nmexceed[five, the United Kingdom has failed to fulfil its obligations under the Treaty.

22 In all other respects, the application is dismissed.

Costs

23 Under Article 69 (2) of the Rules of Procedure, an ™ * ^ / £ * £ & be ordered to pay the costs if they have been asked for in the successtul pany's pľeadľngs. However, by virtue of paragraph (3) of the same article the Court may order each parry to bear its own costs if either of the parties is unsuccessful in one or more of its submissions.

3. Orders each of the parties to bear its own costs.

M e n e n s de Wilmars Koopmans Bahlmann Galmot

M a c k e n z i e Stuart O'Keeffe Bosco Due Everling

Delivered in open court in L u x e m b o u r g o n 8 N o v e m b e r 1983.

P. Heim J. M e r t e n s d e W i l m a r s Registrar President

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 7 JUNE 1983 '