C-312/86
ECLI:EU:C:1988:428
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- Súdny dvor Európskej únie
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- 61986CC0312
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COMMISSION v FRANCE
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 21 September 1988
My Lords, 2. To this end, Member States shall take the measures necessary to ensure that:
Article 2(1) of Council Directive 76/207 of 9 February 1976 on the implementation of (a) ... ; 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) defines 'the principle of equal (b) any provisions contrary to the principle treatment' for the purposes of the directive of equal treatment which are included in as meaning that 'there shall be no discrimi collective agreements, individual nation whatsoever on grounds of sex either contracts of employment, internal rules directly or indirectly by reference in of undertakings or in rules governing particular to marital or family status'. the independent occupations and However, by Article 2 (3): professions shall be, or may be declared, null and void or may be amended ... ' .
'This directive shall be without prejudice to The first subparagraph of Article 9 (1) of provisions concerning the protection of the directive gave the Member States 30 women, particularly as regards pregnancy months to implement the directive and and maternity.' inform the Commission of the measures taken to that effect. In the case of France that period expired on 12 August 1978.
By Article 5 :
The French Republic adopted Law No 83-635 amending the Labour Code and the Criminal Code as regards equality at work between women and men, on 13 July 1983, '1 . Application of the principle of equal almost five years after the expiry of the treatment with regard to working time-limit stipulated by the directive. Article conditions, including the conditions L 123-1 c of the Labour Code, as governing dismissal, means that men and substituted by Law No 83-635, lays down a women shall be guaranteed the same general prohibition on adopting any conditions without discrimination on measure on grounds of sex, particularly grounds of sex. in regard to remuneration, training,
OPINION OF SIR GORDON SLYNN - CASE 312/86
the Commission claimed a declaration that assignment, qualification, classification, by failing to adopt within the period professional advancement or transfer. prescribed in the first subparagraph of Article L 123-2 of the Labour Code, as Article 9 (1) of Council Directive 76/207 substituted by Law No 83-635, prohibits the all the measures necessary to secure the full insertion of any term reserving the benefit and precise implementation of that directive of any measure to one or more employees and by adopting Article 19 of the Law of on the grounds of sex in any collective 13 July 1983 which conflicts with the agreement or contract of employment, requirements of the said directive, the except where such a clause is intended to French Republic had failed to fulfil its obli implement certain articles of the Labour gations under the Treaty. Code which provide for the protection of women by reason of pregnancy, maternity and nursing.
The Commission takes essentially two points. First, the first paragraph of Article However, by Article 19 of Law No 83-635: 19 of the law preserves beyond the deadline for implementation of the directive existing provisions of the kind referred to in Article 5 (2) (b) thereof; second, it does not effec tively ensure that such provisions are amended in accordance with the latter 'The provisions of Articles L 123-lc and article since it leaves it to management and L 123-2 of the Labour Code do not labour to bring the provisions into line prohibit the application of usages, terms of without imposing a time-limit or any contracts of employment or of collective effective sanction or machinery if the agreements in force at the date on which provisions are not brought into line within a this law is promulgated granting particular fixed or reasonable time. rights to women.
However, employers, groups of employers France's reply to the first point is that and groups of employed persons shall Article 2 (3) of the directive allows the proceed, by collective negotiation, to bring retention of protective provisions not such terms into conformity with the directly connected with pregnancy or provisions of the abovementioned articles.' maternity. Moreover, Article 2 (4) permits the retention of measures 'to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1 (1)', and these The Commission took the view that Article include not just access to employment and 19 was not in accordance with the directive. working conditions but social measures After a preliminary notice and a reasoned relating to the sharing of family responsi opinion to that effect, by an application bilities which may affect women's oppor- lodged at the Court on 12 December 1986,
COMMISSION v FRANCE
tunities in those areas. As pan of such concerning the protection of women within process of removing inequalities in the field the meaning of Article 2 (3) of the of employment, particular rights for women directive. There is no dispute that provisions may be retained. directly linked to pregnancy and maternity may be retained and the Commission accepts that extra maternity leave beyond the prescribed protective period falls within the scope of that provision, since it seeks to protect a woman in connection with the effects of pregnancy and motherhood (Case 184/83 Hofmann v Banner Ersatzkasse As to the second point, France, it is said, [1984] ECR 3047, at p. 3075, paragraph 26 was entitled pursuant to Article 5 (2) (c) of of the judgment). France, however, the directive and in accordance with the particularly in the light of what it says is the revision provided for in Article 9 (1) role of the mother in French society, seeks thereof, to 'request' labour and management to retain other rights hitherto enjoyed solely to eliminate offending provisions and to by women which are not directly connected ensure that in future agreements submitted with pregnancy and maternity. Many for approval contained no such provisions. examples are given in the pleadings, without it being suggested that the list is all-embracing, such as the reduction of working time for women over 59 years of age or engaged in certain occupations such as typing and computer operating, the advancement of retiring age, time off for the adoption of a child, leave for sick In order to remove the inequalities which children, a day off on the first day of the women have long faced in the area of school term, some hours off on Mothers' employment it might have been possible for the Community as a matter of policy to Day, payments to help mothers meet the require simply that provisions discriminatory cost of nurseries or childminders. against women should be removed and that those in favour of women should be retained. Despite some of the arguments in this case, this clearly was not done. Men and women are to be guaranteed the same conditions without discrimination on grounds of sex. Provisions discriminatory against men workers are therefore barred unless preserved by specific provisions of the directive. Article 2 (3), as an exception to the principal rule contained in Articles 1 and 2 (1) of the directive, however, falls to be strictly construed: paragraph 44 of the judgment in Case 222/84 (Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, at pp. 1688 and 1689). Although the word 'particularly' in Article The first question is, therefore, whether the 2 (3) indicates that situations other than 'particular rights to women' preserved by pregnancy and maternity may fall within its Article 19 of the law are provisions scope, those words colour the scope of the
OPINION OF SIR GORDON SLYNN - CASE 312/86
be responsible for looking after sick children exceptions. The Court has already laid or need to pay childminders; he may no less down criteria for defining them. At for health reasons need to retire early or to paragraph 25 of its judgment in Hofmann have time off from certain stressful jobs. and paragraph 44 of its judgment in France's insistence on the traditional role of Johnston, the Court held that Article 2 (3) is the mother, as I see it, ignores developments intended to protect a woman's biological in society whereby some men in 'single- condition and the special relationship which parent families' have the sole responsibility exists between a woman and her child. The for children or whereby parents living Court (in Hofmann, paragraph 25) made it together decide that the father will look clear that the 'special relationship' to which after the children, in what would tradi the Court was referring in that case was tionally have been the mother's role, confined to that between a woman and her because of the nature of the mother's child over the period which follows employment. This does not mean that both pregnancy and childbirth, and not any later parents can claim the right; one of them, period. not exclusively the woman, can.
It is important to bear in mind that the object of these proceedings is not to ensure I say most of the examples because it is the abolition of these rights accorded to arguable that time off for the adoption of a women ; it is rather to ensure that men and young baby, even if principally for the women are treated equally except where the benefit of the baby, is justified because of provisions concern the protection of women the link between the adopting mother and as such by reason of their biological the baby. This has not, however, been condition or the special relationship which argued and it may be that in some Member exists between a mother and her baby. States even quite a young child may be adopted by a man.
Applying the approach adopted by the Court in Johnston and Hofmann, it seems to Accordingly, in my view, the rights me that most of the examples cited of rights conferred on women by and large are not given to women are not justified under justified under Article 2 (3). Article 2 (3) of the directive. True, some women may wish to retire at 59, to have time off from particular occupations or for particular occasions such as Mothers' Day, to have grants for childminders or school equipment. It cannot, however, be said that men do not, or may not ever, need such Nor can they be justified under Article rights or privileges or that the latter can be 2 (4) which allows measures which promote classified as relating solely to the biological equal opportunity for men and women, in condition of womanhood. A father, in particular by removing existing inequalities modern social conditions, may just as much which affect women's opportunities. The
COMMISSION v FRANCE
kind of right referred to above has never As to the second contention of the been enjoyed by men so that there exist no Commission, it does not seem to me that inequalities in favour of men which affect Article 5 (2) (c) and Article 9 (1) of the women's opportunities in the employment directive justify the progressive adaptation field. It is not permissible to argue, as of the provisions, as France contends. The France appears to argue, that because measures in question were at all times since women in general have been discriminated the expiry of the time-limit for the against then any provisions in favour of implementation of the directive contrary to women in the employment field are per se its terms. France was obliged by Article valid as part of an evening-up process. 5 (2) (b) and the first subparagraph of Article 9 (1) to take steps to ensure the annulment or amendment of these provisions in e. g. collective agreements and contracts of employment. If, as I consider, these provisions should have been declared void or removed, then it was not sufficient to leave it to labour and management without specific requirements as to the time Nor does Article 5 (2) (c) of the directive, or methods of enforcement. There is no State guarantee of effective enforcement of in my view, assist France: even if in times the principle of equality should the nego past the measures were justified because of tiation process between the two sides of the factual role of the mother, they were industry fail: see paragraph 8 of the banned by the directive and did not initially judgment in Case 143/83 (Commission v qualify for exemption under Article 2 (3) Denmark [1985] ECR 427, at pp. 434 and (paragraph 44 of the judgment in Johnston). 435), and paragraph 20 of the judgment in Case 235/84 (Commission v Italy [1986] ECR 2291, at p. 2302).
Accordingly, in my view, the first paragraph of Article 19 of the law is contrary to the directive save in so far as it continues The results of the legislation in practice particular rights for the protection of demonstrate the absence of any effective women which are justified by the biological State guarantee of compliance, notwith condition of the woman or the relationship standing the existence of a procedure with her child, and in particular pregnancy, for government approval of collective maternity and nursing. It does not seem to agreements. It appears that in 1983 in me that the Commission's case fails because France 1 050 collective agreements were it is pleaded in general terms whereas it is concluded in branches of working activity possible that some rights enjoyed in France and 2 400 in individual undertakings. In do fall within the exemption. It seems to me 1984 the figures were 927 and 6 000 that if this legislation is drafted in such respectively. By contrast, only 16 collective broad terms and is substantially invalid it is agreements were renegotiated on a for France to draft a new law which covers non-discriminatory basis under the second only those rights which fall within the paragraph of Article 19 of the law in the exemption. period 1984-87.
OPINION OF SIR GORDON SLYNN - CASE 312/86
obligation to implement a directive. It is an The French Government has argued that the argument which if valid could be raised in withdrawal from women of the 'particular respect of every step taken to achieve rights' in question would have been a equalization — as in the case of payments to socially retrograde step. That, however, is part-time workers who are women, simply not the Commission's case. As far as the because they are women. It is well estab Commission is concerned, equality could lished in the Court's case-law that practical equally well be achieved by a leveling-up difficulties which appear at the stage when a process applying the same benefits to men. Community measure is put into effect In my view, such an approach is in cannot permit a Member State unilaterally accordance with the terms and spirit of the to opt out of fulfilling its obligations. A directive, the third recital of which sets out provision such as the second paragraph of the aim of furthering the harmonization of Article 19 is not in my view the only way of living and working conditions 'while main dealing with the difficulty alleged. It would taining their improvement'. Community law have been possible for the French legislator does not require, and the Commission in to adopt a measure prohibiting discrimi this action does not seek, the withdrawal natory terms of employment such as those from women of the benefits in question: it at issue and requiring the two sides of merely requires them to be offered to men industry to renegotiate them on a and women on equal terms. non-discriminatory basis within a reasonable period.
On the other hand, the French Government has argued that the immediate extension to all workers of rights such as daily pauses, I do not accept the French Government's the reduction of working hours, the argument that because Article 9 (1) gives 30 attribution of extra days holiday, the months to put into force the necessary laws reduction of retirement age, allowances tor and administrative provisions, and that there childminding or bonuses in the calculation is no time-limit prescribed for their coming of retirement pensions, would have repre into effect, time is unlimited and there is no sented a considerable economic cost, and breach of the directive. The Law of 1983, the French legislator adopted an approach even in relation to future agreements, was which would allow businesses to absorb the already five years late: existing provisions extra costs progressively. Even if the cost should have been dealt with within a would have been as great as alleged (ot reasonable time of August 1978. By the time which no evidence has been submitted) that these proceedings were brought in 1986 that is not in my opinion a factor which would reasonable time had long since lapsed. justify a Member State in failing to fulfil its
COMMISSION v FRANCE
Accordingly, in my opinion, the Commission is entitled:
(a) to a declaration that, by failing to adopt within the period prescribed in the first subparagraph of Article 9 (1) of Council Directive 76/207 all the measures necessary to secure the full and precise implementation of that directive and by adopting Article 19 of the Law of 13 July 1983 which conflicts with the requirements of the said directive save in so far as it provides for the protection of women by reason of their biological condition and the special re ationship which exists between a mother and her child particularly in re auon to pregnancy, maternity or nursing, the French Republic has failed to rulhl its obligations under the Treaty;
(b) to its costs of this action.