C-318/86

OPINION OF SIR GORDON SLYNN —CASE 318/86

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 24 May 1988

My Lords, the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by Article 3 of Council Directive 76/207/EEC reason of their nature or the context in of 9 February 1976 (Official Journal 1976, which they are carried out, the sex of the L 39, p. 40) on the implementation of the worker constitutes a determining factor.' principle of equal treatment for men and Article 9 (2) provides: 'Member States shall women, in particular as regards access to periodically assess the occupational activities employment, provides: referred to in Article 2 (2) in order to decide, in the light of social developments, whether there is justification for maintaining the exclusions concerned. They shall notify '(1) Application of the principle of equal the Commission of the results of this treatment means that there shall be no assessment.' discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occu­ Pursuant to Article 9 (1) of the directive, in pational hierarchy. the case of the French Republic the directive should have been implemented by 12 August 1978. (2) To this end, Member States shall take the measures necessary to ensure that:

In 1982 French Law No 82-380 of 7 May 1982 inserted a new Article 18 bis into the (a) any laws, regulations and adminis­ Order of 4 February 1959 on the statut trative provisions contrary to the general des fonctionnaires (General Staff principle of equal treatment shall be Regulations) enabling separate recruitment abolished; to be organized for certain corps in the French civil service where sex constituted a determining factor for the duties involved. (b) ... ; That provision was re-enacted by Article 21 of Law No 84-16 of 11 January 1984 which is in the following terms:

The Commission's application, it is said, is The list of corps for which separate directed at both the legal provision for recruitment could thus be organized was separate recruitment and the practice of laid down by Decree No 82-886 of 15 such recruitment. October 1982 and maintained in force by Decree No 84-957 of 25 October 1984. The list specifies: police superintendents, captains and officers, inspectors, investi­ The Commission accepts that the directive gators and police constables and policemen permits separate recruitment to take place in the national police force; assistants at the for assistants at the maisons d'éducation of maisons d'éducation of the Légion the Légion d'honneur and for custodial staff d'honneur; corps in the external in the prison service, but contends that departments of the prison service, namely separate recruitment for 'chefs de maison management, technical and vocational d'arrêt' responsible for the direction of training and custodial staff; customs prisons (which I refer to as 'governors') and inspectors, investigators and officers; for other officers in the list is not teachers; physical education and sports compatible with the directive. teachers and assistant teachers.

After the application had been lodged, the French Republic adopted Decree No 87-55 The three categories of customs inspectors, of 2 February 1987 removing teachers from customs investigators and customs officers the list, and in its reply the Commission were removed from the list by Decree No withdrew its claim as regards teachers. 85-841 of 6 August 1985.

departments of the prison service and It is not disputed that Article 3 of the governors. directive applies to employment in the public service (paragraph 16 of the judgment in Case 248/83 Commission v Germany [1985] ECR 1459, at p. 1480) and the fixing of these quotas ex facie is contrary The French Government has told the Court to the wording of that article, namely: that legislation is in train to remove from 'there shall be no discrimination whatsoever the list management staff in the external on grounds of sex in the conditions, departments of the prison service and including selection criteria, for access to all technical and vocational training staff in the jobs or posts'. external departments of the prison service. The infringement is in effect admitted in relation to these two categories of civil servants. Although the French Government The question is thus whether the rule and has manifested its intention of complying practice adopted fall within an exception to with its obligations in regard to these that provision. categories, it seems to me that the Commission is entitled to the declaration it seeks as the legislation has not yet been adopted. The French Government's position is that the case comes within the terms of Article 2 (2) of the directive (occupational activities for which the sex of the worker constitutes a determining factor). It contends that the The remaining dispute, therefore, concerns maintenance of public order requires a the five corps in the national police force display of the capacity to use force at all and governors of prisons. times, which would be disrupted by large-scale recruitment of women. The need to dissuade potential troublemakers and the physical dangers of the job justify recruiting only a limited proportion of women. Recruitment into the five corps of the police force does not involve the organization of separate competitions, with separate exam­ inations and separate selection boards. The Commission replies that the dissuasive There is a, single competition, but the effect has more to do with the physical decision ordering the holding of a compe­ strength than with the sex of the person tition fixes in each case the percentage of concerned. posts to be allotted to men and women respectively. The effect is that a person of one sex who obtained good marks in a recruitment examination to one of those It seems clear that Article 2 (2) is to be corps might be refused employment in construed narrowly (paragraph 36 of the favour of a person of the other sex with judgment in Case 222/84 Johnston v Chief worse marks if the quota for the sex of the Constable of the RUC [1986] ECR 1651). In first person was exhausted and the other my opinion, in order to decide whether that quota not. The Commission contends that exception is satisfied it is necessary to have between 10 and 30 % of posts (depending regard to the specific activities involved and on the corps concerned) have, in the past, to consider whether in those activities, by been reserved for women upon recruitment. reason of their nature or the context in

It seems to me that there are many degrees There is force in this argument, but it seems of violent behaviour and it has not been to me that it seeks to extend Article 2 (2) established that women cannot deal with too far. It may well be that for some police any of them or that, even if for specific activities (where the use of force or a areas or for specific purposes the use of men display of the capacity to use force are only is justified, the engagement of women required) sex could be a determining factor on a quota basis throughout the police force not simply because on average men are has been shown to be justified whatever the bigger and stronger than women (which in nature of the activities actually carried out. itself would not necessarily be sufficient) but The French provisions lay down in advance because potential delinquents regard men as a quota of jobs available to men and women more ready to use force, and perhaps without regard to the context in which the because men are more willing to use force. occupational activity is carried out. These, however, are matters which it seems to me not necessary or, on the evidence available, not possible to decide, especially if regard is had to the role which women now appear to play in warfare and in police forces in some parts of the world. There Johnston was a special case in a situation may be a difference between handling 'characterized by frequent assassinations'. I violent crowds and situations where one or do not read what is said, particularly in two individuals are threatening violence. As paragraphs 36 to 40 and in point 3 of the to the former, the Commission appears to operative part of that judgment as applying accept that the exception in Article 2 (2) to all Member States and at all times, even would apply to such bodies as the though serious outbreaks of violence have compagnies républicaines de sécurité (CRS) from time to time occurred in many of

them. The provisions in question here seem circumstances existing in its internal legal to me to be disproportionate (Johnston, system in order to justify a failure to comply paragraph 38). with obligations and time-limits resulting from Community directives' (e.g. in Case 42/80 Commission v Italy [1980] ECR 3635, at p. 3640). As I see it, it is for the French Government, pursuant to Article 189 of the EEC Treaty, to decide on and put into Nor does the potential danger to women if effect the measures necessary to comply outbreaks of violence occur, in my view, with the directive in this regard, even if that justify this across-the-board approach, means- making changes in its civil service whatever may be the position in regard to recruitment arrangements. special corps dealing with serious and violent crowd or group disturbances. These risks do not fall, either, within Article 2 (3) of the directive which makes an exception for 'provisions concerning the protection of women' such as regards pregnancy and maternity, and does not cover risks and dangers which do not specifically affect women as such. Finally, the French Government has mentioned other practical difficulties of recruiting women into the five corps of police in question on equal terms with men, such as the fact that a relatively large The French Government has also relied on proportion of the women recruited have Article 9 (2) of the directive, which requested part-time work and the fact that a mentions 'social developments', to argue pregnant police officer can no longer wear a that its system of separate recruitment is an uniform and so has to be given a desk job. evolutionary way of gradually attaining It does not seem to me that the making of complete equality between men and women requests for part-time work by workers of in matters of recruitment. In my view, that either sex can justify a discriminatory system argument fails because Article 9 (2) comes of recruitment. Pregnancy of female staff into play only after an exception has been has to be accommodated by employers as established under Article 2 (2) which in this one of the consequences of the equal case has not been established on the broad treatment required by the directive. Mana­ basis for which France contends. gerial difficulties of this kind cannot in my view justify a Member State in failing to implement the directive even in respect of such a vital service as the police.

The case of governors of prisons differs are carried out, it does not seem to me that from the case of the five police corps just sex is a determining factor. dealt with inasmuch as such posts are not filled by initial recruitment to a corps but are part of the career of prison wardens and are filled by way of promotion. Thus Article 1 of Decree No 77-1540 of 31 December 1977 provides that the corps of custodial staff in the external departments of the prison service comprises three grades, the The French Government has shown that highest being head warden ('surveillant women and men are both appointed to these chef). By virtue of Article 15 of the decree posts as governor, and the Commission has prisons of less than 100 places may be run not rebutted the information given. The by a governor, and by Article 17 of the Commission, however, contends that to decree head wardens who have reached the appoint a governor from amongst staff orig­ third step in their grade are eligible for inally recruited separately by sex is itself appointment as governors if they are placed vitiated by discrimination. I do not accept on a list of suitable candidates after a joint that argument, particularly as it is committee of staff and administration repre­ recognized by the Commission that sentatives has been consulted. Although I custodial staff can be recruited separately. use the word governor for 'chef de maison What matters is whether appointments to d'arrêt', the latter has to be distinguished the post of governor are made on a from a 'directeur d'établissement péniten­ discriminatory basis, which apparently is not tiaire' who apparently has broader responsi­ the case here. In my opinion, therefore, the bilities and is appointed in a different way. conditions applied in practice for the appointment of head wardens as governors are not contrary to Article 3 (1) of the directive.

Accordingly, in my opinion, the Commission is entitled to a declaration that the French Republic has failed to fulfil its obligations under the Treaty by failing to take all necessary measures for the full and proper implementation of Council Directive 76 / 207 / EEC within the period laid down in the first subparagraph of Article 9 (1) of that directive, and in particular by maintaining, contrary to the requirements of that directive, a system of separate recruitment according to sex for appointment to the following civil service corps: police superintendents in the national police force, captains and officers in the national police force, inspectors in the national police force, investigators in the national police force, police constables and policemen in the national police force, management staff in the external departments of the prison service, technical and vocational training staff in the external departments of the prison service and 'chefs de maison d'arrêt' responsible for the direction of prisons.

The Commission is, in my opinion, entitled to its costs of the case since it has substantially succeeded in its claim.