C-345/89
ECLI:EU:C:1991:29
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STOECKEL
O P I N I O N OF M R A D V O C A T E GENERAL TESAURO delivered on 24 January 1991 *
Mr President, cational training and working conditions Members of the Court, (Article 1). Pursuant to Article 2(1), that principle means that there is to be no discrimination on grounds of sex either directly or indirectly by reference in particular to marital or family status. 1. Mr Stoeckel, who is being prosecuted by Among the exceptions provided for in the the Ministère Public (Public Prosecutor's following paragraphs of that article, it is Office) for infringement of Article L 213-1 appropriate to mention the fact that of the French Code du Travail (Labour paragraph 3 provides that the Directive is to Code), which prohibits, subject to certain be without prejudice to provisions exceptions, nightwork by women, concerning the protection of women, contended before the Tribunal de Police particularly as regards pregnancy and (local criminal court), Illkirch, that that maternity. provision was contrary to Article 5 of 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 Pursuant to Article 5(1), application of the conditions ' (hereinafter referred to as 'the principle of equal treatment with regard to Directive'). working conditions means that men and women are to be guaranteed the same conditions without discrimination on grounds of sex. T o that end, the Member States are required, by virtue of paragraph By order of 4 October 1989, the Tribunal 2, to take the necessary measures to ensure de Police stayed the proceedings and asked that any provisions contrary to the principle the Court of Justice whether Article 5 of the of equal treatment are abolished (Article Directive was sufficiently precise to impose 5(2)(a)) and to review any provisions on the Member States the obligation not to contrary to that principle originally inspired lay down by legislation the principle that by a concern for protection which is no nightwork by women is prohibited, as in longer well founded (Article 5(2)(c)). Article L 213-1 of the Code de Travail.
2. As we know, and as is apparent from the The period prescribed for the adoption of very title of the measure, the Directive is such measures by the Member States is fixed intended to give effect in the Member States by Article 9(1) as 30 months as from notifi- to the principle of equal treatment for men cation of the Directive. However, with and women regarding access to regard in particular to Article 5(2)(c), the employment, including promotion, vo- national authorities are required to carry out a first examination and if necessary a * Original language: Italian. first revision of the provisions concerned I — OJ 1976 L 39, p. 40. within a period of four years.
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3. In the French legislation, Article L 213-1 of nightwork by women in the past repre- of the Code du Travail lays down the sented a victory for the working classes, principle whereby nightwork by women is forming part of legislation intended to prohibited, providing in particular that protect in particular women and children, in 'Women may not be employed on any other words those who were regarded as the nightwork in plants, factories, mines or weakest members of society, exposed to the quarries, sites, workshops and appur- most risks. tenances thereof, of any kind whatsoever, whether public or private, secular or religious, even where such establishments are for vocational teaching or pursue charitable objects, or in public or ministerial offices, establishments associated with the liberal professions, non-commercial under- A prohibition of that kind was laid down by takings, trade unions or organizations or the British legislature half-way through last associations of any kind whatsoever'. The century (1844). Switzerland then adopted following paragraph provides for a number similar legislation in 1877, being emulated of exceptions for women holding subsequently by other countries such as management posts or executive technical Austria (1885), the Netherlands (1889) and, posts and for women employed in health as the century drew to a close, France and welfare services who do not normally (1892). undertake manual work. The third paragraph makes an exception to the prohibition, inter alia in cases where such an exception is in the national interest, and for shiftwork. In the latter case an order is necessary as to the applicability of a collective agreement or a branch or In view of the fact that at that time women company agreement, with the authorization were employed predominantly in factories, of the Inspecteur du Travail (Labour the legislation applied first to the industrial Inspector). Failure to comply with these sector and was then gradually extended, in requirements is penalized by fines. accordance with varying requirements, to other sectors.
The French legislation was adopted in order to give effect to International Labour Organization ('ILO') Convention N o 89 of 9 July 1948, which was ratified in France by Law No 53-603 of 7 July 1953, which, subject to exceptions, prohibits nightwork The first International Congress on Worker by women. Protection, held in Berlin in 1890, passed a resolution condemning nightwork by women in industry. In 1906, 13 States signed the Bern Convention, which reiter- 4. I will describe, albeit briefly, the origins ated the prohibition but only for industrial of legislation of this kind. 2 The prohibition undertakings employing more than 10 workers. These provisions were the 2 — See Repon V, 1, on Night Work, published by the Inter- precursor of the prohibition laid down in national Labour Conference, 76th Session, International Labour Office, Geneva, and Pettiti, Le travail de nuit des 1919 by the ILO; in fact, one of the first femmes. Aspects nationaux et internationaux, Droit Social 1988, p. 302. ILO Conventions, N o 4, prohibited the
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employment of women in industrial An additional factor in the aversion to premises during the night, except in family nightwork by female workers derived from businesses. deeply held convictions as to the social role of the woman as a mother and focal point of the family unit: the woman should pref- erably be at home, looking after the family. Nightwork was thus regarded as particularly disruptive to family life and harmful to society. In order to avoid the problems of too wide- ranging a prohibition, a second convention, N o 41, was adopted by the ILO in 1934. It excluded from its scope, in particular, women holding management posts or 6. It is apparent from what I have said that executive technical posts. the present case is concerned with provisions which are intended by the legis- lature to protect women in their role as workers. When considering such legislation is it therefore necessary first to decide whether or not it falls within the derogation contained in Article 2(3) of the Directive The third instrument, adopted in 1948 in laying down provisions for the protection of order to allow for further exceptions, is women. Convention No 89 on which, as indicated earlier, the present French legislation on this subject was based.
It must be stressed, however, that any dero- gation from a principle of such fundamental importance to human beings as that of equal treatment must be examined on the basis of restrictive criteria. 3 5. The main arguments supporting legis- lation of that kind, when it was adopted, were medical, social, political and economic. It was contended that since women were denied civil and political rights, such as the right to vote, they were exposed to greater In fact, the Court, having expressly risk in the absence of statutory protection. confirmed that the provision at issue is to be Female workers were then regarded as interpreted strictly, added that it was clear physically weaker and thus more vulnerable from the express reference to pregnancy and to certain consequences of nightwork, such maternity that the Directive was intended to as the possibility of physical or mental protect a woman's biological condition and problems. In addition, concern was the special relationship which exists between expressed about the risks to which women a woman and her child; that provision of might be exposed when going to their place the Directive did not therefore allow of work at night and it was also regarded as somewhat 'inappropriate' that women 3 — See the judgment in Joined Cases 75 and 117/82 Razzouk should undertake nightwork in the company [1984] ECR 1509, paragraph 16, and the judgment in Case 149/77 Defrnne [1978] ECR 1365, paragraphs 26 of workers of the opposite sex. and 27.
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women to be excluded from a certain type and the digestive system, problems which of employment on the ground that public may be aggravated by the tendency to opinion demanded that women be given consume an excess of stimulants such as greater protection than men against risks coffee and tobacco during the night and which affected men and women in the same sleeping pills to facilitate rest during the way and which are distinct from women's day. The effects of nightwork on the health specific needs of protection, such as those may thus vary considerably according to the expressly mentioned. 4 age and family and financial situation of the workers concerned.
It must also be pointed out that, as is apparent in particular from the Hofmann Whilst there are no detailed pathological judgment, the provision is not intended to studies relating to female workers, the protect the special relationship between a existing research appears to show that, apart mother and her child in abstract and general from the need for special protection during terms, encouraging or preserving a pregnancy in view of the risks to which the particular traditional role for women within unborn child might be exposed, there are no the family structure but rather, in a more additional real and specific reasons for limited way, to protect the special which women should not undertake relationship between mother and child nightwork. during pregnancy and in the period immediately following the birth. 5
In other words, whilst it is true that 7. If, therefore, it follows from the nightwork is liable to have harmful effects foregoing that legislation intended to on the physical and mental well-being of protect women must, in order to fall within workers and should therefore be limited to the derogation under Article 2(3), protect what is strictly necessary and in any case be female workers in relation to characteristics subject to regulations, it is also true that that are specific to women, 6 it is necessary there is no significant information such as to to establish whether nightwork actually raise fears of substantial harm specifically involves greater risks for the female popu- affecting the female to a greater extent than lation. the male population.
It appears from the 1989 International 8. The objection relating to the increased Labour Conference report on nightwork to risk of attack to which women are allegedly which I referred earlier that, from the exposed at night likewise does not seem to medical point of view, nightwork may me to provide justification for limiting the cause, inter alia, disturbances affecting sleep scope of an essential right such as that of equal treatment regarding working * — See the judgment in Case 222/84 Johnson v Chief conditions. Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 44. 5 — See the judgment in Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, and the judgment in Case 163/82 Commission v Italy [1983] ECR 3273, paragraph
6 — See the judgment in Case 312/86 Commission v France That risk might be perhaps be eliminated by [1988] ECR 6315, paragraph 14. the taking of appropriate measures such as,
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for example, the provision of appropriate Finally, the fact cannot be overlooked that transport facilities; and in any case the the inclusion in the French legislation of a principle imposed by the French legislature general prohibition of nightwork by women, whereby nightwork by women is prohibited which is subject to so many exceptions that is subject to so many exceptions of various it is even possible to apply different kinds that it is very difficult to believe that it conditions to women engaged in similar is justified by objective considerations and is tasks, is liable to create further unjustified not in fact the historical survivor of what in discrimination between those women. the past was a measure for the protection of (what was regarded then as) the more vulnerable part of the working class.
9. In my opinion legislation of that kind could not be justified under Article 5(2)(c) of the Directive, pursuant to which, as has A study carried out in 1984 by the Research been pointed out, the Member States are Department of the French Ministry of required to take the measures necessary to Social Affairs and Employment shows that ensure that a review is carried out of those between 1978 and 1984 there was a laws, regulations and administrative considerable increase in the number of provisions contrary to the principle of equal women working at night; in 1984 in treatment when the concern for protection particular, the more than one million people which originally inspired them is no longer regularly undertaking nightwork included well founded. about 170 000 women. 7
The Court has made it clear that the scope Furthermore, if it is borne in mind on the of Article 3(2)(c), which concerns the one hand that, according to a circular dated conditions for access to employment but is 30 June 1987 from the French Ministry of worded in exactly the same way as Article Social Affairs and Employment, it is not 5(2)(c), is determined by Article 2(3). 8 unlawful to employ women at night in industrial premises to carry out work of a non-industrial nature, as in the case of data- processing operatives and supervisors, and, on the other, that certain collective agreements for particular industries provide Therefore, even if in the past the measures for the possibility of nightwork for women at issue were justified by, for example, the working shifts, it becomes even more actual role of the woman in the family, they difficult to accept such an explanation, it are today prohibited by the Directive since, not being apparent why someone employed as has been seen, they do not fall within the in information technology or in the steel derogations envisaged in Article 2(3). As the industry should be less likely to be assaulted Commission correctly observed, the than, say, someone working in the chemical prohibition imposed by the French legis- industry. lature does not in fact seem to be a response
7 — See Pettiti, above, p. 303. 8 — Johnson, above, paragraph 44.
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to a concern for specific protection of countries, on the other, before it came into women's biological condition but appears operation, it is also true that the content of rather to be based on considerations of a the Directive is not in itself liable to make social nature which are largely outmoded compliance with it incompatible with the and are also liable to have adverse reper- obligations deriving from the convention. cussions for the employment of women. The Community measure does not neces- sarily require the Member States to permit nightwork for women, which would be incompatible with the convention, but 10. The issue of the direct effect of Article merely imposes the obligation of 5 seems to me already to have been resolved non-discrimination between the sexes affirmatively by the case-law of the Court, regarding working conditions. according to which Article 5 does not confer on the Member States any right to impose conditions on or restrict the application of the principle of equal treatment in the area appropriate to it. In other words, a Member State may not, in Furthermore, the provision is sufficiently circumstances such as those of the present precise and unconditional to be relied on by case, invoke Article 234 in order to evade individuals before the national courts in the duty of non-discrimination laid down by order to secure the disapplication of any Directive 76/207, since it could in any case national provision which is not in fulfil its obligations under Community law conformity with Article 5(1). 9 without contravening the convention, for example by extending the prohibition of nightwork to people of both sexes.
The obligation not to discriminate laid down in Article 5(1) is not therefore affected by the other specific obligation to It is also clear that if difficulties of a adopt measures, imposed on the Member practical nature were to make it difficult to States by paragraph 2 of the same article. follow that course of action, the State concerned would be required to denounce the convention and thus cease to be bound by it. 11. Finally, I likewise reject the view that the fact that France is a party to ILO Convention N o 89 can in any way detract from the conclusion that I have reached. It is significant in that connection that a number of Member States which were signatories to the convention, such as the Whilst it is true that pursuant to Article 234 Netherlands, Ireland and Luxembourg, have of the EEC Treaty, the provisions of that already denounced it 1 0 and that the Italian Treaty are not to affect the rights and obli- Constitutional Court declared the law that gations deriving from conventions entered implemented it to be partially unlawful. ' ' into between one or Member States, on the one hand, and one or more non-member 10 — See Annex 1 to the Commission's observations. Under Article 15 of Convention No 89, it can be denounced, by one year's notice, every ten years as from 27 February 9 — See the judgment in Case 152/84 Marshall [1986] 1961, in the following twelve months. ECR 723, paragraph 55, and the judgment in Case 188/89 U — Judgment No 210 of 9 July 1986, Gazzetta Ufficiale della ro«er[1990] ECR 1-3313, paragraph 21. Repubblica Italiana, No 38 of 1 August 1986, p. 17.
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12. In the light of the foregoing considerations, I propose that the question submitted by the Tribunal de Police, Illkirch, be answered as follows:
'By virtue of Article 5 of Directive 76/207, it is unlawful for a national provision to impose, by way of legislative principle, a prohibition of nightwork which applies only to women.'
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