C-158/91

Mr President, by a French court, held that Article 5 of Members of the Court, Directive 76/207 'is sufficiently precise to impose on the Member States the obligation 1. Mr Levy, the director of a French under- not to lay down by legislation the principle taking which specializes in the manufacture that night work by women is prohibited, of prepared meat products, was the subject even if that is subject to exceptions, where of criminal proceedings before the Tribunal night work by men is not prohibited.' de Police (local criminal court), Metz, for having employed women for night-work on 22 March 1990; that constitutes an infringe- ment of Article L 213-1 of the Code du Tra- vail which lays down the principle prohibit- I do not consider it necessary to review that ing female workers from being employed in interpretation of the Community rule in night work in plants, factories, mines or question, which, moreover, I fully share, as quarries, sites, workshops and attached pre- may be seen from my Opinion in that case, mises of any kind whatsoever. since the parties have not put forward any argument seeking to call in question the Since the national court has doubts as to interpretation given by the Court in that whether that national legislation is in confor- case. 3 mity with Community law, it asks the Court whether 'Articles 1 to 5 of Council Directive 76/207/EEC of 9 February 1976' [should] be interpreted as meaning that national legis- 3. None the less, the question referred to the lation prohibiting night work solely for Court for a preliminary ruling seems to me women amounts to discrimination, having on this occasion expressly to raise the prob- regard inter alia to Article 3 of Convention lem of the relationship between the applica- No 89 of the International Labour Organi- tion of Community law and the observance zation prohibiting night work for women, to of the obligations arising from an agreement which France is a signatory.' concluded prior to the entry into force of the EEC Treaty. The national court emphasizes that the national rules which it is called upon 2. In fact, that question is answered in part to apply were adopted in compliance with by the recent judgment in Stoeckel2 where Convention No 89 of July 1948 which pro- the Court, in reply to a question submitted hibits night work for women employed in industry, and which was ratified by France

Following the same line of argument, the Court went on to hold that where the rights 'The rights and obligations arising from of non-member countries are not involved, a agreements concluded before the entry into Member State cannot rely on the provisions force of this Treaty between one or more of a pre-existing Convention of that kind in Member States on the other hand, and one or order to justify restrictions on the marketing more third countries on the other, shall not of products from another Member State be affected by the provisions of this Treaty. where the marketing thereof is lawful by vir­ tue of the free movement of goods provided for by the Treaty. 5

To that end, it must be explained that I L O bring an end to the incompatibility, to the C o n v e n t i o n N o 89, as more generally holds extent of repudiating the Convention, which true for the agreements adopted in the con- the French G o v e r n m e n t has done, moreover, text of that organization, has as its objective albeit after the events material to this case. 6 to facilitate the adoption of measures intended to improve conditions for workers: the contracting parties reciprocally under- take to respect the same rules so that no one may gain an unjustified competitive advan- F u r t h e r m o r e , the foregoing is more signifi- tage as a result of reduced protection of cant at the level of the obligations imposed w o r k e r s ' rights. on the State by the Treaty and the possible consequences of an infringement, for exam- ple, in the context of proceedings for failure to fulfil its obligations. It follows that, with regard to the C o n v e n - tion at issue, the rights of the contracting States undeniably consist in ensuring that night work for w o m e n in industry is p r o h i b - ited, in principle and irrespective of national- 7. O n the other hand, in the present case, ity, in the territory of all the States which the choice made by the French legislature, have ratified that Convention. whether or not it was lawful, constitutes a premiss which cannot modify cither the rights of n o n - m e m b e r countries, which are the subject of Article 234, or the operation of 6. Moreover, it is true that, as I staled in my that provision so far as concerns the choice O p i n i o n in the Stoeckel case, in the present of applicable law which the national court case there docs not necessarily exist a contra- must make. diction between the prohibition of night w o r k for w o m e n imposed by the C o n v e n - tion and the duty of non-discrimination between the sexes, so far as concerns w o r k - ing conditions, laid d o w n in Directive 76/207, since the Member State concerned O n the first point, it is undeniable that non- could in any event fulfil the obligations laid m e m b e r countries which arc signatories to d o w n by C o m m u n i t y law without contra- I L O C o n v e n t i o n N o 89 in any event retain vening the I L O Convention by establishing intact the right to have the obligations aris- for both sexes, with the necessary excep- ing from the C o n v e n t i o n itself observed, tions, the principle prohibiting night work in until a possible abrogation of the C o n v e n - industry. tion has taken effect, since for them the E E C

Such an approach, however, scarcely con- On the second point, while the nature of forms to the letter and, still less, to the spirit Article 234 as a veritable rule of conflict of Article 234 of the Treaty or, more gener- must be emphasized, it is quite clear that in ally, to the principles of international law. replying to the question concerning the law On consideration, this would lead to penal- to be applied in the present case, I cannot ization not only and not so much of the but take note of the specific choice made by Member State concerned, but precisely of the French legislature. those non-member countries whose rights Article 234 is intended to protect. In other words, it would be tantamount to removing Article 234 from the Treaty or at least depriving it of any useful purpose. In other words, a clear distinction should be made between the obligations which Article 234 imposes upon the Member States in the second paragraph, and the criterion indicated in the first paragraph in order to resolve any 9. Nor, to conclude, do I attach decisive conflicts which, irrespective of the lawfulness importance to the Commission's observation of the Member States' conduct, could arise to the effect that there exists also in interna- and subsist between a Community rule and tional law a progressive tendency to give an earlier contractual provision. Only the precedence to the principle of non- latter aspect is significant in this dispute and discrimination between the sexes, viewed in in particular in the proceedings before the the broad sense, over the traditional concern Court, since the national court is faced with to ensure greater protection for female a normal choice of applicable law: either it workers. does not apply the national provision in order to observe Community law, or it applies the national rule in so far as Article 234 permits. It is true that various Member States, includ- ing France, have ratified the New York Con- vention of 18 December 1979, which is intended to eliminate all forms of discrimi- nation against women, and that, within the 8. Admittedly, it could be observed that, ILO as well, there is a growing tendency to since the State in question has not taken all relax the prohibition on night work for the necessary steps to ensure that Commu- women. None the less, that finding, which nity law has been observed and has in fact the national court may make use of as appro- applied the abovementioned ILO Conven- priate, for example when imposing the pen- tion in such a way as to create (avoidable) alty, cannot eliminate a factual element discrimination, the national court should which has not been and cannot be disputed: give precedence to Community law and the at the material time ILO Convention No State should bear the consequences of its 89 had binding force and hence Article conduct by risking an infringement of the 234 of the Treaty was and is applicable to it.