C-13/93
ECLI:EU:C:1993:924
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MINNE
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 9 December 1993 *
Mr President, 4. Mrs Minne brought legal proceedings and Members of the Court, succeeded in having that decision set aside. The court which set the decision aside took the view that the relevant national provisions prohibited women from working at night (between midnight and 6 a. m.) in the hotel and catering sector and that it could for that 1. This is a case which once again presents reason not be argued that Mrs Minne had the Court with a conflict between the prin refused suitable employment. ciple of equal treatment set out in Article 5 of Directive 76/207/EEC 1 and national pro visions which, in accordance with what is prescribed under ILO Convention No 89 of 9 July 1948, set limits on the amount of night-work that women may perform. 5. In the subsequent appeal, the appellate court decided to stay the proceedings and ask the Court of Justice whether the prin ciple of equal treatment set out in Article 5 of Directive 76/207/EEC precluded the application of national legislation which pro 2. The facts are as follows. Mrs Minne, an hibited only women from working at night unemployed person registered with an within the relevant sector. employment office, informed that office that she was not prepared, for family reasons, to work at night in the sector in which she had previously been employed (that of hotel and catering). 6. The following points were set out in the judgment making the reference:
3. The national authorities accordingly took the view that Mrs Minne had refused to — the Belgian legislation in issue lays down accept suitable employment and for that rea a general prohibition of night-work for son decided to exclude her from entitlement both men and women; to unemployment benefit.
* Original language: Italian. 1 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men — that notwithstanding, a system of deroga ana women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 tions was introduced which is more L 39, p. 40). ample and flexible with regard to men
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OPINION OF MR TESAURO — CASE C-13/93
(the derogations being determined not by 7. The question therefore arises as to the legislation but by the administrative relation between Article 5 of Direc authorities); tive 76/207/EEC and national legislation which limits night-work for women and which was adopted pursuant to the abovementioned ILO Convention No 89. The Court dealt with that point in its recent 2 decision in Levy, where it held in substance — in particular, the national legislation pro that according to the first paragraph of vides for a prohibition of night-work for Article 234 of the Treaty provisions of Com women in the hotel and catering sector, munity law cannot affect the performance of whereas under special derogating provi obligations assumed by Member States vis-à- sions that prohibition does not apply to vis third countries on the basis of interna men; tional conventions concluded before the entry into force of the EEC Treaty.
— according to the case-law of the Court (judgment in Case 184/83 Hofmann [1984] ECR 3047), such a difference in treatment cannot be justified by objective requirements linked to the protection of female workers such as, in particular, protection against the risk of attack or the need to attend to specific family responsibilities; 8. It is admittedly true, as the Court reaf firmed in that decision, that Article 5 of Directive 76/207/EEC, which sets out the principle of equal treatment for men and women, is a directly applicable provision, — for that reason, the national legislation and that that rule precludes the application infringes the principle of equal treat of national legislation which limits night- ment set out in Article 5 of Direc work for women but does not provide simi tive 76/207/EEC; lar limits for male workers. It is, however, also true that, according (once again) to Article 234 of the Treaty, a national court is not under an obligation to ensure full com pliance with Article 5 of Directive 76/207, by •— account must, however, be taken of the setting aside, if necessary, any contrary fact that the national legislation in issue national legislation, if compliance with the was adopted in order to comply with national provisions in question is otherwise obligations under various international necessary in order to ensure implementation conventions, in particular ILO Conven by the Member State in question of obliga- tion No 89 of 9 July 1948 (a convention which has, however, been denounced by the Kingdom of Belgium, albeit after the 2 — Judgment of 2 August 1993 in Case C-158/91 Levy, not yet facts material to this case). published in the ECR.
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MINNE
tions assumed vis-à-vis a third country pur tion No 89, concluded prior to the entry into suant to a convention, such as ILO Conven force of the Treaty of Rome.
9. In the light of the foregoing considerations, I propose that the Court reply as follows to the question referred by the national court:
Article 5 of Council Directive 76/207/EEC precludes a Member State from adopt ing legislation limiting night-work for women unless it also provides similar limits for men. However, it follows from the first paragraph of Article 234 of the EC Treaty that a national court is not under an obligation to set aside domestic legisla tion which is contrary to Article 5 of that directive in the case where the application of that legislation is necessary in order to ensure compliance with international obli gations assumed by the Member State in question vis-à-vis third countries under a convention, such as ILO Convention No 89 of 9 July 1948, concluded prior to the entry into force of that Treaty.
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