C-197/96
ECLI:EU:C:1997:25
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- 61996CC0197
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COMMISSION ν FRANCE
OPINION OF ADVOCATE GENERAL TESAURO delivered on 16 January 1997 *
1. By this action the Commission seeks a tion of the principle of equal treatment with declaration from the Court that, by main regard to working conditions, including the taining in force Article L 213-1 of the Code conditions governing dismissal, means that du Travail (Employment Code) prohibiting, men and women shall be guaranteed the with some exceptions, night work by women same conditions without discrimination on whereas no such prohibition exists in rela grounds of sex'. To that end, the States are tion to men, the French Republic has failed required to take, inter alia, the measures nec to fulfil its obligations under Article 5 of essary to ensure that provisions contrary to Council Directive 76/207/EEC of 9 Febru the principle of equal treatment are abolished ary 1976 on the implementation of the prin (Article 5(2)(a)) and to revise provisions con ciple of equal treatment for men and women trary to that principle when the concern for as regards access to employment, vocational protection which originally inspired them is training and promotion, and working condi no longer well founded (Article 5(2)(c)). tions ('the directive'). 1
2. The principle of equal treatment for men and women enshrined in the directive means The period prescribed for Member States to that there must be no discrimination whatso take the necessary measures is laid down by ever on grounds of sex either directly or Article 9(1) of the directive as 30 months of indirectly by reference in particular to mari its notification. However, as regards in par tal or family status (Article 2(1)). However, ticular Article 5(2)(c), Article 9(1) requires derogations to protect women are possible, the national authorities to carry out a first particularly as regards pregnancy and mater examination and if necessary a first revision nity (Article 2(3)). of the provisions concerned within four years, which expired on 14 February 1980.
As for Article 5(1), the provision at issue in these proceedings, it provides that 'Applica
3. As for the French legislation, Article * Original language: Italian. L 213-1 of the Code du Travail provides in 1 — OJ 1976 L 39, p. 40. principle that night work by women is
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prohibited, stating in particular that 'Women by women, saving exceptions — was ratified may not be employed on any night work in in France by Law N o 53-603 of 7 July 1953. plants, factories, mines or quarries, sites, workshops and appurtenances thereof, of any kind whatsoever, whether public or pri- vate, secular or religious, even where such establishments are for vocational training or pursue charitable objects, or in public or ministerial offices, establishments associated with the liberal professions, non-commercial undertakings, trade unions or organizations or associations of any kind whatsoever'. 4. At this juncture it is worth recalling that Some exceptions, added subsequently, 2 in the judgment in Stoeckel the Court ruled apply to women holding management posts with regard to the prohibition in question or executive technical posts and for women that 'Article 5 of Directive 76/207 is suffi- employed in health and welfare services who ciently precise to impose on the Member do not normally undertake manual work. States the obligation not to lay down by leg- Furthermore, there is an exception to the islation the principle that night work by prohibition of night work where such an women is prohibited, even if that is subject exception is in the national interest on to exceptions, where night work by men is account of particularly serious circumstances not prohibited'. 3 and for shiftwork. In the latter case, an order is necessary extending an agreement or col- lective agreement or concluding a collective agreement or a branch or company agree- ment, with the authorization of the Inspect- eur du Travail (Labour Inspector). Failure to comply with these requirements is penalized by fines. After stressing that Article 5(1) of the Direc- tive has direct effect and may therefore by relied on by persons concerned directly before the national courts, 4 the Court essen- tially held that the prohibition on night work laid down by the French legislation, albeit with the exceptions mentioned, was incompatible with the directive in so far as it applied only to women. It follows that I L O Convention N o 89 could not, from the per- The aforementioned French legislation was spective adopted by the Court, be regarded adopted in order to give effect to Interna- as legitimizing an infringement of the prin- tional Labour Organization ('ILO') Conven- ciple of equal treatment for men and women tion N o 89 of 9 July 1948. That Convention enshrined in Article 5 of the directive. — Article 3 of which prohibits night work
3 — Case C-345/89 Stoeckel [1991] ECR I-4047, paragraph 20. 2 — I refer in particular to the Laws of 2 January 1979 and 4 — To that effect, see Case 152/84 Marshall [1986] ECR 723, 19 June 1987 and to Order No 82-41 of 16 January 1982. paragraph 55.
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5. In the later case of Levy, relating to the 6. In the meantime, specifically following same national legislation, the Court was — the judgment in Stoeckel, the French Gov expressly — asked to rule in the light of ernment denounced I L O Convention N o 89 5 Article 234 of the Treaty on the question of on 26 February 1992. The said denunciation the relationship between the application of became effective exactly one year later, on 26 7 the Community legislation at issue in this February 1993. case and compliance with the obligations arising under a convention concluded before the EEC Treaty entered into force, which is precisely the case of I L O Convention N o 89. In answering the question referred to it, the Court held that 'the national court is under an obligation to ensure that Article 5 of Directive 76/207 is fully complied with by refraining from applying any conflicting pro 7. This is the context of the present proceed vision of national legislation, unless the ings. The Commission in fact commenced application of such a provision is necessary these infringement proceedings against in order to ensure the performance by the France only after it failed to fulfil its obliga Member State concerned of obligations aris tions under I L O Convention N o 89. The let ing under an agreement concluded with non- ter before action was sent to the French member countries prior to the entry into Government on 2 March 1994, this being force of the EEC Treaty'. 6 followed by the reasoned opinion on 8 November 1994. Since the French Govern ment did not comply with the opinion within the prescribed two-month period, the Commission went on to bring this action on 6 June 1996.
In other words, the Court found that Article 234 of the Treaty entitles the national court The Commission essentially claims that, to refrain from complying with the obliga since the French Government denounced tions arising under Article 5 of the directive I L O Convention N o 89 and the denuncia until such time as the incompatibility found tion has become effective, maintaining has been eliminated. Article L 213-1 of the Code du Travail in force constitutes an infringement of Article 5 of the directive. It therefore asks the Court 5 — The first paragraph of Article 234 provides that 'The rights to declare that France is in breach of its obli and obligations arising from agreements concluded before the entry into force of this Treaty between one or more gations. Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty'. The second paragraph adds that T o the extent that such agreements are not compatible with the Treaty, the Member State or States concerned shall take all 7 — Under Article 15 of the Convention, it may be denounced in appropriate steps to eliminate the incompatibilities estab the 12 months after it has been in force 10 years. The obliga lished'. tions laid down in the Convention cease to apply under that 6 — C-158/91 Levy [1993] ECR I-4287, paragraph 22. article one year after denunciation.
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8. The French Government denies the 9. That argument cannot be accepted. Suffice charge on the ground that, since France is no it to say that it has been consistently held longer bound by I L O Convention N o 89, that 'the incompatibility of national legisla- the national courts are bound to disapply the tion with provisions of the Treaty, even pro- national provision at issue because Article 5 visions which are directly applicable, can be has direct effect. This is clear from a Ministe- finally remedied only by means of national rial position adopted in response to a parlia- provisions of a binding nature which have mentary question and published in the the same legal force as those which must be French Official Gazette. 8 The French Gov- amended. Mere administrative practices, ernment further emphasizes that a draft law which by their nature are alterable at will by submitted in 1992 was rejected by trades the authorities and are not given the appro- unions and employers' associations, which priate publicity, cannot be regarded as con- have therefore been asked to negotiate them- stituting the proper fulfilment of obligations selves safeguards and quid pro quos in those under the Treaty'. 1 0 That dictum, it need branches in which workers are most fre- scarcely be added, certainly applies to a mere quently called upon to do night work. In any answer of a Minister to a parliamentary case, it maintains that practice in this sphere question; a fortiori bearing in mind that, in confirms that Article L 213-1 of the Code du order to ensure that the national provision Travail is no longer applied. 9 prohibiting night work by women is not applied and hence to obtain the benefit of the rights enshrined in Article 5 of the direc- tive, it will be necessary invariably and in any event to have recourse to the national courts, as is clear from the answer to the par- liamentary question.
In the French Government's view, therefore, there is no longer any discrimination, de jure or de facto, between men and women as regards working conditions, in particular from the point of view of the performance of night work.
I would further add, as the Court has held 8 — JORF of 13 December 1993, pp. 4517 and 4518. The Minis- ter's answer starts by referring to the purport of the judg- on several occasions, that 'the provisions of a ments in Stoeckel and Levy and goes on to stress in particu- directive must be implemented with unques- lar that Article 5 of the directive must be fully applied, precisely because it has direct effect. tionable binding force and with the specific- 9 — In particular, the French Government refers to the aforemen- ity, precision and clarity required in order to tioned answer to a parliamentary question, in which it is stated that two national courts have refused to apply Article L 213-1 of the Code du Travail, applying instead Article 5 of the directive, and to the fact that trade unions and employ- ers' associations are well aware that the contested national provision is inapplicable and that it is no accident that the 10 — Case C-334/94 Commission v France [1996] ECR I-1307, sectoral agreements negotiated by them comply with the paragraph 30; my emphasis. See to the same effect Case Community legislation. 168/85 Commission v Italy [1986] ECR 2945, paragraph 13.
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satisfy the requirement of legal certainty'. 10. The passages quoted clearly show that It is only too clear that those requirements the arguments and justifications put forward acquire even greater importance where the by the French Government — admittedly directive in question is intended to confer manifestly without much conviction — is rights on individuals; in such case, persons irrelevant for the purposes of finding the concerned must be enabled to 'ascertain the infringement asserted by the Commission. full extent of their rights and, where appro priate, rely on them before the national courts'. 1 2
11. I n the light of the foregoing, I therefore p r o p o s e t h a t the C o u r t should:
— declare that, b y maintaining in force Article L 213-1 of t h e Code du Travail p r o h i b i t i n g , w i t h s o m e exceptions, n i g h t w o r k b y w o m e n w h e r e a s n o such p r o h i b i t i o n exists in relation t o m e n , t h e F r e n c h R e p u b l i c has failed t o fulfil its obligations u n d e r Article 5 of C o u n c i l Directive 7 6 / 2 0 7 / E E C of 9 F e b r u a r y 1976;
— o r d e r t h e d e f e n d a n t t o p a y t h e costs.
1 1 — Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR Ι-4845, para graph 48. See also Case C-59/89 Commission ν Germany [1991] ECR Ι-2607, paragraph 24, in which the Court fur ther held that 'the fact that a practice is in conformity with the requirements of a directive may not constitute a reason for not transposing that directive into national law by pro visions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascer tain their rights and obligations. As the Court held ..., in order to secure the full implementation of directives in law and not only in fact, Member States must establish a spe cific legal framework in the area in question' (paragraph 28). 12 — Case C-361/88 Commission ν Germany [1991] ECR 1-2567, paragraph 15.
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