Case C-203/03

Commission of the European Communities

v

Republic of Austria

(Failure of a Member State to fulfil obligations – Articles 249 EC and 307 EC – Articles 2 and 3 of Directive 76/207/EEC – Equal treatment for men and women – Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work)

Opinion of Advocate General Jacobs delivered on 8 July 2004

Judgment of the Court (Grand Chamber), 1 February 2005.

Summary of the Judgment

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determined during the pre-litigation procedure – Alteration of the objections after the issue of the reasoned opinion, on account of an amendment to the national legislation – Whether permissible

(Art. 226 EC)

2. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Derogations – Protection of women – Scope – Prohibition of the employment of women in the underground mining industry, in work to be carried out in a high-pressure atmosphere and in diving work – Not permissible

(Council Directive 76/207, Art. 2(3))

1. While it is true that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, the Commission’s reasoned opinion and the application must be based on the same objections, that requirement cannot, however, go so far as to mean that in every case the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited.

Thus, where legislation is altered during the pre-litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion. In so far as it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application, it is not inconceivable that it should also be sufficient that the new measures should introduce some exceptions into the system forming the subject-matter of the reasoned opinion, thus redressing in part the ground for complaint.

(see paras 28-30)

2. Article 2(3) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, while allowing some differences in treatment with a view to protecting women in connection with pregnancy and maternity, nevertheless does not allow women to be excluded from a certain type of employment solely on the ground that they ought to be given greater protection than men against risks which affect men and women in the same way and which are distinct from women’s specific needs of protection, such as those expressly mentioned.

Consequently, neither the general prohibition of the employment of women in the underground mining industry and in work in a high-pressure atmosphere, although qualified by exceptions, nor the absolute prohibition of the employment of women in diving work constitutes a difference in treatment permitted under that provision.

(see paras 43, 45, 50, 69, 74)