Opinion of Mr Advocate General Tesauro delivered on 9 December 1993. - Office National de l'Emploi v Madeleine Minne. - Reference for a preliminary ruling: Cour du travail de Liège - Belgium. - Directive 76/207/EEC - Night-work for women. - Case C-13/93.



European Court reports 1994 Page I-00371



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. This is a case which once again presents the Court with a conflict between the principle of equal treatment set out in Article 5 of Directive 76/207/EEC (1) and national provisions 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.

2. The facts are as follows. Mrs Minne, an unemployed person registered with an 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).

3. The national authorities accordingly took the view that Mrs Minne had refused to accept suitable employment and for that reason decided to exclude her from entitlement to unemployment benefit.

4. Mrs Minne brought legal proceedings and 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 reason not be argued that Mrs Minne had refused suitable employment.

5. In the subsequent appeal, the appellate court decided to stay the proceedings and ask the Court of Justice whether the principle of equal treatment set out in Article 5 of Directive 76/207/EEC precluded the application of national legislation which prohibited only women from working at night within the relevant sector.

6. The following points were set out in the judgment making the reference:

- the Belgian legislation in issue lays down a general prohibition of night-work for both men and women;

- that notwithstanding, a system of derogations was introduced which is more ample and flexible with regard to men (the derogations being determined not by legislation but by the administrative authorities);

- in particular, the national legislation provides for a prohibition of night-work for women in the hotel and catering sector, whereas under special derogating provisions that prohibition does not apply to men;

- 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;

- for that reason, the national legislation infringes the principle of equal treatment set out in Article 5 of Directive 76/207/EEC;

- account must, however, be taken of the fact that the national legislation in issue was adopted in order to comply with obligations under various international conventions, in particular ILO Convention No 89 of 9 July 1948 (a convention which has, however, been denounced by the Kingdom of Belgium, albeit after the facts material to this case).

7. The question therefore arises as to the relation between Article 5 of Directive 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 decision in Levy, (2) where it held in substance that according to the first paragraph of Article 234 of the Treaty provisions of Community law cannot affect the performance of obligations assumed by Member States vis-à-vis third countries on the basis of international conventions concluded before the entry into force of the EEC Treaty.

8. It is admittedly true, as the Court reaffirmed 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, and that that rule precludes the application of national legislation which limits night-work for women but does not provide similar 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 compliance with Article 5 of Directive 76/207, by setting aside, if necessary, any contrary national legislation, if compliance with the national provisions in question is otherwise necessary in order to ensure implementation by the Member State in question of obligations assumed vis-à-vis a third country pursuant to a convention, such as ILO Convention No 89, concluded prior to the entry into 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 adopting 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 legislation 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 obligations 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.

(*) Original language: Italian.

(1) - Council 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 conditions (OJ 1976 L 39, p. 40).

(2) - Judgment of 2 August 1993 in Case C-158/91 Levy, not yet published in the ECR.