Opinion of Mr Advocate General Tesauro delivered on 16 January 1997. - Commission of the European Communities v French Republic. - Failure of a Member State to fulfil its obligations - Equal treatment for men and women - Prohibition of nightwork. - Case C-197/96.



European Court reports 1997 Page I-01489



Opinion of the Advocate-General

1. By this action the Commission seeks a declaration from the Court that, by maintaining in force Article L 213-1 of the Code du Travail (Employment Code) prohibiting, with some exceptions, night work by women whereas no such prohibition exists in relation to men, the French Republic has failed to fulfil its obligations under Article 5 of 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 (`the directive'). (1)

2. The principle of equal treatment for men and women enshrined in the directive means that there must be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status (Article 2(1)). However, derogations to protect women are possible, particularly as regards pregnancy and maternity (Article 2(3)).

As for Article 5(1), the provision at issue in these proceedings, it provides that `Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex'. To that end, the States are required to take, inter alia, the measures necessary to ensure that provisions contrary to the principle of equal treatment are abolished (Article 5(2)(a)) and to revise provisions contrary to that principle when the concern for protection which originally inspired them is no longer well founded (Article 5(2)(c)).

The period prescribed for Member States to take the necessary measures is laid down by Article 9(1) of the directive as 30 months of its notification. However, as regards in particular Article 5(2)(c), Article 9(1) requires the national authorities to carry out a first examination and if necessary a first revision of the provisions concerned within four years, which expired on 14 February 1980.

3. As for the French legislation, Article L 213-1 of the Code du Travail provides in principle that night work by women is prohibited, stating in particular that `Women may not be employed on any night work in plants, factories, mines or quarries, sites, workshops and appurtenances thereof, of any kind whatsoever, whether public or private, 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'. Some exceptions, added subsequently, (2) apply to women holding management posts or executive technical posts and for women employed in health and welfare services who do not normally undertake manual work. Furthermore, there is an exception to the prohibition of night work where such an exception is in the national interest on account of particularly serious circumstances and for shiftwork. In the latter case, an order is necessary extending an agreement or collective agreement or concluding a collective agreement or a branch or company agreement, with the authorization of the Inspecteur du Travail (Labour Inspector). Failure to comply with these requirements is penalized by fines.

The aforementioned French legislation was adopted in order to give effect to International Labour Organization (`ILO') Convention No 89 of 9 July 1948. That Convention - Article 3 of which prohibits night work by women, saving exceptions - was ratified in France by Law No 53-603 of 7 July 1953.

4. At this juncture it is worth recalling that in the judgment in Stoeckel the Court ruled with regard to the prohibition in question that `Article 5 of Directive 76/207 is sufficiently precise to impose on the Member States the obligation not to lay down by legislation the principle that night work by women is prohibited, even if that is subject to exceptions, where night work by men is not prohibited'. (3)

After stressing that Article 5(1) of the Directive has direct effect and may therefore by relied on by persons concerned directly before the national courts, (4) the Court essentially 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 ILO Convention No 89 could not, from the perspective adopted by the Court, be regarded as legitimizing an infringement of the principle of equal treatment for men and women enshrined in Article 5 of the directive.

5. In the later case of Levy, relating to the same national legislation, the Court was - expressly - asked to rule in the light of Article 234 of the Treaty (5) on the question of the relationship between the application of the Community legislation at issue in this case and compliance with the obligations arising under a convention concluded before the EEC Treaty entered into force, which is precisely the case of ILO Convention No 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 provision of national legislation, unless the application of such a provision is necessary in order to ensure the performance by the Member State concerned of obligations arising under an agreement concluded with non-member countries prior to the entry into force of the EEC Treaty'. (6)

In other words, the Court found that Article 234 of the Treaty entitles the national court to refrain from complying with the obligations arising under Article 5 of the directive until such time as the incompatibility found has been eliminated.

6. In the meantime, specifically following the judgment in Stoeckel, the French Government denounced ILO Convention No 89 on 26 February 1992. The said denunciation became effective exactly one year later, on 26 February 1993. (7)

7. This is the context of the present proceedings. The Commission in fact commenced these infringement proceedings against France only after it failed to fulfil its obligations under ILO Convention No 89. The letter before action was sent to the French Government on 2 March 1994, this being followed by the reasoned opinion on 8 November 1994. Since the French Government did not comply with the opinion within the prescribed two-month period, the Commission went on to bring this action on 6 June 1996.

The Commission essentially claims that, since the French Government denounced ILO Convention No 89 and the denunciation has become effective, maintaining 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 to declare that France is in breach of its obligations.

8. The French Government denies the charge on the ground that, since France is no longer bound by ILO Convention No 89, the national courts are bound to disapply the national provision at issue because Article 5 has direct effect. This is clear from a Ministerial position adopted in response to a parliamentary question and published in the French Official Gazette. (8) The French Government further emphasizes that a draft law submitted in 1992 was rejected by trades unions and employers' associations, which have therefore been asked to negotiate themselves safeguards and quid pro quos in those branches in which workers are most frequently called upon to do night work. In any case, it maintains that practice in this sphere confirms that Article L 213-1 of the Code du Travail is no longer applied. (9)

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.

9. That argument cannot be accepted. Suffice it to say that it has been consistently held that `the incompatibility of national legislation with provisions of the Treaty, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty'. (10) That dictum, it need scarcely be added, certainly applies to a mere answer of a Minister to a parliamentary question; a fortiori bearing in mind that, in order to ensure that the national provision prohibiting night work by women is not applied and hence to obtain the benefit of the rights enshrined in Article 5 of the directive, it will be necessary invariably and in any event to have recourse to the national courts, as is clear from the answer to the parliamentary question.

I would further add, as the Court has held on several occasions, that `the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty'. (11) It is only too clear that those requirements acquire even greater importance where the directive in question is intended to confer rights on individuals; in such case, persons concerned must be enabled to `ascertain the full extent of their rights and, where appropriate, rely on them before the national courts'. (12)

10. The passages quoted clearly show that the arguments and justifications put forward by the French Government - admittedly manifestly without much conviction - is irrelevant for the purposes of finding the infringement asserted by the Commission.

11. In the light of the foregoing, I therefore propose that the Court should:

- declare that, by maintaining in force Article L 213-1 of the Code du Travail prohibiting, with some exceptions, night work by women whereas no such prohibition exists in relation to men, the French Republic has failed to fulfil its obligations under Article 5 of Council Directive 76/207/EEC of 9 February 1976;

- order the defendant to pay the costs.

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

(2) - I refer in particular to the Laws of 2 January 1979 and 19 June 1987 and to Order No 82-41 of 16 January 1982.

(3) - Case C-345/89 Stoeckel [1991] ECR I-4047, paragraph 20.

(4) - To that effect, see Case 152/84 Marshall [1986] ECR 723, paragraph 55.

(5) - The first paragraph of Article 234 provides that `The rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more 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 `To the extent that such agreements are not compatible with the Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established'.

(6) - C-158/91 Levy [1993] ECR I-4287, paragraph 22.

(7) - Under Article 15 of the Convention, it may be denounced in the 12 months after it has been in force 10 years. The obligations laid down in the Convention cease to apply under that article one year after denunciation.

(8) - JORF of 13 December 1993, pp. 4517 and 4518. The Minister's answer starts by referring to the purport of the judgments in Stoeckel and Levy and goes on to stress in particular that Article 5 of the directive must be fully applied, precisely because it has direct effect.

(9) - In particular, the French Government refers to the aforementioned 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 employers' associations are well aware that the contested national provision is inapplicable and that it is no accident that the sectoral agreements negotiated by them comply with the Community legislation.

(10) - Case C-334/94 Commission v France [1996] ECR I-1307, paragraph 30; my emphasis. See to the same effect Case 168/85 Commission v Italy [1986] ECR 2945, paragraph 13.

(11) - Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 48. See also Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 24, in which the Court further 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 provisions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain 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 specific legal framework in the area in question' (paragraph 28).

(12) - Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 15.