Case C-203/03: Action brought on 12 May 2003 by the Commission of the European Communities against the Republic of Austria
Date: 2003-07-05
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, equal treatment, gender equality, job access, mining operation

5.7.2003

EN

Official Journal of the European Union

C 158/15

Action brought on 13 May 2003 by the Commission
of the European Communities against the Kingdom of
Sweden

Action brought on 12 May 2003 by the Commission
of the European Communities against the Republic of
Austria

(Case C-201/03)

(2003/C 158/25)

(Case C-203/03)

(2003/C 158/26)

An action against the Kingdom of Sweden was brought before
the Court of Justice of the European Communities on 13 May
2003 by the Commission of the European Communities,
represented by L. Stöm och and M. Konstantinidis, acting as
Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, by failing to adopt the necessary measures
to ensure that priority is given to the processing of waste
oils by regeneration where technical, economic and
the Kingdom of
organisational constraints so allow,
Sweden has
its obligations under
Article 3(1) of Council Directive 75/439/EEC (1) as
amended by Directive 87/101/EEC (2),

failed to fulfil

— order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

Member States are required not only to adopt binding national
measures in order to comply with the provisions of Article 3(1)
of the directive but also to adopt measures which make it
possible to apply the provisions in practice. The percentage
for the recycling of waste oils in Sweden in the period 1995-
2000 was 0 %. The Swedish Government has therefore not
taken the measures which render it possible de facto to
regenerate waste oils in accordance with the requirements set
out in Article 3(1) of the directive.

( 1) Of 16 June 1975 on the disposal of waste oils, OJ 1975 L 194,

p. 23.

( 2) Of 22 December 1986 amending Directive 75/439/EEC on the

disposal of waste oils, OJ 1987 L 42, p. 43.

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 12 May
2003 by the Commission of the European Communities,
represented by Nicola Yerrell, of its Legal Service, and Horstpe-
ter Kreppel, a Labour Court judge on secondment to the Legal
Service of the Commission in the course of an exchange of
national officials, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that, by maintaining in force,

(a)

(b)

in Paragraph 2 of the Regulation of the Federal
Minister for the Economy and Labour concerning
prohibitions and restrictions of employment of
female workers, a general prohibition, with few
exceptions, of employment of women in mining
underground and,

in Paragraphs 8 and 31 of
the Regulation on
compressed air and diving work, a general prohib-
ition of employment of women in compressed air
work and in diving work,

the Republic of Austria has infringed its obligations under
Articles 2 and 3 of Council Directive 76/207/EEC of
9 February 1976 (1) 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, and also under
Articles 10 and 249 EC.

2. Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

— The prohibition of employment of female workers in

mining underground:

Under Article 3(1) of Directive 76/207/EEC discrimi-
nation on grounds of sex in the conditions for access to
jobs is prohibited.

The general prohibition of employment of women in
mining underground provided for in Paragraph 16 of the
Austrian Working Hours Regulation of 30 April 1938
the
was amended only slightly by Paragraph 2 of
Regulation of the Federal Minister for the Economy and
Labour concerning prohibitions and restrictions of

C 158/16

EN

Official Journal of the European Union

5.7.2003

employment of female workers, which came into force
on 1 August 2001. In that regulation exceptions from
the employment prohibition are made merely for women,
inter alia, in managerial positions, and trainees.

Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Chancery Division, by order
of that court dated 7 December 2000, in the case of
Commissioners of Customs and Excise against SmithKline
Beecham plc

The directive does indeed itself contain certain restrictions
treatment
concerning the prohibition of unequal
(Article 2(2) and (3) of the directive), but in the present
case they cannot be applied in order to justify the
prohibition of employment in issue. Although activities
carried out underground in the mining industry are
physically and mentally extremely demanding, they are
not activities which can be carried out only by men. It is
not therefore possible to rely on the argument that, by
reason of the nature or context in which they are carried
out, the sex of the worker constitutes a determining
factor. The dangers to which women are exposed by
working in mines are generally, in essence, no different
from those to which men are also exposed. These dangers
do not therefore justify any different treatment of men
and women. Inasmuch as the Austrian Government refers
simply to the generally weaker constitution of women in
comparison with men, the Commission cannot accept
that argument. It cannot be ruled out that there are
female workers for whom employment in mining under-
ground is less oppressive than for a comparable male
worker with a lesser physical constitution. A general
prohibition of employment of women in mining under-
ground is therefore disproportionate.

Moreover, it is necessary to adjust the Austrian rules to
the directive even if the mining industry is in decline;
otherwise the practical effect of
the prohibition of
discrimination under Community law would be impaired.

Finally, the Austrian Government misses the point in
arguing that it is bound by the ILO Convention concern-
ing the Employment of Women in Underground Work
and Mines of 1937 and that
therefore Community
law does not preclude the employment prohibition
in question. The Republic of Austria must, however,
denounce that Convention.

— The prohibition of employment of women in work

involving compressed air and diving:

As regards the rules on the employment of women in
work involving compressed air and diving, a general
prohibition of the employment of women, without any
examination of the individual case, cannot be justified by
the alleged special need for the protection of women.

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

(Case C-206/03)

(2003/C 158/27)

Justice of the
Reference has been made to the Court of
European Communities by an order of
the High Court
of Justice (England and Wales), Chancery Division, dated
7 December 2000, which was received at the Court Registry
on 14 May 2003, for a preliminary ruling in the case of
Commissioners of Customs and Excise and SmithKline Beech-
am plc on the following questions:

1)

Is Heading 3004 of annex I
to Council Regulation
No 2658/87 (1), as amended, to be interpreted as includ-
ing a product in the form of a nicotine patch to be used
to assist when trying to stop smoking, consisting of an
adhesive-plaster impregnated with nicotine which is
absorbed through the skin/presented in a foil pack?

2)

In circumstances where

(a)

(b)

a customs authority of a Member State has given
binding tariff information pursuant to article 12 of
Council Regulation 2913/92 (2) (the Customs Code)
in respect of a product;

the binding tariff information in question is consist-
ent with a classification opinion previously pub-
lished by the World Customs Organisation and
referred to in a communication by the Commission
pursuant to article 12(5) of the Customs Code;

(c)

the importer appeals to a national tribunal pursuant
to article 243 of the Code; and

(d)

the tribunal disagrees with the classification opinion;

is article 12(5) of the Code to be interpreted as requiring or
to annul the customs authority’s
permitting the Tribunal
decision without
information
inconsistent with the classification opinion of the World
Customs Organisation but declaring that the product
is
properly classifiable otherwise than in accordance with that
opinion?

-substituting binding tariff

(1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs
Tariff OJ L 256, 7.9.1987, p. 1.

(2) Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code OJ L 302, 19.10.1992,
p. 1.