CELEX: 61982CC0163
Language: en
Date: 1983-06-07 00:00:00
Title: Opinion of Mr Advocate General Rozès delivered on 7 June 1983. # Commission of the European Communities v Italian Republic. # Failure of a State to fulfil its obligations - Equal treatment for men and women. # Case 163/82.

OPINION OF MRS ADVOCATE GENERAL ROZÈS
      DELIVERED ON 7 JUNE 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The Court has before it three actions by the Commission of the European Communities under Article 169 of the Treaty against the Italian Republic (Case 163/82), the Kingdom of Belgium (Case 164/82) and the United Kingdom (Case 165/82), whose common factor is the application by the three Member States 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. I have nevertheless preferred to deliver three separate conditions since the alleged failures, and thus the legal problems raised, differ in each case.
      I shall take the cases in numerical order beginning with the case against Italy (Case 163/82).
      I —
      The Commission makes three charges.
      The first concerns the breach of Article 5 of the directive, which governs the application of the principle of equal treatment with regard to working conditions. The Commission complains that the Italian Government has only partially implemented the principle. The Italian Law No 903 of 9 December 1977 which was intended to give effect to the directive in national law in fact applies it only in respect of certain working conditions, and not all.
      Article 5 of the directive is worded as follows:
      
               “1.
            
            
               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.
            
         
               2.
            
            
               To this end, Member States shall take the measures necessary to ensure that:
               
                        (a)
                     
                     
                        any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;
                     
                  
                        (b)
                     
                     
                        any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;
                     
                  
                        (c)
                     
                     
                        those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision.”
                     
                  
         
               1.
            
            
               It is common ground that the concept of “working conditions” contained in that article must be understood in the widest sense.
               The Commission, moreover, notes that the intentionally broad and comprehensive nature of the prohibition on discrimination with regard to working conditions also applies to the prohibitions in relation to access to employment and vocational training and promotion (Articles 3 and 4 of the directive). Although Law No 903 follows the comprehensive approach of the directive as regards access to employment and vocational training and promotion (Article 1 of the Law), the working conditions are simply listed. Whilst the choice'of that method does not appear to the Commission open to criticism in itself, the Commission observes that, in contrast to the enumeration contained in Article 128 of the Belgian Law of 4 August 1978, (
                     2
                  ) the Italian Law covers only certain working conditions: salary (Article 2 of the Law), retirement (Article 4), the right to take leave of absence from work in the event of the adoption of a child (Article 6).
            
         
               2.
            
            
               In its defence the Italian Government first of all queries the admissibility of that objection. It contends that the Commission is arguing in the abstract, without specifying which discriminatory situations likely to be encountered in an undertaking or other place of work would be incompatible with Directive 76/207 and not prohibited by Law No 903. The Commission ought to have supplied further details and circumstances to enable it to determine in fact in what specific respects it had not observed Article 5 of the directive.
               It is true that according to the case-law of the Court it is for the Commission to establish the existence of the alleged failure. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled. (
                     3
                  ) Nevertheless the Court took care to emphasize that the Member States, who are obliged by virtue of Article 5 of the Treaty to facilitate the achievement of the Commission's tasks, must indicate unequivocally the measures by means of which they consider they have satisfied the various requirements imposed on them by a directive. (
                     4
                  )
               In the present case it appears from the various documents in the procedure prior to action that both the Commission and the Italian Government have met those obligations. The Commission had already stated in its notification of 30 July 1980 that the Italian law applied the directive only in respect of certain working conditions which it listed. In the same way in its answer of 6 July 1981 to the Commission's reasoned opinion, the Italian Government specified the aspects of the employment relationship covered by the working conditions referred to in its legislation and, moreover, cited a provision of general scope also capable of ensuring application of Article 5 of the directive (point 5).
               Thus, since the question of admissibility does not arise, it is necessary to consider the substance.
            
         
               3.
            
            
               
                        (a)
                     
                     
                        On this aspect the Italian Government contends that since the directive does not specify the working conditions in respect of which equality of treatment must be achieved, it has by implication left it to the discretion of the Member States to determine them on the basis of their respective employment laws.
                        In Italian law the following matters fall within the concept of working conditions:
                        
                                 —
                              
                              
                                 salary,
                              
                           
                                 —
                              
                              
                                 job classification,
                              
                           
                                 —
                              
                              
                                 qualifications,
                              
                           
                                 —
                              
                              
                                 duties,
                              
                           
                                 —
                              
                              
                                 transfers,
                              
                           
                                 —
                              
                              
                                 career development,
                              
                           
                                 —
                              
                              
                                 retirement,
                              
                           
                                 —
                              
                              
                                 individual dismissals.
                              
                           Questions of remuneration and job classification are covered by Article 2 of Law No 903. The assignment of grading, duties and career development are the subject of Article 3; retirement is dealt with in Article 4. Transfers, dismissals and disciplinary measures are covered by Article 15 of Law No 300 of 20 May 1970 as amended by Article 13 of Law No 903. In addition Article 19 of Law No 903 repeals any legislative provision contrary thereto and provides that provisions to the contraiy contained in contracts of employment, the internal regulations of undertakings and rules governing the professions are void. On examination of the wording of the law implementing the directive, it is thus easy to ascertain that the matters included in the concept of working conditions in Italian law are far more numerous than alleged by the Commission.
                     
                  
                        (b)
                     
                     
                        Nevertheless, for the directive to be regarded as validly implemented it is also necessary for all the matters included in the concept of working conditions to be incorporated into Italian law. At the hearing the Commission pointed out that certain working conditions had not been provided for by the Law in spite of their importance, in particular those relating to safety and hygiene at work and the procedure for selecting staff representatives.
                     
                  I think, however, that the Italian legislation permits effective measures to be taken against discrimination based on sex in working conditions. As I have said, the legislation contains a provision which by reason of its very general terms constitutes a sufficient instrument for action against all forms of discrimination which are not covered by a specific provision. It is Article 13 of Law No 903 amending Article 15 of Law No 300, which provides:
               “...the following discriminatory measures shall be void : any agreement or measure having as its object:
               
                        (b)
                     
                     
                        the dismissal of a worker ... or any other penalty on bim by reason of his affiliation to or activities connected with a trade union, or participation in a strike. (
                              5
                           )
                        The provisions of the previous paragraph also apply to agreements or measures having as their object discrimination ... based on sex.”
                     
                  In the view of the Italian Government recourse to a general clause is indispensable if all possible forms of discrimination are to be included, for a list of prohibitions may prove not to be exhaustive. It also draws attention to the choice of wording in Article 13: “agreement” and “measure”, which allow action to be taken not only against discrimination in law but also de facto discrimination. Thereby, it seems to me, it effectively refutes the Commission's objection that the wording does not ensure protection of the right of men and women to the de facto absence of discrimination. The Italian Government has pointed out, without being contradicted, that the case-law shows that the article is quite effective; I think that in short Article 5 of Directive 76/207, on the implementation of the principle of equal treatment for men and women as regards working conditions, has been properly implemented in Italy.
            
         II —
      The Commission's second submission according to its application is that there has been only partial implementation of Article 6 of the directive in relation to the availability of legal action to “all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5”. Article 6 has not been fully transposed into Italian law in so far as the remedies allowed by Article 15 of Law No 903 concern solely conduct calculated to infringe the provisions of Articles 1 (access to employment) and 5 (prohibition of women's working during certain hours in the manufacturing industry).
      
               1.
            
            
               Since serious objections may be raised in that respect it is necessary first of all to consider the admissibility of that submission.
               According to the case-law of the Court “in the context of proceedings brought by the Commission under Article 169 of the Treaty, the letter addressed by the Commission of the Member State inviting it to submit its observations and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, which cannot thereafter be extended. In fact the opportunity for the State concerned to be able to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure under Article 169”. (
                     6
                  )
               The notification of 30 July 1980 indicates only two matters in which, according to the Commission, the Italian Government did not properly implement the directive: equal treatment as regards working conditions (point 1), and more particularly leave for adoption (point 2). The right to pursue claims by legal process provided for in Article 6 of the directive is mentioned only in passing, and moreover incorrectly, among the obligations imposed by Article 5 (1) in relation to working conditions.
               Although Article 6 is reproduced in extenso in the reasoned opinion of 4 May 1981 no legal conclusion is inferred therefrom. In particular, unlike the complaints in relation to working conditions and leave for adoption, the right of action is not mentioned in point 4 of the opinion which is the only place where the Commission sets out its own point of view in attempting to refute the arguments previously put forward by Italy.
               Even if (in exercise of the utmost good faith) the complaint in respect of that issue is assumed to be contained, even elliptically, in the notification, careful perusal of the reasoned opinion does not disclose it.
               Those reasons explain why the Italian Government did not mention the right to take legal action either in its response to the notification or in its reply to the reasoned opinion of 6 July 1981 or even in the annexes thereto. (
                     7
                  )
               Accordingly, I consider that the conditions required by the case-law of the Court for declaring a submission inadmissible are satisfied. The Italian Government was not given an opportunity to submit its observations on what was to become an independent allegation of failure to fulfil obligations only during the proceedings before the Court. Even if the objections raised are disregarded, the single reference during the stage prior to action to the breach of Article 6 cannot be regarded as more than, at best, an incidental reference since the breach was seen as a consequence of that of Article 5. Accordingly, in elevating it in its originating application to an independent ground of failure to fulfil obligations the Commission has in any event altered the definition and basis of the alleged failure, and that has been rightly condemned by this Court in its case-law. (
                     8
                  )
            
         
               2.
            
            
               I shall therefore consider this submission only as an ancillary: it does not appear to me to be well founded.
               Article 6 of the directive requires Member States to introduce “into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.” It does not specify the manner in which that obligation must be satisfied. The Commission complains that Article 15 of Law No 903 provides for a special procedure only in relation to breaches of Articles 1 and 5 thereof concerning, as the Court is aware, access to employment and the prohibition on women's working at night. The procedure is summary and “the Pretore of the place in which [the conduct complained of has] occurred ... shall if he finds the breach referred to in the application proved, make an order containing a statement of the reasons on which it is based and being immediately enforceable, requiring the person concerned to terminate such unlawful conduct and declaring the same null and void”. The Commission complains that the Italian Government did not extend that procedure to all the matters referred to in Articles 3 to 5 of the directive.
               However, it seems to me that the requirements of the directive do not go so far. As the Italian Government rightly observed, Article 6 leaves the Member States the choice of the means for its application. A special procedure is certainly not the only way of doing so; it is also necessary to take into account the general legal remedies available to workers who claim to be victims of sexual discrimination.
               We learnt at the hearing that Article 700 of the Italian Code of Civil Procedure, which is a rule of quite general scope, allows measures necessary to avoid irreversible damage to be obtained expeditiously before a judgment on the merits. That provision may therefore be invoked in all areas coming within the scope of the directive which are not covered by Article 15 of Law No 903.
               As regards non-urgent proceedings the Italian Government refers to all the normal legal remedies which, in view of the object of the directive, are available in the context of employment law (
                     9
                  ) or administrative proceedings. (
                     10
                  ) Finally, should there be a lacuna in the legal remedies available it refers to Article 24 of the Constitution according to which “anyone' may bring an action to protect his rights and legitimate interests”. The Italian Government states that that constitutional principle is of direct application and well established in the sense that once the existence of a substantive rule protecting a person's interest is established no special legislative measure is necessary to ensure the protection of such an interest since it is guaranteed in a general and absolute way by Article 24. Since the provisions of Law No 903 protect the individual interests of workers who suffer discrimination, such workers may rely on Article 24 to ensure observance of those provisions by means of legal action.
               Since that is the position in Italian law and the Commission has not challenged it, I consider that the second complaint made against the Italian Government, even assuming it to be admissible, quod non, is in any event unfounded.
            
         III —
      The third matter in respect of which, according to the Commission, the Italian Government has not properly applied Directive 76/207 may be regarded as a special aspect of the first complaint. It also concerns Article 5 of the directive, which the Commission claims to be breached because men are victims in Italy of discrimination in relation to leave in the event of adoption.
      
               1.
            
            
               Article 6 of Law No 903 gives women who have adopted children or who “have obtained custody of them prior to their adoption the right in so far as and provided that the child is not more than six years old at the time of adoption or granting of custody, to claim the compulsory leave referred to in Article 4 (c) of Law No 1204 of 30 December 1971 and the corresponding financial allowance during the first three months following the date on which the child is united with its adoptive family or the family which has been given custody thereof”. The leave referred to in Article 4 (c) of Law No 1204 is that granted to the natural mother for the three months following the birth of a child. Article 6 thus extends the rights given in the event of maternity to the case of adoption.
               That fact constitutes one of the arguments put forward by the Italian Government in support of its contention that leave for adoption does not fall within the concept of working conditions within the meaning of Article 5 of the directive but appertains to “provisions concerning the protection of women, particularly as regards pregnancy and maternity” referred to in Article 2 (3). According thereto the directive is to be without prejudice to provisions of that kind. It is thus necessary to determine first whether the provision in question comes within the ambit of the directive.
            
         
               2.
            
            
               It is known that the concept of working conditions must be understood in a wide sense. May it include leave granted to settle a child in the family adopting it?
               In the Commission's view that question must be answered in the affirmative for, since Article 2 (3) is an exception, it must be interpreted strictly to cover only measures relating to pregnancy and maternity. Accordingly it excludes measures such as Article 6 (1) of Law No 903 which recognize the right to leave or other benefits granted for the purpose of bringing up children. Those benefits are to be regarded in its view in the same way as, for example, the right to annual leave, as part of the working conditions. It must therefore be possible to grant them to either the father or the mother depending on the circumstances.
               In support of the argument to the contrary that the leave to receive the child is a measure to protect women as mothers, the Italian Government alleges that Article 6 permits of no derogation. That is a characteristic of measures to protect maternity, for in general protective measures for women do allow exceptions, as is shown by Article 5 of the Law imposing a general prohibition on night work for women. Furthermore, as is apparent from its wording and as the Commission itself observed, the provision merely extends to adoptive mothers the leave granted in 1971 to the natural mother for the three months following childbirth. Such leave is not granted to natural fathers and the Commission does not claim that there is any discrimination there.
               I do not consider that the Commission's position is inconsistent. Although the one seems to be an extension of the other, Article 4 (c) of Law No 1204 and Article 6 of Law No 903 do not appear to be of the same nature. I believe that leave after giving birth to a child in order to allow the mother to rest may rightly be regarded as a provision to protect women in relation to maternity. On the other hand, I consider that leave after adoption benefits the child above all in so far as it is intended to foster the emotional ties necessary to settle the child in the family adopting it. Moreover, it is well established that the provisions of Italian law in relation to adoption in question here, the special adoption governed by Articles 314/2 to 314/28 of the Civil Code, are intended to be and must be interpreted in the predominant interests of the child. I therefore consider that the leave referred to in the first paragraph of Article 6 of Law No 903 is part of the working conditions within the meaning of Article 5 of the directive. That is why I consider that adoptive fathers must be entitled to it on the same basis as their working wives, just as they are already entitled to take leave of absence from work for a year after the child actually enters the family, where the child is not yet three. (
                     11
                  )
            
         
               3.
            
            
               Since the provision in question here is obviously a special provision in relation to the general ban on discriminating against a worker by reason of his sex contained in Article 15 of Law No 300 of 1970, it is not covered by the latter, in accordance with the maxim “specialia generalibus derogant”. That provision can only be successfully relied upon by workers in the absence of any specific provision. It has no effect where there is a rule of the same rank derogating therefrom on a specific matter. I therefore consider that in not extending its benefit to men the Italian Government has failed to fulfil its obligations under Article 5 of the directive.
            
         IV —
      As for the costs, I think that in view of my assessment of the three complaints made by the Commission against the Italian Government they ought to be allocated as to two thirds to be borne by the Gommission and as to one third by the defendant government.
      In conclusion I suggest that the Court:
      
                
            
            
               Declares that by not extending to men the right to leave for purposes, of adoption provided for by the first paragraph of Article & of Law No 903 of 9 December 1977 the Italian Republic has failed to fulfil an obligation imposed on it by Council Directive 76/207 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;
            
         
                
            
            
               Dismisses the remainder of the application;
            
         
                
            
            
               Orders the Commission to bear two thirds of the costs and the Italian Republic the remaining one third.
            
         (
            1
         )	Translated from the French.
      (
            2
         )	Law on New Economic Guidelines, Title V of which is intended to implement Directive 76/207 in Belgian law.
      (
            3
         )	Judgment of the Court of 25 May 1982 in Case 96/81 Commissions Netherlands [1982] ECR 1791, para. 6 at p. 1803.
      (
            4
         )	Ibid, at paras 7 and 8.
      (
            5
         )	The italics arc mine.
      (
            6
         )	Judgment of 8 February 1983 in Case 124/81 Commission v United Kingdom [1983] ECR 203, third sentence of para. 6; to the same effect: judgment of 17 February 1970 in Case 31/69 Commission v Italy [1970] ECR 25, para. 13 at p. 33.
      (
            7
         )	See its reply to the third question addressed to it by the Court.
      (
            8
         )	In particular: the judgment of 15 December 1982 in Case 211/81 Commission v Donmark [1982] ECR 4547, paras 14 to 16.
      (
            9
         )	Law No 533 of 11 August 1973.
      (
            10
         )	Law No 1034 of 6 December 1971, in respect of public service employees.
      (
            11
         )	The first paragraph of Article 7 of Law No 903 in conjunction with the second paragraph of Article 6 and the first paragraph of Article 7 of Law No 1204.