CELEX: C2003/158/26
Language: en
Date: 2003-07-05 00:00:00
Title: Case C-203/03: Action brought on 12 May 2003 by the Commission of the European Communities against the Republic of Austria

5.7.2003                 EN                       Official Journal of the European Union                                          C 158/15
Action brought on 13 May 2003 by the Commission                           Action brought on 12 May 2003 by the Commission
of the European Communities against the Kingdom of                        of the European Communities against the Republic of
                                Sweden                                                                 Austria
                                                                                                  (Case C-203/03)
                           (Case C-201/03)
                                                                                                  (2003/C 158/26)
                           (2003/C 158/25)
                                                                          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-
An action against the Kingdom of Sweden was brought before                ter Kreppel, a Labour Court judge on secondment to the Legal
the Court of Justice of the European Communities on 13 May                Service of the Commission in the course of an exchange of
2003 by the Commission of the European Communities,                       national officials, with an address for service in Luxembourg.
represented by L. Stöm och and M. Konstantinidis, acting as
Agents, with an address for service in Luxembourg.
                                                                          The applicant claims that the Court should:
                                                                          1.    Declare that, by maintaining in force,
The Commission claims that the Court should:
                                                                                (a)   in Paragraph 2 of the Regulation of the Federal
—      declare that, by failing to adopt the necessary measures                       Minister for the Economy and Labour concerning
       to ensure that priority is given to the processing of waste                    prohibitions and restrictions of employment of
       oils by regeneration where technical, economic and                             female workers, a general prohibition, with few
       organisational constraints so allow, the Kingdom of                            exceptions, of employment of women in mining
       Sweden has failed to fulfil its obligations under                              underground and,
       Article 3(1) of Council Directive 75/439/EEC ( 1) as
       amended by Directive 87/101/EEC (2),                                     (b) 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
—      order the Kingdom of Sweden to pay the costs.                                  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
Pleas in law and main arguments                                                 regards access to employment, vocational training and
                                                                                promotion, and working conditions, and also under
                                                                                Articles 10 and 249 EC.
Member States are required not only to adopt binding national             2.    Order the Republic of Austria to pay the costs.
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                    Pleas in law and main arguments
taken the measures which render it possible de facto to
regenerate waste oils in accordance with the requirements set             —     The prohibition of employment of female workers in
out in Article 3(1) of the directive.                                           mining underground:
                                                                                Under Article 3(1) of Directive 76/207/EEC discrimi-
                                                                                nation on grounds of sex in the conditions for access to
( 1) Of 16 June 1975 on the disposal of waste oils, OJ 1975 L 194,              jobs is prohibited.
     p. 23.
( 2) Of 22 December 1986 amending Directive 75/439/EEC on the                   The general prohibition of employment of women in
     disposal of waste oils, OJ 1987 L 42, p. 43.                               mining underground provided for in Paragraph 16 of the
                                                                                Austrian Working Hours Regulation of 30 April 1938
                                                                                was amended only slightly by Paragraph 2 of the
                                                                                Regulation of the Federal Minister for the Economy and
                                                                                Labour concerning prohibitions and restrictions of
 ---pagebreak--- C 158/16               EN                        Official Journal of the European Union                                           5.7.2003
      employment of female workers, which came into force                Reference for a preliminary ruling by the High Court of
      on 1 August 2001. In that regulation exceptions from               Justice (England and Wales), Chancery Division, by order
      the employment prohibition are made merely for women,              of that court dated 7 December 2000, in the case of
      inter alia, in managerial positions, and trainees.                 Commissioners of Customs and Excise against SmithKline
                                                                                                        Beecham plc
      The directive does indeed itself contain certain restrictions
      concerning the prohibition of unequal treatment                                                 (Case C-206/03)
      (Article 2(2) and (3) of the directive), but in the present
      case they cannot be applied in order to justify the
                                                                                                      (2003/C 158/27)
      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            Reference has been made to the Court of Justice of the
      reason of the nature or context in which they are carried          European Communities by an order of the High Court
      out, the sex of the worker constitutes a determining               of Justice (England and Wales), Chancery Division, dated
      factor. The dangers to which women are exposed by                  7 December 2000, which was received at the Court Registry
      working in mines are generally, in essence, no different           on 14 May 2003, for a preliminary ruling in the case of
      from those to which men are also exposed. These dangers            Commissioners of Customs and Excise and SmithKline Beech-
      do not therefore justify any different treatment of men            am plc on the following questions:
      and women. Inasmuch as the Austrian Government refers
      simply to the generally weaker constitution of women in            1)     Is Heading 3004 of annex I to Council Regulation
      comparison with men, the Commission cannot accept                         No 2658/87 (1), as amended, to be interpreted as includ-
      that argument. It cannot be ruled out that there are                      ing a product in the form of a nicotine patch to be used
      female workers for whom employment in mining under-                       to assist when trying to stop smoking, consisting of an
      ground is less oppressive than for a comparable male                      adhesive-plaster impregnated with nicotine which is
      worker with a lesser physical constitution. A general                     absorbed through the skin/presented in a foil pack?
      prohibition of employment of women in mining under-
      ground is therefore disproportionate.                              2)     In circumstances where
      Moreover, it is necessary to adjust the Austrian rules to                 (a)    a customs authority of a Member State has given
      the directive even if the mining industry is in decline;                         binding tariff information pursuant to article 12 of
      otherwise the practical effect of the prohibition of                             Council Regulation 2913/92 (2) (the Customs Code)
      discrimination under Community law would be impaired.                            in respect of a product;
                                                                                (b) the binding tariff information in question is consist-
      Finally, the Austrian Government misses the point in                             ent with a classification opinion previously pub-
      arguing that it is bound by the ILO Convention concern-                          lished by the World Customs Organisation and
      ing the Employment of Women in Underground Work                                  referred to in a communication by the Commission
      and Mines of 1937 and that therefore Community                                   pursuant to article 12(5) of the Customs Code;
      law does not preclude the employment prohibition
      in question. The Republic of Austria must, however,                       (c)    the importer appeals to a national tribunal pursuant
      denounce that Convention.                                                        to article 243 of the Code; and
                                                                                (d) the tribunal disagrees with the classification opinion;
—     The prohibition of employment of women in work
      involving compressed air and diving:                               is article 12(5) of the Code to be interpreted as requiring or
                                                                         permitting the Tribunal to annul the customs authority’s
      As regards the rules on the employment of women in                 decision without -substituting binding tariff information
      work involving compressed air and diving, a general                inconsistent with the classification opinion of the World
      prohibition of the employment of women, without any                Customs Organisation but declaring that the product is
      examination of the individual case, cannot be justified by         properly classifiable otherwise than in accordance with that
      the alleged special need for the protection of women.              opinion?
                                                                         (1 ) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                              tariff and statistical nomenclature and on the Common Customs
( 1) OJ 1976 L 39, p. 40.                                                     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.