Commission of the European Communities v Republic of Austria.
Date: 2005-02-01
28. It is true that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, the reasoned opinion and the application must be based on the same objections (see, inter alia, Case C-227/01 Commission  v Spain  [2004] ECR I-0000, paragraph 26).
29. However, that requirement cannot go so far as to mean that in every case the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited (Case C-139/00 Commission  v Spain  [2002] ECR I-6407, paragraph 19).  To that extent, where legislation is altered during the pre-litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion.
30. The judgment in Commission  v Belgium  does not run counter to that interpretation.  In paragraph 74 of that judgment, the Court held that it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application.  In so ruling, the Court did not exclude the possibility that it is also sufficient that the new measures should introduce some exceptions into the system forming the subject-matter of the reasoned opinion, thus redressing in part the ground for complaint.  Not to accept that the action was admissible in such circumstances could enable a Member State to block proceedings under Article 226 EC by making a slight amendment to its legislation every time a reasoned opinion was notified, while in fact maintaining the legislation at issue.
39. Since women have on average smaller vertebrae, they run more risks than men when carrying heavy loads.  Moreover, when they have given birth several times there is an increased risk of injury to the lumbar vertebrae.
43. As the Court pointed out in Case C-394/96 Brown  [1998] ECR I-4185, paragraph 17, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
44. It is precisely because certain activities may present a specific risk of exposure to hazardous agents, processes or working conditions for a pregnant worker or for one who is breast-feeding or who has recently given birth that the Community legislature, by adopting Directive 92/85, introduced the requirement to evaluate and communicate risks, and a prohibition of the exercise of certain activities.
45. Nevertheless, Article 2(3) of Directive 76/207 does not allow women to be excluded from a certain type of employment solely on the ground that they ought to be given greater protection than men against risks which affect men and women in the same way and which are distinct from women's specific needs of protection, such as those expressly mentioned (see, to this effect, Case 222/84 Johnston  [1986] ECR 1651, paragraph 44, and Case C-285/98 Kreil  [2000] ECR I-69, paragraph 30).
57. It follows from the third paragraph of Article 307 EC that the obligations arising from agreements concluded, by acceding States before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, are not affected by the provisions of the EC Treaty.
58. The Republic of Austria, which acceded to the European Community with effect from 1 January 1995, ratified Convention No 45 of the I.L.O. before that date.  Article 2 of that convention contains a general prohibition of the employment of women in underground work in mines and Article 3 permits a few exceptions of the same kind as those provided for in the regulation of 2001.  It is common ground that that regulation implements the obligations imposed by the convention without going beyond the restrictions on the employment of women laid down therein.
59. In those circumstances, while it is true that the Republic of Austria may, in principle, rely on the first paragraph of Article 307 EC to maintain in force the provisions of domestic law implementing the abovementioned obligations, the fact remains that the second paragraph of that article states that, to the extent that earlier agreements within the meaning of the first paragraph of the article are not compatible with the Treaty, the Member State or States concerned are to take all appropriate steps to eliminate the incompatibilities established.
61. As is apparent from paragraph 50 of Case C-62/98 Commission  v Portugal  [2000] ECR I-5171, the appropriate steps for the elimination of such incompatibility referred to in the second paragraph of Article 307 EC include, inter alia, denunciation of the agreements in question.