Commission of the European Communities v Italian Republic.
Date: 1997-12-04
4 The Court held in Case C-345/89 Stoeckel [1991] ECR I-4047 that Article 5 of the Directive is sufficiently precise to impose on Member States the obligation not to lay down by legislation the principle that nightwork by women is prohibited, even if that is subject to exceptions, where nightwork by men is not prohibited. Furthermore, it has repeatedly held that Article 5 is sufficiently precise and unconditional to be relied upon by an individual before a national court in order to avoid the application of any national provision not conforming to Article 5(1), which lays down the principle of equal treatment with regard to working conditions (Stoeckel, cited above, paragraph 12; Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723, paragraph 55).
10 Following the judgment in Stoeckel, cited above, the Italian Republic denounced the Convention in February 1992, with effect from February 1993.
11 In view of the judgments in Stoeckel and Levy and the Italian Republic's denunciation of the Convention, the Commission took the view that the Italian Government was required to adopt the measures needed to make the Italian Law compatible with Article 5 of the Directive. Consequently, by letter dated 2 March 1994, it gave formal notice to the Italian Government to submit observations within two months pursuant to the first paragraph of Article 169 of the Treaty.
12 Since that letter remained unanswered, the Commission issued a reasoned opinion on 19 November 1995 in which it called on the Italian Republic to take the necessary measures to comply with the opinion within two months from receipt thereof.
17 It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, effectively to put forward its defence to the complaints made by the Commission. The subject-matter of an action brought under Article 169 of the Treaty is thus delimited by the pre-litigation procedure provided for by that article. Consequently, the action cannot be founded on any complaints other than those formulated in the reasoned opinion (Case C-96/95 Commission v Germany [1997] ECR I-1653, paragraphs 22 and 23).
18 The Court has also held that the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (Commission v Germany, paragraph 24).
26 Second, it is settled case-law that the incompatibility of national legislation with Community provisions, 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 and also that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights (Case C-197/96 Commission v France [1997] ECR I-1489, paragraphs 14 and 15).