Loredana Napoli v Ministero della Giustizia - Dipartimento dell’Amministrazione penitenziaria.
Date: 2014-03-06
25. In order to answer that question, it must be pointed out, first of all, that Article 2(2)(c) of Directive 2006/54 provides that less favourable treatment of a woman related to pregnancy or maternity leave  constitutes discrimination on grounds of sex and that Article 14(1) of that directive specifies the fields in which there must be no discrimination. Thus, direct and indirect discrimination are prohibited as regards conditions for access to employment, including selection criteria and recruitment conditions, access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining and also as regards work experience, conditions of employment, working conditions and participation in an organisation which represents workers or other organisations (see, to that effect, Sarkatzis Herrero , paragraph 36).
28. Consequently, that course must be regarded, under both Article 14(1)(c) and Article 15 of Directive 2006/54, as forming a part of the working conditions inherent to Ms Napoli’s post (see, by analogy, Thibault , paragraph 27, and Case C-284/02 Sass  [2004] ECR I-11143, paragraphs 30 and 31).
35. Even though, depending on the circumstances, national authorities have a certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security in a Member State (see, inter alia, Case C‑285/98 Kreil  [2000] ECR I-69, paragraph 24), they are nevertheless required, when they lay down measures which derogate from a fundamental right, such as the equal treatment of men and women which Directive 2006/54 seeks to ensure is implemented, to observe the principle of proportionality, which is one of the general principles of European Union law (see, to that effect, inter alia, Kreil , paragraph 23).
38. In that regard, it must be added that, in order to achieve the substantive equality between men and women pursued by Directive 2006/54 (see, by analogy, Thibault , paragraph 26), the Member States have a certain degree of discretion and it seems possible to conceive of measures which would interfere less with the principle of equal treatment between men and women than the measure at issue in the main proceedings. Thus, as the referring court has itself observed, the national authorities could, if appropriate, contemplate reconciling the requirement to train candidates fully with the rights of female workers by providing, for a female worker who returns from maternity leave, parallel remedial courses equivalent to the initial training course so that that female worker may be admitted within the prescribed period to the examination enabling her to be promoted, without delay, to a higher grade and also meaning that the development of her career is not less favourable than that of the career of a male colleague who has been successful in the same competition and admitted to the same initial training course.
39. It follows from all the foregoing considerations that the answer to the first and second questions is that Article 15 of Directive 2006/54 must be interpreted as precluding national legislation which, on grounds relating to the public interest, excludes a woman on maternity leave from a vocational training course which forms an integral part of her employment and which is compulsory in order to be able to be appointed definitively to a post as a civil servant and in order to benefit from an improvement in her employment conditions, while guaranteeing her the right to participate in the next training course organised, the date of which is nevertheless uncertain.
The third question
41. In this connection, it must be observed that Article 14(2) of that directive, like Article 2(2) 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 (OJ 1976 L 39, p. 40), which it replaced, is a derogation from an individual right laid down by Directive 2006/54 since it authorises Member States to provide that a difference of treatment which is based on a characteristic related to sex does not, under certain specified conditions, constitute discrimination within the meaning of that directive. Consequently, it must be interpreted strictly (see, to that effect, Case 222/84 Johnston  [1986] ECR 1651, paragraph 36, and Case C-273/97 Sirdar [1999] ECR I-7403, paragraph 23).
46. The Court has consistently held in that regard that wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by individuals as against the Member State before the national court (see, in particular, Case C‑188/89 Foster and Others  [1990] ECR I-3313, paragraph 16, and Case C‑187/00 Kutz-Bauer  [2003] ECR I-2741, paragraph 69).
48. Article 14(1)(c) of that directive, which contains provisions implementing the principle of equal treatment of men and women in matters of employment and occupation, prohibits generally and unequivocally all discrimination on grounds of sex in the fields listed by it (see, to that effect, Sarkatzis Herrero , paragraph 36).
50. Since the two provisions at issue have direct effect, it must furthermore be noted that it is settled case-law that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of that provision by legislative or other constitutional means (see, inter alia, Case 106/77 Simmenthal  [1978] ECR 629, paragraph 24, and Kutz-Bauer , paragraph 73). Therefore, Articles 14(1)(c) and 15 of Directive 2006/54 can be relied upon by an individual against the Member State at issue and applied by a national court in order to disapply any national provision inconsistent with those articles.