1 By judgment of 8 January 1993, which was received at the Court on 15 January 1993, the Cour du Travail de Liège referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 5 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 (Official Journal 1976 L 39, p. 40) ("the directive").
2 That question arose in proceedings between Mrs Minne and the Belgian Office National de l' Emploi (National Employment Office) ("the ONEM") concerning the granting of unemployment benefit.
3 From 15 July 1986 to 31 March 1990, Mrs Minne, who was living in Belgium, worked in the hotel and catering industry at Capellen (Luxembourg), where she was required to work nights. She ceased working when she moved to live in the Province of Liège (Belgium), where she applied for unemployment benefit from 2 April 1990.
4 The ONEM refused to grant her that benefit on the ground that she had declared that she was no longer prepared to work at night for family reasons.
5 The Tribunal du Travail (Labour Court), Verviers, before which the matter was brought at first instance, took the view that the decision by the ONEM was unjustified on the ground that Belgian legislation prohibited women in the hotel and catering industry from working between midnight and 6 a.m.
6 Article 35 of the Belgian Law on Employment of 16 March 1971 (Moniteur Belge (Official Gazette) of 30 March 1971, p. 3931, corrections published in Moniteur Belge of 12 October 1971, p. 12039) defines night-work as "work performed between 8 p.m. and 6 a.m.". The first and second subparagraphs of Article 36(1) provide as follows: "1. Women and young workers may not work at night. The King, however, may, if appropriate, and under conditions which He shall determine, authorize night-work in certain sectors, undertakings or occupations for the purpose of carrying out specified types of work or for specified categories of women and young workers." Finally, Article 37 of the Law provides that: "Workers other than those referred to in Article 36(1), and who come within the scope of Chapter III, Section II, as determined by or pursuant to Articles 1, 3 and 4, may not work at night, except: (1) in hotels, motels, campsites, restaurants and similar establishments, on catering premises, in tearooms and coffee-shops and in bars; (2) in the entertainment and gaming industries; (3) in the newspaper industry; ... (19) in bakeries and pastry shops." Pursuant to the second subparagraph of Article 36(1) of that Law, Articles 5 (private sector) and 6 (public sector) of the Arrêté Royal (Royal Decree) on the Employment of Women of 24 December 1968 (maintained in force by Article 65(1) of the Law of 16 March 1971) introduces derogations from the prohibition of night-work for women alone. Article 5 provides, inter alia, as follows: "Night-work shall be authorized for the following categories of women of not less than 18 years of age and subject to the conditions set out below: ... C. Up to midnight in the case of: (1) women employed in hotels, motels, restaurants and similar establishments, on catering premises, in tearooms and coffee-shops and in bars, which are not governed by the Joint National Commission for the Hotel Industry; ... F. In undertakings governed by the Joint National Commission for the Hotel Industry: (1) up to midnight in the case of: (a) waitresses and barmaids, provided that they are given in the course of the day a rest-period of four or five hours depending on whether they receive meals in the undertaking; (b) chambermaids, on a one-to-five ratio and with a minimum of one chambermaid per undertaking; (c) women in charge of cloakrooms and washrooms, provided that their working day does not exceed eight hours; (d) women on a fixed wage employed as: waitresses, buffet and cafeteria attendants, shower attendants, kitchen staff and cooks; (e) women employed in coastal and health resorts, as well as in tourist centres, on the basis of 60 times per calendar year. ..."
7 Following the annulment of its decision by the Tribunal du Travail, Verviers, the ONEM appealed to the Cour du Travail de Liège. As it was uncertain whether the Belgian legislation was compatible with Community law, that court decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling: "Does Article 5 of Directive 76/207/EEC require a Member State which lays down in its domestic law the principle of general prohibition of night-work for male and female workers alike to ensure strict similarity in the derogations provided for male and female workers (save where the need to treat men and women differently is justified) by refraining from introducing for male and female workers divergent systems of derogations differing primarily in respect of the procedure for the adoption of derogations and of the duration of the night-work authorized, such as the systems resulting, under the Belgian legal system, from Articles 36 and 37 of the Law on Employment of 16 March 1971 and Articles 5 and 6 of the Royal Decree on the Employment of Women of 24 December 1968?"
8 In that question, the national court seeks in substance to ascertain whether Article 5 of the directive precludes a Member State which prohibits night-work for both men and women from maintaining in force systems of derogations which differ from one sex to the other.
9 In its judgment in Case C-345/89 Stoeckel [1991] ECR I-4047, the Court ruled that Article 5 of the directive is sufficiently precise to impose on the Member States the obligation not to lay down by legislation the principle that night-work by women is prohibited, even if that obligation is subject to exceptions, where night-work by men is not prohibited.
10 Unlike the situation in Stoeckel, the discrimination in the present case does not lie in the principle of the prohibition of night-work, which applies without distinction to men and women, but rather in the derogations from that principle. It is apparent from the judgment making the reference that the difference between the two systems of derogations does not so much concern the number or nature of the exceptions provided for as the procedure for their adoption and the conditions attaching to them. The derogations applicable to men are set out in the Law, whereas those applicable to women are, in accordance with Article 36(1) of the Law, laid down by Royal Decree. Moreover, with regard to women, authorized night-work is sometimes limited to specified hours of the night, whereas this is not so in the case of men.
11 It must be asked whether that difference in treatment is justified in the light of Article 2(3) of Directive 76/207, which provides that the directive is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. As the Court held at paragraph 44 of its judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, it is clear from the express reference to pregnancy and maternity that the directive is intended to protect a woman' s biological condition and the special relationship which exists between a woman and her child.
12 In the present case, it does not follow from the legislation at issue, as indeed the national court has pointed out, that the nature of the differences between the two systems of derogations is justified by the need to ensure protection of a woman' s biological condition or by the special relationship which exists between a woman and her child. In those circumstances, unequal treatment cannot be justified on the basis of Article 2(3) of the directive.
13 It follows from the foregoing that Article 5(1) of the directive precludes a Member State from maintaining in its legislation derogations from a general prohibition of night-work which are subject to more restrictive conditions in respect of women than in respect of men and which cannot be justified by the need to ensure protection of a woman' s biological condition or by the special relationship which exists between a woman and her child.
14 It should, however, be added that the judgment making the reference cites several conventions dealing with night-work by women and binding on Belgium. That list includes Convention No 89 of the International Labour Organization of 9 July 1948 concerning Night-work of Women employed in Industry ("Convention No 89"), which was ratified by the Kingdom of Belgium by the Law of 21 March 1952 (Moniteur Belge of 22 June 1952, p. 4690). In its observations, the German Government submitted that the Kingdom of Belgium had a duty to perform the obligations arising from that Convention and that it was for that reason entitled under the first paragraph of Article 234 of the EEC Treaty to leave the directive unapplied to the extent to which it is contrary to Convention No 89.
15 It should be noted in that regard, without its being necessary to consider whether the present case comes within the scope of Convention No 89, that the Kingdom of Belgium has denounced that convention in order to comply with its Community obligations.
16 Furthermore, the judgment making the reference does not make it possible to determine the extent to which the national provisions which prove to be incompatible with Article 5 of the directive were designed to implement Convention No 89.
17 Since the German Government has contended that the denunciation of Convention No 89 became effective only in February 1993 and therefore after the material time in this case, it should be pointed out that the Court, in its judgment of 2 August 1993 in Case C-158/91 Ministère Public and Direction du Travail et de l' Emploi v Levy (not yet published in the ECR), held that national courts are under a duty to ensure that Article 5 of the directive is fully complied with by leaving unapplied any contrary provision of national legislation, unless the application of such a provision is necessary in order to ensure the performance by the Member State concerned, pursuant to the first paragraph of Article 234 of the EEC Treaty, of obligations arising from agreements concluded with non-member countries before the entry into force of that Treaty.
18 However, it falls to the national court, and not to the Court of Justice in the context of a preliminary ruling, to ascertain, with a view to determining the extent to which those obligations constitute an obstacle to the application of Article 5 of the directive, what are the obligations thus imposed on the Member State concerned by an earlier international agreement and whether the national provisions in question are designed to implement those obligations.
19 In the light of the foregoing, the answer to the question referred to the Court must be that Article 5 of Directive 76/207 precludes a Member State which prohibits night-work for both men and women from maintaining divergent systems of derogations which differ primarily in respect of the procedure for the adoption of derogations and of the duration of the night-work authorized, if such a difference is not justified by the need to ensure the protection of women, particularly with regard to pregnancy and maternity. Article 5 of the directive cannot apply to the extent to which those national provisions were adopted in order to ensure the performance by the Member State of obligations arising under an international agreement concluded with non-member countries before the entry into force of the EEC Treaty.