—

the European Commission, by C. Cattabriga and D. Martin, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 2(2)(c), Article 14(2) and Article 15 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23).

2

The request has been made in proceedings between Ms Napoli and the Ministero della Giustizia – Dipartimento dell’Amministrazione penitenziaria (Ministry of Justice – Prison Service Department, ‘the Amministrazione penitenziaria’) regarding the exclusion of Ms Napoli from a training course to become a deputy commissioner in the prison service as a result of her absence from that course for a period of more than 30 days, even though the reason for that absence was compulsory maternity leave.

3

Recitals 2, 23, 25 and 28 in the preamble to Directive 2006/54 state:

...

...

...

4

Article 1 of Directive 2006/54 provides:

‘The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

To that end, it contains provisions to implement the principle of equal treatment in relation to:

It also contains provisions to ensure that such implementation is made more effective by the establishment of appropriate procedures.’

5

Article 2(2)(c) of Directive 2006/54 provides:

‘For the purposes of this Directive, discrimination includes:

...

6

Article 14 of Directive 2006/54 is worded as follows:

‘1.   There shall be no direct or indirect discrimination on grounds of sex in the public or private sectors, including public bodies, in relation to:

...

...

2.   Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate.’

7

Article 15 of that directive, relating to return from maternity leave, states:

‘A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.’

8

It is apparent from the order for reference that, in accordance with Article 9 of Legislative Decree No 146 adapting the Structure and Workforce of the Prison Service and of the Central Justice Office for Minors, and establishing Ordinary and Special Prison Service Corps, pursuant to Article 12 of Law No 266 of 28 July 1999 (decreto legislativo n. 146 – Adeguamento delle strutture e degli organici dell’Amministrazione penitenziaria e dell’Ufficio centrale per la giustizia minorile, nonche’ istituzione dei ruoli direttivi ordinario e speciale del Corpo di polizia penitenziaria, a norma dell’articolo 12 della legge 28 luglio 1999, n. 266), of 21 May 2000 (GURI No 132, 8 June 2000, p. 3) (‘Legislative Decree No 146/2000’), successful candidates in a competition for a post as deputy commissioner of the ordinary prison service corps are immediately appointed as probationary deputy commissioners and must attend a course of theoretical and practical training of a duration of 12 months, at the end of which they are required to sit an examination. The candidates having passed that examination are promoted to the post of deputy commissioner while those who do not pass must take part in the next course.

9

According to Article 10(2) of that legislative decree:

‘Staff who, for a valid reason, have been absent from the course for more than 30 days shall be permitted to attend a subsequent course. Female staff whose absence of more than 30 days is attributable to maternity leave shall be permitted to attend the course which follows the periods of absence from work provided for by the provisions on the protection of working mothers.’

10

Article 3 of Legislative Decree No 151 on the Sole Text of the Legislative Provisions concerning the Protection and Support of Maternity and Paternity, pursuant to Article 15 of Law No 53 of 8 March 2000 (decreto legislativo n. 151 – Testo unico delle disposizioni legislative in materia di tutela e sostegno della maternità e della paternità, a norma dell’articolo 15 della legge 8 marzo 2000, n. 53), of 26 March 2001 (Ordinary Supplement to the GURI No 96, 26 April 2001) (‘Legislative Decree No 151’), prohibits any discrimination on grounds of sex and any less favourable treatment connected with being a pregnant woman and a mother. Article 16 of that legislative decree imposes compulsory maternity leave by prohibiting, inter alia, the employment of a working mother during the first three months following childbirth. In accordance with Article 22(3) of Legislative Decree No 151, periods of maternity leave must be taken into account in their entirety for the purposes of the calculation of the length of service of the women concerned.

11

Article 1494 of Legislative Decree No 66 on the Armed Forces Code (decreto legislativo n. 66 – Codice dell’ordinamento militare), of 15 March 2010 (Ordinary Supplement to the GURI No 106, 8 May 2010) (‘Legislative Decree No 66’), provides, in paragraph 5 relating to female military personnel belonging to the Armed Forces, the Carabinieri and the Financial Police, that a female member of staff who has given birth must be excluded from the course started during the period following childbirth, while nevertheless stating that, if she passes the examination at the end of the following course, her seniority in employment is backdated to the date of the initial course.

12

Ms Napoli was successful in the competition, organised on 20 April 2009, for appointment as deputy commissioner of the ordinary prison service corps and was admitted, on 5 December 2011, to the training course scheduled to start on 28 December 2011.

13

On 7 December 2011, Ms Napoli gave birth. In accordance with the national legislation, she was placed on compulsory maternity leave for three months, that is, until 7 March 2012.

14

By document dated 4 January 2012, the Amministrazione penitenziaria informed her that, pursuant to Article 10(2) of Legislative Decree No 146/2000, once the first 30 days of the maternity leave had elapsed, she would be excluded from the course concerned and that payment of her salary would be suspended. That department stated to her that she would be admitted as of right to the next course organised.

15

By an initial action, lodged on 27 February 2012 before the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court), Ms Napoli challenged the document of 4 January 2012. A second action setting out additional grounds was brought before that court, directed against the decree of the Head of the Amministrazione penitenziaria of 9 March 2012 which established the definitive exclusion of Ms Napoli from the course, while still granting her the option to attend the next course, with loss of salary up until that time.

16

In support of her actions, Ms Napoli submitted, primarily, that the Amministrazione penitenziaria had misapplied Article 10 of Legislative Decree No 146/2000, since that provision required that only optional periods of absence on the part of working mothers, and not periods of compulsory statutory leave, be counted as absence from the course. In the alternative, in the event that the contested decisions should be regarded as complying with that legislative decree, she contested the conformity of the legislative decree with the Italian Constitution.

17

The Tribunale amministrativo regionale per il Lazio, ruling in interlocutory proceedings rejected the primary plea in law and then upheld the plea raised in the alternative. It held that Article 10 of Legislative Decree No 146/2000 was incompatible, inter alia, with Directive 2006/54, as interpreted by the Court in Case C-294/04 Sarkatzis Herrero [2006] ECR I-1513. It ordered the suspension of the abovementioned decree of 9 March 2012 and therefore decided that Ms Napoli should be readmitted to the course once her compulsory maternity leave was over.

18

In its order for reference, that court states that it is of the view that Article 10 of Legislative Decree No 146/2000 cannot be interpreted in a matter consistent with the Constitution and European Union law. The clear wording of that article, which refers to periods of absence provided for by rules to protect working mothers (among which it is necessary to include Article 16 of Legislation Decree No 151, establishing compulsory maternity leave) does not allow the referring court to choose, among the possible meanings of the wording of the rule at issue, that which is closest to national constitutional principles and the fundamental principles of European Union law if it is not to attribute to that wording a meaning not intended by the legislature. Furthermore, the attainment of the objective pursued by Article 10 of Legislative Decree No 146/2000, namely that each probationary deputy commissioner receive adequate and complete vocational training before being assigned institutional duties, is jeopardised not only by optional absences but also, in the same way, by compulsory absences.

19

The referring court states that there are other national legislative provisions relating, inter alia, to employment in the armed forces, such as Article 1494(5) of Legislative Decree No 66, that require certain women who have taken compulsory maternity leave to be excluded from training courses. However, that article provides that, where the candidate concerned passes the examination at the end of the following course, her seniority in employment is backdated to the date of the initial training course. That provision, which applies generally within the military system, is nevertheless not directly applicable to personnel in the prison service, which is a civilian corps.

20

Ms Napoli therefore suffers harm resulting from maternity because she is placed in a less favourable position than her male colleagues who were successful in the same competition and were admitted to the initial training course. Even if a guarantee relating to the starting point of the legal effects of the appointment, such as that provided for in Article 1494(5) of Legislative Decree No 66, could be granted to her by analogy, that guarantee would not have any retroactive financial effect. Ms Napoli would necessarily lose the pay and the social contributions which she would have been entitled to had she been able to attend the initial course.

21

The referring court adds furthermore that the right, granted to a female worker excluded from a first course as a result of maternity leave, to be admitted to the next course does not impose any obligation on the authority concerned to organise such a course. Its organisation remains subject to the discretion of the authority regarding the need to fill vacant posts and the economic resources available to do so. Consequently, since several years may elapse between one course and the next, it is not certain that that female worker will be able to attend another course. The harm suffered by that female worker might therefore be considerable.

22

Admittedly, by guaranteeing that female worker the ability to participate in the following course, Italian law seeks to reconcile the rights of women at work with the public interest in ensuring that only candidates who have been adequately prepared through the training course are employed in the prison service to carry out tasks within that institution. However, the issue is raised of whether the pursuit of that objective in the public interest can justify the unfavourable treatment of a woman resulting from her exclusion from a course prompted by compulsory maternity leave.

23

In those circumstances, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

24

By its first and second questions, which can be dealt with together, the referring court asks, in essence, whether Article 2(2)(c) read in conjunction with Article 14(1)(c) of Directive 2006/54, and Article 15 of that directive 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.

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).

26

It must be observed, secondly, that Article 15 of that directive provides that a woman on maternity leave is to be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.

27

In the present case, as is apparent from the order for reference, it is common ground that Ms Napoli is in an employment relationship and that the course, from which she was excluded as a result of her absence on maternity leave, is provided in the context of that employment relationship and is intended to prepare her for an examination which, should she be successful in it, would allow her access to a higher grade.

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).

29

However, since the situation at issue in the main proceedings relates to a return from maternity leave and concerns, as follows from the preceding paragraph of the present judgment, the working conditions applicable to a female worker after her return from maternity leave, the question referred must be examined in the light of Article 15 of that directive, which constitutes the specific provision governing such a case.

30

As regards whether, in a situation such as that at issue in the main proceedings, the female worker who comes back from maternity leave returns to her job on terms and conditions which are no less favourable to her and benefits from all improvements in working conditions to which she would have been entitled during her absence, it must be observed that the taking of maternity leave has not affected the status of that female worker, since Ms Napoli has remained a probationary deputy commissioner, which guarantees enrolment in the following course, and that that female worker has returned to the job to which she was assigned before her maternity leave.

31

The fact remains that being excluded from the vocational training course as a result of having taken maternity leave has had a negative effect on Ms Napoli’s working conditions.

32

The other workers admitted to the first training course had the possibility of attending that course in its entirety and, if they were successful in the examination at the end of the training, of being promoted to the higher grade of deputy commissioner and of receiving the corresponding pay before Ms Napoli. She, for her part, is required to wait for the next training course to begin, and, according to the findings of the referring court, it is, moreover, uncertain when that will be.

33

The exclusion of the party concerned from the first course and fact that she is subsequently prevented from participating in the examination at its end result in her losing a chance of benefitting, in the same way as her colleagues, from an improvement in working conditions and must therefore be regarded as constituting unfavourable treatment for the purposes of Article 15 of Directive 2006/54.

34

That finding is not called into question by the argument that the requirement, on grounds of the public interest, that only candidates who have been adequately prepared to perform their new functions be allowed to participate in that examination presupposes the participation of those candidates in the entire training course at issue.

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).

36

It must be stated that a measure such as that at issue in the main proceedings, which provides for automatic exclusion from a training course and renders it impossible to sit the examination organised at the end of that course, without account being taken, in particular, either of the stage of the course at which the absence for maternity leave takes place or of the training already received, and which merely grants the woman who has taken such leave the right to participate in a training course organised at a later, but uncertain, date, does not appear to comply with the principle of proportionality.

37

The infringement of that principle is all the more blatant since, as the referring court has observed, the fact that there is uncertainty as to the start of the next training course results from the fact that the competent authorities are under no obligation to organise such a course at specified intervals.

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.

40

By its third question, the referring court asks, in essence, whether Article 14(2) of Directive 2006/54 applies to national legislation, such as that at issue in the main proceedings, which does not limit a specified activity solely to male workers but which delays access to that activity for female workers who have been unable to receive full vocational training as a result of compulsory maternity leave.

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).

42

In the dispute in the main proceedings, it is neither put forward nor even alleged that under the applicable national provisions a characteristic related to sex constitutes a genuine and determining occupational requirement in order to be able to perform that function or that the competent national authorities have, in respect of the performance of the function of deputy commissioner of the prison service, made use of the discretion thus granted by that directive or sought to rely on that discretion.

43

It follows from all the foregoing considerations that the answer to the third question is that Article 14(2) of Directive 2006/54 does not apply to national legislation, such as that at issue in the main proceedings, which does not limit a specified activity solely to male workers but which delays access to that activity for female workers who have been unable to receive full vocational training as a result of compulsory maternity leave.

44

In view of the answer to the third question, it is unnecessary to reply to the fourth question.

45

By its fifth question, the referring court asks, in essence, whether the provisions of Article 14(1)(c) and Article 15 of Directive 2006/54 are sufficiently clear, precise and unconditional to have direct effect.

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).

47

Article 14(1)(c) and Article 15 of Directive 2006/54 meet those requirements.

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).

49

In the same way, Article 15 of that directive provides in clear, precise and unconditional terms that a woman on maternity leave is to be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.

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.

51

It follows from all the foregoing considerations that the answer to the fifth question is that the provisions of Article 14(1)(c) and Article 15 of Directive 2006/54 are sufficiently clear, precise and unconditional to have direct effect.

52

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules: