Keywords
Summary

Keywords

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Social policy - Male and female workers - Access to employment and working conditions - Equal treatment - Directive 76/207 - Article 5 - Direct effect - National provision prohibiting night-work for both men and women but providing for systems of derogations which differ on grounds of sex - Not permissible unless justified on grounds of necessary protection of women - Position of national courts with regard to obligations towards non-member countries arising under agreements concluded prior to the EEC Treaty and irreconcilable with those arising under Article 5 - Application of the rule of precedence set out in Article 234 of the Treaty

(EEC Treaty, first paragraph of Art. 234; Council Directive 76/207, Art. 5)

Summary

Article 5 of Directive 76/207 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 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.

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.

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.