61991J0158

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Social policy ° Men and women workers ° Access to employment and working conditions ° Equal treatment ° Directive 76/207 ° Article 5 ° Direct effect ° Prohibition of night work by women where the same prohibition does not apply to men not permissible ° Role of national courts with regard to obligations towards non-member countries arising under agreements concluded prior to the EEC Treaty and irreconcilable with obligations arising under Article 5 ° Application of the rule of precedence set out in Article 234 of the Treaty

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

The national court is under an obligation to ensure that 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 is fully complied with by refraining from applying any conflicting provision of national legislation, unless the application of such a provision is necessary in order to ensure the performance by the Member State concerned of obligations arising under an agreement concluded with non-member countries prior to the entry into force of the EEC Treaty.

While it is true that equal treatment of men and women constitutes a fundamental right recognized by the Community legal order, its implementation, even at Community level, has been gradual, requiring the Council to take action by means of directives. Those directives allow, temporarily, certain derogations from the principle of equal treatment. In those circumstances, it is not sufficient to rely on the principle of equal treatment in order to evade performance of the obligations which are incumbent on a Member State in that field under an earlier international agreement and observance of which is safeguarded by the first paragraph of Article 234 of the Treaty.

In proceedings for a preliminary ruling, it is not for this Court but for the national court to determine which obligations are imposed by an earlier international agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they constitute an obstacle to the application of Article 5 of the directive.

In Case C-158/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Police, Metz (France), for a preliminary ruling in the criminal proceedings before that court against

Jean-Claude Levy,

on the interpretation of Articles 1 to 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 (OJ 1976 L 39, p. 40),

THE COURT,

composed of: O. Due, President, G.C. Rodríguez Iglesias and M. Zuleeg (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: G. Tesauro,

Registrar: J.-G. Giraud,

after considering the written observations submitted on behalf of:

° the Direction du Travail et de l' Emploi, by E. Klein, employment inspector,

° J.-C. Levy, by F. Crehange, of the Metz Bar,

° the French Government, by P. Pouzoulet, Deputy Director for Legal Affairs at the Ministry of Foreign Affairs, acting as Agent, and C. Chavance, Attaché principal d' administration centrale, acting as deputy Agent,

° the German Government, by E. Roeder, Regierungsdirektor in the Federal Ministry of Economic Affairs, acting as Agent,

° the Commission of the European Communities, by M. Wolfcarius, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of J.-C. Levy, the German Government and the Commission at the hearing on 16 September 1992,

after hearing the Opinion of the Advocate General at the sitting on 27 October 1992,

gives the following

Judgment

1 By judgment of 22 May 1991, received at the Court on 18 June 1991, the Tribunal de Police (local criminal court), Metz (France), referred for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 1 to 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 (OJ 1976 L 39, p. 40, hereinafter "the directive").

2 That question arose in criminal proceedings brought by the Ministère Public (Public Prosecutor) and the Direction du Travail et de l' Emploi (Department of Labour and Employment) against Jean-Claude Levy, Director of Nouvelle Falor SA, who is accused of having employed, on 22 March 1990, 23 women on night work, contrary to Article L 213-1 of the French Code du Travail (hereinafter "the French Code"), an infringement which is punishable by a fine pursuant in particular to Article R 261-7 of that code.

3 Those provisions were adopted in order to implement Convention No 89 of 9 July 1948 of the International Labour Organization on night work for women in industry (hereinafter "the ILO Convention"), whose ratification was authorized in France by Law No 53-603 of 7 July 1953. The instrument of ratification was registered by the Director General of the International Labour Office on 21 September 1953.

4 The wording of Article 3 of the ILO Convention, which is essentially set out in the French Code, provides that:

"Women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof, other than an undertaking in which only members of the same family are employed."

5 In the proceedings before the Tribunal de Police, Metz, Mr Levy, the defendant, claimed that the French Code was incompatible with Article 5 of the directive, which provides that:

"Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished."

6 The Tribunal de Police thereupon decided to stay the proceedings and to the refer the following question to the Court of Justice for a preliminary ruling:

"Are Articles 1 to 5 of Directive 76/207/EEC of 9 February 1976 to be interpreted as meaning that national legislation prohibiting night work solely for women amounts to discrimination, having regard inter alia to Article 3 of Convention No 89 of the International Labour Organisation prohibiting night work for women, to which France is a signatory?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure, the applicable legislation and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8 Before replying to the question referred for a preliminary ruling, it should be noted that the prohibition of night work for women provided for by both the ILO Convention and the French Code is coupled with various exceptions which have been invoked by Mr Levy before the national court. None the less, since the question whether those exceptions can apply to Mr Levy is not relevant to the solution of the problem raised in the question referred for a preliminary ruling, they will not be considered in these proceedings.

9 In Case C-345/89 Stoeckel [1991] ECR I-4047, the Court held 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 is subject to exceptions, where night work by men is not prohibited. It follows that, in principle, a national court is under a duty to give full effect to that rule, refusing to apply any conflicting provision of national legislation (see the judgment in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629).

10 In this case, the question referred for a preliminary ruling seeks essentially to ascertain whether a national court is under the same obligation where the national provision which is alleged to be incompatible with Community law is intended to implement an agreement, such as the ILO Convention, which was concluded by the Member State concerned with other Member States and non-member countries prior to the entry into force of the EEC Treaty (hereinafter "earlier international agreement").

11 The first paragraph of Article 234 of the Treaty provides that the rights and obligations arising from agreements concluded before the entry into force of the Treaty between one or more Member States on the one hand, and one or more non-member countries on the other, are not affected by the provisions of the Treaty. Nonetheless, the second paragraph obliges the Member States to take all appropriate steps to eliminate any incompatibilities between such an agreement and the Treaty. Article 234 is of general scope and applies to any international agreement, irrespective of subject-matter, which is capable of affecting the application of the Treaty (see Case 812/79 Attorney General v Burgoa [1980] ECR 2787, paragraph 6).

12 According to the judgment in Case 10/61 Commission v Italy [1962] ECR 1, the purpose of the first paragraph of Article 234 of the Treaty is to make clear, in accordance with the principles of international law, that application of the Treaty does not affect the commitment of the Member State concerned to respect the rights of non-member countries under an earlier agreement and to comply with its corresponding obligations. It follows that, in that provision, the terms "rights and obligations" refer, as regards "rights", to the rights of non-member countries and, as regards "obligations", to the obligations of Member States.

13 Consequently, in order to determine whether a Community rule may be deprived of effect by an earlier international agreement, it is necessary to examine whether that agreement imposes on the Member State concerned obligations whose performance may still be required by non-member countries which are parties to it.

14 In that respect, the Commission maintains that, since the Court ruled in Stoeckel, cited above, that the concern for protection which originally inspired the principle of the prohibition on night work for women is no longer well founded, the Member States are required, by virtue of Article 5(2)(c) of the directive, to take the measures necessary to revise those laws, regulations and administrative provisions which are contrary to the principle of equal treatment. Where the laws which are to be revised result from the conclusion of earlier international agreements, such as the ILO Convention, the measures to be taken by the Member States are the same as the "appropriate steps" to which they must resort, pursuant to the second paragraph of Article 234 of the Treaty, in order to eliminate the incompatibilities established between those international agreements and Community law, namely the extension of the prohibition on night work to workers of the opposite sex or the abrogation of the earlier international agreement.

15 The Commission adds that, in any event, the obligation arising from the ILO Convention not to have women working at night cannot allow a Member State not to observe the principle of equal treatment of men and women, a fundamental human right respect for which forms an integral part of the general principles of law protected by the Court of Justice (see the judgment in Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125). It argues that, according to the case-law of the European Court of Human Rights (see, in particular, the judgment of 28 May 1985 Abdulaziz, Cabales and Balkandali Series A, No 94), a difference of treatment between men and women must be justified on objective and reasonable grounds and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In view of the similarity of the risks to which both men and women who work at night are exposed, a difference of treatment between men and women may only be justified by the need to protect the biological condition of women.

16 In reply to that argument, it should be pointed out that, while it is true that equal treatment of men and women constitutes a fundamental right recognized by the Community legal order, its implementation, even at Community level, has been gradual, requiring the Council to take action by means of directives, and that those directives allow, temporarily, certain derogations from the principle of equal treatment.

17 In those circumstances, it is not sufficient to rely on the principle of equal treatment in order to evade performance of the obligations which are incumbent on a Member State in that field under an earlier international agreement and observance of which is safeguarded by the first paragraph of Article 234 of the Treaty.

18 The Commission also bases its argument on the development of international law in that field and, in particular, on the Convention for the Elimination of all Forms of Discrimination against Women, concluded in New York on 18 December 1979 (hereinafter "the New York Convention"), ratified by France on 14 December 1983, and on developments within the International Labour Organization itself. As regards the latter, the Commission makes special mention of the 1990 Protocol on the 1948 ILO Convention, ILO Convention No 171 of 1990 on night work and ILO Recommendation No 178 of 1990 on night work, all of which were adopted on 26 June 1990.

19 It is true that the provisions of an international agreement may be deprived of their binding force if it appears that all the parties to the agreement have concluded a subsequent agreement whose provisions are so far incompatible with those of the earlier one that the two agreements are not capable of being applied at the same time (see Article 59(1)(b) of the Vienna Convention on the Law of Treaties of 21 March 1986).

20 In the present case, if it were apparent from the development of international law, as recalled by the Commission, that the prohibition on night work for women, provided for in the ILO Convention, had been annulled by virtue of subsequent agreements binding on the same parties, the first paragraph of Article 234 of the Treaty would not be applicable. There would then be nothing to prevent the national court from applying Article 5 of the directive as interpreted by the Court in Stoeckel, cited above, and disapplying any national provisions conflicting therewith.

21 However, in proceedings for a preliminary ruling, it is not for this Court but for the national court to determine which obligations are imposed by an earlier international agreement on the Member State concerned and to ascertain their ambit so as to be able to determine the extent to which they constitute an obstacle to the application of Article 5 of the directive.

22 In view of the foregoing considerations, the answer to the question submitted for a preliminary ruling must be that the national court is under an obligation to ensure that Article 5 of Directive 76/207 is fully complied with by refraining from applying any conflicting provision of national legislation, unless the application of such a provision is necessary in order to ensure the performance by the Member State concerned of obligations arising under an agreement concluded with non-member countries prior to the entry into force of the EEC Treaty.

Costs

23 The costs incurred by the French and German Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Tribunal de Police, Metz, by judgment of 22 May 1991, hereby rules:

The national court is under an obligation to ensure that Article 5 of 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 is fully complied with by refraining from applying any conflicting provision of national legislation, unless the application of such a provision is necessary in order to ensure the performance by the Member State concerned of obligations arising under an agreement concluded with non-member countries prior to the entry into force of the EEC Treaty.