Opinion of Mrs Advocate General Rozès
Mr President,
Members of the Court,
The Court has before it three actions by the Commission of the European Communities under Article 169 of the Treaty against the Italian Republic (Case 163/82), the Kingdom of Belgium (Case 164/82) and the United Kingdom (Case 165/82), whose common factor is the application by the three Member States 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. I have nevertheless preferred to deliver three separate conditions since the alleged failures, and thus the legal problems raised, differ in each case.
I shall take the cases in numerical order beginning with the case against Italy (Case 163/82).
The Commission makes three charges.
The first concerns the breach of Article 5 of the directive, which governs the application of the principle of equal treatment with regard to working conditions. The Commission complains that the Italian Government has only partially implemented the principle. The Italian Law No 903 of 9 December 1977 which was intended to give effect to the directive in national law in fact applies it only in respect of certain working conditions, and not all.
Article 5 of the directive is worded as follows:
1. It is common ground that the concept of working conditions contained in that article must be understood in the widest sense.
2. In its defence the Italian Government first of all queries the admissibility of that objection. It contends that the Commission is arguing in the abstract, without specifying which discriminatory situations likely to be encountered in an undertaking or other place of work would be incompatible with Directive 76/207 and not prohibited by Law No 903. The Commission ought to have supplied further details and circumstances to enable it to determine in fact in what specific respects it had not observed Article 5 of the directive.
3. (a) On this aspect the Italian Government contends that since the directive does not specify the working conditions in respect of which equality of treatment must be achieved, it has by implication left it to the discretion of the Member States to determine them on the basis of their respective employment laws. In Italian law the following matters fall within the concept of working conditions: salary, job classification, qualifications, duties, transfers, career development, retirement, individual dismissals. Questions of remuneration and job classification are covered by Article 2 of Law No 903. The assignment of grading, duties and career development are the subject of Article 3; retirement is dealt with in Article 4. Transfers, dismissals and disciplinary measures are covered by Article 15 of Law No 300 of 20 May 1970 as amended by Article 13 of Law No 903. In addition Article 19 of Law No 903 repeals any legislative provision contrary thereto and provides that provisions to the contraiy contained in contracts of employment, the internal regulations of undertakings and rules governing the professions are void. On examination of the wording of the law implementing the directive, it is thus easy to ascertain that the matters included in the concept of working conditions in Italian law are far more numerous than alleged by the Commission. (b) Nevertheless, for the directive to be regarded as validly implemented it is also necessary for all the matters included in the concept of working conditions to be incorporated into Italian law. At the hearing the Commission pointed out that certain working conditions had not been provided for by the Law in spite of their importance, in particular those relating to safety and hygiene at work and the procedure for selecting staff representatives.
The Commission's second submission according to its application is that there has been only partial implementation of Article 6 of the directive in relation to the availability of legal action to all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5. Article 6 has not been fully transposed into Italian law in so far as the remedies allowed by Article 15 of Law No 903 concern solely conduct calculated to infringe the provisions of Articles 1 (access to employment) and 5 (prohibition of women's working during certain hours in the manufacturing industry).
1. Since serious objections may be raised in that respect it is necessary first of all to consider the admissibility of that submission.
2. I shall therefore consider this submission only as an ancillary: it does not appear to me to be well founded.
The third matter in respect of which, according to the Commission, the Italian Government has not properly applied Directive 76/207 may be regarded as a special aspect of the first complaint. It also concerns Article 5 of the directive, which the Commission claims to be breached because men are victims in Italy of discrimination in relation to leave in the event of adoption.
1. Article 6 of Law No 903 gives women who have adopted children or who have obtained custody of them prior to their adoption the right in so far as and provided that the child is not more than six years old at the time of adoption or granting of custody, to claim the compulsory leave referred to in Article 4 (c) of Law No 1204 of 30 December 1971 and the corresponding financial allowance during the first three months following the date on which the child is united with its adoptive family or the family which has been given custody thereof. The leave referred to in Article 4 (c) of Law No 1204 is that granted to the natural mother for the three months following the birth of a child. Article 6 thus extends the rights given in the event of maternity to the case of adoption.
2. It is known that the concept of working conditions must be understood in a wide sense. May it include leave granted to settle a child in the family adopting it?
3. Since the provision in question here is obviously a special provision in relation to the general ban on discriminating against a worker by reason of his sex contained in Article 15 of Law No 300 of 1970, it is not covered by the latter, in accordance with the maxim specialia generalibus derogant. That provision can only be successfully relied upon by workers in the absence of any specific provision. It has no effect where there is a rule of the same rank derogating therefrom on a specific matter. I therefore consider that in not extending its benefit to men the Italian Government has failed to fulfil its obligations under Article 5 of the directive.
As for the costs, I think that in view of my assessment of the three complaints made by the Commission against the Italian Government they ought to be allocated as to two thirds to be borne by the Gommission and as to one third by the defendant government.
In conclusion I suggest that the Court:
1 Translated from the French.
2 Law on New Economic Guidelines, Title V of which is intended to implement Directive 76/207 in Belgian law.
3 Judgment of the Court of 25 May 1982 in Case 96/81 Commissions Netherlands [1982] ECR 1791, para. 6 at p. 1803.
4 Ibid, at paras 7 and 8.
5 The italics arc mine.
6 Judgment of 8 February 1983 in Case 124/81 Commission v United Kingdom [1983] ECR 203, third sentence of para. 6; to the same effect: judgment of 17 February 1970 in Case 31/69 Commission v Italy [1970] ECR 25, para. 13 at p. 33.
7 See its reply to the third question addressed to it by the Court.
8 In particular: the judgment of 15 December 1982 in Case 211/81 Commission v Donmark [1982] ECR 4547, paras 14 to 16.
9 Law No 533 of 11 August 1973.
10 Law No 1034 of 6 December 1971, in respect of public service employees.
11 The first paragraph of Article 7 of Law No 903 in conjunction with the second paragraph of Article 6 and the first paragraph of Article 7 of Law No 1204.