Opinion of Mr Advocate General Rozès

Mr President,

Members of the Court,

In Case 165/82, an action brought against the United Kingdom, the Commission maintains that the incorrect implementation of Directive 76/207 is fourfold :

I shall examine each of these complaints.

1. By virtue of Articles 3 (2) (b), 4 (b) and 5 (2) (b) of the directive, Member States must take the measures necessary to ensure that any provisions contrary to the principle of equal treatment regarding access to employment (Article 3), access to the various types of vocational training (Article 4) and working conditions (Article 5) arė null and void or may be amended. It is of scant importance whether such provisions are contained in individual employment contracts, collective agreements, the internal rules of undertakings or the rules governing the independent occupations and professions.

2. The United Kingdom does not share that opinion. Its view is that it is unnecessary to adopt a rule similar to section 77 (1) of the Act for collective agreements, the internal rules of undertakings and the rules governing the independent occupations and professions. It considers that to do so would in no way help to ensure attainment of the purpose of Articles 3, 4 and 5 of the directive, namely implementation of the principle of equal treatment in the areas referred to therein.

3. The Commission is not satisfied with those arguments. It refers to the clear terms of the relevant provisions of the directive by virtue of which the Member States are to take the necessary measures to ensure that provisions contrary to the principle of equal treatment appearing in collective agreements, internal rules of undertakings and rules governing the independent occupations and professions are, or may be declared to be, null and void or may be amended. No rule of law applicable in the United Kingdom makes the fulfilment of that obligation possible. In the Commission's opinion, there is a fundamental difference between a legal situation created by the annulment or amendment of a discriminatory provision, which causes that provision to cease to exist, and the situation at issue, where a provision continues to exist even if, at law, it is unenforceable. The Commission also points out that before 1974 collective agreements were in themselves legally binding and that there is no reason for considering that the same may not apply in the future.

4. In my opinion in this purely legal debate, the Commission's position appears to be more sound, in particular by reason of the requirements of clarity and legal certainty to which the decisions of the Court attach great importance in cases where a State is charged with failing to fulfil its obligations. It is true that to date the case-law has related to administrative practices which, the Court has held, cannot ... be regarded as a proper fulfilment of the obligation imposed on Member States to which a directive is addressed by virtue of Article 189 of the Treaty, since those practices by their nature can be changed as and when the authorities please and ... are not publicized widely enough. But it seems to me that because of the general nature of its terms, the following sentence, taken from the judgment of the Court of 1 March 1983 in Case 300/81, also applies to this case: It is important... for each Member State to implement the directive in question in a manner which fully satisfies the requirements of clarity and legal certainty which the directive is intended to achieve in the interests, in this case, of women and men regarding access to employment, training, advancement and working conditions. The terms of Articles 3, 4 and 5 of the directive at issue in this case seem to me to leave Member States no greater margin of discretion regarding the implementation thereof than those of the directive on credit establishments at issue in Case 300/81.

1. The Commission considers, in the second place, that the provisions of section 6 (3) of the Act are contrary to the terms of the directive, in particular Articles 3, 4 und 5 thereof. That is the substance of the Commission's second and third complaints.

2. The United Kingdom considers that employment ... for the purposes of a private household and employment in very smal undertakings may be excluded from the field of application of the directive because they involve close personal relationships between employees and employers, so that it would not be legally possible to prevent the latter from employing persons of a particular sex.

3. In my opinion this argument has been effectively refuted by the Commission.

The last complaint made by the Commission against the United Kingdom regarding the fulfilment of its obligations under Directive No 76/207 also involves the question of the interpretation to be given to Article 2 (2) thereof. It concerns the exclusion of midwives from the field of application of the Act.

1. Section 20 of the Act provides that midwives are excluded from the provisions of subsections 6 (1) and (2) (a) and that section 14 concerning vocational-training bodies does not apply to the training of midwives. It should however be added that that provision has also amended the legislation relating to midwives (for England and Wales, the Midwives Act 1951) so as to allow persons of the male sex access to and the right to engage in that occupation. However, on a transitional basis, that access is limited, since men are entitled to follow midwifery training courses only in centres approved by the Minister. At the present time, two centres have been approved, one in London and the other in the Central Region of Scotland. Similarly, by virtue of paragraph 3 (2) of Schedule 4 to the Act, a man may engage in the occupation of midwife only at the places designated by the Minister, namely four hospitals in London and Edinburgh.

2. In the United Kingdom's view, the discriminatory provisions in force are justified by Article 2 (2) of the directive by reason of the specific nature of the occupation of midwife and the conditions in which midwives work. The United Kingdom adds that those provisions have been periodically reviewed in the light of social developments, pursuant to Article 9 (2) of the directive. It was in fact as a result of wide-ranging consultations with the health authorities, the professional and occupational groups concerned and other organizations regarding the report on two studies on male midwives carried out in London and in the Central Region of Scotland that the United Kingdom Government recently reached the conclusion that the present restrictions on vocational training and the employment of men as midwives should now be lifted. It should however be noted that the removal of those restrictions has been made subject to two conditions: women must have the possibility of being cared for by a female midwife if they so choose and, if a male midwife is provided, there must be appropriate supervision.

3. The Commission, without contesting the truthfulness of those observations, replies that in practice the reactions apprehended by the United Kingdom should not raise difficulties in so far as, on the one hand, account will be taken of the preferences of women in confinement and, on the other hand, at least for some time to come, male midwives will no doubt remain the exception rather than the rule. This argument is considered by the United Kingdom as tending to permit discrimination in practice but not in law.

For all the foregoing reasons, I propose that the Court should give judgment as follows:

1 Translated from the French.

2 Most recently in the judgment of 15. 3. 1983 in Case 145/82 Commission v Iulian Republic [1983] ECR718, paragraph 10 of the decision.

3 Judgment of 1. 3. 1983 in Case 300/81 Commission v Italian Republic [1983] ECR 449, paragraph 10 of the decision.

4 Heron Corporation Limitedv Commis [1980] ECR 713, a case on analogous provisions of the Race Relations Act 1976.

5 Paragraph 3 (1) of Schedule 4 (transitional provisions) to the Act.

6 In that regard, see the Opinion of Mr Advocate General VerLoren van Themaat of 10. 5. 1983 in Case 170/78 and the references cited therein, pp. 1 and 2.