JUDGMENT OF 26. 10. 1983 — CASE 163/82 COMMISSION v ITALY

In Case 163/82

THE COURT composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, O. Due, U. Everling and C. Kakouris, Judges, Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties.

IV — Questions put by the Court

First question

Second question

V — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.

2. To this end, Member States shall take the measures necessary to ensure that:

1. on the basis of marital or family status, or pregnancy;

2. indirectly, through selection procedures or the press or through any other form of publicity indicating as a requirement of recruitment that a person shall be of a particular sex.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties.

IV —. Questions put by the Court

1. Can the Commission specify precisely the working conditions in respect of which the Italian legislation appears to be in breach of Article 5 of the directive?

2. Can it also specify in what respect Article 6 of the directive appears not to be observed by the Italian Republic in view of the remedies which Italian law provides and Article 24 of the Italian Constitution?

1. Can the Italian Republic specify precisely which provisions of its law, in addition to Law No 903, apply Article 5 of the directive?

2. Can it state what has become of the action brought before the Constitutional Court in relation to the constitutionality of Article 6 of Law No 903 referred to in its reply of 6 July 1981 to the reasoned opinion?

3. Does the Italian Republic consider that it was in an adequate position to comment during the stage prior to action on the second complaint made by the Commission, namely in relation to the incomplete implementation of Article 6 of the directive?

1. (...) Its obligations to implement Article 5 of the directive are sufficiently and validly satisfied in relation to the complaints made by the Commission in the present case by the provisions of Law No 903 of 9 December 1977 and Law No 300 of 20 May 1970.

2. The proceedings are still pending before the Constitutional Court; at present no date appears to have been set for a hearing in the near future in the calendar of the work of the Court.

3. It may be observed that during the stage prior to action the Commission attached no special importance in its complaints to the aspect of legal remedies for measures contrary to the principle of equal treatment; there is no reference to Article 6 of the directive in the reasoned opinion of 30 April 1981.

V —. Oral procedure

1. By application received at the Court Registry on 1 June 1982 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic, by failing to adopt within the prescribed period the provisions necessary to comply with Council Directive 76/207 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 (Official Journal, L 39, p. 40), had failed to fulfil its obligations under the Treaty.

2. Articles -5 and 6 of the directive, which the Commission considers have not been adequately or correctly transposed into Italian law, provide as follows :

3. The Italian Republic adopted Law No 903 of 9 December 1977 concerning equal treatment between men and women in relation to employment. Article 1 thereof provides that any discrimination on grounds of sex as regards access to employment, regardless of methods of selection and in any sector or branch of activity whatsoever, at all levels of occupational hierarchy, is prohibited. Such discrimination is likewise prohibited if it is applied on the basis of marital or family status or pregnancy, or indirectly through selection procedures or the press or through any other form of publicity indicating as a requirement of recruitment that a person shall be of a particular sex. The prohibition applies equally to activities undertaken in connection with vocational guidance, Vocational training, advanced vocational training and retraining as regards both access to and the content of such activities.

4. Article 2 provides that women are to be entitled to the same remuneration as men for work which is the same or of the same value. Job classification systems for determining remuneration must apply the same criteria for men and for women.

5. Article 3 prohibits any discrimination between men and women as regards the assignment of grading, duties and career development. The leave provided for in Articles 4 and 5 of Law No 1204 of 30 December 1971 is treated for the purposes of career development as days worked when collective agreements do not specify any special conditions in that respect.

6. The first paragraph of Article 4 provides that even if they are eligible for retirement women may elect to continue working up to the retirement age-limit applicable for men. The other paragraphs thereof contain further provisions to which it is not necessary to refer for the purposes of the present judgment.

7. The Commission considers in the first place that the provisions of Law No 903 do not transpose the provisions of Article 5 of the directive into Italian law to an extent and in a manner in conformity with, the spirit and letter of the directive. The Law covers certain working conditions, such as remuneration, retirement age and the right to take leave from work in the case of adoption, but it does not cover all working conditions in spite of the wider nature of the provisions of Article 5 of the directive.

8. The Government of the Italian Republic replies that consideration of the provisions of the aforesaid Law No 903 shows that discrimination based on sex is prohibited in relation to access to employment, vocational guidance, vocational training, advanced vocational training and retraining (Article 1), remuneration and job classification systems for determining remuneration (Article 2), assignment of grading, duties and career development (Article 3), retirement age (Article 4) and entitlement to leave in certain circumstances (Article 6). The Government of the Italian Republic adds that Article 15 of Law No 300 of 20 May 1970 was amended by Article 13 of Law No 903 of 1977 so as to render void any agreement or measure based on sex aimed at dismissing a worker or adversely affecting him.

9. It must be remembered that according to Article 189 of the Treaty a directive is binding as to the result to be achieved upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods. The Italian legislature cannot therefore be criticized for having adopted a number of specific provisions in relation to the most important working conditions and whilst confining itself in relation to other working conditions to a general provision covering, as does Article 15 of the Law of 1970 as amended by Article 13 of the Law of 1977, all other working conditions not specifically mentioned, unless it is shown that the result sought by the directive has not in fact been attained.

10. Since the Commission has not shown that those specific provisions combined with a general supplementing provision have left some areas of the scope of the directive unprovided for, the Commission's first complaint cannot be upheld.

11. The Commission alleges in the second place that the Law of 1977 gives a mother who adopts a child of less than six years of age at the time of adoption the right to compulsory leave and the corresponding financial allowance during the first three months after the child enters the adoptive family and the right to leave for a certain period, without according the adoptive father similar rights. It is said that such different treatment amounts to discrimination in working conditions within the meaning of the directive.

12. Article 6 of Law No 903 of 1977 provides that women who have adopted children or who have obtained custody thereof prior to adoption may claim the maternity leave referred to in Article 4 of Law No 1204 of 1971 and the financial benefits relating thereto for the first three months after the child enters the adoptive family or the family which has been given custody of it, provided the child is not more than six years of age at the time of the adoption or award of custody. The second paragraph of Article 6 adds that such women may also claim the leave provided for in the first paragraph of Article 7 of the Law of 1971 for a period of one year from the actual entry of the child into the family provided that the child is not more than three years of age, and the right to the leave provided for in the second paragraph of Article 7.

13. Article 4 of Law No 1204 of 30 December 1971 provides that women may not be employed :

14. Article 7 of the same Law provides that during the child's first year the woman is entitled, after the abovementioned maternity leave, to leave from work during a period of six months during which/her job is to be kept for her (first paragraph). She is also entitled to leave/When a child of less than three years of age is sick, upon submission of a medical certificate (second paragraph).

15. Article 7 of Law No 903 of 1977 gives a working father the right to leave allowed by Article 7 of Law No 1204 of/1971, even if he is a father by adoption or a guardian within the meanţng of Article 314/20 of the Civil Code, in lieu of the working mother or/where the care and custody of the children are given to the father.

16. However, the adoptive father does not have the right given the adoptive mother of maternity leave for/the first three months following the actual entry of the child into the adoptive family. That distinction is justified, as the Government of the Italiari Republic rightly contends, by the legitimate concern to assimilate ásfar as possible the conditions of entry of the child into the adoptive family to those of the arrival of a newborn child in the family during the very delicate initial period. As regards leave from work after the iniţial period of three months the adoptive father has the same rights as thé adoptive mother.

17. In those circumstances the difference in treatment criticized by the Commission cannot be regarded as discrimination within the meaning of the directive.

18. The Commission's last complaint relates to the alleged failure by the Italian Republic to comply with Article 6 of the directive. The Commission states that Article 15 of Law No 903 of 1977 restricts the legal remedies it provides for to cases of breach of the provisions of Articles 1 and 5 òf that Law, by not giving a legal remedy to a worker who considers himself adversely affected by failure to comply with the other provisions of the directive.

19. The Government of the Italian Republic contends that the procedure referred to in Article 15 of Law No 903 is an emergency one but emphazises that there is nothing in the directive which requires such a procedure for all cases of discrimination. Article 700 of the Italian Code of Civil Procedure, which is an entirely general rule of procedure, allows the measures required to avoid irremediable damage to be obtained urgently. That provision may be relied upon in all areas where the directive applies and which are not covered by Article 15 of Law No 903.

20. Article 24 of the Italian Constitution, moreover, provides that any person may bring proceedings to protect his rights and lawful interests. That is a constitutional principle of direct application, unchanging and well established in the sense that once the existence of a basic rule protecting an individual interest is established no specific legislative measure is needed to ensure protection thereof since such protection is universally and unconditionally afforded by Article 24 of the Constitution. Workers suffering discrimination may therefore rely on that constitutional provision to ensure observance of the provisions of Law No 903 by means of a court action.

21. The Commission has not contested the explanations given by the Government of the Italian Republic. In those circumstances the complaint cannot be upheld.

22. Since none of the complaints made by the Commission has been upheld the application must be dismissed in its entirety.

23. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if a request has been made to that effect.

24. Since the Commission has been unsuccessful it must be ordered to pay the costs.

On those grounds THE COURT hereby:

1 Dismisses the application;

2 Orders the Commission to pay the costs.