Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. In Case 248/83, initiated by an application lodged at the Court Registry on 9 November 1983, the Commission of the European Communities is carrying forward its battle for the clarification and correct implementation by the Member States of Directives (EEC) Nos 75/117 and 76/207. As the Court will be aware, those measures provide for the approximation of the national laws relating to the application of the principle of equal pay for men and women (Official Journal 1975, L 45, p. 19) and the implementation of the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions (Official Journal 1976, L 39, p. 40).
2. That is the background to the present action, the essential purpose of which, according to the Commission, is to obtain a declaration that the Federal Republic has implemented the measures in question in a manner that is both fragmentary and inadequate. In other words, according to the applicant, this is a classic example of the failure of a Member State to fulfil its obligations under a directive. The defendant disagrees. It contends that since in the areas indicated by the Commission the German legislation adequately meets, in constitutional terms and in view of its direct applicability, the objectives pursued by the Community, this is a case which calls for dispensation from the obligation to implement the directive. The German Government's opinion is essentially that this case is a clear example of the situation which authoritative legal writers have defined as preexisting conformity (at Community level).
3. To begin with, I would point out that, contrary to the view expressed by the German Government, the Court has never recognized, not even by implication, that a directly applicable constitutional principle is sufficient to transpose a directive into national law. In its judgment of 26 October 1983 in Case 163/82 (Commission v Italy [1983] ECR 3273), the Court merely quoted the explanations given by the Italian Government and stated that the Commission had not been able to contest them. That government, moreover, explained on the same occasion the operation of Article 24 of the Italian Constitution (which provides that any person may have recourse to the courts in order to safeguard his rights). It contended that once the existence of a basic rule protecting an individual interest is established (as a general rule) no specific legislative measure is needed to protect that interest since such protection is universally and unconditionally afforded by a superior rule of law. In other words, Article 24 was relied upon as a final provision in a system already containing a large number of substantive and procedural provisions (namely those which the Italian Government took care to indicate first).
4. I would remind the Court that the first complaint against the Federal Republic is that it failed to incorporate the provisions of Directive No 76/207 into national law with regard to employment relationships in the public sector. The Commission contends that paragraph 611 a, which has recently been inserted into the Civil Code, applies only to employment relationships in the private sector. Consequently, there are no specific rules which genuinely ensure equal access to employment in the public service for men and women. The German Government replies in the first place that in view of the restriction contained in Article 48 (4) of the Treaty, the directive does not apply to the public service. However, that objection, which in any event was only raised intermittently during the proceedings, is clearly a delaying tactic. Accordingly no purpose is served by considering its merits.
5. Essentially similar broad considerations can be put forward with regard to the Commission's second complaint against the Federal Republic, namely that it failed to transpose into national law Directive No 75/117 with regard to equal pay for men and women in the public sector. In that respect too, the German Government relies in its defence chiefly on the direct effect and binding nature of Article 3 of the Constitution. Moreover, it puts forward a subsidiary argument to the effect that the classification of employees' salaries according to function and grade is sufficient to preclude discriminatory treatment.
6. The third complaint against the Federal Republic is that it failed to transpose into national law Directive No 76/207 with regard to self-employed persons. The German Government rejects that charge by referring to Article 12 of the Constitution which guarantees that all Germans shall have the right freely to choose their trade, occupation or profession and consequently excludes, in conjunction with Article 3, any possibility of discrimination on grounds of sex. Moreover, it adds in its defence that where access to a liberal profession is subject to administrative authorization, the courts can require the authorities to allow a citizen who has been discriminated against to take up and pursue the activity in question (paragraph 42 of the Verwaltungsgerichtordnung [Code of Administrative Procedure]).
7. The fourth complaint is concerned with Article 2 (2) of Directive No 76/207, which requires the Member States to define precisely the occupational activities which they wish to exclude from the scope of the principle of equal treatment. In the Commission's view, the States to which that provision is addressed have largely complied with it by compiling lists which, though they are not always entirely satisfactory, set out the activities which are excluded. Since the Federal Republic has not done so, the Commission cannot verify whether that State has complied with the Community rules in accordance wth Article 9 (2).
8. The fifth complaint against the Federal Republic is that it transposed Directive No 76/207 into national law to an insufficient extent as regards offers of employment. The Commission contends that, for the purposes of Article 3 (application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions... for access to all jobs or posts), national rules governing offers of employment fall within the concept of conditions... for access and are therefore subject to Community legislation. It follows that the Member States are also obliged to prohibit any discrimination in that regard. In providing that an employer may not advertise posts as being solely for men or women (paragraph 611 b of the German Civil Code), the Federal Republic adopted a rule which is not mandatory and, for that reason, cannot satisfy the requirements of certainty laid down by the Community legislature.
9. Mr President, Members of the Court, I should like to make a final observation: As I said earlier, the application now before the Court seeks to guarantee to all those concerned, and in particular to nationals seeking employment, the clarity and certainty which are essential if Community rules on equal pay and equal treatment as regards access to employment are to be effectively complied with. The Commission has sought to demonstrate that two important sectors in the Federal Republic, namely the public service and the liberal professions, do not benefit from the protection provided by the Council. In denying that this was the case, the German Government relied essentially on the highest-ranking provisions in the State, those which by their status in the hierarchy of norms exert an influence on the legislature, the courts and the administration. By now the Court is aware of my views in that regard. Perhaps, therefore, I may be allowed to examine what might be the consequences of accepting that argument.
10. For all the foregoing reasons, I propose that the Court should declare that, by failing to adopt all the measures necessary to comply with Directive No 76/207 on the implementation of the principle of equal treatment of men and women as regards access to employment, and with Directive No 75/117 on the approximation of the national laws relating to the application of the principle of equal pay, the Federal Republic of Germany has failed to fulfil its obligations under Article 189 of the EEC Treaty.
1 Translated from the Italian.
2 In its application, the Commission contended that the Mutterschutzgeseiz [German Law on Protection for Mothers] was also incompatible with Directive No 76/207, but it withdrew that contention following the judgment of the Court of 12 July 1984 in Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047.