Report for the Hearing delivered in Case 312/86

I — Facts and procedure

1. Legal framework

1.1. Community aspect

On 9 February 1976, the Council adopted 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 (Official Journal L 39, p. 40), hereinafter referred to as the directive) The purpose of the directive is stated in Article 1 (1) thereof which is drafted in the following terms:

Articles 2 and 5 of the directive provide as follows:

Finally, Article 9 of the directive contains the following provisions:

1.2. National aspect

French Law No 83-635 of 13 July 1983 amending the code du travail (Labour Code) and the code pénal (Penal Code) in regard to job equality for men and women (Journal officiel de la République française, 14.7.1983) was adopted inter alia for the purpose of transposing the directive into national law. Article 19 of that law is drafted in the following terms:

Article L 123-1

Article L 123-2

Any term reserving the benefit of any measure to an employee or employees on grounds of sex which is inserted in a collective labour contract or agreement or an individual contract of employment is void save where the purpose of the said term is the implementation of the provisions of Articles L 122-25 to L 122-27, L 122-32 or L 224-1 to L 224-5 of this code. (Those provisions concern pregnancy, nursing and prenatal and postnatal rest.)

Article L 123-3

The purpose and scope of those provisions, and in particular of Article 19, was set out in a circular of 2 May 1984 concerning the implementation of Law No 83-635. Although stating that Article L 123-2 did not apply to measures concerning pregnancy and maternity, the circular indicated that the legislature did not intend to limit the possibility of providing in collective labour agreements for special advantages granted to employees by reason of their family responsibilities. According to the circular: It follows from the terms of Article L 123-2 that only discriminatory treatment on grounds of sex in regard to family advantages is prohibited, since the term is in conformity with the law once one or both parents are entitled to the benefit under identical conditions. With regard to Article 19 of Law No 83-635, it is pointed out that:

2. Background to the dispute

By letter of 14 May 1984, the Commission asked the French authorities to consider the compatibility of Article 19 of Law No 83-635 with Council Directive 76/207. Following the reply of the French Government, the Commission sent a letter to the said government on 6 May 1985 calling on it, under Article 169 of the Treaty, to submit its observations within two months. In its reply, the French Government observed that the French legislature had not wished simply to annul the terms in existing contracts providing women with social advantages because of the attachment of the unions to established positions and their wish to see such advantages extended to all workers. However, an automatic extension of those advantages to all workers would have been contrary to the wish of the public authorities to grant a leading role to union action and collective bargaining in the development of labour law. Since it decided that those observations did not indicate that an amendment of the French legislation would be forthcoming in the short term, the Commission, on 19 March 1986, delivered the reasoned opinion provided for in Article 169 of the Treaty and called upon the French Government to comply therewith within one month. Since no reply was received to the reasoned opinion, the Commission brought the present action.

3. Procedure

The Commission's application was lodged at the Court Registry on 12 December 1986.

The written procedure followed the normal course.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

However, by letter of 16 November 1987, the Court called upon the French Government to supply certain information in writing. That was done within the time-limit laid down.

II — Conclusions of the parties

The Commission, the applicant, claims that the Court should:

The Government of the French Republic, the defendant, contends that the Court should:

III — Submissions and arguments of the parties

1. General observations

In its written pleadings, the French Government first provides a further explanation of the purpose and scope of Article 19 of Law No 83-635. It observes first that the special rights to which the said article refers include, inter alia, the extension of maternity leave, the reduction of working hours, the obtaining of specific holidays (additional holidays for each child, holidays at the start of the school year and holidays where a child is ill), the payment of childcare allowances, the reduction of the retirement age and the award of child premiums.

The unions induced the employers to incorporate those special rights in contracts of employment and collective labour agreements in order to provide additional protection for working women. The French social tradition gives women an essential role in regard to the health and education of children within the family unit. The rights in question are designed to permit her to reconcile that role with the social interest represented by working women. Furthermore, in a country traditionally marked by a low birthrate such as France, and where 60% of working women are mothers, those special advantages contribute to maintaining the birthrate.

2. Article 19 (1) of Law No 83-635

The Commission observes that the action is concerned primarily with Article 19 (1) of Law No 83/635. That provision is contrary to Article 5 (2) (b) of Directive 76/207 according to which Member States must adopt the necessary measures to ensure that any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions are, or may be declared, null and void or may be amended. However, Article 19 (1) prevents the achievement of that aim by expressly permitting the continuance of certain rights which are contrary to the principle of equal treatment.

The Commission is not questioning the special rights covered by the exceptions provided for in Article 2 (3) and (4) of the directive which concern the protection of women, in particular in regard to pregnancy and maternity, and measures designed to promote equal opportunity for men and women, in particular by providing a remedy for the de facto inequalities which affect women's opportunities in the sphere of employment. However, leaving aside those particular cases, Article 19 (1) is contrary to the directive inasmuch as it provides for the continuance of discriminatory situations for an indefinite period, even beyond the date laid down for the transposition of the directive into national law.

According to the Commission, the French Government's arguments are contradictory. On the one hand, the special advantages granted in the past are in conformity with the directive whereas, on the other hand, the same advantages may no longer be included in future contracts. However women have not recently changed to such an extent that, for example, leave granted when a child is ill today meets the needs ot either parent, regardless of sex, whereas it must be regarded as having met only the specific needs of the mother before the entry into force of Law No 83-635.

Finally, the Commission observes that its application is based on the idea that, in accordance with the directive, men and women should be entitled in principle to enjoy the same working conditions. The evolution of society is such that in many cases working men, if they are fathers, must share the tasks previously performed by the wife as regards the care and organization of the family.

The French Government considers that the continuance of special rights for women is justified by the organization of the family and the division of responsibilities therein, in particular, the role of the woman as mother, and by the need to smooth out de facto inequalities. The Commissions conception of those special rights is too restrictive, as if the purpose of the directive was to modify the traditional responsibilities within the family. However, the Court stated in its judgment of 12 July 1984 in Case 184/83 (Hofmann v Banner Ersatzkasse [1984] ECR 3047) that the directive is not designed to settle questions concerned with the organization of the family, or to alter the division of responsibility between parents. In the light of that, the French Government considers that it is wrong to argue that only the protection of women s biological condition and the special relationship between mother and child, or measures designed to overcome de jacto inequalities may justify exceptions to the principle of equal treatment.

In that regard, the French Government claims in particular that it can be seen from the terms of the directive that the granting of special rights to women cannot be reduced merely to rights related to a narrow concept of pregnancy, nursing or motherhood. Thus, Article 2 (3) of the directive provides that the directive is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. Furthermore, the concepts of equal opportunity and existing inequalities in Article 2 (4) of the directive must not be understood solely in the context of the work environment but also in the general social context including, in particular, the way in which, in fact, family responsibilities are divided.

In the view of the French Government, the limitation of the granting of special rights to women to rights linked to a very narrow notion of pregnancy, nursing or maternity also amounts to denying the Member States any margin of discretion, which the Court's case-law has recognized that they have. In the abovementioned judgment of 12 July 1984, the Court emphasized that Directive 76/207 leaves Member States with a discretion as to the social measures which they adopt in order to guarantee, within the framework laid down by the directive, the protection of women in connection with pregnancy and maternity and to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment.

Finally, the French Government observes that the compatibility with the principle of equal treatment of rights granted to women can be judged only in each individual case. It is precisely for that reason that the French legislature chose a flexible and adaptable solution. However, the Commission has not shown how each of the special rights at issue is contrary to the directive.

3. Article 19 (2) of Law No 83-635

The Commission's second complaint concerns Article 19 (2) of Law No 83-635. Article 5 (2) (b) of Directive 76/207 imposes precise obligations on the Member States intended to ensure the achievement of equal treatment, and the first subparagraph of Article 9 (1) of the directive fixes a time-limit within which the Member States must comply with those obligations. However, Article 19 (2) of Law No 83/635 permits the continuance for an indefinite period of discriminatory conditions, by leaving their abolition to the two sides of industry, which are free to abolish them or not, without having to comply with any time-limit. Thus, there is no guarantee making it possible, within a certain time, to correct the failures or inadequacies resulting from collective bargaining.

The French Government considers that the immediate implementation of all the provisions of the directive was scarcely possible having regard to the importance of the social rights at issue and the fact that the two sides of industry were anxious to maintain advantages which had been acquired. Furthermore, it in no way follows from Articles 5 (2) (b) and 9 of the directive that the Member States are required to impose on the two sides of industry the same time-limit of 30 months applicable to the Member State for complying with the directive. Furthermore, it is incorrect to argue, as the Commission does, that the State gives no guarantee that the discriminatory terms will actually be eliminated in the future. Such a guarantee is to be found in the way in which the provisions of the two paragraphs of Article 19 are laid out. Paragraph 2 of that article provides that, although certain special rights are to continue temporarily in force under paragraph 1, those rights must be brought into conformity with the principle of equal treatment. It can be seen from consideration of the collective agreements negotiated or revised that the two sides of industry have not remained inactive in that regard. Furthermore, in French labour law, national collective agreements covering an occupation or profession are subject to an approval procedure which permits the extension of the agreement to the entire occupation or profession involved. That extension makes it possible to verify the legality of the provisions of the agreement. In that way, it is possible to prevent the indefinite continuance of discriminatory measures.

4. Information supplied to the Court

By letter of 16 November 1987, the Court called upon the French Government to state the extent to which, in practice, collective agreements have been renegotiated by virtue of Article 19 (2) of Law No 83-635. In particular, the Court asked for information concerning the number of collective agreements which have been amended to give effect to that provision and the subjects with which those amendments have been concerned.

By letter of 4 February 1988, the French Government indicated that during the period from 1984 to 1987, 16 collective agreements, of which 11 were at national level, were renegotiated by virtue of Article 19 (2). Of those agreements, 12 extended the right to leave when a child is ill to fathers and two of them extended the benefit of provisions concerning the arrangement of working hours granted at the beginning of the school year. Finally, in 1984 two agreements withdrew protective terms' for the benefit only of mothers, without extending them to fathers.

1 Language of the Case: French.