Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. Mr Stoeckel, who is being prosecuted by the Ministère Public (Public Prosecutor's Office) for infringement of Article L 213-1 of the French Code du Travail (Labour Code), which prohibits, subject to certain exceptions, nightwork by women, contended before the Tribunal de Police (local criminal court), Illkirch, that that provision was contrary to Article 5 of 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(hereinafter referred to as the Directive).
2. As we know, and as is apparent from the very title of the measure, the Directive is intended to give effect in the Member States to the principle of equal treatment for men and women regarding access to employment, including promotion, vocational training and working conditions (Article 1). Pursuant to Article 2(1), that principle means that there is to be no discrimination on grounds of sex either directly or indirectly by reference in particular to marital or family status. Among the exceptions provided for in the following paragraphs of that article, it is appropriate to mention the fact that paragraph 3 provides that the Directive is to be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
3. In the French legislation, Article L 213-1 of the Code du Travail lays down the principle whereby nightwork by women is prohibited, providing in particular that Women may not be employed on any nightwork in plants, factories, mines or quarries, sites, workshops and appurtenances thereof, of any kind whatsoever, whether public or private, secular or religious, even where such establishments are for vocational teaching or pursue charitable objects, or in public or ministerial offices, establishments associated with the liberal professions, noncommercial undertakings, trade unions or organizations or associations of any kind whatsoever. The following paragraph provides for a number of exceptions for women holding management posts or executive technical posts and for women employed in health and welfare services who do not normally undertake manual work. The third paragraph makes an exception to the prohibition, inter alia in cases where such an exception is in the national interest, and for shiftwork. In the latter case an order is necessary as to the applicability of a collective agreement or a branch or company agreement, with the authorization of the Inspecteur du Travail (Labour Inspector). Failure to comply with these requirements is penalized by fines.
4. I will describe, albeit briefly, the origins of legislation of this kind. The prohibition of nightwork by women in the past represented a victory for the working classes, forming part of legislation intended to protect in particular women and children, in other words those who were regarded as the weakest members of society, exposed to the most risks.
5. The main arguments supporting legislation of that kind, when it was adopted, were medical, social, political and economic. It was contended that since women were denied civil and political rights, such as the right to vote, they were exposed to greater risk in the absence of statutory protection. Female workers were then regarded as physically weaker and thus more vulnerable to certain consequences of nightwork, such as the possibility of physical or mental problems. In addition, concern was expressed about the risks to which women might be exposed when going to their place of work at night and it was also regarded as somewhat inappropriate that women should undertake nightwork in the company of workers of the opposite sex.
6. It is apparent from what I have said that the present case is concerned with provisions which are intended by the legislature to protect women in their role as workers. When considering such legislation is it therefore necessary first to decide whether or not it falls within the derogation contained in Article 2(3) of the Directive laying down provisions for the protection of women.
7. If, therefore, it follows from the foregoing that legislation intended to protect women must, in order to fall within the derogation under Article 2(3), protect female workers in relation to characteristics that are specific to women, it is necessary to establish whether nightwork actually involves greater risks for the female population.
8. The objection relating to the increased risk of attack to which women are allegedly exposed at night likewise does not seem to me to provide justification for limiting the scope of an essential right such as that of equal treatment regarding working conditions.
9. In my opinion legislation of that kind could not be justified under Article 5(2)(c) of the Directive, pursuant to which, as has been pointed out, the Member States are required to take the measures necessary to ensure that a review is carried out of those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded.
10. The issue of the direct effect of Article 5 seems to me already to have been resolved affirmatively by the case-law of the Court, according to which Article 5 does not confer on the Member States any right to impose conditions on or restrict the application of the principle of equal treatment in the area appropriate to it. Furthermore, the provision is sufficiently precise and unconditional to be relied on by individuals before the national courts in order to secure the disapplication of any national provision which is not in conformity with Article 5(1).
11. Finally, I likewise reject the view that the fact that France is a party to ILO Convention No 89 can in any way detract from the conclusion that I have reached.
12. In the light of the foregoing considerations, I propose that the question submitted by the Tribunal de Police, Illkirch, be answered as follows:
1 Original language: Italian.
2 OJ 1976 L 39, p. 40.
3 See Repon V, 1, on Night Work, published by the International Labour Conference, 76th Session, International Labour Office, Geneva, and Pettiti, Le travail de nuit des femmes. Aspects nationaux et internationaux, Droit Social 1988, p. 302.
4 See the judgment in Joined Cases 75 and 117/82 Razzouk [1984] ECR 1509, paragraph 16, and the judgment in Case 149/77 Defrnne [1978] ECR 1365, paragraphs 26 and 27.
5 See the judgment in Case 222/84 Johnson v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 44.
6 See the judgment in Case 184/83 Hofmann [1984] ECR 3047, paragraph 25, and the judgment in Case 163/82 Commission v Italy [1983] ECR 3273, paragraph
7 See the judgment in Case 312/86 Commission v France [1988] ECR 6315, paragraph 14.
8 See Pettiti, above, p. 303.
9 Johnson, above, paragraph 44.
10 See the judgment in Case 152/84 Marshall [1986] ECR 723, paragraph 55, and the judgment in Case 188/89 roer[1990] ECR I-3313, paragraph 21.
11 See Annex 1 to the Commission's observations. Under Article 15 of Convention No 89, it can be denounced, by one year's notice, every ten years as from 27 February 1961, in the following twelve months.
12 Judgment No 210 of 9 July 1986, Gazzetta Ufficiale della Repubblica Italiana, No 38 of 1 August 1986, p. 17.