Case C-203/03

Commission of the European Communities

v

Republic of Austria

(Failure of a Member State to fulfil obligations – Articles 249 EC and 307 EC – Articles 2 and 3 of Directive 76/207/EEC – Equal treatment for men and women – Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work)

Opinion of Advocate General Jacobs delivered on 8 July 2004

Judgment of the Court (Grand Chamber), 1 February 2005.

Summary of the Judgment

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determined during the pre-litigation procedure – Alteration of the objections after the issue of the reasoned opinion, on account of an amendment to the national legislation – Whether permissible

(Art. 226 EC)

2. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Derogations – Protection of women – Scope – Prohibition of the employment of women in the underground mining industry, in work to be carried out in a high-pressure atmosphere and in diving work – Not permissible

(Council Directive 76/207, Art. 2(3))

1. While it is true that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, the Commission’s reasoned opinion and the application must be based on the same objections, that requirement cannot, however, go so far as to mean that in every case the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited.

Thus, where legislation is altered during the pre-litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion. In so far as it is sufficient that the system established by the legislation contested in the pre-litigation procedure has, on the whole, been maintained by the new measures which were adopted by the Member State after the issue of the reasoned opinion and have been challenged in the application, it is not inconceivable that it should also be sufficient that the new measures should introduce some exceptions into the system forming the subject-matter of the reasoned opinion, thus redressing in part the ground for complaint.

(see paras 28-30)

2. Article 2(3) of 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, while allowing some differences in treatment with a view to protecting women in connection with pregnancy and maternity, nevertheless does not allow women to be excluded from a certain type of employment solely on the ground that they ought to be given greater protection than men against risks which affect men and women in the same way and which are distinct from women’s specific needs of protection, such as those expressly mentioned.

Consequently, neither the general prohibition of the employment of women in the underground mining industry and in work in a high-pressure atmosphere, although qualified by exceptions, nor the absolute prohibition of the employment of women in diving work constitutes a difference in treatment permitted under that provision.

(see paras 43, 45, 50, 69, 74)

JUDGMENT OF THE COURT (Grand Chamber) 1 February 2005 (1)

(Failure of a Member State to fulfil its obligations – Articles 249 EC and 307 EC – Articles 2 and 3 of Directive 76/207/EEC – Equal treatment for men and women – Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work)

In Case C-203/03, ACTION under Article 226 EC for failure to fulfil obligations, brought on 12 May 2003

applicant,

v

defendant,

THE COURT (Grand Chamber),,

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric (Rapporteur), J. Malenovský, J. Klučka, U. Lõhmus and E. Levits, Judges,

Advocate General: F.G. Jacobs,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 8 July 2004,

gives the following

the Republic of Austria has failed to fulfil its obligations under Articles 2 and 3 of that directive and under Articles 10 EC and 249 EC, and to order the Republic of Austria to pay the costs.

and, in so far as the Court should consider the action admissible,

‘No female, whatever her age, shall be employed on underground work in any mine.’

‘National law or regulations may exempt from the above prohibition:

(a) females holding positions of management who do not perform manual work;

(b) females employed in health and welfare services;

(c) females who, in the course of their studies, spend a period of training in the underground parts of a mine; and

(d) any other females who may occasionally have to enter the underground parts of a mine for the purpose of a non-manual occupation.’

‘1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention at the expiration of each period of ten years under the terms provided for in this Article.’

‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.

To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.’

‘1.

2.

3.‘1.

2.…’

‘Definitions

For the purposes of this Directive:

‘Assessment and information

1.

2.‘Action further to the results of the assessment

1.

2.

3.

4.‘Cases in which exposure is prohibited

In addition to the general provisions concerning the protection of workers, in particular those relating to the limit values for occupational exposure:

1.

2.(b)

(c)

…

f)

g)

2.

3.C.

‘Prohibited employment

Arguments of the Austrian Government

Findings of the Court

Concerning Directive 76/207

– Arguments of the parties

– Findings of the Court

Concerning Article 307 EC and Convention No 45 of the I.L.O.

– Arguments of the parties

– Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds, the Court (Grand Chamber) hereby:

[Signatures]