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Opinion of Mr Advocate General Tesauro delivered on 9 December 1993. # Office National de l'Emploi v Madeleine Minne. # Reference for a preliminary ruling: Cour du travail de Liège - Belgium. # Directive 76/207/EEC - Night-work for women. # Case C-13/93.
ECLI:EU:C:1993:924
61993CC0013
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Important legal notice
61993C0013
European Court reports 1994 Page I-00371
Opinion of the Advocate-General
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Mr President, Members of the Court, 1. This is a case which once again presents the Court with a conflict between the principle of equal treatment set out in Article 5 of Directive 76/207/EEC (1) and national provisions which, in accordance with what is prescribed under ILO Convention No 89 of 9 July 1948, set limits on the amount of night-work that women may perform.
4. Mrs Minne brought legal proceedings and succeeded in having that decision set aside. The court which set the decision aside took the view that the relevant national provisions prohibited women from working at night (between midnight and 6 a.m.) in the hotel and catering sector and that it could for that reason not be argued that Mrs Minne had refused suitable employment.
5. In the subsequent appeal, the appellate court decided to stay the proceedings and ask the Court of Justice whether the principle of equal treatment set out in Article 5 of Directive 76/207/EEC precluded the application of national legislation which prohibited only women from working at night within the relevant sector.
8. It is admittedly true, as the Court reaffirmed in that decision, that Article 5 of Directive 76/207/EEC, which sets out the principle of equal treatment for men and women, is a directly applicable provision, and that that rule precludes the application of national legislation which limits night-work for women but does not provide similar limits for male workers. It is, however, also true that, according (once again) to Article 234 of the Treaty, a national court is not under an obligation to ensure full compliance with Article 5 of Directive 76/207, by setting aside, if necessary, any contrary national legislation, if compliance with the national provisions in question is otherwise necessary in order to ensure implementation by the Member State in question of obligations assumed vis-à-vis a third country pursuant to a convention, such as ILO Convention No 89 of 9 July 1948, concluded prior to the entry into force of that Treaty.
(*) Original language: Italian.
(1) - Council 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 (OJ 1976 L 39, p. 40).
(2) - Judgment of 2 August 1993 in Case C-158/91 Levy, not yet published in the ECR.