(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

(Art. 226 EC)

(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)

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

Commission of the European Communities, represented by N. Yerrell and H. Kreppel, acting as Agents, with an address for service in Luxembourg,

applicant,

Republic of Austria, represented by H. Dossi and E. Riedl, acting as Agents, with an address for service in Luxembourg,

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, Registrar: R. Grass,

having regard to the written procedure,

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

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

To this end, Member States shall take the measures necessary to ensure that:

(a)any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;

Article 2 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) provides

Definitions

For the purposes of this Directive:

(a)“pregnant worker” shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice;

(b)“worker who has recently given birth” shall mean a worker who has recently given birth within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice;

(c)“worker who is breastfeeding” shall mean a worker who is breastfeeding within the meaning of national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.’

Article 4 of that directive provides:

Assessment and information

For all activities liable to involve a specific risk of exposure to the agents, processes or working conditions of which a non-exhaustive list is given in Annex I, the employer shall assess the nature, degree and duration of exposure, in the undertaking and/or establishment concerned, of workers within the meaning of Article 2, either directly or by way of the protective and preventive services referred to in Article 7 of Directive 89/391/EEC, in order to:

–assess any risks to the safety or health and any possible effect on the pregnancy or breastfeeding of workers within the meaning of Article 2,

–decide what measures should be taken.

Without prejudice to Article 10 of Directive 89/391/EEC, workers within the meaning of Article 2 and workers likely to be in one of the situations referred to in Article 2 in the undertaking and/or establishment concerned and/or their representatives shall be informed of the results of the assessment referred to in paragraph 1 and of all measures to be taken concerning health and safety at work.

Under Article 5 of Directive 92/85:

Action further to the results of the assessment

Without prejudice to Article 6 of Directive 89/391/EEC, if the results of the assessment referred to in Article 4(1) reveal a risk to the safety or health or an effect on the pregnancy or breastfeeding of a worker within the meaning of Article 2, the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided.

If the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required on duly substantiated grounds, the employer shall take the necessary measures to move the worker concerned to another job.

If moving her to another job is not technically and/or objectively feasible or cannot reasonably be required on duly substantiated grounds, the worker concerned shall be granted leave in accordance with national legislation and/or national practice for the whole of the period necessary to protect her safety or health.

The provisions of this Article shall apply mutatis mutandis to the case where a worker pursuing an activity which is forbidden pursuant to Article 6 becomes pregnant or starts breastfeeding and informs her employer thereof.

Article 6 of Directive 92/85 is worded as follows:

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.pregnant workers within the meaning of Article 2(a) may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure, which would jeopardise safety or health, to the agents and working conditions listed in Annex II, Section A;

2.workers who are breastfeeding, within the meaning of Article 2(c), may under no circumstances be obliged to perform duties for which the assessment has revealed a risk of exposure, which would jeopardise safety or health, to the agents and working conditions listed in Annex II, Section B.

Annex I to that directive, entitled ‘Non-exhaustive list of agents, processes and working conditions referred to in Article 4(1)’, states:

Agents

Physical agents, where these are regarded as agents causing foetal lesions and/or likely to disrupt placental attachment, and in particular:

(a)shocks, vibrations or movement;

(b)handling of loads entailing risks, particularly of a dorsolumbar nature;

noise;

(f)extremes of cold or heat;

(g)movements and postures, travelling – either inside or outside the establishment –, mental and physical fatigue and other physical burdens connected with the activity of the worker within the meaning of Article 2 of the directive.

Biological agents

Chemical agents

The following chemical agents in so far as it is known that they endanger the health of pregnant women and the unborn child and in so far as they do not appear in Annex II.

(e)carbon monoxide;

Processes

Underground mining work.’

Annex II to Directive 92/85, headed ‘Non-exhaustive list of agents and working conditions referred to in Article 6’, provides:

Pregnant workers within the meaning of Article 2(a)

Agents

Work in hyperbaric atmosphere, e.g. pressurised enclosures and underwater diving.

Underground mining work.’

The relevant provisions of national law

Article 16 of the Arbeitszeitordnung (rules on working time) of 30 April 1938 (Deutsches RGBl. I, p. 447; GBl.f.d.L.Ö 231/1939, ‘the 1938 rules’) provided:

Prohibited employment

(1)Female workers shall not be employed in mines, saltworks, processing plants, underground quarries or opencast mines, nor shall they be employed above ground in extraction, except processing (separation and washing), transport or loading.

(2)Female workers shall further not be employed in coking plants or in the transport of raw materials for any type of construction.

(3)The Minister for Employment may totally prohibit the employment of female workers, or make it dependent on certain conditions, for particular types of undertakings or work which entails particular risks for health and morality.’

19In 1972 that provision was repealed, except where applicable to underground mines.

20With effect from 1 August 2001 the employment of women in the underground mining industry has been regulated by the Regulation of 2001.

21Article 2 of that regulation, headed ‘Employment in the underground mining industry’, is worded as follows:

‘(1) Female workers shall not be employed in the underground mining industry.

(2) Paragraph 1 shall not apply to:

22Article 4 of that regulation, headed ‘Work entailing particular physical strain’, provides:

‘(1) Female workers shall not be employed in work which through lifting, carrying, pushing, turning or otherwise transporting loads exposes them to particular physical strain involving physiological stress which is harmful to them.

(2) In assessing the work mentioned in paragraph 1, the determining factors to be taken into consideration as regards strain and stress are above all the weight, type and form of the load, the means and speed of transport, the duration and frequency of the work and the fitness of the female workers.

(3) Paragraph 1 shall not apply to work in which female workers are employed for brief periods only or in conditions which are not expected to endanger their life or their health.’

23Article 8 of the regulation of 1973 provides:

‘(1) Only male workers aged 21 or over who are fit for it from the point of view of health may be employed in work in a hyperbaric atmosphere. ...

(2) ...Where the health requirement in paragraph 1 is satisfied, female workers aged 21 or over may also be employed as supervisory staff or in other work in a hyperbaric atmosphere which does not involve any greater physical effort. …’

Under Article 31 of the regulation of 1973:

‘(1) Only those male workers aged 21 or over who are fit for it from the point of view of health and who possess the specialised knowledge and professional experience necessary for health and safety purposes may be employed as divers. ...’

The pre-litigation procedure

(25) Being of the view that both the prohibition laid down in the 1938 rules of the employment of women in the underground mining industry and the similar prohibition concerning work in a hyperbaric atmosphere and diving work were contrary to Community law, the Commission initiated the proceedings under Article 226 EC. Having given the Republic of Austria notice to submit its observations, the Commission issued a reasoned opinion on 7 February 2002 inviting that State to take the measures necessary to comply therewith within a period of two months from its notification. So far as employment in the underground mining industry was concerned, that opinion referred to the 1938 rules and not to the regulation of 2001 which forms the subject-matter of this action and which was cited for the first time in the Austrian Government’s reply to the reasoned opinion.

(26) Considering that the information imparted by the Austrian authorities showed that the failure to fulfil obligations invoked in the reasoned opinion still subsisted, the Commission decided to bring this action.

Concerning the action

With regard to admissibility

Arguments of the Austrian Government

(27) The Austrian Government is of the view that the Commission’s action is inadmissible in so far as it concerns the prohibition of the employment of women in the underground mining industry. It maintains that the Commission’s reasoned opinion and the action must be based on the same grounds. Citing Case C-11/95 Commission v Belgium [1996] ECR I-4115, that government claims that it is only where the measures referred to during the pre-litigation procedure have been maintained in their entirety that amendments to the national legislation adopted between those two procedural stages do not constitute an impediment to the admissibility of the action. The regulation of 2001 did in fact make considerable amendments to the pre-existing situation.

Findings of the Court

(28) 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 reasoned opinion and the application must be based on the same objections (see, inter alia, Case C-227/01 Commission v Spain [2004] ECR I-0000, paragraph 26).

(29) However, that requirement cannot 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 (Case C-139/00 Commission v Spain [2002] ECR I-6407, paragraph 19). To that extent, 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.

(30) The judgment in Commission v Belgium does not run counter to that interpretation. In paragraph 74 of that judgment, the Court held that 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. In so ruling, the Court did not exclude the possibility that it is also 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. Not to accept that the action was admissible in such circumstances could enable a Member State to block proceedings under Article 226 EC by making a slight amendment to its legislation every time a reasoned opinion was notified, while in fact maintaining the legislation at issue.

(31) In the present case, Article 2 of the regulation of 2001 prohibits, as did Article 16 of the 1938 rules, the employment of women in the underground mining industry. Unlike the earlier regulation, it introduces certain exceptions limiting the scope of the prohibition. To accept that the action is admissible in the circumstances of the case does not, however, prejudice the right to due process, inasmuch as it was possible to put forward all the arguments, particularly those of a medical or physical nature, during the pre-litigation procedure and as those arguments are, in essence, those which were pleaded in order to justify a prohibition coupled with exceptions.

(32) In consequence, the objection of inadmissibility raised by the Austrian Government must be rejected.

The prohibition of the employment of women in the underground mining industry

Concerning Directive 76/207

Arguments of the parties

(33) The Commission maintains that Article 2 of the regulation of 2001, which authorises women to be employed in the underground mining industry only in respect of certain restricted activities, is contrary to Article 3(1) of Directive 76/207. In so far as the directive itself contains various restrictions of the prohibition of discrimination, the Commission submits that it cannot be prayed in aid in order to justify the prohibition of employment at issue.

(34) According to the Commission, the activity carried on in the sector of the underground mining industry does not relate to an occupation of the kind referred to in Article 2(2) of that directive.

(35) With regard to the derogation from the principle of equal treatment for men and women provided for by Article 2(3) of Directive 76/207, the Commission argues that the risks to which women are exposed in the underground mining industry are not, generally, different in kind from those to which men are equally exposed.

(36) The Austrian Government, relying on that last provision, contends that Article 2 of the regulation of 2001 is in keeping with Directive 76/207.

(37) According to that Government, working in the underground mining industry involves permanent stress on the locomotory system, in a strained position, linked to work often carried out with the arms raised, in an atmosphere heavy with, inter alia, quartz dust, nitrogen oxide and carbon monoxide with values for temperature and humidity which are most often above average. The consequence for the workers concerned is frequent diseases of the lungs, joints and spinal column (miners’ knee, damage to the intervertebral discs, muscular rheumatism).

(38) On average, mass and muscular strength, vital capacity, absorption of oxygen, blood volume and the number of red blood cells are less in women than they are in men. Women bearing strong physical stresses in their place of work would be exposed to higher risks of abortion and also of osteoporosis when menopausal and would suffer more migraines.

(39) Since women have on average smaller vertebrae, they run more risks than men when carrying heavy loads. Moreover, when they have given birth several times there is an increased risk of injury to the lumbar vertebrae.

(40) According to the Austrian Government, it is clear, therefore, that on account of the morphological differences to be found on average between men and women very strenuous physical labour in the underground mining industry exposes women to more risks, in contrast to the situation with respect, for example, to night work, which exposes women and men to the same stresses.

(41) On this point, the Commission argues in particular that the Austrian Government itself declared during the pre-litigation procedure that ‘the range of energy variables is wide, there are considerable areas of overlap with values for men and an individual assessment ought to be carried out’.

Findings of the Court

(42) In accordance with Article 3(1) of Directive 76/207, application of the principle of equal treatment means that there is to be no discrimination whatsoever on grounds of sex in the conditions for access to all jobs or posts. It is not disputed that Article 2(1) of the regulation of 2001 treats men and women differently so far as employment in the mining industry is concerned. Since the Austrian Government has pleaded the derogation provided for by Article 2(3) of that directive, it has to be considered whether such a difference in treatment is covered by that provision and is therefore authorised.

(43) As the Court pointed out in Case C-394/96 Brown

[1998] ECR I-4185, paragraph 17, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman’s biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.

It is precisely because certain activities may present a specific risk of exposure to hazardous agents, processes or working conditions for a pregnant worker or for one who is breast-feeding or who has recently given birth that the Community legislature, by adopting Directive 92/85, introduced the requirement to evaluate and communicate risks, and a prohibition of the exercise of certain activities.

Nevertheless, Article 2(3) of Directive 76/207 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 (see, to this effect, Case 222/84 Johnston [1986] ECR 1651, paragraph 44, and Case C-285/98 Kreil [2000] ECR I-69, paragraph 30).

Nor may women be excluded from a certain type of employment solely because they are on average smaller and less strong than average men, while men with similar physical features are accepted for that employment.

In this case, while it is true that the regulation of 2001 does not prohibit the employment of women in the underground mining industry without having provided exceptions to that prohibition, the fact nevertheless remains that the ambit of the general prohibition in Article 2(1) of that regulation is very wide, inasmuch as it excludes women even from work that is not physically strenuous and that does not, therefore, present any specific risk to the preservation of a woman’s biological capacity to become pregnant and to give birth, or to the safety or health of the pregnant worker or for one who is breast-feeding or who has recently given birth, or to the foetus.

The exception provided for by Article 2(2)(1) of that regulation in fact refers only to management posts and technical tasks undertaken by women with management responsibilities who are therefore situated at a high grade in the hierarchy. The exception contained in Article 2(2)(2) concerns only female workers employed in the social or health services, and Article 2(2)(3) and (4) deal only with specific situations limited in time.

Such legislation goes beyond what is necessary in order to ensure that women are protected within the meaning of Article 2(3) of Directive 76/207.

It follows that the general prohibition of the employment of women in the underground mining industry laid down in Article 2(1) of the regulation of 2001, even though read in conjunction with subparagraph 2 of that article, does not constitute a difference in treatment permissible under Article 2(3) of Directive 76/207.

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

The Austrian Government argues that, irrespective of the medical reasons relied on, restrictions on the employment of women in the underground mining industry, within the limits laid down by the new legislation, are also justified by the fact that the Republic of Austria is bound by Convention No 45 of the I.L.O., which it ratified in 1937.

According to that Government, having regard to Case C-158/91 Levy [1993] ECR I-4287, paragraph 17 et seq., and Case C-13/93 Minne [1994] ECR I-371, paragraph 19, it is in any case licit for the Member States to assert the rights conferred on them by such treaties. It follows that the Austrian Government, being bound to transpose into domestic law the prohibition of employment laid down in Convention No 45 of the I.L.O., is not obliged to apply in this respect Articles 2 and 3 of Directive 76/207.

The Commission argues that the conclusion drawn by the Austrian Government from Levy and Minne is too general.

According to the Commission, the interpretation of Article 307 EC given by the Court in Case C-84/98 Commission v Portugal [2000] ECR I-5215, paragraphs 51 and 53, can be transposed direct to the present case. Article 7 of Convention No 45 of the I.L.O. contains a denunciation clause. It is unarguable that the Republic of Austria could have denounced that convention with effect from 30 May 1997, that is to say, a date after that on which the directive became binding on it by reason of the ratification of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3). The Republic of Austria was, in the Commission’s view, required to denounce the convention pursuant to Article 3(2) of Directive 76/207.

The Austrian Government counters that it could not have known that the law applicable in that field in Austria was contrary to Community law, or that the Commission considered the provisions in question to be contrary to Community law. The Commission’s first letter on the subject was dated 29 September 1998. It follows that Convention No 45 of the I.L.O. could be denounced on 30 May 2007 at the earliest.

Commission v Portugal does not, according to the Austrian Government, impose any general obligation on the Member States to denounce international agreements when they are contrary to Community law. That interpretation, it argues, follows also from Case C-475/98 Commission v Austria [2002] ECR I-9797, paragraph 49, in which the Court held, concerning ‘open skies’ agreements, that in the case of amendments to such an agreement concluded before accession, the Member States are prevented not only from contracting new international commitments but also from maintaining such commitments in force if they infringe Community law. If there existed a general obligation to denounce agreements contrary to Community law, it would not have been necessary to establish that the entire agreement was confirmed when certain parts of it were amended.

It follows from the third paragraph of Article 307 EC that the obligations arising from agreements concluded, by 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, are not affected by the provisions of the EC Treaty.

The Republic of Austria, which acceded to the European Community with effect from 1 January 1995, ratified Convention No 45 of the I.L.O. before that date. Article 2 of that convention contains a general prohibition of the employment of women in underground work in mines and Article 3 permits a few exceptions of the same kind as those provided for in the regulation of 2001. It is common ground that that regulation implements the obligations imposed by the convention without going beyond the restrictions on the employment of women laid down therein.

In those circumstances, while it is true that the Republic of Austria may, in principle, rely on the first paragraph of Article 307 EC to maintain in force the provisions of domestic law implementing the abovementioned obligations, the fact remains that the second paragraph of that article states that, to the extent that earlier agreements within the meaning of the first paragraph of the article are not compatible with the Treaty, the Member State or States concerned are to take all appropriate steps to eliminate the incompatibilities established.

In light of the conclusion reached by the Court in paragraph 50 above, the obligations imposed on the Republic of Austria by Convention No 45 of the I.L.O. are incompatible with Articles 2 and 3 of Directive 76/207.

As is apparent from paragraph 50 of Case C-62/98 Commission v Portugal [2000] ECR I-5171, the appropriate steps for the elimination of such incompatibility referred to in the second paragraph of Article 307 EC include, inter alia, denunciation of the agreements in question.

None the less, it must be noted that the only occasion on which the Republic of Austria could, following its accession to the European Community, have denounced Convention No 45 of the I.L.O. was, in accordance with the rules laid down in Article 7(2) of the convention, during the year following 30 May 1997. At that time, the incompatibility of the prohibition laid down by that convention with the provisions of Directive 76/207 had not been sufficiently clearly established for that Member State to be bound to denounce the convention.

It may appropriately be added that, as Article 7(2) of Convention No 45 of the I.L.O. makes clear, the next opportunity for the Republic of Austria to denounce the convention will occur on the expiry of another period of ten years running from 30 May 1997.

It follows that, by maintaining in force national provisions such as those contained in the regulation of 2001, the Republic of Austria has not failed to fulfil its obligations under Community law.

It follows from the foregoing considerations that the action must be dismissed in so far as it concerns the prohibition of the employment of women in the sector of the underground mining industry.

The Commission considers that its observations on the prohibition of the employment of women in the underground mining industry apply in the same way to the prohibition of the employment of women in work to be carried out in a high-pressure atmosphere and in diving work. A general prohibition of the employment of women laid down without any individual assessment cannot be justified by women’s alleged special needs of protection.

In the Austrian Government’s opinion, the restrictions on employment contained in Articles 8 and 31 of the regulation of 1973 are also justified on medical grounds relating specifically to women’s activity.

That Government argues that in most cases work to be carried out in a high-pressure atmosphere and diving work involve significant physical stress, for example, in the construction of underground railways in a high-pressure atmosphere or in the carrying out of under-water repairs to bridges. Prohibiting the employment of women in physically very demanding work in a high-pressure atmosphere and their employment in diving work is justified because their respiratory capacity is less than men’s and because they have a lower red blood cell count.

An absolute prohibition of the employment of women in diving work does not constitute a difference in treatment permitted under Article 2(3) of Directive 76/207.

The range of diving work is wide and includes, for instance, activity in the fields of biology, archaeology, tourism and police work.

The absolute prohibition laid down in Article 31 of the regulation of 1973 excludes women even from work that does not involve significant physical stress and thus clearly goes beyond what is necessary to ensure that women are protected.

With regard to employment in a high-pressure atmosphere, the regulation of 1973 excludes women from work that places excessive strain on their bodies.

In so far as the Austrian Government claims that women have lesser respiratory capacity and a lower red blood cell count in order to justify such exclusion, it relies on an argument based on measured average values for women to compare them with those for men. However, as that Government itself acknowledged during the pre-litigation procedure, as regards those variables there are significant areas of overlap of individual values for women and individual values for men.

In those circumstances legislation that precludes any individual assessment and prohibits women from entering the employment in question, when that employment is not forbidden to men whose vital capacity and red blood cell count are equal to or lower than the average values of those variables measured for women, is not authorised by virtue of Article 2(3) of Directive 76/207 and constitutes discrimination on grounds of sex.

In light of the foregoing considerations, it must be declared that, by maintaining in Articles 8 and 31 of the regulation of 1973 a general prohibition of the employment of women in work in a high-pressure atmosphere and in diving work, providing a limited number of exceptions in the former case, the Republic of Austria has failed to fulfil its obligations under Articles 2 and 3 of Directive 76/207.

Costs

Under the first subparagraph of Article 69(3) of the Rules of Procedure, the Court may order that the costs should be shared or decide that the parties are to bear their own costs, where each party succeeds on some and fails on other heads. Since the Commission has been successful only in part, the parties are to bear their own costs.

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

1.Declares that, by maintaining in Articles 8 and 31 of the Druckluft- und Taucherarbeiten-Verordnung (Regulation on work in a high-pressure atmosphere and diving work) of 25 July 1973 a general prohibition of the employment of women in work in a high-pressure atmosphere and in diving work, providing a limited number of exceptions in the former case, the Republic of Austria has failed to fulfil its obligations under Articles 2 and 3 of 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;

2.Dismisses the remainder of the action;

3.Orders the parties to bear their own costs.

[Signatures]

1Language of the case: German.