Judgment of the Court of 26 October 1983. - Commission of the
European Communities v Italian Republic. - Failure of a State to fulfil
its obligations - Equal treatment for men and women. - Case 163/82.
European Court reports 1983 Page 03273
Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
1 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - IMPLEMENTATION BY MEMBER STATES - POWER OF MEMBER STATES - FORM AND METHOD OF IMPLEMENTATION - SCOPE
( EEC TREATY , ART . 189 , THIRD PARA .)
SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUALITY OF TREATMENT - IMPLEMENTATION BY THE MEMBER STATES - OBLIGATION - SCOPE
( COUNCIL DIRECTIVE 76/207 , ART . 5 )
2.SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND TO WORKING CONDITIONS - EQUALITY OF TREATMENT - DIFFERENCE IN TREATMENT BETWEEN AN ADOPTIVE FATHER AND ADOPTIVE MOTHER WITH REGARD TO MATERNITY LEAVE - DISCRIMINATION - ABSENCE
( COUNCIL DIRECTIVE 76/207 , ART . 5 )
3.SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUALITY OF TREATMENT - REMEDIES FOR BREACH OF THE PRINCIPLE - APPLICATION OF THE GENERAL PROCEDURAL RULES OF NATIONAL LAW - PERMISSIBILITY
( COUNCIL DIRECTIVE 76/207 , ART . 6 )
1 . ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY A DIRECTIVE IS BINDING AS TO THE RESULT TO BE ACHIEVED UPON EACH MEMBER STATE TO WHICH IT IS ADDRESSED , BUT LEAVES TO THE NATIONAL AUTHORITIES THE CHOICE OF FORM AND METHODS . IN TRANSLATING INTO THE NATIONAL LEGAL SYSTEM THE PRINCIPLE OF EQUALITY OF TREATMENT IN ARTICLE 5 OF DIRECTIVE 76/207 THE LEGISLATURE OF A MEMBER STATE CANNOT BE CRITICIZED FOR HAVING ADOPTED A NUMBER OF SPECIFIC PROVISIONS IN RELATION TO THE MOST IMPORTANT WORKING CONDITIONS WHILST CONFINING ITSELF IN RELATION TO OTHER WORKING CONDITIONS TO A GENERAL PROVISION COVERING ALL OTHER WORKING CONDITIONS NOT SPECIFICALLY MENTIONED , UNLESS IT IS SHOWN THAT THE RESULT SOUGHT BY THE DIRECTIVE HAS NOT IN FACT BEEN ATTAINED .
2.IT IS NOT POSSIBLE TO REGARD AS DISCRIMINATION WITHIN THE MEANING OF DIRECTIVE 76/207 THE DIFFERENCE IN TREATMENT RESULTING FROM THE APPLICATION OF A PROVISION OF NATIONAL LAW TO THE EFFECT THAT THE ADOPTIVE FATHER DOES NOT HAVE THE RIGHT GIVEN TO THE ADOPTIVE MOTHER OF MATERNITY LEAVE FOR THE FIRST THREE MONTHS FOLLOWING THE ACTUAL ENTRY OF THE CHILD INTO THE ADOPTIVE FAMILY . THAT DISTINCTION IS JUSTIFIED BY THE LEGITIMATE CONCERN TO ASSIMILATE AS FAR AS POSSIBLE THE CONDITIONS OF ENTRY OF THE CHILD INTO THE ADOPTIVE FAMILY TO THOSE OF THE ARRIVAL OF A NEW-BORN CHILD IN THE FAMILY DURING THE VERY DELICATE INITIAL PERIOD .
3.THERE IS NO INFRINGEMENT OF ARTICLE 6 OF DIRECTIVE 76/207 WHEN THE NATIONAL LAW IMPLEMENTING THE DIRECTIVE LIMITS THE REMEDIES PROVIDED THEREBY TO INFRINGEMENT OF CERTAIN PROVISIONS OF THE DIRECTIVE PROVIDED THAT THE GENERAL PROCEDURAL RULES OF THE NATIONAL LAW ALLOW ANY PERSON TO BRING ANY OF THE MATTERS COVERED BY THE DIRECTIVE BEFORE THE COURTS .
IN CASE 163/82
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ARMANDO TOLEDANO LAREDO , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE LEGAL DEPARTMENT OF THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,
APPLICANT ,
V
ITALIAN REPUBLIC , REPRESENTED BY PIER GIORGIO FERRI , AVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,
DEFENDANT ,
APPLICATION FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO ENSURE COMPLIANCE WITH 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 ( OFFICIAL JOURNAL , L 39 , P . 40 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ,
2.TO THIS END , MEMBER STATES SHALL TAKE THE MEASURES NECESSARY TO ENSURE THAT :
13 ARTICLE 4 OF LAW NO 1204 OF 30 DECEMBER 1971 PROVIDES THAT WOMEN MAY NOT BE EMPLOYED :
( A ) DURING THE TWO MONTHS IMMEDIATELY PRECEDING THE EXPECTED DATE OF CONFINEMENT ;
( C)DURING THE THREE MONTHS FOLLOWING CONFINEMENT .
COSTS
23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF A REQUEST HAS BEEN MADE TO THAT EFFECT .
24 SINCE THE COMMISSION HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS .