Employment in underground work in mining

Case C 203/03, CJEU, Luxembourg, 1 February 2005, Commission of the European Communities v Republic of Austria;

Ground: Prohibition of the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work – Incompatibility with Articles 2 and 3 of Directive 76/207/EEConequaltreatment.

The abstract of the Judgment

In this action filed and based on the Article 226 EC, the Commission claims that the Austrian legislation that prohibits the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work is incompatible with Articles 2 and 3 of Directive 76/207/EEConequaltreatment  (2) (“The Directive”). With the request of 29 September 1998, the Commission required from Austrian authorities detailed information on the employment of women in underground work in mining or in a high-pressure atmosphere or in diving work. The Republic of Austria agreed to this request with the letter of 2 March 1999. The Republic of Austria sent to the Commission the relevant provisions of the regulation of 1973 and of the 1938 rules referring to the derogation of the Article 2(3) of the Directive and explicitly stated that had no intention to change the rules on the employment of women in underground work. The fact that the prohibition of women to work in hyperbaric atmosphere has two restricted exceptions (in contrast with the general prohibition for women in diving work that does not accept exceptions) does not make it compliant with the Directive. Firstly, the Court has stated clearly that the principle of equal treatment does not allow a general exclusion of women from a certain employment, even if there are exceptions, such an employment is not prohibited for men. Secondly, it is obvious in every case that exclusions are not justified objectively under the Article 2(3) because they allow women to have a supervisory role or to work in hyperbaric atmosphere, which is not related to an excessive physical exertion of their bodies. Consequently, they are not in the category of files related to pregnancy or maternity envisaged in the Article 2(3).