## Facts

- Jean-Claude Levy managed a French company that employed women on night shifts in an industrial undertaking.
- French labor law, reflecting ILO Convention No. 89, prohibited night work by women in certain sectors but did not impose an equivalent prohibition on men.
- Levy was criminally prosecuted in France for violating the statutory ban by employing 23 women on night shifts.
- Levy argued the national prohibition was incompatible with EU equal-treatment rules because it discriminated on grounds of sex and should be set aside.
- The Tribunal de police de Metz stayed the criminal case and referred questions to the Court of Justice for a preliminary ruling.

## Issues

1. Whether a national rule prohibiting night work only for women (with no comparable rule for men) breaches Article 5 of Directive 76/207/EEC on equal treatment in working conditions.
2. If the national rule breaches Article 5, whether it must nevertheless be applied to the extent necessary to enable France to comply with obligations under a pre-Treaty international agreement protected by Article 234 EEC (now Article 351 TFEU).

## Decision

- The Court held that a blanket prohibition of night work applicable only to women, without an analogous prohibition for men, is contrary to Article 5 of Directive 76/207.
- The Court held that Article 5 of Directive 76/207 is sufficiently clear, precise, and unconditional to have direct effect, requiring national courts in principle to disapply conflicting national provisions.
- The Court further held that, under Article 234 EEC, a national court must apply the conflicting national provision if, and to the extent that, applying it is necessary to ensure performance of the Member State’s obligations under a pre-Treaty agreement with non-member countries (here, ILO Convention No. 89).
- The Court left to the referring court the factual and legal assessment of whether the French prohibition was necessary, and to what extent, to avoid breach of the protected international obligation.

## Legal Principles

- Sex-based differences in working conditions imposed by national law fall within Article 5 of Directive 76/207 and are prohibited unless covered by an express derogation.
- Article 5 of Directive 76/207 may be invoked before national courts because it has direct effect.
- National courts must secure the effectiveness of directly effective EU rules by refusing to apply incompatible national measures.
- Article 234 EEC limits that duty where setting aside national law would prevent a Member State from performing obligations owed to non-member countries under international agreements concluded before the EEC Treaty; any continued application must be confined to what is necessary for compliance.
- The necessity and scope of any Article 234-based exception is for the national court to determine in the circumstances of the case.

## Conclusion

The Court ruled that a women-only ban on night work violates Directive 76/207’s equal-treatment requirement and must generally be disapplied, but it may be maintained only insofar as necessary to meet pre-Treaty international obligations protected by Article 234 EEC, with necessity determined by the referring national court.


Criminal Proceedings Against Jean-Claude Levy (Case C-158/91), 1993 E.C.R. I-4287 (C.J.)