CASE LAW: Case C-158/91, Ministère public et Direction du travail et de l’emploi v. Jean-Claude Levy, August 2, 1993. Law of Treaties; Article 234 EC Treaty

1 Colum. J. Eur. L. 116 (1994)

Jan Vanhamme. Researcher, Institute for European Law, Catholic University, Leuven, Belgium.

A criminal action was brought before the Tribunal de Police of Metz against Jean-Claude Levy, owner of a meat factory, for employing women at night in violation of French law. In his defense, Levy argued that the prohibition was incompatible with a Community directive requiring equal treatment of men and women with regard to working conditions. The argument was plausible, since not only is the incompatibility of national criminal law with Community law in principle an accepted basis for escaping criminal liability, but the European Court of Justice had decided only a few years earlier that the directive bars Member States from prohibiting night work for women and not for men, and that this rule is sufficiently precise and unconditional to be given direct effect.4 Under this line of reasoning, the French court should refuse to apply the French law against Levy.However, there was more to the case. The French law was originally adopted in order to implement an ILO Convention dating from 1948.1 As a result, the case implicated Article 234 of the EEC Treaty, dealing with agreements between Member States and third countries concluded before the entry into force of the EEC Treaty.” On the basis of that article, arguably, the Convention (as well as national legislation implementing it) should prevail over the EEC Treaty (and any Community legislation based on it). Under this reasoning, Levy could not rely on the EEC directive, even though the latter is ordinarily directly effective and entitled to direct effect.Uncertain as to whether and how far the Convention should influence its decision, the French court made a preliminary reference to the Court of Justice.