Instantie

Hof van Justitie van de Europese Gemeenschappen

Samenvatting

Artikel 2 lid 1 en 4 van richtlijn 76/207 verzet zich tegen een nationale
rechtsregel die bepaalt dat wanneer er minder vrouwen dan mannen werkzaam
zijn binnen een relevante, hogere functiegroep, een vrouwelijke kandidaat
voorrang heeft bij promotie, mits de kandidaten gelijk geschikt zijn en er
geen speciale redenen in verband met een mannelijke kandidaat overheersen.

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37. I accordingly conclude that, notwithstanding the proviso, the national
rule at issue in the present case is, in the light of the judgment of the
Court in Kalanke, unlawful. I would add as a general point that in my view
any temptation to distinguish Kalanke on narrow technical grounds should be
resisted. As explained above, the reasons which led the Court to reach its
decision in that case are clear and apply equally to the present case.
Straining to differentiate similar cases on the grounds of nuances in the
contested legislation is likely to lead to confusion as to the law and a
proliferation of litigation with arbitrary results.

38. It may be objected (See, for example, Dr Dagmar Schiek, `Positive Action
in Community Law’, 25 Industrial Law Journal 239 (1996), p. 241) that the
effect of invalidating the national rule would be a return to the criteria
which it was designed to displace and which are acknowledged by the Land of
North Rhine-Westphalia to be discriminatory, and that that could hardly be
said to `put into effect … the principle of equal treatment for men and
women as regards access to employment. (Article 191) of the Directive).

39. It does not however follow from the fact that the national rules at issue
in the present case and in Kalanke are contrary to Community law that it is
lawful for a public authority to apply the so-called traditional secondary
selection criteria which are allegedly applied in the absence of such rules
(See paragraph 7 above). It seems clear in fact that such criteria are both
applied and regarded by some as acceptable: Mr Kalanke, for example,
reportedly argued before the national courts that, even on the assumption
that Ms Glißmann was equally qualified, he should have been promoted on
social grounds (namely, that he was married, his wife did not work and he had
two children) (See Dr Dagmar Schiek, `Positive Action in Community
aw’, cited in note 40, p. 240; Linda Senden, `Positive Action in the EU Put
to the Test’, cited in note 25, pp. 147 to 148, and Sacha Prechal’s
case-note, cited in note 29, p. 1246.). It seems equally clear that the
application of such criteria in a selection procedure is itself a violation
of the Equal Treatment Directive: Article 2(1), it will be recalled, provides
that `there shall be no discrimination whatsoever on grounds of sex either
directly of indirectly by reference in particular to marital or family
status’, and Article 3(1) explicitly prohibits such discrimination `in
conditions, including selection criteria, for access to all jobs or posts’. A
Member State which permits the application of such discriminatory criteria is
in breach of its obligation under the Equal Treatment Directive and under
Articles 5 and 189 of the Treaty, as is a Member State which has failed to
ensure that all persons who consider themselves wronged by discrimination are
able `to pursue their claims by judicial process’ in accordance with Article
6 of the Directive. (See Case 14/83 Von Colson and Kamann v
and Nordrhein-Westfalen [1894] ECR 1891, paragraph 18 of the judgment, See
also Case C-180/95 Draehmpaehl v Urania Immobilienservice, judgment of 22
April 1997, paragraphs 24 to 27).

The scope of Article 2(4)

40. I have for the reasons given above reached the conclusion that Article
2(1) and (4) of the Equal Treatment Directive precludes a rule of national
law which provides that, in official sectors in which fewer women than men
are employed in the relevant higher grade post in a career group, women must,
unless reasons specific to a male candidate predominate, be given priority
where male and female candidates for promotion are equally qualified (in
terms of suitability, competence and professional performance).

41. It may be useful to add some observations on the types of measures which
in my view do and do not fall within article 2(4), which, it will be
recalled, provides that the Directive is to be `without prejudice to measures
to promote equal opportunity for men and women, in particular by removing
existing inequalities which affect women’s opportunities in the areas
referred to in Article 1(1)’, namely access to employment, including
promotion, vocational training and working conditions.

42. It is clear from the wording of Article 2(4) and its interpretation by
the Court that it concerns the promotion of equal opportunity and not the
imposition of equal representation and that Member States retain the power to
adopt apparently discriminatory measures designed to redress specific
obstacles or disadvantages faced by women in the labour market with a view to
promoting equal opportunity for men and women and hence better representation
of women in the workplace. The principle of proportionality will, however
require any such measures to be both suitable and necessary for the
achievement of its objective.

43. A gender-specific measure will not to my mind be proportionate to the
aims of remedying specific inequalities faced by women in practice and
promoting equal opportunity if the same result could be achieved by a
gender-neutral provision.(Indeed restricting to women the benefit of
measures) As an example of such a provision, Community institutions when
recruiting commonly provide for the extension of the age-limit which would
otherwise apply for the benefit of `candidates who for at least one year have
not pursued an occupational activity in order to look after a young child
living in their home’. (See, for example, Notice of Open Competition CJ/
A/18, OJ)

44. Even though couched in gender-neutral terms, such a provision is likely
in practice to work to the benefit of significantly more women than men.
Notwithstanding this indirectly discriminatory effect, such a provision will
to my mind be lawful by virtue of Article 2(4).

45. There may, however, be measures designed to remedy specific disadvantages
faced by women in the labour market which will better achieve their aims if
expressly framed so as to benefit women alone. Such measures would to my mind
equally fall within the scope of Article 2(4). That approach reflects the
statement of the Court in Kalanke that Article 2(4) `permits national
measures relating to access to employment, including promotion, which give a
specific advantage to women with a view to improving their ability to compete
on the labour market and to pursue a career on an equal footing with
men’.(Paragraph 19 of the judgement.) Permissible directly discriminatory
measures under Article 2(4) `must therefore be directed at removing the
obstacles preventing women from having equal opportunities by tackling, for
example, educational guidance and vocational training’.(Paragraph 19 of the
Opinion of Advocate General Tesauro in)

The Question of Policy

46. In endorsing an interpretation of Article 2(4) which excludes measures
giving direct preference to the promotion or appointment of women in sectors
where they are under-represented, I am not expressing any view as to the
desirability of such measures as a matter of principle. It is unquestionable
that – as submitted by the United Kingdom in Kalanke (Quoted by Ursula A.
O’Hare, `Postive Action Before the European Court of Justice, cited in note
45) – unequal representation of women is the result of a cocktail of factors,
and it may be that such preferential treatment of women is a method of
improving one of the ingredients (although it may be noted that the rules at
issue in Kalanke and in this case appear to have had remarkably little
impact, (Observations of the
and in this case; Dr Dagmar Schiek, `Postive Action’, cited in note 40, p.
244. See generally Josephine Shaw, `Positive Action for Women in Germany:
`The use of legally Binding Quota Systems’ In Bob Hepple and Erika Szyszczak,
eds, Dircrimination: The limits of law (London and New York: Mansell
Publishing ltd., 1992,) p. 386) which is perhaps hardly surprising given that
the grounds for derogation appear to be substantially the same as the grounds
which would be applied in the absence of the rule purportedly derogated
from). Whether or not such a policy is desirable or appropriate is however a
matter for the legislature, not for this Court, (Notwithstanding the view to
the contrary expressed by some commentators: see, for example, Eva Brems’
case-note, cited in note 6, p. 178) whose role in this case, as in Kalanke,
is to interpret the existing legislation. Any temptation for the Court to
tailor the result to policy, however attractive it may seem, should be
resisted. As was stated by an industrial in the United Kingdom in the
analogous context of the lawfulness of all-women shortlists for the selection
of
abour Party candidates in certain constituencies:

‘It may be that amy would regard [redressing the imbalance between the sexes
in the House of Commons] as a laudable motive but that is of no relevance to
the issue of whether the arrangement as applied to the facts before us
results in direct unlawful sex discrimination against the two male
applicants.(Jepson v The Labour Party [1966] Industrial Relations Law Reports
116, at p. 117).

47. It is clear to my mind that the decision in Kalanke -notwithstanding much
misconceived criticism (See, for example, Titia Loenen and Albertine Veldman,
`Preferential Treatment in the Labour Market after Kalanke: Some Comparative
Perspectives’, 12 International Journal of Comparative Labour Law and
Industrial Relations 43 (1996), p. 43: `The fundamental attack on
preferential treatment which the decision in Kalanke seems to imply…’)-was
in accordance with the text of the Directive. Admittedly, the legislation was
drafted two decades ago, and social developments since then may mean that a
provision whose intention and scope were apposite when adoption is now in
need of review. Revision of Community legislation is however also a matter
for the legislature and not for this Court. It is interesting to note that
there are currently two parallel initiatives seeking in different ways to
provide for certain forms of affirmative action.

48. In 1996, promoted by the judgement in Kalanke, the Commission proposed an
amendment to Article 2(4) (Proposal for a Council Directive amending
Directive 76/207/EEC 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, OJ 1996 C 179, p. 8). That
provision, as amended by the proposal, would read as follows:

‘This Directive shall be without prejudice to measures to promote equal
opportunity for men and women, in particular by removing existing
inequalities which affect the opportunities of the under-represented sex in
the areas referred to in Article 1(1). Possible measures shall include the
giving of preference, as regards access to employment or promotion, to a
member of the under-represented sex, provided that such measures do not
preclude the assessment of the particular circumstances of an individual
case.’ (Article 1 of the proposed amending directive).

49. The Commission considers that its proposed amendment does not alter the
scope of the Equal Treatment Directive but is merely `interpretative’,
declaratory’ and `clarifying’, on basis of its view that ruling in Kalanke is
limited to affirmative action measures of the precise type at issue in that
case. (See the Explanatory Memorandum, COM (96) 93 final, pp. 3,4 and 7). For
the reasons I have given, I do not accept that view; to my mind, the proposed
amendment is accordingly more innovatory than the Commission suggests. It is
moreover lacking in clarity (See further the Economic and Social Committee’s
well articulated critique of the proposed amendment in its Opinion of 25
September 1996, OJ 1997 C 30, p. 57, in particular paragraphs 3.1. and 3.2.).
If it is considered desirable to establish the principle that certain types
of affirmative action are to be lawful, then it is essential that the precise
scope of that principle should be unequivocally defined (although it may be
appropriate, given the disparate views on policy and changing economic and
social circumstances, to leave Member States some margin of discretion as to
whether and to what extent they make use of any such derogation).

50. The second initiative is a proposal to amend the Treaty which is being
made in the context of the Intergovernmental Conference. It appears that the
proposed amendment would make it clear that it would not be contrary to the
principal of equal treatment and equal opportunity for a Member State to
provide for certain forms of affirmative action. The precise terms and
political fate of that proposal remain to be seen. It seems likely that the
proposed amendment is intended to complement Article 6(3) of Protocol 14 of
the Treaty, on social policy (the `social chapter’). That provision states
that Article 6 (which, in almost identical terms to Article 119 of the
Treaty, enshrines the principle of equal pay), `shall not prevent any Member
State from maintaining or adopting measures providing for specific advantages
in order to make it easier for women to pursue a vocational activity or to
prevent or compensate for disadvantages in their professional careers.’
Since it is restricted to equal pay, Article 6(3), although briefly referred
to by the Commission, is of no assistance in the present case.

The relevance of international instruments

51. Reference is made in several of the written observations submitted to the
Court (See also the Commission’s Communication cited in note 4,) to
international conventions which, it is argued, support the view that Article
2(4) of the Equal Treatment Directive should be interpreted sufficiently
widely to encompass within its field of permitted action preferential
measures such as the national rule at issue in this case.

52. The Land of North Rhine-Westphalia and the Commission refer to the
International Labour Organization Convention on discrimination (Convention
No. 111 of 25 June 1958 concerning discrimination in respect of employment
and occupation, United Nations Treaty Series, Vol. 362, p. 31) ratified by
all Member States with the exception of Ireland, Luxembourg and the United
Kingdom. Article 5 provides:

‘1. Special measures of protection or assistance provided for in other
Conventions of Recommendations adopted by the International Labour Conference
shall not be deemed to be discrimination.

2. Any Member may, after consultation with representative employers’ and
workers’ organisations, where such exists, determine that other special
measures designed to meet the particular requirements of persons who, for
reasons such as sex, age, disablement, family responsibilities or social or
cultural status, are generally recognized to require special protection or
assistance, shall not be deemed to be discrimination.’

53. The Land of North Rhine-Westphalia, the Austrian, Finnish and Norwegian
Governments and the Commission refer to the United Nations Convention on the
Elimination of All Forms of Discrimination Against Women, ratified by all
Member States of the European Community, (General Assembly Resolution 34/180
adopted on 18 December) and in particular Article 4(1) which provides:
`Adoption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered
discrimination as defined in the present Convention, but shall in no way
entail as a consequence the maintenance of unequal or separate standards;
these measures shall be discontinued when the objectives of equality of
opportunity and treatment have been achieved.’

54. Both Conventions permit `special measures’, even if prima facie
discriminatory, by way of derogation from the basic prohibition of
discrimination which they contain. The parties relying on the Conventions
argue, either expressly or by implication, that the national rule at issue is
not contrary to those Conventions and that Article 2(4) of the directive
should be interpreted so as to be consistent with the Conventions.

55. The provisions of the Conventions which have been invoked are undeniably
vague: it is not at all clear that they encompass preferential action of the
type imposed by the national rule at issue in this case. To that extent,
therefore, the Conventions are unhelpful as an aid to interpreting the more
specific provisions of Article 2(4).

56. The terms of the Conventions at issue are moreover clearly permissive
rather than mandatory. The interpretation of Article 2(4) of the Directive
which I am advocating does not therefore give rise to a direct conflict with
the Convention, such as would be the case if, for example they explicitly
required States to take affirmative action of the type at issue in this case.
It is therefore unnecessary to consider what the position would be if there
were a conflict. That would raise a number of difficult issues concerning the
direct effect of Conventions and the scope of Article 234 of the EC Treaty.
(See most recently Case C-124/95 The Queen v HM Treasury and The Bank of
England, ex parte Centro-Com, judgment of 14 January 1997, paragraphs 55 to
60.)

57. On the more general question, however, of the scope of Article 2(4) of
the Directive, the types of measure which in my view are permitted by Article
2(4) are in any event the types of measure which the Conventions seem
intended to facilitate.

Conclusion

58. Accordingly, the question referred by the Verwaltungsgericht,
Gelsenkrichen, should in my opinion be answered as follows:

Article 2(1) and (4) 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 precludes a rule of national law which provides that, in official
sectors in which fewer women than men are employed in the relevant higher
grade post in a career group, women must, unless reasons specific to a male
candidate predominate, be given priority where male and female candidates for
promotion are equally qualified (in terms of suitability, competence and
professional performance).

Rechters

Mrs Fransen, Den Os-Brand, Van der Klooster