C-79/83

JUDGMENT OF 10. 4. 1984 — CASE 79/83

a directive, the national court is Although Directive No 76/207/EEC, required to interpret its national law for the purpose of imposing a in the light of the wording and the sanction for the breach of the purpose of the directive in order to prohibition of discrimination, leaves achieve the result referred to in the the Member States free to choose third paragraph of Article 189. between the different solutions suitable for achieving its objective, it 2. Directive No 76/207/EEC does not nevertheless requires that if a Member require discrimination on grounds of State chooses to penalize breaches of sex regarding access to employment that prohibition by the award of to be made the subject of a sanction compensation, then in order to ensure by way of an obligation imposed on that it is effective and that it has a the employer who is the author of the deterrent effect, that compensation discrimination to conclude a contract must in any event be adequate in of employment with the candidate relation to the damage sustained and discriminated against. must therefore amount to more than purely nominal compensation such as, As regards sanctions for any discrimi- nation which may occur, the directive for example, the reimbursement only does not include any unconditional of the expenses incurred in connexion and sufficiently precise obligation with the application. It is for the which, in the absence of implementing national court to interpret and apply measures adopted within the pres- the legislation adopted for the cribed time-limits, may be relied on implementation of the directive in by an individual in order to obtain conformity with the requirements of specific compensation under the Community law, in so far as it is directive, where that is not provided given discretion to do so under for or permitted under national law. national law.

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women as regards access to employment, vocational training and promotion, and working conditions (Official Journal 1976, L 39, p. 40),

THE COURT

composed of: J. Menens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot, Presidents of Chambers, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, O. Due, U. Everling and C. Kakouris, Judges,

Advocate General: S. Rozès Registrar: H. A. Rühi, Principal Administrator

gives the following

At the instigation of the plaintiff, the The defendant maintains that the ad- Leistelle "Gleichstellung der Frau", vertised post had to be filled by a male (Regional department promoting equal- applicant. Only men are employed in the ity for women) in Hamburg requested an buying and selling of agricultural raw explanation from the defendant. The materials. The defendant supplies large latter replied that it had rejected the quantities of cereals to Saudi Arabia, in plaintiff for the position advertised solely particular. The social and religious because she was a woman. structures prevailing there preclude a woman from establishing business con- tracts and maintaining existing business relationships in that country. In her application brought before the Arbeitsgericht Hamburg on 26 February 1981 the plaintiff sought, primarily, an order requiring the defendant to appoint her, in the alternative, damages in the Moreover, the reason why the plaintiff sum of D M 12 000, and, in the last alter- was not appointed was solely that she native, damages in the sum of D M 2.31. did not meet the requirements which the defendant regarded as essential for the position. That was clear from study of the job interviews conducted with the By letter dated 7 April 1981 the de- plaintiff in Hamburg on 12 May and in fendant offered to interview the plaintiff Geneva on 25 May 1981. at the defendant's premises to discuss the possibility of her employment with the defendant. That interview took place on 12 May 1981. At the defendant's invitation, the plaintiff was interviewed Finally, the defendant referred to for a post by Deutsche Tradax GmbH at Paragraph 611a (2) of the Bürgerliches the latter's European headquarters on 25 Gesetzbuch and contended that at the May 1981. Finally, by letter of 3 June most the plaintiff was entitled to claim 1981, the defendant informed the damages in the sum of D M 2.31. plaintiff that following the interviews which had been conducted in Hamburg on 12 May and in Geneva on 25 May 1981, it had decided not to recruit her for its trainee programme. The Arbeitsgericht Hamburg took the view that, in this instance, there had been discrimination in the selection procedure inasmuch as the discussions Before the Arbeitsgericht the plaintiff between the defendant and the plaintiff claimed that the defendant had com- as to the possibility of recruitment took mitted a breach of the principle of place under pressure of the proceedings nondiscrimination, and had infringed which has been initiated before that Articles 2 and 3 of Council Directive No court. For the purpose of enforcing equal 76/207/EEC of 9 February 1976 on the teatment for men and women as regards implementation of the principle of equal access to employment, the possible treatment for men and women as regards sanctions are a right to engagement or a access to employment, vocational right to damages. Damages, if awarded, training and promotion, and working should represent a financially appreciable conditions, as well as Paragraph 611a of sanction in order to ensure that the the Bürgerliches Gesetzbuch (German employers conduct themselves in con- Civil Code). formity with the law.

In the view of the Arbeitsgericht, and working conditions (Official Directive No 76/207/EEC has not yet Journal 1976, L 39, p. 40) confer on a been implemented in German law and female applicant a right to a contract the equality of treatment referred to in of employment against an employer that directive can only be achieved if the who has refused to engage her on mandatory legal consequence of discrimi- account of her sex? nation in the selection of candidates for a post is restitution in respect of a 2. In the case of an affirmative reply to positive interest, that is to say, a right Question 1 does that answer apply to be engaged or, alternatively, as a only sanction, to receive substantial damages. The court also stated, however, that the (a) where the female applicant dis-

Gesetzbuch, as the sole penalty for answered in the negative, does it discrimination in recruitment, compen- follow, as a legal consequence, from sation for "Vertrauensschaden" [abuse the principle of equal treatment for of confidence], that is for expenses men and women as laid clown by actually incurred in reliance on the the provisions of Directive No expectation that there would be no 76/207/EEC that a financially ap- discrimination in connection with the preciable sanction is necessary, for

1. In an established case of discrimi- or administrative fines? nation, does the principle of equal treatment for men and women as 4. If Question 3 is answered in the af- regards access to employment con- firmative, does that answer apply only tained in Articles 1 (2), 2 (1) and 2 (3) of Council Directive No (a) where the female applicant dis- 76/207/EEC of 9 February 1976 on criminated against is the best the implementation of the principle of qualified of all the candidates, equal treatment for men and women whether male or female, or as regards access to employment, (b) also where, even though there was vocational training and promotion, discrimination in the selection

procedure, in the result a better II — R e l e v a n t p r o v i s i o n s qualified male candidate was appointed? The following provisions of Directive N o 76/207/EEC are relevant: 5. If Questions 1, 2, 3 or 4 are answered in the affirmative, are Articles 1, 2 "Article 1 and 3 of Directive N o 76/207/EEC directly applicable in the Member 1. The purpose of this directive is to put States? into effect in the Member States the principle of equal treatment for men and women as regards access to The order making the reference was employment, including promotion, lodged at the Court Registry on 3 May and to vocational training and as 1983. regards working conditions and . . . social security. This principle is hereinafter referred to as 'the In accordance with Article 20 of the principle of equal treatment'. Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the plaintiff, re- presented by Klaus Bertelsmann and Article 2 Heide M. Pfaar, of the Hamburg Bar; by the Federal Republic of Germany, re- presented by Martin Seidel, Ministe- 1. For the purposes of the following rialrat at the Federal Ministry of provisions, the principle of equal Economic Affairs and by Manfred treatment shall mean that there shall Zuleeg, Professor of Public Law (in- be no discrimination whatsoever on cluding European Law and International grounds of sex either directly or Law) at the Johann Wolfgang Goethe indirectly by reference in particular to University of Frankfurt am Main, acting marital or family status. as Agents; by the United Kingdom, represented by J. D. Howes of the Treasury Solicitor's Department, Queen Anne's Chambers, acting as Agent, Article 3 assisted by Ian Glick, Barrister, of the Inner Temple, London; by the King- 1. Application of the principle of equal dom of the Netherlands, represented by treatment means that there shall be no E. F. Jacobs, Secretary-General of the discrimination whatsoever on grounds Netherlands Ministry of Foreign Affairs, of sex in the conditions, including acting as Agent; and by the Commission, selection criteria, for access to all jobs represented by Manfred Beschel, a or posts . . . member of its Legal Department, acting as Agent, assisted by Meinhard Hilf of the University of Bielefeld. Article 6 · Upon hearing the report of the Judge- Rapporteur and the views of the Member States shall introduce into their Advocate General, the Court decided to national legal systems such measures as open the oral procedure without any are necessary to enable all persons who preparatory inquiry. consider themselves wronged by failure

to apply to them the principle of equal far as discrimination in recruitment is t r e a t m e n t . . . to pursue their claims by concerned. judicial process . . . She considers that it is clear from the wording of Paragraph 611 a (2) of the Bürgerliches Gesetzbuch that that pro- vision does not comply with Article 3 (1) Article 9 taken together with Articles 1 (1) and 2 (1) of Directive No 76/207/EEC. The 1. Member States whall put into force directive requires that compliance with the laws, regulations and adminis- the prohibition of any discrimination on trative provisions necessary in order grounds of sex be enforced by legal to comply with this directive . . . " sanctions. German law, on the other hand, provides that workers may receive (nominal) damages for the frustration of Paragraph 611a of the Bürgerliches their expectation that they will not be Gesetzbuch, which purports to im- discriminated against. plement Directive No 76/207/EEC in German law, stipulates that: In German law the legal consequences of the prohibition against discrimination do "(1) An employer must not discriminate not, therefore, depend on the breach of against a worker on grounds of sex, that prohibition but on the loss caused to in connection with an agreement or the worker in question, if he has a measure, in particular in the sustained any loss, on the ground that course of the establishment of an his expectation has been frustrated. The employment relationship . . . legislature adopted that approach because it balanced the objectives of the prohibition against discrimination against (2) If an employment relationship has the conflicting ones of the "contractual not been established because of a freedom" of the employer, a procedure breach of the prohibition of which it was not entitled to adopt. discrimination in subparagraph (1) that is attributable to the employer, he is liable to pay damages in In several areas of the employment respect of the loss incurred by the relationship, for example in the matter of worker as a result of his reliance dismissal and in respect of other on the expectation that the measures which may be taken in the establishment of the employment course of recruitment, the legislature relationship would not be precluded gave precedence to the prohibition by such a breach . . .". against discrimination. However, on the question of access to employment, the legislature opted in favour of the con- tractual freedom of the employer, which III — W r i t t e n observations sub- includes the "freedom" to discriminate. m i t t e d to t h e C o u r t Moreover, the prevailing academic view is that when an employer states at the The plaintiff maintains that Directive No outset his intention to discriminate, for 76/207/EEC has not been or has been example not to engage a woman, there insufficiently adopted in the national law is not even any recognized right to of the Federal Republic of Germany as damages in respect of the frustrated

expectation. In adding subparagraph (2) applying the directive in question, and to Paragraph 611a of the Bürgerliches points out that in any event it is Gesetzbuch, the legislature diminished inconceivable for the legal consequences the force of the prohibition of discrim- of discrimination against a woman to be ination contained in subparagraph (1) of limited to the right to reimbursement of the same paragraph. Its action in so postage costs. doing represents a considerable de- parture from the "normal" legal The plaintiff then endeavours to explain consequences provided for by German why it follows from the directive, taken

German legal system. The general documents, of the writing paper, the principle regarding compensation, laid postage and so on. In this instance, in down by the Civil Code — with the the view of the Arbeitsgericht Hamburg, exception of Paragraph 611a (2) — the plaintiff is entitled to claim damages allows any person who has suffered of D M 2.31, and that compensation damage the right to compensation constitutes the sole legal consequence corresponding to his positive interest or,

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engagement exists where the engagement to the Kündigungsschutzgesetz [Law of that person is the only possible lawful on Protection against Dismissal] an decision for the public authority in employer may dismiss an employee question. during the first six months of em- ployment. Even after that period, he is In any event, the right exists in so far as entitled to dismiss if that proves the post in question has not yet been necessary to meet imperative require- filled. If the post is already occupied, it is ments of management. generally thought that the victim of the discrimination is entitled, if the post concerned is that of a civil servant, either to be recruited for the next vacant post, In certain cases the engagement of the or to be paid financial compensaiton. As person may be impossible or out of the regards the post of a manual worker or a question, as for example when a post has clerical employee in the civil service, a been abolished in the meantime and person who has been discriminated when there is no comparable post. against in the selection procedure may According to the "normal" rules, the bring an action before the labour courts victim of discrimination may be given with a view to obtaining an appointment financial compensation in that case. Thus in the civil service, even if the post has Paragraph 10 of the abovementioned already been filled. In any event, the Law provides for the payment of a lump administration may be ordered to include sum not exceeding twelve monthly salary the person who has been unlawfully payments, and that provision could serve rejected in the next selection procedure as a legal model to be applied in the for a similar post. cases mentioned above.

JUDGMENT OF 10. 4. 1984 — CASE 79/83

which requires a woman to establish that In conclusion, the plaintiff proposes that she is better qualified entails an ex- the questions submitted by the Arbeits- tremely heavy burden of proof. gericht Hamburg should be answered as follows:

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provision in Article 2 (4) of Directive No Fifth question 76/207/EEC, which authorizes Member States to take measures to promote equal The directive is directly applicable opportunity for men and women. inasmuch as the German national provision, which is contrary to it and which excludes the application of the The appointment of the person preferred normal legal consequences obtaining in by the employer cannot be annulled since civil law, is void. that would entail the frustration of that person's legitimate expectations. The Federal Republic of Germany refers Moreover, the creation of a new post or to the observations which it submitted in even of several posts goes beyond the Case 14/83, von Colson and Kamann ν scope of the prohibition of discrimi Land Nordrhein-Westfalen, in which it natory treatment and represents a positive measure which cannot be emphasizes that the draft law was imposed on the potential employer. notified to the Commission prior to the Finally, even if the discrimination is adoption of the Law and that the revealed before the post is occupied, an Commission did not raise any objection employer cannot be compelled to engage in connection with the provision which is someone. made therein regarding the consequences of discrimination in relation to access to

In established that all potential and actual its view, it is possible for the German employers are bound by it. courts to elaborate from the general context of private law adequate solutions Whilst it is aware of the need for which satisfy both the principle of equal effective implementation of the directive, treatment and the interests of all parties.

Furthermore, the legal consequence of It states, in addition, that if the directive discrimination should be proportionate. impliedly requires national courts to Thus an appreciable legal consequence is order employers to engage candidates sufficient to enforce the principle of who have been discriminated against, equal treatment. Moreover, a right to such an implied requirement does not damages should exist only if the have direct effect inasmuch as it is candidate discriminated against was neither clear nor unambiguous, and its better qualified than the others to carry operation is dependent upon further out the duties in question; it should not action taken by national authorities. exist where the candidates' qualifications Similarly, Article 6 cannot have direct were equal. effect since it expressly requires Member States to introduce unspecified measures. As regards the problem ot the errects ot Directive No 76/207/EEC, the German The Kingdom of the Netherlands con- Government considers that, in the siders that in cases of discrimination the national sphere, the scope of the victim has no right to be engaged. On directive's legal effects is to be the other hand, it takes the view that determined by reference to the existing various solutions are possible. Thus, in case-law of the Court. certain circumstances the employer might be ordered to pay damages. The The United Kingdom likewise refers to Netherlands Government considers, in its observations in Case 14/83, in which any event, that an order to pay a purely it observes that it is for Member States to nominal sum cannot satisfy the re- choose and introduce the measures they quirement that the person discriminated consider appropriate to ensure the against must be able to rely on his rights fulfilment of their obligations under the under the directive. directive and that the Federal Republic of Germany has done so. Moreover, the Netherlands Government Article 6 of the directive is silent as to emphasizes, with reference to the fourth the measures Member States should question, that it is not possible to suggest adopt. The United Kingdom therefore that the candidate has a right to be finds the suggestion that there is some recruited if she is "the best qualified" implied and exclusive requirement as subparagraph (a) of that question startling. presupposes. The choice of the "best qualified" candidate depends on a The questions posed in the abovemen- certain number of factors which cannot tioned case and the commentaries upon be assessed from an objective point of them themselves demonstrate clearly the view. According to the Netherlands considerable difficulty the Court would Government, subparagraph (a) of the face if it tried to legislate for Member fourth question must therefore be States in those matters. answered in the negative and subpara- graph (b) in the affirmative. A victim As regards the applicability of the of discrimination in the course of a directive, the United Kingdom em- selection procedure must have a remedy

The Commission first examines at some As the first question must clearly be length the relevant provisions of answered in the negative, it is not Community law and German law. necessary, even in the alternative, to However, it states that it does not wish express a view on the second question. to deal with the question of the extent to which German law may help the plaintiff The third question is based on in this instance in her action, if it is not recognition of the fact that the German necessary to do so. rule according to which compensation is awarded only in respect of "Vertrau- The Commission takes the view that it is ensschaden" is ineffective. The question not possible to infer from Directive No is intended to encourage the Court to 76/207/EEC a right to be offered a post. acknowledge the possible existence of an That follows, in the first place, from the implied right to financial compensatoli in wording of the directive, which does not respect of a positive material interest. provide for such a sanction. In particular, Article 6 merely provides for a purely In that regard, the Commission concedes formal remedy, without establishing any that neither the wording nor the back- substantive right. ground of the directive provides precise support for any argument in that context Nor is the background of the directive and that not all the Member States have any more conclusive. Neither in the provided for a civil penalty in the form statement of the grounds of the proposal of a right to compensation. for a directive nor in the deliberations of the European Parliament, or those of the Nevertheless, the Commission considers Economic and Social Committee, were that the national legislature must take the possible sanctions considered in any into account certain general principles. detail. Thus, Article 3 (1) of the directive Moreover, the reactions of the Member contains a substantive obligation which is States evinced in their implementing laws extremely clear. In relation to access to reveal a wide variety of sanctions. Only employment no discrimination what- in Italian law are the courts "entitled to soever on grounds of sex is permitted. order the termination or the rescission According to Article 6 of the directive, of a discrimination in respect of an moreover, the person seeking em- appointment". The caution of the ployment must have, to that extent, a Member States is attributable to the right corresponding to the abovemen- existence of the conflicting principle of tioned obligation, when he is the the contractual freedom of the employer. "victim" of a breach of that obligation by the employer. In those circumstances, Article 6 implies the existence of "rights" Finally, it is in keeping with the purpose which the person concerned may rely on of Directive No 76/207/EEC for it to before the courts. It is true that neither leave to Member States the choice and Article 6 nor any other provision of the the determination of the sanctions (third directive specifies the form that those paragraph of Article 189 of the EEC "rights" must take in order to comply Treaty). However, that principle applies with the requirements of Community only in conjunction with the general law. Nevertheless, the rights accorded to

candidates who have been discriminated Indeed, whilst the Court recognizes that against must be of such a nature as to directives may be relied upon as against a evince an effective implementation of the Member State or its institutions and objectives of the directive. That means authorities it has never, as yet, that the legal consequences of a breach acknowledged the existence of an effect of the principle of equal treatment must in respect of third parties (except as not, in any event, be so derisory that an regards the possible effect of certain employer may ignore them in deciding provisions of the Treaty, such as Article whether to accept or reject an ap- 119).

1. Council Directive No 76/207/EEC of Community law, which are intended to 9 February 1976 on the implemen- ensure the effective implementation of tation of the principle of equal the aims of the directive. treatment for men and women as regard access to employment, As the Commission takes the view that vocational training and promotion, the third question should be answered and working conditions does not in the negative, it considers that it is require that discrimination on unnecessary to reply to the fourth. grounds of sex in access to employment be sanctioned by obligating the employer responsible As regards the fifth question, the for the discrimination to conclude a question of the "direct applicability" of contract of employment with the Directive No 76/207/EEC does not candidate who has been discriminated arise, in view of the fact that no clear against. sanction may be inferred from that

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which, by their nature and by their employment inasmuch as it excludes the scope, are sufficient to ensure that the application of the general provisions of principle is respected by employers. civil law governing compensation and 3. National legislation which restricts the limits their right to compensation solely rights of a candidate discriminated to the amount payable in respect of against to reimbursement of the costs Vertrauensschaden. incurred by him in relation to the The German Government replied that submission of his application does that paragraph did not limit the right to not satisfy the requirements of compensation and did not exclude the Community law, according to which application of the general provisions the aims set out in the governing compensation. On the con- abovementioned directive must be ef­ trary, it established, on its own and in fectively implemented in the national conjunction with Paragraph 823 (2) of legislation. the Bürgerliches Gesetzbuch, specific grounds for obtaining compensation.

IV — Questions put to the V — Oral procedure G o v e r n m e n t of t h e F e d e r a l R e p u b l i c of G e r m a n y The plaintiff in the main action represented by K. Bertelsmann, assisted In Case 14/83, von Colson and Kamann by H. M. Pfarr, the Government of ν Land Nordrhein-Westfalen, the Court the Federal Republic of Germany, requested the German Government to represented by M. Seidel and the reply in writing to a question on the Commission, represented by M. Beschel, extent to which the adoption of assisted by M. Hilf, presented oral Paragraph 611a of the Bürgerliches argument at the sitting on 13 December Gesetzbuch may be regarded as having 1983. reduced the right to compensation for The Advocate General delivered her women who have been victims of opinion at the sitting on 31 January discrimination in relation to access to 1984.

5 Consequently the Arbeitsgericht found that, under German law, it could order the payment only of minimal compensation, of D M 2.31 in the case in point, in respect of expenses incurred by Mrs Harz in relation to her application. It considered that such compensation was not sufficient to ensure compliance with the Community directive, since it would not serve to ensure that employers conduct themselves in conformity with the law.

6 In order to determine the rules of Community law applicable in the event of discrimination regarding access to employment, the Arbeitsgericht referred the following questions to the Court of Justice :

1. In an established case of discrimination, does the principle of equal treatment for men and women as regards access to employment contained in Articles 1 (2), 2 (1) and 2 (3) of Council Directive No 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

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and promotion, and working conditions (Official Journal 1976, L 39, p. 40) confer on a female applicant a right to a contract of employment against an employer who has refused to engage her on account of her sex?

2. In the case of an affirmative reply to Question 1 does that answer apply only (a) where the female applicant discriminated against is the best qualified of all the appalicants, whether male or female, or (b) also where, although there was discrimination in the selection procedure, in the result a better qualified male applicant was appointed?

JUDGMENT OF 10. 4. 1984 — CASE 79/83

(a) Question 1

8 In its first question the Arbeitsgericht asks essentially whether Directive N o 76/207 requires discrimination on grounds of sex in the matter of access to employment to be penalized by an obligation, imposed on an employer who is guilty of discrimination, to conclude a contract of employment with the candidate who was the victim of discrimination.

9 According to the Arbeitsgericht the sanctions which may be envisaged in order to enforce the principle of equal treatment for men and women regarding access to employment are an automatic right to be given a post or a right to damages, which in German law are classified as compensation for a "positive interest" [Ersatz des positiven Interesses]. The Arbeitsgericht considers that Directive No 76/207 has not yet been transposed into German law inasmuch as the sanction provided for in Paragraph 611a (2) of the Bürgerliches Gesetzbuch is not, in its view, sufficent in that respect.

10 According to the plaintiff in the main action, by restricting the right to compensation solely to "Vertrauensschaden", Paragraph 611a (2) of the Bürgerliches Gesetzbuch excluded the possibilities of compensation afforded by the general rules of law. Directive N o 76/207 requires Member States to introduce appropriate measures with a view to avoiding discrimination in the future. It should, therefore, at least be accepted that Paragraph 611a (2) must be left out of account. The result of that would be that the employer would be required to conclude a contract of employment with the candidate discriminated against or, if that proves impossible or out of the question in the particular case, at least to pay him appreciable damages.

1 4 The Commission considers that although the directive is intended to leave to Member States the choice and the determination of the sanctions, nevertheless the transposition of the directive must produce effective results. The principle of the effective transposition of the directive requires that the sanctions must be of such a nature as to constitute, for the candidate discrimi- nated against, appropriate compensation and, for the employer, a means of pressure which it would be unwise to disregard and which would prompt him to respect the principle of equal treatment. A national measure which provides for compensation only for losses actually incurred through reliance on an expectation ("Vertrauensschaden") is not sufficient to ensure compliance with that principle.

15 According to the third paragraph of Article 189: "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods". Although that provision leaves Member States free to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation, imposed on all the Member States to which the directive is addressed, to adopt, within the framework of their national legal systems, all the measures necessaiy to ensure that the directive is fully effective, in accordance with the objective which it pursues.

JUDGMENT OF 10. 4. 1984 — CASE 79/83

16 It is therefore necessary to examine Directive N o 76/207 in order to determine whether it requires Member States to provide for specific legal consequences or sanctions in respect of a breach of the principle of equal treatment regarding access to employment.

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(b) Q u e s t i o n 2

20 It is not necessary to answer the second question, since it is put only on the supposition that an employer is required to offer a post to the candidate discriminated against.

(c) Q u e s t i o n s 3, 4 and 5

21 In its third and fourth questions the Arbeitsgericht essentially asks whether it is possible to infer from the directive that a financially appreciable sanction is necessary. The fifth question asks whether the directive, as properly interpreted, may be relied on before national courts by persons who have suffered injury.

22 In that respect it must be remarked that it is impossible to establish real equality of opportunity without an appropriate system of sanctions. That follows not only from the actual purpose of the directive but more specifically from Article 6 thereof which, by granting applicants for a post who have been discriminated against recourse to the courts, acknowledges that those candidates have rights of which they may avail themselves before the courts.

26 However, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law and in particular the provisions of a national law specifically introduced in order to implement Directive N o 76/207, the national court is required to interpret its national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189.

27 O n the other h a n d , as the above considerations show, the directive does n o t include any unconditional and sufficiently precise obligation as regards sanctions for discrimination which, in the absence of implementing measures a d o p t e d in g o o d time, m a y be relied o n by individuals in o r d e r to obtain specific compensation u n d e r the directive, w h e r e that is n o t provided for or permitted u n d e r national law.

28 It should, however, be pointed out to the national court that although Directive N o 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the Member States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the

in answer to the questions referred to it by the Arbeitsgericht Hamburg by order of 5 July 1982, hereby rules:

1. Directive No 76/207/EEC does not require discrimination on grounds of sex regarding access to employment to be made the subject of a sanction by way of an obligation imposed on the employer who is the author of the discrimination to conclude a contract of employment with the candidate discriminated against.

2. As regards sanctions for any discrimination which may occur, the directive does not include any unconditional and sufficiently precise obligation which, in the absence of implementing measures adopted within the prescribed time-limits, may be relied on by an individual in order to obtain specific compensation under the directive, where that is not provided for or permitted under national law.

OPINION OF MRS ROZÈS — CASE 79/83

O P I N I O N OF MRS ADVOCATE GENERAL ROZÈS

(see Case 14/83, p. 1911)