C-450/93

KALANKE v BREMEN

OPINION OF ADVOCATE GENERAL TESAURO delivered on 6 April 1995 *

1. Is national legislation under which the principle of equal treatment for men and women are given priority in recruitment women as regards access to employment, and/or in obtaining promotion provided that vocational training and promotion, and they have the same qualifications as the male working conditions ' (hereinafter 'the direc- applicants and that women are under- tive'). represented — in so far as they do not con- stitute one half of the personnel — in the individual remuneration brackets in the rele- vant personnel group, compatible with the principle of equal treatment for men and women laid down by the relevant Commu- nity legislation? In other words, does a sys- tem of quotas in favour of women, even if it is dependent on the conditions which I have just described, embody sex discrimination contrary to Community law or does it con- stitute permitted positive action inasmuch as is designed to promote effective equal oppor- tunities in the world of work? 2. The purpose of the directive, as set out in Article 1(1), is to 'put into effect in the Mem- ber States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security'. Article 2(1) then states that 'the principle of equal treat- ment shall mean that there shall be no dis- crimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status'. H o w - That is, in essence, the purport of the ques- ever, Article 2(4), whose interpretation is tions referred to the Court for a preliminary sought, authorizes the Member States to ruling by the Bundesarbeitsgericht (Federal adopt and/or maintain in force 'measures to Labour Court) concerning, more particu- promote equal opportunity for men and larly, the interpretation of Article 2(1) and women, in particular by removing existing (4) of Council Directive 76/207/EEC of inequalities which affect women's opportuni- 9 February 1976 on the implementation of ties in the areas referred to in Article 1(1)'.

'Appointment, assignment to an official post and promotion

Lastly, it should be observed that a provision with substantially similar scope to Article 2(4) is contained in Article 6(3) of the Agree- (1) In the case of an appointment (including ment on social policy concluded between the establishment as a civil servant or judge) Member States of the European Community which is not made for training purposes, with the exception of the United Kingdom women who have the same qualifications as of Great Britain and Northern Ireland men applying for the same post are to be annexed to the Maastricht Treaty with Pro- given priority in sectors where they are under-represented.

2 _ OJ 1984 L 331, p. 34. 3 — See the third recital in the preamble. 4 — Bremisches Gesetzblatt, p. 433.

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(4) Qualifications are to be evaluated exclus- ively in accordance with the requirements of the occupation, post to be filled or career bracket. Specific experience and capabilities, such as those acquired as a result of family work, social commitment or unpaid activity, The departmental management of the Parks are part of the qualifications within the Department suggested that Mr Kalanke meaning of subparagraphs (1) and (2) if they should be promoted, but this was opposed are of use in performing the duties of the by the Personnel Committee. The subse- position in question. quent arbitration, which resulted in a recom- mendation in favour of Mr Kalanke, was regarded as a failure by the Personnel Com- mittee, which asked for the matter to be referred to the Conciliation Board. The Board ruled on 20 February 1991 that 'both candidates possess the same qualifications for this post and the female candidate should therefore be given priority, inter alia on the (5) There is under-representation if women basis of the Landgleichstellungsgesetz {Land do not make up at least half of the staff in Law on Equal Treatment)'. the individual pay, remuneration and salary brackets in the relevant personnel group within a department. This also applies to the function levels provided for in the organiza- 5 — BAT stands for Bundesangestelltentarifvertrag, that is to say, the collective pay agreement for clerical staff in the public tion chart.' sector.

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6. The Bundesarbeitsgericht, however, also considered it appropriate to assess Paragraph 4 of the LGG in the light of the principle of equal treatment as enshrined in Community provisions, in particular Article 2(1) and (4) of the directive. It therefore requested the Court to give a preliminary ruling on (a) whether Article 2(4) of the directive should Mr Kalanke therefore brought an appeal on be interpreted as covering national provi- points of law ('Revision') in the Bundesarbe- sions such as the ones described above and itsgericht. That court pointed out first that (b), if not, whether, having regard to the the decision in the case depended essentially principle of proportionality, Article 2(1) of on the applicability of Paragraph 4 of the the directive means that such national provi- L G G in so far as the decision taken by the sions should be disapplied. Conciliation Board would be unlawful only if the Board had wrongly applied the rele- vant law: if that were to be the case, Mrs Glissmann would have been given an unjus- tified advantage inasmuch as it was based solely on sex. Given that, as the appeal court had found, the Conciliation Board's decision as to the candidates' having equal qualifica- tions did not contravene any legal provision In fact, the two questions are closely linked and that women were in fact under- and, as will become clearer subsequendy, represented in the sector in question, 6 the they do not call for two separate answers. Since Article 2(1) lays down the principle of equal treatment of men and women in gen- eral, peremptory terms and Article 2(4) con- 6 — It appears from the order for reference that the administra- tion of the city of Bremen employs on aggregate 49% men stitutes a derogation to that principle, it fol- and 5 1 % women. However, if the distribution of the sexes is lows that the interpretation of Article 2(4) broken down according to career brackets, the picture is dif- ferent, with the proportion of women in the various classes cannot but take account of the principle set being as follows: sub-clerical class 7 5 % , clerical class 5 2 % , executive class 50%, administrative class 30%. out in Article 2(1); consideration of the

This is the first occasion on which the Court has been asked to rule on the interpretation of Article 2(4) of the directive in relation to a quota system in favour of women and, more generally, to positive action. The question is therefore certainly not a trivial one, quite the contrary. Although the derogation set out in Article 2(4) is in issue here, what is under discussion above all is the significance of the Positive, or affirmative, action stems from principle of equal treatment, the contrast the requirement to eliminate the existing between formal equality, in the sense of obstacles affecting particular categories or equal treatment as between individuals groups of persons who are disadvantaged at belonging to different groups, and substan- work as a result. Positive action is, in partic- tive equality, in the sense of equal treatment ular, a means of achieving equal opportunities as between groups. In the final analysis, must for minority or, in any event, disadvantaged each individual's right not to be discrimi- groups, which generally takes place through nated against on grounds of sex — which the the granting of preferential treatment to the Court itself has held is a fundamental right groups in question. 8 In taking the group as the observance of which it ensures 7 — yield such into consideration, positive action to the rights of the disadvantaged group, in this case, women, in order to compensate for 8 — 'Affirmative action' received its name in the United States from the Democratic administrations of the 1960s, which utilized a typical judicial measure (until then affirmative action had been imposed by the courts on employers respon- 7 — Judgment in Case 149/77 Defrenne II [1978] ECR 1365, sible for discriminatory conduct) and made it into an admin- paragraph 27. See also the recent judgment of 28 January istrative instrument. It arises in particular with the obligation 1992 ¡n Case T-45/90 Speybrouck [1992] ECR 11-33, in of undertakings with government contracts to carry out which the Court of First Instance reaffirmed that 'the prin- action plans for the benefit of the black population, failing ciple of equal treatment for men and women in maners of which they lose the contracts which they have obtained. O n employment and, at the same time, the principle of the pro- the basis of those conceptual precepts, the transition was hibition of any direct or indirect discrimination on grounds made to affirmative action in favour of other ethic minorities of sex form part of the fundamental rights the observance of or, in any event, weak strata of society, such as women. In which the Court of Justice and the Court of First Instance the name of fairness, plans for preferential treatment were must ensure pursuant to Article 164 of the E E C Treaty' therefore planned and implemented, especially in the fields (paragraph 47). of access to higher eduction and recruitment.

A third model of positive action is that of 9. Positive action may assume several forms. action as a remedy for the persistent effects A first model aims to remove, not discrimi- of historical discrimination of legal signifi- nation in the legal sense, but a condition of cance; in this case, the action takes on a com- disadvantage which characterizes women's pensatory nature, with the result that prefer- presence on the employment market. In this ential treatment in favour of disadvantaged case, the objective is to eliminate the causes categories is legitimized, in particular of the fewer employment and career oppor- through systems of quotas and goals. 10 Ulti- tunities which (still) beset female employ- mately that model took hold or, at any event, ment by taking action with respect, among other things, to vocational guidance and

duties. In both those cases, positive action, wiped out (see United Steelworkers of America, AFL-CIO- CLC v Webster 443 U. S. 193 1979). Secondly, the plan must be justified by a number of objectively verifiable factual preconditions: for example, a manifest discrepancy between the racial breakdown of the civil community and that of the world of the university; or between the number of women occupying higher posts in relation to the female 9 — Indeed, it is the use of the concept of the group which does population as a whole. In Europe, positive action has begun not find unequivocal favour. In this regard, there is in fact a to take hold or, at any event, to become the object of tendency to assert that preferential treatment in favour of attention at the very time when affirmative action seems to certain groups will end up by increasing the feeling of infe- be a state of crisis in its country of origin. Indeed, in the

commitment of the best.

More specifically for the purposes of the instant case, matters turn on whether Article 2(4) of the directive constitutes a proper legal basis for that purpose, that is to say, whether actions of the type in question are covered by the derogation laid down in that provi- sion. 10. The strictness of quotas may vary. In the instant case, as has already been mentioned, the quotas concerned are not strict (that is to say, quotas laying down a target percentage of posts which must be attained regardless of the merits of the persons affected by the pro- 12. Article 2(4), as I have already mentioned, cedure) and neither do they fix mandatory authorizes Member States to adopt and/or minimum requirements. Rather, the quotas maintain in force 'measures to promote equal provide for preferential treatment for women opportunity for men and women, in particu- only if they have equivalent qualifications to lar by removing existing inequalities which the male candidates. affect women's opportunities in the areas referred to in Article 1(1)'. u

It is evident in the first place from the wording of the provision in question that, This having been said, it only too obvious that even in this case there is discrimination on grounds of sex. 11 — My emphasis.

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13. Next, in order to establish what positive actions are authorized by Article 2(4), it is necessary to define the concept of equal opportunities, more specifically in order to clarify whether that expression means equal- ity with respect to starting points or with 14. That having been said, it should not be respect to points of arrival. To my mind, giv- overlooked that the ultimate objective of ing equal opportunities can only mean put- equal opportunities is to promote the ting people in a position to attain equal employment of women and attain substan- results and hence restoring conditions of tive equality, and that equality as regards equality as between members of the two starting points alone will not in itself guaran- sexes as regards starting points. In order t o tee equal results, which, apart from depend- achieve such a result, it is obviously neces- ing on the merits of the persons concerned sary to removing the existing barriers stand- and the individual efforts which they ing in the way of the attainment of equal make, 1 2 may also be influenced by a partic- opportunities as between men and women in ular social structure which penalizes women, the field of employment: it will therefore be in particular because of their dual role, on necessary first to identify the barriers and account of past discrimination, which causes then remove them, using the most suitable their presence in some sectors, particularly at instruments for the purpose. management level, to be marginal.

12 — It further goes without saying that, in so far as the method employed to assess candidates' merits indirectly discrimi- nated against women, the terms of the problem would change completely: what would then be involved is actual — albeit indirect — discrimination, against which action It seems to me to be all too obvious that the could be taken pursuant to specific provisions of the direc- national legislation at issue in this case is not tive.

14 — Existing inequalities affecting women may ensue, for The Court therefore considered that Article instance, also from the conditions, organization and distri- 2(4) authorizes treatment which is only dis- bution of work, which have differing effects on the sexes vis-à-vis employees, resulting in women being adversely criminatory in appearance but designed in affected in their occupational training and advancement and careers. From this perspective, in order to be effective, pos- practice to remove existing obstacles stand- itive action should instead bear upon educational and voca- ing in the way of equal opportunities for tional guidance so as to promote the employment of women in sectors where they are under-represented. At the same time, it should be observed that some of the French measures referred to above (in particular, flexible working hours and allowances for nurseries) are definitely discrimi- natory only in appearance, in so far as they are specifically 13 — Judgment in Case 312/86 Commission v France [1988] ECR designed to eliminate the existing obstacles standing in the 6315, paragraph 15. way of the achievement of equal opportunities.

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15 — That provision authorizes the Member States to adopt and/or maintain in force 'provisions concerning the protec- tion of women, particularly as regards pregnancy and maternity'. 16 — Judgment in Case C-421/92 Habermann-Beltermann [1994] ECR 1-1657, paragraph 22. The same wording was It is precisely in this light that the Court's used in the earlier judgment in Case 184/83 Hofmann case-law on the derogation set out in Article [1984] ECR 3047, paragraph 27.

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not linked with any specific condition of marginalize women on the employment mar- women but relates to all women as such. The kets. There is no doubt in fact that that con- rationale for the preferential treatment given dition constitutes existing inequality and a to women lies in the general situation of dis- disadvantage which should be eliminated. advantage caused by past discrimination and the existing difficulties connected with play- ing a dual role.

19. Next, as regards past discrimination against women, it is certainly undeniable that its effects are still felt today. The existence of a different (historical) social and cultural condition (for instance, the disparity in edu- cation and vocational training) continues to

20. N o different conclusion may be reached 17 — Judgment in Commission v France, cited in footnote 13, on the basis of a reading of the provision in paragraphs 15 and 16. question in the light of the aforementioned

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recommendation on the promotion of continuance of the existing obstacles which positive action. Although a recommen- are to be removed. dation is not a legally binding instrument, it may, as the Court has held, certainly be used as an aid for interpreting other Community provisions which it is intended to comple- ment. 18

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22. The foregoing observations definitely Moreover, with regard to the derogation confirm that Article 2(4) of the directive contained in Article 2(2), the Court has spe- only enables existing inequalities affecting cifically held that 'it should first be observed women to be eliminated, but certainly not that that provision, being a derogation from through pure and simple reverse discrimi- an individual right laid down in the directive, nation, that is to say, through measures not must be interpreted strictly'. 20 It then went in fact designed to remove the obstacles pre- on to hold that 'in determining the scope of venting women from pursuing the same any derogation from an individual right such results on equal terms, but to confer the as the equal treatment of men and women results on them directly or, in any event, to provided for by the directive, the principle of grant them priority in attaining those results proportionality, one of the general principles simply because they are women. of law underlying the Community legal order, must be observed'. 21 Consequently, the national measure in question must not exceed that which is appropriate and neces- sary to achieve the intended aim.

In the final analysis, measures based on sex and not intended to eliminate an obstacle — to remove a situation of disadvantage — are, in their discriminatory aspect, as unlawful today for the purposes of promotion as they were in the past.

The national legislation at issue is temporary — albeit long-term — in so far as it will cease to have any raison d'être once women account for one half of the persons in each 25. It is clear from the foregoing observa- remuneration bracket in each personnel tions that a measure of the kind at issue is group. It is not clear, however, whether it definitely disproportionate in relation to the will be repealed on the day when the fateful aim pursued or, in any event, pursuable figure of 50% is reached or whether it will under Article 2(4) of the directive, since that continue to be triggered whenever the num- aim remains that of achieving equal opportu- ber of women falls below the prescribed nities for men and women and not of guar- level: in any case, it is reasonable to suppose anteeing women the result where conditions that very long time-scales will be involved. are equal. As for the obstacles which it sets out t o remove, they are manifestly identified with under-representation. If it is assumed that under-representation of women in a given sector reflects existing inequality, such a measure tends merely to rebalance the num- bers of men and women, but it will not In the final analysis, whilst the national remove the obstacles which brought about measure in question manifestly and unques- that situation. In other words, the obstacles tionably conflicts with the principle of equal are not removed but constitute the cause treatment as defined in Article 2(1), it is not which purportedly renders the differentiated caught by the exception contained in Article — on grounds of sex — legislative treatment 2(4) of the directive, since, far from fostering lawful. equal opportunities for women, it aims to confer the results on them directly.

have reached are not consonant with the equality — the real equality not that equality positions adopted by numerous authorities which is only called for — may only be pur- which have, directly or indirecdy, considered sued in compliance with the law, in this case this issue. I refer, among other things, to a with a fundamental principle. number of stands taken by the European Parliament even recently and also to some of the literature, not only in the legal field. I am also conscious that a position different from the one which I regard as the correct one would be supported, not only by the legisla- tion which is the subject of the main pro- 28. Moreover, in saying this I am not refer- ceedings, but also by a number of measures ring only to the limits of the law. I am con- adopted in Member States of the Commu- vinced that women do not merit the attain- nity and in non-member countries in order ment of numerical — and hence only formal to guarantee, for their part too, not equal — equality — moreover at the cost of an opportunities but an equal share of jobs. incontestable violation of a fundamental value of every civil society: equal rights, equal treatment for all. Formal, numerical equality is an objective which may salve some consciences, but it will remain illusory 27. Nevertheless, I consider that I can and and devoid of all substance unless it is goes must resist the temptation to follow the together with measures which are genuinely trend, convinced as I am — and firmly so — destined to achieve equality, which was not that I would have to follow it, and propose the case in this instance and, in any event, it that the Court should follow it, only if I was not claimed that any such measures were agreed that that were the right direction to significant. In the final analysis, that which is take. necessary above all is a substantial change in the economic, social and cultural model which is at the root of the inequalities, a change which will certainly not be brought This is not the case here in so far as I believe about by numbers and dialectical battles that the fundamental, inviolable objective of which are now on the defensive.