C-180/95

O P I N I O N O F MR LÉGER — CASE C-180/95

OPINION OF ADVOCATE GENERAL LÉGER delivered on 14 January 1997 "

1. By the questions submitted to the Court the facts before it and the relevant provisions the Arbeitsgericht (Labour Court), Ham- of German law dictate the same replies. burg asks it once again to consider the appli- cation 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 3. I shall move on to consider the questions working conditions , (hereinafter 'the Direc- submitted after briefly describing the back- tive' or 'Directive 76/207'). ground to this case.

In substance the Court is asked to rule Legislative background whether Directive 76/207 precludes repara- tion of damage suffered as a result of dis- crimination on grounds of sex in the making of an appointment from being made subject to the existence of fault. The Court is also asked whether, in the same situation, Direc- The relevant Community provisions: Direc- tive 76/207 precludes a provision of national tive 76/207 law from setting a ceiling for compensation.

4. The purpose of Directive 76/207 is to implement in the Member States the prin- ciple of equal treatment for men and women 2. As the Arbeitsgericht points out, 2 the while ensuring, in particular, that workers of Court has already been asked to rule on both sexes have real equality of opportunity similar questions. However, the Arbeits- in access to employment. gericht wishes to obtain confirmation that

9. Paragraph 611a(l) of the BGB provides that an employer must not discriminate against any worker on grounds of sex in 6. Article 3 of the Directive is the provision connection with an agreement or the adop- which defines the scope of the principle of tion of a measure, particularly as regards equal treatment as regards access to employ- establishment of the employment relation- ment. Article 3(1) provides that application ship, promotion, the giving of instructions or of the principle means that there is to be no dismissal. However, a difference in treatment discrimination whatsoever on grounds of sex on grounds of sex is permissible if an agree- in the conditions, including selection criteria, ment or measure concerns an activity which, for access to all jobs or posts, whatever the owing to its specific nature, can only be per- sector or branch of activity, and to all levels formed by workers of a particular sex. Para- of the occupational hierarchy. Article 3(2)(a) graph 611a(2) provides that if, in the estab- provides that the Member States are to take lishment of an employment relationship, an the measures necessary to ensure that any employer becomes liable for an infringement laws, regulations or administrative provi- of the prohibition of discrimination laid sions contrary to the principle of equal treat- down in subparagraph (1 ), 'the applicant dis- ment are abolished. criminated against may claim appropriate financial compensation not exceeding three months earnings'. A month's earnings is to be what the applicant would have been entitled to earn, in cash or in kind, by work- ing normal hours in the month in •which an employment relationship would have arisen. 7. Under Article 6 of the Directive the Member States must introduce the measures necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue 10. Paragraph 611b(l) of the BGB provides their claims by judicial process. that an employer may not offer a job only to

12. O n 17 November 1994 Nils Draehm- paehl, the applicant in the main proceedings, replied by letter to an offer of employment advertised in the press by Urania Immo- bilienservice O H G . It was worded as follows:

14. The Arbeitsgericht stated that, in sepa- rate proceedings before a different chamber of the same court, another candidate had also 'We are seeking an experienced female assis- brought proceedings for damages against tant in our sales management department. If Urania on similar grounds.

I - 2200

DRAEHMPAEHL v U R A N I A IMMOBILIENSERVICE

15. Urania did not appear at the conciliation against may claim 6 with the interpretation hearing and did not make any observations which the Court gave, in its judgment in on the proceedings pending. Neither the Marshall II,7 of Article 6 of Directive Arbeitsgericht nor the plaintiff succeeded in 76/207 and therefore considered that it was contacting Urania or in ascertaining its unable to determine the proceedings. It present address. therefore decided to submit the following four questions to the Court for a preliminary ruling:

3 — Within the meaning of Paragraph 611a(l) of the BGB. 4 — Page 6, point (a), of the English translation of the order for reference. 6 — Paragraph 611a(2) of the BGB and 61b(2) of the ArbGG. 5 — Case C-177/88 [1990] ECR 1-3941. 7 — Case C-271/91 [1993] ECR 1-4367.

I - 2201

OPINION OF MR LÉGER — CASE C-180/95

labour law — for applicants of either 4. Does a statutory provision which, sex who have been discriminated against where compensation is claimed by sev- in the procedure, but who would not eral parties for discrimination on have obtained the position to be filled grounds of sex in the making of an even in the event of non-discriminatory appointment, prescribes an upper limit selection by reason of the superior of the aggregate of six months' salary qualifications of the applicant for all persons who have suffered dis- appointed, conflict with Articles 2(1) crimination — in contrast to other and 3(1) of Council Directive domestic provisions of civil and labour 76/207/EEC on the implementation of law — conflict with Articles 2(1) and the principle of equal treatment for men 3(1) of Council Directive 76/207/EEC and women as regards access to of 9 February 1976 on the implementa- employment, vocational training and tion of the principle of equal treatment promotion, and working conditions? for men and women as regards access to employment, vocational training and promotion, and working conditions?'

Analysis

20. Consequently, the questions submitted patible with Articles 2 and 3 of Directive must be reworded. Thus, by its first ques- 76/207. tion, the Arbeitsgericht asks the Court whether paragraph (1) of Articles 2 and 3 of Directive 76/207 is to be interpreted as pre- cluding compensation for damage suffered as a result of discrimination on grounds of sex in the making of an appointment from being made subject to proof of fault on the 23. The Court followed the Opinion of employer's part. The second and third ques- Advocate General Darmon 9 and, relying on tions concern the compatibility of a ceiling established case-law, 10 the Court confirmed on any award of compensation with Direc- that, whilst the Member States are at liberty tive 76/207. By its fourth question the to choose the means of ensuring real and Arbeitsgericht asks whether Community law effective judicial protection, as referred to by precludes national provisions setting a ceiling Article 6 of Directive 76/207, if the sanction on aggregate compensation, as provided for chosen forms part of rules governing the by Paragraph 61b(2) of the ArbGG. employer's civil liability, breach of the pro- hibition of discrimination is sufficient in itself to cause liability to be incurred, with- out requirement of proof of a distinct fault on the employer's part or consideration of the exonerating factors provided for by national law. n

The first question

24. The Commission and the applicant in the main proceedings 12 submit that this judgment already provides an answer to the first question now submitted to the Court. 21. The Arbeitsgericht wonders whether the reply which the Court gave in Dekker is rel- evant to the proceedings before it.

ing that the national provision in question is to the argument of Advocate General Dar- incompatible with the provisions of the mon. 16 Directive. In its view, that judgment con- cerns only the requirement of fault in Neth- erlands law. In contrast to that position, fault in German law does not call in question the effectiveness of Community provisions. In German law, if the requirement of fault is always necessary in order for an employer to incur liability, proof of such fault is easy to 27. Consequently, I propose that the Court adduce since deliberate acts or simple negli- answer the first question as follows: If the gence are sufficient for such liability to be sanction chosen by a Member State forms incurred. Furthermore, cases in which part of the rules governing an employer's employers are exempt from liability are par- civil liability, Articles 2(1) and 3(1) of Direc- ticularly strictly defined. 13 tive 76/207 preclude reparation of damage arising from discrimination on grounds of sex in the making of an appointment from being made subject to the existence of fault, no matter how slight.

I - 2204

D R A E H M P A E H L v U R A N I A IMMOBILIENSERVICE

for me to comment. For it is clear from 31. First, as in the Dekker case, the employer settled case-law that Article 177 of the Treaty declined to consider establishing an employ- is based on a clear separation of functions ment relationship with the candidate on the between the national courts and the Court of grounds of his sex and not for reasons Justice 1S and that, therefore, the Court must related to his qualifications. The Arbeitsger- not be led into interpreting or applying icht is mixing up two quite different notions: national law. ' 9 We must therefore decide the loss of an opportunity because of one's sex case on the basis of the legal and factual and objectively erroneous assessment by the information provided by the national court. employer of the candidate's qualifications.

The Arbeitsgericht has also asked whether the answer depends on the qualifications of the candidate who was discriminated against on grounds of sex. 32. Since the harm suffered owing to sexual discrimination in the making of an appoint- ment is quite different, it must be made good independently of any other harm which may have been incurred by the injured candidate and without reparation of this other harm having any possible effect on the basis or extent of compensation for that discrimi- 29. I shall first consider whether the reply to nation. be given to the question posed by the national court depends on the level of the qualifications of the candidate suffering sexual discrimination.

34. Finally, reparation of the damage suf- fered through undervaluation of the merits and qualifications of an individual, man or woman, does not come within the scope of Directive 76/207 — provided, of course, that there is no covert sexual discrimination. Here the court dealing with the case can therefore only be referred to its own national law. 37. In that case, the Court was in fact reply- ing to a similar question put by a United Kingdom court.

35. Consequently, the Arbeitsgerichte inquiry, explicit in the second question and implicit in the third question, concerning the qualifications of the candidate discriminated against on the grounds of sex is not relevant to the outcome of the case. 38. Mrs Marshall, who had been dismissed on discriminatory grounds, sought payment of compensation. The Industrial Tribunal assessed her financial loss due to her dis- criminatory dismissal at an amount higher than the ceiling set for this type of damage by Section 65(1 )(b) of the Sex Discrimination 36. In these preliminary questions, the Act 1975. The tribunal had doubts, in par- Arbeitsgericht is therefore asking the Court

22 — English translation of the order for reference, p. 7, 21 — See, in particular, the judgment in Marshall / / (paragraph point (b). 24). 23 — Sec paragraph 28 of this Opinion.

I - 2206

DRAEHMPAEHL v URANIA IMMOBILIENSERVICE

ticular, about the compatibility of that 42. In Von Colson and Kamann, the Court national provision with Article 6 of Directive recalled first of all that, in accordance with 76/207. Article 5 and the third paragraph of Article 189 of the Treaty, it was for the Member States to adopt all appropriate measures, whether general or particular, to ensure ful- filment of the aims pursued by Directive 76/207 and for the national courts to inter- pret national law in the light of the wording and the purpose of the Directive. 24 As regards that directive, the Court also pointed 39. The Commission and the plaintiff in the out that the purpose pursued by the Com- main proceedings maintain that this judg- munity legislature was to ensure the effec- ment is partly transposable to this case. tiveness of the prohibition of discrimination on grounds of workers' sex.

I - 2207

O P I N I O N O F MR LÉGER — CASE C-180/95

suitable for achieving its objective.' 26 Fur- can restore a situation of equality 32 and meet thermore, the measures adopted by the the requirements underlying the notion of an Member States must '... have a real deterrent 'adequate sanction'. The Court therefore effect on the employer . 27 held that Article 6 of the Directive did not allow the fixing of an upper limit on com- pensation payable in the event of a discrimi- natory dismissal "... since it limits the amount of compensation a priori to a level which is not necessarily consistent with the require- 44. In Marshall II, after recalling those prin- ment of ensuring real equality of opportu- ciples, 28 the Court held that account had to nity through adequate reparation for the loss be taken of the particular circumstances of and damage sustained as a result of discrimi- each breach of the principle of equal treat- natory dismissal'. 33 In doing so, it made ment 29 and the Court made observations on clearer the judgment in Von Colson and the question of the 'adequate' nature of the Kamann. sanction for ensuring restoration of the prin- ciple of equal treatment following a discrimi- natory dismissal.

47. The discretion left to the Member States in implementing the solution chosen for ensuring restoration of the principle of equal 45. Advocate General Van Gerven, in his treatment in the case of discriminatory dis- Opinion in Marshall II, defined 'adequate missal is therefore limited: there must either compensation' as that which is sufficiently be reinstatement or full reparation of the high to act as an effective, proportionate and damage suffered, calculated according to the dissuasive sanction. 30 Thus, this type of national rules in force. 34 compensation must be distinguished from full reparation. 31

49. In the present case, the measure chosen cases in which the Court would have to give by the German legislation to ensure respect a ruling and sometimes change its case-law. for the rights of a candidate discriminated against on the grounds of his or her sex in the making of an appointment is payment of compensation not exceeding three months' earnings which, according to the court mak- ing the reference, is not equivalent to the compensation awardable under the other rules of domestic civil law and labour law. I 52. That interpretation I find neither justifi- can think of two reasons why such provi- able nor reasonable. In the various situations sions must be prohibited. (dismissal, refusal to engage ...), the worker or candidate for a job has been placed in the same situation: he or she has suffered dis- crimination on the grounds of his or her sex since the employer has engaged in the same blameworthy conduct. However, under the 50. First, the ruling in Von Colson and general principle of equal treatment in Com- Kamann and in Marshall II precludes them, munity law, comparable situations must not since I have deduced from those judgments be treated differently and different situations that they establish a principle that damage must not be treated equally, unless such arising from discrimination prohibited by treatment is objectively justified. 36 Conse- Directive 76/207 must be made good in quently, where there are similar situations full. 35 experienced by workers, the same rule must be applied and the damage suffered by them must be repaired in full. 37

to the national rules in force, the damage suf- tive 76/207 preclude measures such as those fered by taking into account all the factors enacted in German law under which the which it usually takes into consideration. amount of compensation to which a person discriminated against on the grounds of his sex in the making of an appointment from an employer can be limited where several claims for compensation based on discrimination on grounds of sex are made. In other words, 54. Second, and in the alternative, the prin- that national legislative provision, unlike ciple of procedural autonomy of national other provisions of German civil law and legal systems also precludes application of German labour law, 39 allows the amount of provisions like those applying in Germany. compensation payable to be varied according Respect for this principle presupposes that, to the number of candidates. Consequently, in the absence of harmonization pursuant to the compensation which the persons con- Community law, the Member States are at cerned may claim can undergo a sharp liberty to choose the appropriate solution for reduction on account of the ceiling imposed. guaranteeing this judicial protection, but the sanction chosen must offer the same degree of protection as that adopted under the com- parable national legal rules. 3 8 The Arbeits- gericht tells us, however, that this is not the case.

57. I would refer the Court to my reasoning 55. In conclusion, as far as the second and set forth above, because there is no differ- third questions are concerned, I submit that ence between the two questions. Here again, the Court should hold that limitation of the rules concerned have the consequence of compensation payable for a discriminatory limiting the amount of compensation for the refusal to appoint a candidate is contrary to damage actually suffered by the candidate Articles 2(1), 3(1) and 6 of Directive 76/207. discriminated against on the grounds of his or her sex in the making of an appointment.

59. In view of the foregoing considerations, I propose that the questions submitted by the Arbeitsgericht Hamburg should be answered as follows:

(1) Where the sanction chosen by a Member State to penalize breach of the prin- ciple of non-discrimination in the matter of recruitment is laid down by rules governing civil liability, Articles 2(1) and 3(1) 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, voca- tional training and promotion, and working conditions, must be interpreted as precluding a national legislative provision from making reparation of damage arising from discrimination on grounds of sex in the making of an appoint- ment subject to the condition that there must be fault on the employer's part.

(2) Articles 2(1), 3(1) and 6 of Directive 76/207 must be interpreted as precluding national legislative provisions which — unlike other provisions of domestic civil law and domestic labour law — place an upper limit of three months' earnings on the amount of compensation which may be claimed, in the event of discrimination on grounds of sex in the making of an appointment, by male or female candidates who have suffered discrimination in the making of the appointment.

(3) Articles 2(1), 3(1) and 6 of Directive 76/207 must be interpreted as precluding national legislative provisions which — unlike other provisions of domestic civil law and domestic labour law — place an upper limit of six months' earn- ings on the aggregate compensation payable to persons suffering discrimi- nation on grounds of sex in the making of an appointment where several per- sons claim compensation.