C-409/95

MARSCHALL v LAND NORDRHEIN-WESTFALEN

OPINION OF ADVOCATE GENERAL JACOBS delivered o n 15 M a y 1997 *

1. Does Article 2(1) and (4) of Council equal treatment for men and women as Directive 76/207/EEC of 9 February 1976 on regards access to employment, including the implementation of the principle of equal promotion, and to vocational training and as treatment for men and women as regards regards working conditions ... This principle access to employment, vocational training is hereinafter referred to as "the principle of and promotion, and working conditions equal treatment".' ('the Equal Treatment Directive') 1 preclude 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 be given priority where male and female candi- 3. Article 2, in so far as is relevant, provides: dates for promotion are equally qualified (in terms of suitability, competence and profes- sional performance) unless reasons specific to a male candidate predominate? That is the question which has been referred to this Court by the Verwaltungsgericht (Adminis- trative Court), Gelsenkirchen. ' 1 . For the purposes of the following provi- sions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. The Equal Treatment Directive

2. Article 1(1) of the Equal Treatment Direc- tive provides:

'The purpose of this Directive is to put into 4. This Directive shall be without prejudice effect in the Member States the principle of to measures to promote equal opportunity for men and •women, in particular by remov- ing existing inequalities which affect wom- * Original language: English. en's opportunities in the areas referred to in 1 — OJ 1976 L 39, p. 40. Article 1(1).'

7. According to the observations of the Land, the national rule is intended to coun­ teract the structural discrimination which women would otherwise encounter by rea­ 5. Article 6 provides: son of traditional secondary criteria: a man would tend to be appointed over an equally qualified woman (a) because he is likely to be older and to have had longer service, attrib­ utable to fewer career breaks, and (b) for 'Member States shall introduce into their 'reasons of a social nature' — a tendency to national legal systems such measures as are award a job to a male earner with depen­ necessary to enable all persons who consider dants rather than to a male earner's wife. The themselves wronged by failure to apply to national rule in effect introduces an addi­ them the principle of equal treatment within tional criterion, namely being a woman, the meaning of Articles 3, 4 and 5 to pursue which in general must override the tradi­ their claims by judicial process after possible tional secondary criteria. recourse to other competent authorities.'

The facts and the national legislation

8. The rule is however subject to the proviso 'unless reasons specific to another candidate 6. The Law on Officials of the Land of predominate'. The precise scope of the pro­ N o r t h Rhine-Westphalia provides: viso is not immediately apparent. That is

2 — The first half of the second sentence of paragraph 25(5) of the Beamtengesetz für das Land Nordrhein-Westfalen in the version set out in the notice of 1 May 1981 (Gesetz- und 'Where in the sector of the authority respon­ Verordnungsblatt Nordrhein-Westfalen (GV. NW), p. 234), sible for promotion there are fewer women aş last amended by Paragraph 1 of the Siebtes Gesetz zur Änderung dienstrechtlicher Vorschriften of 7 February 1995 than men in the particular higher grade post (GV. NW, p. 102).

11. It is important to note at the outset that, 9. Mr Marschall, a teacher, applied for a as is apparent from the terms of the question higher position. H e was informed that a referred, the Court is not being asked — n o r woman candidate was to be appointed to the would it be appropriate for it to be asked — position: the two candidates were equally to rule on the desirability of positive dis­ suitable and since fewer women than men crimination or affirmative action 4 generally: were employed in the relevant pay and the national court's question concerns the career bracket the woman candidate had to conformity of the national rule at issue with be promoted by virtue of the legislation set two specific provisions of the Equal Treat­ out above. Mr Marschall brought legal pro­ ment Directive. Similarly the Court in its ceedings seeking an order that the defendant recent decision in KaUnke5 relating to a authority assign the post at issue to him. The similar national rule was focusing solely — Verwaltungsgericht Gelsenkirchen, doubting notwithstanding the tenor of some of the whether the legislation was compatible with Article 2(1) and (4) of the Equal Treatment Directive, stayed the proceedings and 3 — Pursuant to Article 20 of the Sutute of the Court of Justice referred the question set out above to the of the EC, as amended in the light of the Declaration by the European Community on the rights for the EFTA Sutes Court for a preliminary ruling. before the EC Court of Justice, annexed to the Final Act adopting the Agreement on the European Economic Area, OJ 1994 L 1, p. 523. 4 — For a note as to this terminology, see the Opinion of Advo­ cate General Tesauro in Case C-450/93 Katankę v Bremen [1995] ECR 1-3051, in particular paragraph 8. See also the Communication from the Commission to the European Par­ liament and the Council on the interpretation of the judg­ ment of the Court of Justice of 17 October 1995 in Case C-450/93 Kalanke v Freie Hansestadt Bremen, COM(96) 88 final, p. 3. 5 — Cited in note 4. The judgment has been the subject of 10. Written observations were submitted by numerous articles and commentaries. Extensive reference t o the German writings is made in the observations of the the Land of N o r t h Rhine-Westphalia, the Land.

The exception set out in Article 2(4) is in a category of its own. The provision opens the way for national measures "to promote equal opportunity for men and women, in particu- lar by removing existing inequalities". It merely appears to make an exception to the principle: in aiming to compensate for exist- ing discrimination it seeks to re-establish 13. Hofmann 7 concerned the compatibility equality and not to prejudice it. In other with the Equal Treatment Directive of a words, since it presupposes that there is an national rule restricting to mothers the grant inequality which must be removed, the of paid leave after the birth of a child. The exception must be broadly construed.' 8 Court did not base its ruling on Article 2(4), relying instead on Article 2(3) which pro- vides that the Directive is without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. Advocate General Darmon, 14. The second case, Commission v France,9 concerned the compatibility with the Equal Treatment Directive of a derogation from a 6 — See, for example, Eva Brems' comment in her case-note in 2 national equal treatment law. That deroga- Columbia Journal of European Law 172 (1995/96), p. 177: *Yet instead of concluding that all three models of positive tion sought to exempt from the prohibition action need to be combined, Tesauro then turns to the text of the directive' and Anne Peters' statement in The Many of discrimination terms of contracts of Meanings of Equality and Positive Action in Favour of Women under European Community Law — A Conceptual employment or collective agreements grant- Analysis', 2 European Law Journal 177 (1996), p. 190, that the decision 'illustrates the Court's lacking readiness to acknowledge the tensions arising from the multiplicity of paradigms'. 7 — Case 184/83 Hofmann v Banner Ersaukasse [1984] ECR 8 — Paragraph 9 of the Opinion. 3047. 9 — Case 312/86 [1988] ECR 6315.

1 1 — Paragraph 15 of the judgment. The phrase 'actual instances of inequality' in the English text of the judgment is perhaps 'The exception provided for in Article 2(4) is preferable to the English text of Article 2(4) of the Direc- specifically and exclusively designed to allow tive, which refers to 'existing inequalities'. It is also closer to the other language versions of Article 2(4). Advocate measures which, although discriminatory in General Slynn considered that the measures in issue could not be justified under Article 2(4) since the rights con- appearance, are in fact intended to eliminate cerned nad never been enjoyed by men and there were or reduce actual instances of inequality therefore no existing inequalities in favour of men which affected women's opportunities. That view however seems to be based on a somewhat literal reading of the English text of Article 2(4). 12 — Cited in note 4. 10 — See paragraph 8 of the judgment and the Opinion of Advo- 13 — See paragraph 3 of the judgment. cate General Sir Gordon Slynn at p. 6327. 14 — Paragraph 9 of the Court's judgment.

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18. The Court's starting point was the proposition that a national rule providing that, where men and women who were can- 20. The Court next endorsed the statement, didates for the same promotion were equally made in a Recommendation of the Council qualified, women were automatically to b e on the promotion of positive action for given priority in sectors where they were women, 1 8 that 'existing legal provisions on under-represented, involved discrimination equal treatment, which are designed to afford on grounds of sex. 1 5 Since the purpose of rights to individuals, are inadequate for the the Equal Treatment Directive was to p u t elimination of all existing inequalities unless into effect in the Member States the principle parallel action is taken by governments, both of equal treatment for men and women as sides of industry and other bodies con- regards, inter alia, access to employment, cerned, to counteract the prejudicial effects including promotion, and since Article 2(1) on women in employment which arise from stated that the principle of equal treatment social attitudes, behaviour and structures'. 1 9 meant that 'there shall be no discrimination The Court continued by stating that never- whatsoever o n grounds of sex either directly or indirecdy', there was a clear prima facie infringement of that principle. 16 — Cited in note 9. 17 — Paragraphs 18 and 19. 18 — Council Recommendation 84/635/EEC of 13 December 1984, OJ 1984 L 331, p. 34. i s — Paragraph 16 of the judgment. 19 — Third recital in the preamble.

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21. The Court concluded that national rules which guaranteed women absolute and unconditional priority for appointment or promotion went beyond promoting equal opportunities and overstepped the limits of the exception in Article 2(4) of the Direc­ 23. The Court's starting point in KaUnke, it tive. 2 1 It added that, in so far as it sought to will be recalled, was that a national rule pro­ achieve equal representation of men and viding that, where men and women who women in all grades and levels within a 'were candidates for the same promotion department, such a system substituted for were equally qualified, women were auto­ equality of opportunity as envisaged by matically to be given priority in sectors Article 2(4) the result which was only to be where they were under-represented involved arrived at by providing such equality of discrimination on grounds of sex and was opportunity. Ώ The answer to the national hence in principle contrary to the Directive. court's questions was accordingly that the To my mind, it is clear that the national rule Directive precluded national rules such as at issue in the present case is similarly dis­ that at issue which, where candidates of dif­ criminatory and hence contrary to the Direc­ ferent sexes shortlisted for promotion were tive unless it can be regarded as permitted by equally qualified, automatically gave priority to women in sectors where they were under- represented as defined by that rule. 2 3 24 — See, for example, Louis Charpentier, 'L'arrêt Kalanke, expression du discours dualiste de l'égalité', 32 Revue tri- mestrielle de droit européen 281 (1996), p. 288; Anne Peters, T h e Many Meanings of Equality', cited in note 6, pp. 192 to 193. 20 — Paragraphs 20 and 21. 25 — See, for example, Jean-Louis Clergerie's case-note in [1996] 21 — Paragraph 22. Recueil Dalhz Sirey (Jurisprudence) 221, p. 223; Eva Brems' case-note, cited in note 6, pp. 174 to 175; Linda Senden, 22 — Paragraph 23. Tositive Action in the EU Put to the Test. A Negative 23 — Paragraph 24 and operaare part. For the relevant definition Score?', 3 Maastricht Journal of European and Comparative of 'under-representation', see paragraph 16 above. Law 146 (1996), pp. 151 to 152.

26. The Land of North Rhine-Westphalia, the Austrian, Finnish, Norwegian, Spanish and Swedish Governments and the Commis- sion 2S take the opposite view. They submit in effect that the flexibility of the national rule in the present case — namely the exist- ence of the proviso — is sufficient ground to distinguish the ruling in KaUnke: there is in the present case no guarantee of absolute and unconditional priority. 29 24. The essential question is whether the national rule at issue in the present case falls within the scope of Article 2(4) and is hence compatible with the Directive. The national court was prompted to make a reference t o the Court in this case because of the differ- ence between the national rule at issue in the main proceedings and that which had been in issue in Kalanke. It points in particular to the Court's conclusion in KaUnke that 'national rules which guarantee women abso- 27. There are in my view a number of flaws lute and unconditional priority for appoint- in that argument. ment or promotion' were outside the scope of Article 2(4), 2 7 and raises the question •whether the effect of the proviso to the national rule before it is to make the rule 28 — See also the Communication, cited in note 4, p. 9. 29 — It may be noted that the Federa] Labour Court which compatible with the Directive. requested the preliminary ruling in Kalanke was, when adjudicating on the case m the light of the Court's ruling, also of the view that the critical feature of the national rule before it was the absence of a specific proviso such as that at issue in this case: see Sacha Prêchai's note on Kalanke, 33 Common Market Law Review 1245 (1996), p. 1256, and 26 — Set out in paragraph 4. Linda Senden, 'Positive Action in the EU Put to the Test', 27 — Paragraph 22 of the judgment; emphasis added. cited in note 25, p. 157.

'To my mind, giving equal opportunities can only mean putting people in a position to attain equal results and hence restoring con- ditions of equality as between members of the two sexes as regards starting points. ... It seems to me all too obvious that the national legislation at issue in this case is not designed to guarantee equality as regards starting points. The very fact that two candidates of different sex have equivalent qualifications implies in fact by definition that the two candidates have had and continue to have equal opportunities: they are therefore on an equal footing at the starting block. By giving 29. Moreover, the reasoning in KaUnke sug- priority to women, the national legislation at gests that the present rule is unlawful. In issue therefore aims to achieve equality as paragraph 23 of the judgment, the Court regards the result or, better, fair job distribu- stated that the national rule, 'in so far as it tion simply in numerical terms between men seeks to achieve equal representation of men and women. This does not seem to me to fall and women ..., substitutes for equality of within either the scope or the rationale of Article 2(4) of the directive.' 33

30 — Paragraph 9 of the judgment. 31 — See further Linda Senden, 'Positive Action in the EU Put to the Test', cited in note 25, p. 149. A new *State aims' provi- 32 — See, for example, Georges Friden's case-note in [1995] sion has since been added to Article 3(2) to the effect that Annales du droit luxembourgeois 483, pp. 488 to 490; the Sute 'promotes the enforcement of factual equality of Olivier De Schutter and Bernadette Renauld, 'Egalité de men and women and aims at reducing existing disadvan- traitement — L'action affirmative devant la Cour de Justice tages.' See further Gilbert H. Gornig and Sven Reckewerth, des Communautés Européennes à propos de l'arrêt Kalanke T n e Revision of the German Basic Law. Current Perspec- du 17 octobre 1995' [1996] Journaux des tribunaux du tra- tives and Problems in German Constitutional Law' [1997] vail 125, p. 126. Public Law 137, pp. 147 to 149. 33 — Paragraph 13.

32. It seems to me therefore that the effect of the ruling in KaUnke is that any rule which goes beyond the promotion of equal oppor- tunities by seeking to impose instead the desired result of equal representation is simi- larly outside the scope of Article 2(4) of the Directive and hence contrary to the principle of equal treatment as enshrined in Article 2(1) and, in the present state of Community law, unlawful. That approach is to my mind entirely consistent with the scheme of the Directive. It is axiomatic that there is no 31. In his Opinion, Advocate General equal opportunity for men and women in an Tesauro further developed his explanation of individual case if, where all else is equal, one the distinction between measures permitted is appointed or promoted in preference to under Article 2(4), namely those 'designed to the other solely by virtue of his or her sex. remove the obstacles preventing women That the Directive is concerned with the from pursuing the same results on equal protection of individual rights is clear from terms', and measures not so permitted, namely those designed 'to confer the results on them directly, or, in any event, to grant them priority in attaining those results 34 — Paragraph 22.

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33. In my view, the proviso to the national rule at issue in the present case does not affect the conclusion that that rule is unlaw- ful for the following reasons. 36. In any event, even if the existence of a proviso might in principle render such a rule compatible with the Directive, it could do so only if the proviso itself were unobjection- able. That does not appear to be the case here. In addition to the points made in the preceding paragraphs, there is a further issue 34. First, as the national court and the relating to the operation of the proviso. The United Kingdom Government point out, if Land of North Rhine-Westphalia has indi- the proviso operates it merely displaces the cated that the national rule at issue in this rule giving priority to women in a particular case is intended to displace the application in case: it does not alter the discriminatory selection procedures of 'traditional second- nature of the rule in general. ary criteria' which it regards — no doubt correctly 3S — as discriminatory. The proviso however appears to envisage that precisely those criteria may none the less be used where it is invoked, with the result that the post will be offered to the male candidate on the basis of criteria which it is accepted are 35. Furthermore, as the French Government points out, the scope of the proviso at issue 36 — See paragraph 8 above. 37 — See, for example. Case 257/86 Commission v ludy [1988] ECR 3249, paragraph 12 of the judgment. 35 — Set out in paragraph 5 above. 38 — I return to this point in paragraph 40.

39. It does not however follow from the fact that the national rules at issue in the present 37. I accordingly conclude that, notwith­ case and in KaUnke are contrary to Commu­ standing the proviso, the national rule at nity law that it is lawful for a public auth­ issue in the present case is, in the light of the ority to apply the so-called traditional sec­ judgment of the Court in Kalanke, unlawful. ondary selection criteria which are allegedly I would add as a general point that in m y applied in the absence of such rules. 4 2 It view any temptation to distinguish Kahnke seems clear in fact that such criteria are both on narrow technical grounds should be applied and regarded by some as acceptable: resisted. As explained above, the reasons M r Kalanke, for example, reportedly argued which led the Court to reach its decision in before the national courts that, even on the that case are clear and apply equally to the assumption that Ms Glißmann was equally qualified, he should have been promoted on present case. Straining to differentiate similar social grounds (namely, that he was married, cases on the grounds of nuances in the con­ his wife did not work and he had two chil­ tested legislation is likely to lead to confu­ dren). 4 3 It seems equally clear that the appli­ sion as to the law and a proliferation of liti­ cation of such criteria in a selection pro­ gation with arbitrary results. cedure is itself a violation of the Equal

Treatment Directive: Article 2(1), it will be 41. It may be useful to add some observa- recalled, provides that 'there shall be no dis- tions on the types of measure which in my crimination whatsoever on grounds of sex view do and do not fall within Article 2(4), either directly or indirectly by reference in which, it will be recalled, provides that the particular to marital or family status', and Directive is to be 'without prejudice to mea- Article 3(1) explicitly prohibits such dis- sures to promote equal opportunity for men crimination 'in the conditions, including and women, in particular by removing exist- selection criteria, for access to all jobs or ing inequalities which affect women's oppor- posts'. A Member State which permits the tunities in the areas referred to in Article application of such discriminatory criteria is 1(1)', namely access to employment, includ- in breach of its obligations under the Equal ing promotion, vocational training and Treatment Directive and under Articles 5 and working conditions. 189 of the Treaty, as is a Member State which has failed to ensure that all persons who con- sider themselves wronged by discrimination are able 'to pursue their claims by judicial process' in accordance with Article 6 of the Directive. **

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gender-neutral provision. 4 5 As an example measures relating to access to employment, of such a provision, Community institutions including promotion, which give a specific when recruiting commonly provide for the advantage to women with a view to improv- extension of the age-limit which would oth- ing their ability to compete on the labour erwise apply for the benefit of 'candidates market and to pursue a career on an equal who for at least one year have not pursued footing with men'. 4 7 Permissible directly an occupational activity in order to look discriminatory measures under Article 2(4) after a young child living in their home'. 4 6 'must therefore be directed at removing the obstacles preventing women from having equal opportunities by tackling, for example, educational guidance and vocational train- ing'. 4S

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 provi- sion will to my mind be lawful by virtue of Article 2(4). The question of policy

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50 — Observations of the Land in this case; Dr Dagmar Schielt, 'Positive Action', cited in note 40, p. 244. Sec generally 53 — See, for example, Titia Loenen and Albertine Veldman, Josephine Shaw, "Positive Action for Women in Germany: •Preferential Treatment in the Labour Market after Katankę: The Use of Legally Binding Quota Systems' in Bob Hepple Some Comparative Perspectives', 12 International Journal and Erika Szyszczak, eds, Discrimination: The Limas of of Comparative Labour Law and Industrial Relations 43 Law (London and N e w York: Mansell Publishing Ltd, (1996), p. 43: T h e fundamental attack on preferential treat­ 1992), p. 386. ment which the decision in Kalanke seems to imply ...*. 51 — Notwithstanding the view to the contrary expressed by 54 — Proposal for a Council Directive amending Directive some commentators: see, for example, Eva Brems' case- 76/207/EEC on the implementation of the principle of note, cited in note 6, p. 178. equal treatment for men and women as regards access to 52 — Jepson v The Labour Party [1996] Industrial Relations Law employment, vocational training and promotion, and work­ Reports 116, at p. 117. ing conditions, OJ 1996 C 179, p. 8.

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51. Reference is made in several of the writ- 50. The second initiative is a proposal to ten observations submitted to the C o u r t 5 8 to amend the Treaty which is being made in the international conventions which, it is argued, support the view that Article 2(4) of the Equal Treatment Directive should be inter- 55 — Article 1 of the proposed amending directive. preted sufficiendy widely to encompass 56 — See the Explanatory Memorandum, COM(96) 93 final, pp. 3, 4 and 7. 57 — See further the Economic and Social Committee's well- articulated critique of the proposed amendment in its Opin- ion of 25 September 1996, OJ 1997 C 30, p. 57, in particular 58 — See also the Commission's Communication cited in note 4, paragraphs 3.1 and 3.2. pp. 7 to 8.

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MARSCHALL v LAND NORDRHEIN-WESTFALEN

within its field of permitted action preferen- 53. The Land of North Rhine-Westphalia, tial measures such as the national rule at the Austrian, Finnish and Norwegian Gov- issue in this case. ernments and the Commission refer to the United Nations Convention on the Elimina- tion of All Forms of Discrimination Against Women, ratified by all Member States of the European Community, 6 0 and in particular Article 4(1) which provides:

52. The Land of North Rhine-Westphalia and the Commission refer to the Interna- tional Labour Organization Convention on discrimination, 59 ratified by all the Member States with the exception of Ireland, Luxem- bourg and the United Kingdom. Article 5 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 n o way entail as a consequence the maintenance ' 1 . Special measures of protection or assis- of unequal or separate standards; these mea- tance provided for in other Conventions or sures shall be discontinued when the objec- Recommendations adopted by the Interna- tives of equality of opportunity and treat- tional Labour Conference shall not be ment have been achieved.' deemed to be discrimination.

56. The terms of the Conventions at issue 57. On the more general question, however, are moreover clearly permissive rather than of the scope of Article 2(4) of the Directive, mandatory. The interpretation of Article 2(4) the types of measure which in my view are of the Directive which I am advocating does permitted by Article 2(4) are in any event the not therefore give rise to a direct conflict types of measure •which the Conventions with the Conventions, such as would be the seem intended to facilitate.

Conclusion

5 8 . Accordingly, the q u e s t i o n referred b y t h e Verwaltungsgericht, Gelsenkirchen, s h o u l d in m y o p i n i o n be a n s w e r e d as follows:

A r t i c l e 2(1) a n d (4) of C o u n c i l Directive 7 6 / 2 0 7 / E E C of 9 F e b r u a r y 1976 o n t h e i m p l e m e n t a t i o n of t h e principle of equal t r e a t m e n t for m e n a n d w o m e n as regards access t o e m p l o y m e n t , vocational training a n d p r o m o t i o n , a n d w o r k i n g c o n d i t i o n s p r e c l u d e s a rule of national law •which provides that, in official sectors in w h i c h f e w e r w o m e n t h a n m e n are employed i n the relevant higher grade p o s t in a career g r o u p , w o m e n m u s t , unless reasons specific t o a male candidate p r e d o m i n a t e , b e given p r i o r i t y w h e r e male a n d female candidates for p r o m o t i o n are equally quali- fied (in t e r m s of suitability, c o m p e t e n c e and professional p e r f o r m a n c e ) .

61 — See most recently Case C-124/95 The Queen v HM Trea- sury and The Bank of England, ex parte Centro-Com, judg- ment of 14 January 1997, paragrapns 55 to 60.