C-158/97

BADECK AND OTHERS

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 10 June 1999 *

1. By the reference for a preliminary ruling women as regards access to employment, from the Staatsgerichtshof des Landes Hes- including promotion, and to vocational sen (State Constitutional Court, Hesse) the training and as regards working conditions Court is asked for the third time to and ... social security' (Article 1). interpret Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working con- ditions (hereinafter 'the Directive') 1 in Article 2(1) of the Directive provides that order to determine whether it is compatible that principle 'shall mean that there shall be with rules relating to a programme for the no discrimination whatsoever on grounds recruitment and promotion of women in of sex either directly or indirectly by the public administration. The question reference in particular to marital or family referred in the present case is in fact asking status'. the Court to define, in the light of Com- munity law in force, the concept and scope of positive action at national level to facilitate the full integration of women in working life. Article 2(4) provides that the Directive shall be without prejudice to the right of Member States to adopt or maintain in force 'measures to promote equal opportu- nity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred The Community provisions to in Article 1(1)'.

5. Even before the Treaty was amended, the Community institutions had already adopted various acts relating to equal treatment for men and women. I draw your attention in particular to Council 4. Article 119 of the EC Treaty (Arti- R e c o m m e n d a t i o n 8 4 / 6 3 5 / E E C of cles 117 to 120 of the EC Treaty have been 13 December 1984 on the promotion of replaced by Articles 136 EC to 143 EC) as positive action for women, 3which states amended provides that 'each Member State that 'existing legal provisions on equal shall ensure that the principle of equal pay treatment, which are designed to afford for male and female workers for equal rights to individuals, are inadequate for the work or work of equal value is applied' elimination of all existing inequalities (paragraph 1), that 'the Council, acting in unless parallel action is taken by govern- accordance with the procedure referred to ments, both sides of industry and other in Article 189b [now Article 251 EC], and bodies concerned, to counteract the preju- after consulting the Economic and Social dicial effects on women in employment Committee, shall adopt measures to ensure which arise from social attitudes, behaviour the application of the principle of equal and structures', and recommends the Mem- opportunities and equal treatment of men ber States, with express reference to Arti- and women in matters of employment and cle 2(4) of the Directive, to adopt a positive occupation, including the principle of equal action policy designed inter alia to 'encou- pay for equal work or work of equal value' (paragraph 3), and lastly that 'with a view to ensuring full equality in practice between 2 — Prior to the amendments introduced under the Treaty of men and women in working life, the Amsterdam, Article 119 made no reference to positive action for the under-represented sex and only prohibited principle of equal treatment shall not discrimination in respect of pay. Paragraph 1 of that article provided that 'each Member State shall during the first stage prevent any Member State from maintain- ensure and subsequently maintain the application of the ing or adopting measures providing for principle that men and women should receive equal pay for equal work'. specific advantages in order to make it 3 — OJ 1984 L 331, p. 34.

6. The purpose of the Hessisches Gleich- berechtigungsgesetz (Hesse Equal Rights Law, hereinafter the 'HGlG'), adopted on 21 December 1993 and promulgated on 30 December 1993, is to promote equal access for women and men to public offices by improving the conditions of access and promotion for women and their working conditions, on the basis of women's advancement plans with binding targets (Paragraph 1). 8. Paragraph 5(3) states that 'the women's advancement plan shall contain binding targets, for two years at a time, with reference to the proportion of women in appointments and promotions, for increas- ing the proportion of women in sectors in which women are under-represented'. In 7. Paragraph 3(1) of the HGlG provides addition, Paragraph 5(4) provides that 'in that 'departments shall be obliged by means each women's advancement plan, more of women's advancement plans ... and than half of the posts to be filled in a other advancement measures ... to work sector in which women are under-repre- towards equality of women and men in the sented are to be designated for filling by public service and the elimination of the women'. That shall not apply if 'a particu- under-representation of women and to lar sex is an indispensable condition for an eliminate discrimination on grounds of activity' or 'if it is convincingly demon- sex and family status' and Paragraph 3(2) strated that not enough women with the states that 'women are under-represented if, necessary qualifications are available' or 'in within the scope of a women's advance- the case of promotions without posts being ment plan ... fewer women than men are filled in sectors in which women are under-

11. Under Paragraph 9(1), at least as many women as men, or all the women candi- dates, shall be called to interviews held in connection with the appointment of new staff, if they satisfy the conditions laid down by the law or otherwise and if 9. Paragraph 5(7) is concerned with 'posts women are under-represented in the sector in the academic service' which are filled for in question. a fixed term under the Hochschulrahmen- gesetz (Framework law on universities and colleges). They must be filled with at least the same proportion of women as the proportion of women among the graduates or holders of higher degrees (as the case may be) in the faculty in question. The same principle applies to the employment of academic assistants without degrees: at least the same proportion of women must 12. Paragraph 10 provides that 'suitability, be considered as the proportion of women capability and professional performance among the students in the faculty in (qualifications) are to be assessed in accor- question. dance with the requirements of the post to be filled or the office to be conferred. When qualifications are assessed, capabilities and experience which have been acquired by looking after children or persons requiring care in the domestic sector (family work) are to be taken into account, in so far as they are of importance for the suitability, performance and capability of applicants. 10. Paragraph 7 provides that, again in That also applies where family work has cases where women are under-represented, been performed alongside employment .... they are to be taken into account to the The family status or income of the partner extent of at least one half in the allocation may not be taken into account. Part-time of places on training courses. Women's work, leave and delays in completing attention must also be drawn to vacant training as a result of looking after children

14. As regards the duration of the advance- ment plan, Paragraph 5(3) provides that the binding targets for each plan shall be set for a period of two years, taking into account 16. According to the plaintiffs, the HGlG is the particular features of the sectors and inconsistent with the constitutional princi- departments concerned. However, pursuant ple of 'choosing the best persons', in that it to Paragraph 10(4), if the targets of the entails giving priority to candidates on women's advancement plan are not fulfilled grounds of sex rather than merit, and also within two years, every further appoint- with the principle of equal treatment, ment or promotion of a man in a sector in which not only prohibits giving priority to which women are under-represented shall, a specific group but confers a fundamental until they are fulfilled, require the approval right on all individuals, a right which of the body which has approved the plan. guarantees citizens equal opportunities Moreover, until a women's advancement with respect to starting-points, not advan- plan has been drawn up, no appointments tages for a specific category of persons with

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respect to points of arrival. In that sense, it 1. in cases of under-representation under is claimed that the rules in question are also Paragraph 3(1) and (2) of the Hesse contrary to the Directive as interpreted by Equal Rights Law (HGlG) selection the Court in its judgment in Kalanke. 4 decisions under Paragraph 10 of the HGlG, where a woman and a man applicant have equal qualifications, must because of the binding nature of the targets in the women's advance- ment plan under Paragraph 5(3) and (4) of the HGlG be in favour of the woman applicant in the individual case, at least if that is necessary for fulfilling the targets and no reasons of greater legal weight are opposed;

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3. in training-based professions in which Substance women are under-represented, under Paragraph 7(1) of the HG1G women are to be taken into account to the extent of at least one half in allocating training places, except in the case of training courses in which the State exclusively provides training; I — Positive action to promote equal opportunities for women in working life

19. The problem in the present case is to 4. in sectors in which women are under- define the scope of positive action to represented, under Paragraph 9(1) of promote equality between men and women the HG1G at least as many women as in the context of the Community legal men, or all the women applicants, are order. to be called to interview if they satisfy the conditions laid down by law or otherwise for appointment to the post or the office to be conferred;

20. Positive action 5 may be regarded as any action, legislative or administrative, that provides instruments to secure equal

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ity. It is well known that the principle of prohibiting discrimination on grounds of sex, which aims to secure equal treatment for men and women, confers a fundamental right on every individual and constitutes a cardinal rule not only of the Community 21. The Court has already been asked to legal order but also of national law. interpret Article 2(4) of the Directive 6 Broadly speaking, therefore, the legality of precisely with regard to the general princi- positive action depends on whether it is ple of non-discrimination and, in two cases, compatible with that general principle. to determine its scope in relation to positive action at national level.

which are the subject of the question referred by the national court, prohibit any discrimination whatsoever on grounds 6 — The first ruling on Article 2(4) of the Directive is the of sex, Article 119(4) of the Treaty and judgment in Case 312/86 Commission v France [1988] ECR 6315, ¡n which the Court held that the exception provided Article 2(4) of the Directive recognise the for in that article 'is specifically and exclusively designed to allow measures which, although discriminatory in appear- right of Member States to take positive ance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of measures to promote equal opportunities social life' (paragraph 15). The issue to be determined in for women in working life.

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22. I should like to dwell for a moment on graph 16), and cannot be included among two essential points in the case-law: (a) the the positive actions referred to in paragraph possibility that positive action for women, 4 of that article, inasmuch as 'national rules and in particular action that sets a propor- which guarantee women absolute and tion — or quota — to be employed in each unconditional priority for appointment or grade of a career group, may impose an promotion go beyond promoting equal obligation to recruit or promote female opportunities and overstep the limits of candidates, i.e. to achieve the result for the exception in Article 2(4) of the Direc- which the instrument was adopted, and (b) tive' (paragraph 22). The Court added that the conditions on which a system ensuring 'in so far as it seeks to achieve equal that a certain proportion of women is representation of men and women in all employed may be regarded as lawful in grades and levels within a department, such the Community legal order. a system substitutes for equality of oppor- tunity as envisaged in Article 2(4) the result which is only to be arrived at by providing such equality of opportunity' (paragraph 23).

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regards the result or, better, fair job dis- described above and thus reduce actual tribution simply in numerical terms instances of inequality which may exist in between men and women. This does not the real world' (paragraph 31). seem to me to fall within either the scope or the rationale of Article 2(4) of the Direc- tive' (point 13). 8

positive action for women. In that judg- there are fewer women than men at the ment, although starting, on the basis of level of the relevant post in the career earlier case-law, from the premiss that if the bracket, women are to be given priority for means of promoting equal treatment are promotion in the event of equal suitability, not radical — in other words, if the quotas competence and professional performance. of women employed are flexible — it may The law adds a rider to the effect that the be possible to reconcile positive action with employer may refrain from complying with the principle of non-discrimination and so that provision if 'reasons specific to an render ostensibly discriminatory measures individual male candidate tilt the balance in lawful, the Court held that such a rule may his favour'. On the basis of that 'saving 'counteract the prejudicial effects on female clause', the Court held that the system was candidates of the attitudes and behaviour sufficiently flexible, that is to say it did not have the automatic character of the Bremen law at issue in Kalanke, and that the 8 — In support of that view, the Advocate Genetal points out measures adopted by the Land of North that the Court held in Commission v France, cited above, that Article 2(4) of the Directive authorises treatment which Rhine-Westphalia were consequently not is only discriminatory in appearance; this confirms that the precluded by Directive 76/207 on equal objective is substantive equality but also 'that that objective may be pursued only through measures designed to achieve an actual situation of equal opportunities, with the result

Conse- quently 'Article 2(4) of the Directive only enables existing and male candidates for the post are inequalities affecting women to be eliminated, but certainly equally qualified in terms of their suitabil- not through pure and simple reverse discrimination, that is to say, through measures not in fact designed to remove the ity, competence and professional perfor- obstacles preventing women from pursuing the same results on equal terms, but to confer the results on them directly or, mance, requires that priority be given to the in any event, to grant them priority in attaining those results promotion of female candidates unless simply because they are women' (point 22). 9 — Case C-409/95 Marschall [1997] ECR I-6363.

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candidate tilt the balance in his favour is 'absolute and unconditional', since in that not precluded by Article 2(1) and (4) of the case it would automatically guarantee that Directive ... , provided that: — in each the objective of the action — that is to say, individual case the rule provides for male the appointment or promotion — was candidates who are equally as qualified as achieved, with the result that it would the female candidates a guarantee that the cease to be an objective and would in the candidatures will be the subject of an end become a substitute for the aim of the objective assessment which will take positive action. account of all criteria specific to the candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate, and — such criteria are not such as to discriminate against the female candidates'. 10

26. That case-law prompts some general reflections on the present significance of the concept of equal opportunity, and more particularly positive action, in the context of Community law. As we know, it is a concept which may vary from one legal order to another and which is subject to constant change to meet social needs, with 25. Thus — as the plaintiffs in the main the result that it may in the course of time proceedings point out — the Court starts take on different meanings even within one from the principles established in the earlier and the same legal order. judgment and affirms that Article 2(4) of the Directive, which as you will recall allows Member States to adopt positive measures for women, includes national rules giving them priority for appointment and promotion, unless such priority is

expressed by the Community institutions to actual recruitment or promotion of female achieve that objective, 1 1 we cannot butcandidates to be precluded by Community conclude that a strict interpretation of law. Article 2(4) of the Directive, which places excessive restrictions on the adoption of systems providing for quotas of women to be employed as one of the positive mea- sures envisaged by that provision, is incon- sistent with the development of Commu- nity law on the subject.

tion. La Commission est donc d'avis que le seul type de measures are in fact pursuing the same régime de quotas qui soit illégal est le régime absolument rigide qui ne laisse aucune possibilité de tenir compte de objective as the first principle, but with the circonstances individuelles. Les États membres et les employeurs sont donc libres de recourir à toute autre additional twist that the legislature finds forme d'actions positives, y compris des quotas flexibles.'

Possible measures shall include crimination. If we follow this line of the giving of preference as regards access to employment or promotion, to a member of the under-represented sex, reasoning, we may come to doubt whether provided that such measures do not preclude the assess- ment of the particular circumstances of an individual case' substantive equality is the exception to the (OJ 1996 C 179, p. 8). Lastly, the European Parliament rule of formal equality or, in other words, has stated, in the context of the resolution on the Commission's first three-year report on economic and whether the provisions on which positive social cohesion, that 'true equality between the sexes is an action is based — in this case Arti- essential factor in economic and social cohesion; to that end, it invites the Commission to consider the advisability cle 119(4) of the EC Treaty and Arti- of drawing up a programme of Community action to identify, promote and test the detailed rules governing the cle 2(4) of the Directive — are in the nature programming and management of funds so as to overcome this divergence' (minutes of the meeting of 19 November of exceptions and must therefore be inter- 1997, EP document 264.019). preted strictly.

27. I therefore consider that there is noth- and consequently sets a proportion — or ing, at Community level, to prevent a quota — of women to be employed in national legislature from adopting positive certain sectors or grades in a career group measures that actually reinstate the group may be regarded as lawful in the Commu- at which they are aimed in cases where the nity legal order. I must point out first that group in question, that is to say women, are while, as I have just said, the two principles in a particularly difficult situation and of formal and substantive equality are not where the mere guarantee of equal treat- antithetical but complementary, there are ment and observance of the (negative) nevertheless contentious situations which principle of non-discrimination by the State the judicial authorities must examine and authorities does not adequately protect which, in principle, preclude as unlawful a their position. Such measures may therefore positive measure — for a specific group — be designed not merely to guarantee which is contrary to the general principle of women an equal opportunity at the start- non-discrimination. In my view, situations ing-point by creating the conditions to of real conflict arise essentially in two enable them to compete on an equal cases: when the corrective measure, in this footing for each particular post, but to case positive action for women, is arbitrary have a real effect on their social integration in its content, in that it impinges excessively by giving them actual priority in appoint- on the rights of individuals not belonging to ment and promotion. the group to which it is addressed, or when it is disproportionate in relation to the real needs of the disadvantaged group, that is to say when the social realities do not justify the adoption of the corrective instrument. It follows that the assessment of whether it is lawful must take account not only of the actual result of the action, that is to say the 28. Lastly, I should add that, if the need to individual positions acquired by the group reconcile the general principle of non- to which the provision is addressed, but discrimination with positive action for also of the specific content of the measure women simply means that any positive adopted in relation to the actual need for action that seeks to achieve an actual such a measure: that, as the Netherlands result, such as appointment to a post, is Government rightly suggests, entails con- unlawful, it would enormously reduce the sidering whether the effects of the action scope of such action, depriving it of sub- are proportionate to the actual situation of stance and according it the status of an the group to which it is addressed. auxiliary measure, which is not always effective in redressing social inequalities.

the case-law on positive action cited above. 31. In its judgment in Marschall, however, In its judgment in Kalanke, the Court held the Court held that the system introduced that the positive action of the City of by the Rhineland law was not automatic Bremen was unlawful because the system and was consequently lawful, inasmuch as of quotas it had introduced was, in the it provided that the employer may disre- Court's view, 'automatic'. The law provi- gard the obligation to give priority to ded that where candidates are 'equally women if 'reasons specific to an individual qualified' the woman must be promoted, male candidate tilt the balance in his that is to say women must be promoted favour'. The Court therefore concluded where candidates of different sexes are that Community law does not preclude 'a equally qualified. In my view, under that national rule which, in a case where.

files. It follows that the clause leaves the employer free to select his candidates in 12 — I therefore agree with the Advocate General's observation in Marschall that 'the national rule at issue in Kalanke was terms of actual situations or, even better, not in fact absolute and unconditional: the Courr noted the national court's point that the rule had to be interpreted allows him — notwithstanding the require- "with the effect that, even if priority for promotion is to be given in principle to women, exceptions must be made in ment to give priority to women — to appropriate cases". That interpretation was prompted by a consider in the case of female and male concern that the rule would otherwise be incompatible with Article 3(2) and 3(3) of the German Basic Law, which candidates alike particular interests or provided at the material time respectively that men and women should have equal rights and that discrimination situations which are thus still important on grounds of sex was prohibited. Since the Court in Kalanke recognised that the rule in issue in that case was even where priority is given to women.

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applied in a discriminatory manner, to the on those candidates. According to the disadvantage of female candidates. Court, a system of quotas is sufficiently flexible and may therefore fall within the scope of Article 2(4) of the Directive if the positive action does not prevent the employer from disregarding the require- ment to recruit an equally well qualified woman in the light of subjective and/or objective circumstances pertaining to the The Rhineland Government, on being lives of the candidates, notably the male asked in the course of the procedure to candidates. Reference to such circum- explain exactly what 'reasons specific to a stances must not however have discrimina- male candidate' might cause such a candi- tory effects on the selection of women. 14 date to be selected, said they included Thus, for example, the 'criterion of length secondary criteria such as 'length of service of service', which is usually taken into and social reasons', for example the fact consideration in assessing candidates' suit- that the candidate had a family to sup- ability, must not be applied in a manner port. 13 It follows from that reply that the that discriminates against female candi- factors to which the law refers may relate dates. either to the candidates' 'qualifications' or professional profiles — factors such as length of service are already considered at the preliminary stage of drawing up the shortlist —, or to situations that have nothing to do with the candidate's ability to perform tasks in an employment rela- tionship, that is to say to situations of disadvantage where special protection is required, such as the situations that have given rise to corrective action in favour of women. 32. On the basis of that case-law, it may in my view be concluded that an action for the promotion of women in working life, which requires priority to be given to female candidates and, to that end, sets quotas for women to be employed in the

public administration and in the private legality of the corrective measure as a sector, is to be regarded as lawful from the whole, irrespective of its application to point of view of the Community legal order any particular case — I am thinking, for if it allows the employer to select the example, of the main proceedings in the candidate with the most suitable profes- present case — it will be for the Constitu- sional profile. In no case must such action tional Court to determine, in abstract or affect the assessment of the merits and general terms, the conditions on which qualifications of male candidates. To that corrective measures may be justified. end, on the one hand sex may be an additional criterion in defining candidates' profiles, one of a number of criteria on which the overall assessment of candidates is usually based, and on the other the requirement to give priority to women must not mean that, in assessing candidates who II — The legislation of the Land of Hesse are not the subject of positive action, due consideration is not accorded to particular personal circumstances which, although they have nothing to do with the assess- Having set out these general considerations ment of the candidates' professional pro- on the admissibility in Community law of files, may indicate social situations that are positive action to guarantee equality just as difficult as those normally faced by between men and women in working life, women. I propose to examine the Hesse legislation whose compatibility with Community law and in particular with Article 2(1) and (2) of the Directive has been challenged.

34. As regards the first aspect and in public administration, to eliminate the particular the conditions on which positive under-representation of women and discri- action must be adopted and implemented, mination on grounds of sex and family it should be noted first that the law in circumstances. In addition, Paragraph 5(4) question is generally speaking in line with of the law provides that, in each women's the German provisions referred for preli- advancement plan, more than half of the minary ruling in the cases mentioned posts to be filled must be reserved for above. It follows from the combined provi- female candidates. That obligation on the sions of Paragraph 3(1) and (2) that, authorities does not apply in certain cir- whenever there are fewer women than cumstances expressly specified in the law, men 'in a pay, remuneration or salary namely (a) if a particular sex is an indis- bracket in a career group', the authorities pensable condition for an activity, (b) if it is must adopt an advancement plan. convincingly demonstrated that not enough women are available, and (c) in the case of promotions without posts being filled in sectors in which women are under-repre- sented, where a proportion of women must be designated which corresponds at least to the proportion of women in the next lowest salary group in the sector. That Paragraph That plan applies for a maximum of two also provides that 'if measures of personnel years (Paragraph 5(3)). If at the end of that organisation are provided for which block time the targets of the plan are not fulfilled, or abolish posts, it must be ensured by every further appointment or promotion of means of the women's advancement plan a male candidate will be subject to the that the proportion of women in the sectors approval of the department that adopted affected remains at least the same'. the advancement plan until such time as there is an equal number of male and female employees in the context under consideration (Paragraph 10(4)). Despite the temporary nature of the advancement plan, it is therefore clear that the require- ment to give priority to women does not lapse after two years but only when women represent 50% of the employees in every sector and grade in a career group.

which have been acquired by looking after referred for preliminary ruling, the national children or persons requiring care in the court interprets the German law as mean- domestic sector, ... also ... where family ing that the requirement to give priority to work has been performed alongside women is subordinate, in particular, to the employment'; second, 'seniority, age and principle of 'choosing the best persons' the date of last promotion may be taken enshrined in the Federal Constitution and into account only in so far as they are of applies only if 'no reasons of greater legal importance for the suitability, performance weight are opposed', that is to say only if and capability of applicants'; third, 'the there is no breach of constitutional princi- family status or income of the partner may ples. The Land Government too, in reply to not be taken into account'; and lastly, 'part- a question from the Court about the time work, leave and delays in completing meaning of the expression '[no] reasons of training as a result of looking after children greater legal weight are opposed', empha- or dependants certified by a doctor as sised that the priority accorded to female requiring care' must not have a negative candidates is a secondary selection criterion effect on the assessment of candidates. in the sense that it is subordinate to another criterion that also has priority under the Land constitution, according to which the most suitable candidate must in any case be chosen. In other words, the criterion of sex comes into play only if there are a number of candidates who are considered to be equally suitable in terms of professional capability. The Land Government therefore concludes that the programme for the 36. All the intervening parties, with the promotion of women merely provides gen- exception of the plaintiffs in the main eral guidelines and does not impose an proceedings and the Landesanwalt bei obligation on the authorities to give prior- dem Staatsgerichtshof des Landes Hessen, ity to women purely on grounds of sex. In interpret the German law as meaning that, its view, the only occasion on which the unlike the Bremen law at issue in Kalanke, requirement to give priority to female it does not introduce a strict system of candidates applies is the 'extreme case' quotas for women and they therefore where the authorities fail to fulfil the consider that the national rules at issue in obligation to reach the target of 50% for this case are compatible with Directive women employees and the advancement 76/207 and are among the measures refer- plan is consequently not completed. Thus, red to in Article 2(4). according to the Land Government, there is no obligation — except in specific and probably very rare cases — to give effect to the positive action. The advancement plan does not confer any right on indivi- duals but merely provides a general indica- tion for the administrative authorities.

37. That interpretation does not seem to no specific requirement to give priority to me to cover the full meaning of the German female candidates inasmuch as the law does law. According to the letter of the law — as not stipulate that the authorities must interpreted in the order for reference — the always appoint or promote female candi- authorities are required, in the event of dates, or must do so whenever the candi- under-representation, not only to adopt an dates are equally well qualified. Paragraph advancement plan for women (Paragraph 10 explicitly requires priority to be given to 3(1) of the law) and not to make any the best qualified and most suitable candi- appointments until it has been adopted date. That does not prevent priority being (Paragraph 10(5)), but also to reserve more given to a male candidate if he is the most than half of the posts to be filled for them suitable for the post to be filled, nor does it (Paragraph 5(4)) until the proportion of perpetuate the fiction that the requirement women employed is equal to that of men. I to accord priority to women applies only in should also point out that, unlike the law cases where candidates are equally quali- considered in the judgment in Marschall, fied. The system merely provides a mechan- the law at issue in the present case contains ism to facilitate the integration of women no saving clause, that is to say it does not and further their careers by ensuring, in provide that the obligation to accord prior- particular, that they are not penalised as a ity to women may be disregarded on 'more result of the work they have done within important grounds'. The law in question the family. That mechanism is set out in the merely provides some exceptions of limited provisions of Paragraph 10 of the HGlG, scope, which may apply in cases where a which lays down specific criteria for the particular sex is an indispensable condition assessment of female candidates, on the one for an activity, where not enough women hand providing that, in assessing candi- are available, and lastly where promotions dates, experience acquired in the course of are made without posts being filled. domestic duties must be taken into account in so far as it is relevant to the tasks pertaining to the post to be filled but that absence from work for family reasons must not be taken into account, and on the other hand limiting the effect of seniority, which male employees can usually acquire more easily.

The Land Government has observed that Point 2 of the question: the academic sector women are particularly under-represented in this area because posts are usually filled for a fixed term and also because advance- ment in this career group depends upon the acquisition of further degrees. According to the Land Government, the aim of the plan is to facilitate access for women already employed in the sector to permanent posts 39. The second aspect of the German law in higher education. on which the national court seeks a ruling from the Court concerns the compatibility with Article 2(2) and (4) of the Directive of Paragraph 5(7) of the HGlG, under which the binding targets of the women's advancement plan for posts in the academic service to be filled for fixed terms and for academic assistants must provide for at It is clear from the wording of Paragraph least the same proportion of women as the 5(7) that the target for the proportion of proportion of women among graduates, women to be employed in the academic holders of higher degrees and students in sector may even be less than 50%, that is to the faculty in question. To be more precise, say less than the target set for all other Paragraph 5(7) states that 'posts in the sectors, since the target in the academic academic service which are filled for a fixed sector is defined in a different way, i.e. in term under... the Hochschulrahmengesetz terms of the number of individuals who

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40. The third aspect of the law to be considered arises from the provision con- tained in Paragraph 7 of the HGlG, to the It should be noted that the terms in which effect that in training programmes in which the requirement to give priority to women women are under-represented they are to be in the academic sector is couched (Para- taken into account to the extent of at least graph 5(7)) are different from those used in one half in the allocation of training places. the general provision (Paragraph 5(4)). Women's attention must also be drawn to

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vacant training places and they must be Point 4 of the question: interviews in induced to apply. If, despite that invitation, connection with the appointment of new there are not enough applications from staff women, more than half of the training places may be filled with men.

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selection and as a result be shortlisted on must be women. Thus Paragraph 14 pro- the basis of the assessment criteria which, it vides that there must be a definite propor- is presumed, are the criteria specified for tion of women, irrespective of their suit- the general system or, to be precise, the ability. So, while it is true that the German criteria set out in Paragraph 10(1) to (3) of law — as I have already pointed out — the law. appears to have the aim of setting out a general programme to facilitate the recruit- ment and promotion of women in the public administration, it nevertheless appears from the terms in which the I therefore take the view that the provision provision on appointment to internal on interviews for appointments is likewise bodies is couched that, in that respect at not incompatible with Community law. least, it allows no exceptions.

(a) with a view to gradually eliminating such inequalities, to adopt advancement plans and other measures to ensure equal opportunities for men and women in the public administration, and in implementing such plans progressively to designate more than half of the posts to be filled for filling by women, on the understanding however that such national rules may not give automatic

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BADECK AND OTHERS

priority to female candidates and must guarantee that all candidates, male and female, are always the subject of an objective assessment of their professional and personal profiles, even in cases where that assessment is based on criteria such as those given in the German law in question, which are designed to favour female candidates;

(b) to designate for filling by women a proportion of posts in the academic sector, depending on the proportion of women among graduates, holders of higher degrees, and students, on the understanding that that proportion may not be more than half of the number of posts to be filled and that automatic priority is not given to female candidates within the meaning referred to under (a);

(c) to reserve half of the places on training courses for women;