C-407/98

* Original language: Italian. 1 —OJ 1976 L 39, p. 40.

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3. Since the question was referred, the to ensuring full equality in practice between Treaty of Amsterdam has entered into men and women in working life, the force, amending the EC Treaty — for the principle of equal treatment shall not purposes of the present analysis — as prevent any Member State from maintain- regards the implementation of the principle ing or adopting measures providing for of equal treatment for men and women. In specific advantages in order to make it particular, Articles 2 and 3 of the EC easier for the under-represented sex to Treaty as amended provide that 'the Com- pursue a vocational activity or to prevent munity shall have as its task ... to promote ... or compensate for disadvantages in profes- equality between men and women' and that sional careers' (paragraph 4). 2 The 'the Community shall aim to eliminate Declaration on Article 119 [now Arti- inequalities, and to promote equality, cle 141] (4) of the Treaty establishing the between men and women'. In addition, European Community, annexed to the Article 6a, which is also incorporated in Treaty of Amsterdam, states that '[w]hen the new Treaty, provides that 'the Council, adopting measures referred to in Arti- acting unanimously on a proposal from the cle 119(4) of the Treaty establishing the Commission and after consulting the Eur- European Community, Member States opean Parliament, may take appropriate should, in the first instance, aim at improv- action to combat discrimination based on ing the situation of women in working life'. sex ...'.

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dicial effects on women in employment sures for positive discrimination to be which arise from social attitudes, behaviour adopted. Point 2 in the second paragra- and structures', and recommends the Mem- ph of Article 16 specifically states that ber States, with express reference to Arti- there is no discrimination between the cle 2(4) of the Directive, to adopt a positive sexes if 'the decision forms part of the action policy designed inter alia to 'encou- effort to promote equality between men rage women candidates and the recruitment and women in working life'. and promotion of women in sectors and professions and at levels where they are under-represented, particularly as regards positions of responsibility'.

8. The university teaching sector, which is the subject of the question referred by the national court in the case under discussion, is governed by Regulation 1993:100. 5

The national provisions Article 15 of that Regulation, in the version which came into force on 1 January 1999, provides that:

6. Under Article 9 in Part 11 of the Swed- ish Constitution, in making appointments to public posts, regard is to be had only to objective factors such as 'merit' and 'com- petence'. 4In the same way, the Law on 'Appointments to teaching posts must be Public Employment (1994:260) requires based on merits of a scientific, artistic, candidates to be selected on the basis of pedagogical, administrative or other nature competence unless there are 'particular relating to the discipline covered by the reasons' for employing other criteria. post in question and its nature in general. Account must also be taken of the candi- date's ability in reporting on his or her research and development work.

When filling the post, a person belonging to the under-represented sex who has suffi- cient merits of the kind specified in the first paragraph of Article 15 may be appointed 'The universities and institutes of higher in preference to a candidate of the other sex education which are granted such appro- who would otherwise have been appointed. priations must create and fill such posts in accordance with the Regulation on Univer- sities (1993:100), taking account of the derogations provided for in Articles 3 to 5 et seq. of this regulation. Those derogations shall apply, however, only to the first Positive discrimination may not be exer- appointments to such posts.' (Article 2) cised however, if the difference in qualifi- cations is so great that to exercise such discrimination would be contrary to the requirement of objectivity in filling posts'.

'When appointments are made, the provi- sions of Article 15a of Chapter 4 (of 9. On the basis of the general programme referred to in Article 15a, Regulation 1995:936 concerning certain professors' 6 — Government Decree dnr/91 of 14 March 1996, issued on the basis of that Regulation, earmarked special funds for 30 and research assistants' posts created with professorships.

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The board stated that a majority of its members considered that the difference in qualifications between Leif Anderson and Elisabet Fogelqvist, who had been placed second and third respectively, was consid- Facts and questions erable and they therefore had doubts about the requirement to give priority to the female applicant, Elisabet Fogelqvist.

10. On 3 June 1996, the University of Goteborg announced a competition for a post of professor of hydrospheric science, in particular physical and biogeochemical processes in natural waters. The announce- On 18 November 1997, however, the Rec- ment stated that the appointment was tor decided to appoint Elisabet Fogelqvist intended to form part of the University on the ground that the difference between programme to promote equal opportunities her qualifications and those of Leif Ander- pursuant to Regulation 1995:936. son was not so great as to render positive

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' 1 . Do Articles 2(1) and 2(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 conditions 3. If the answer to Question 2 means that preclude national legislation under treatment like positive special treat- which an applicant of the under-repre- ment is in some respect unlawful, can sented sex possessing sufficient qualifi- the rule, based on Swedish administra- cations for a public post is to be tive practice and the second paragraph selected in priority over an applicant of Article 15 of Part 4 of Högskoleför- of the opposite sex who would other- ordningen — approved by the Appeals wise have been selected ("positive spe- Board — that an applicant belonging to the under-represented sex must be given priority over a fellow applicant 7 — Case C-450/93 Kalanke [1995] ECR I-3051. of the opposite sex, provided that the

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applicants can be regarded as equal or the referring body, is associated with the nearly equal in terms of merit, be presence of a number of factors which are regarded as being in some respect fundamental to the right to refer questions contrary to Directive 76/207/EEC? for preliminary ruling pursuant to Arti- cle 177, namely whether the body is estab- lished by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whe- 4. Does it make any difference in deter- ther it applies rules of law and whether it is mining the questions set out above impartial and independent. 8 whether the legislation concerns lower-grade recruitment posts in an authority's sphere of activity or the highest posts in that sphere?'

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category. It was established by the Law on no provision allowing it to rule equitably Higher Education (1992:1434) and is sub- rather than in accordance with rules of law. ject to the Regulation laying down instruc- tions applicable to the Universities Appeals Board (1992:404). Under those rules, the Appeals Board must consist of eight mem- bers appointed by the government, the chairman and vice-chairman must be judges and three of the other members must be lawyers. The Swedish Government adds that under the Law on Administrative Management (1993:223), which governs the procedure before the Appeals Board, However, an examination of the national parties have the right to submit oral or rules leaves some doubt about two of the written observations and to have access to factors mentioned above, which must be any information available to the authori- present for the administrative body to be ties. Under Article 1 of Chapter 5 of the regarded as a court or tribunal within the Law on Higher Education (1992:1434), the meaning of Article 177 and for the present Board's decision is binding and is not open reference for a preliminary ruling to be to appeal. Lastly, it claims that the Board is declared admissible, namely whether the independent of other State bodies and is procedure before the Appeals Board is inter therefore covered by Article 7 of Chapter partes and whether the members of the 11 of the Constitution, which prohibits any Board are really independent and irremo- interference in the activities of administra- vable. tive bodies by other agencies of the execu- tive and even by parliament.

Thus the adversarial character of the pro- cedure, which, I repeat, is governed by the legislation on the adoption of administra- tive acts, arises from the rules under which individuals have the right to have access to any documents taken into consideration by In the case under discussion, the Govern- the authorities. Clearly, the purpose of ment assumes and the referring authority those rules is not to require that claims be does not deny that the procedure before the settled inter partes but to ensure that the Appeals Board is not governed by the body is absolutely transparent and to give Swedish Law on Administrative Procedure citizens the right to submit observations or (1971:291), which applies only to proceed- produce new evidence. However, in my ings before the administrative courts, but view, given the specific remit of the refer- by the Law on Administrative Manage- ring body in the present case, namely to ment, which is concerned in particular with review the legality of acts of the education the adoption of administrative acts and university authorities, there may be (1986:223). 10 That law does not expressly grounds for considering that Article 14 and deal with the parties' right to have their especially Article 17 of the Law on Admin- claims settled inter partes. It merely pro- istrative Management guarantee the inter- vides in Article 17 that the authorities must ested parties' right to have their claims communicate to the interested parties any settled inter partes. On the basis of Arti- documents that concern them and must cle 17, in particular, individuals who chal- give them an opportunity to submit obser- lenge a decision of the authorities before vations. the Appeals Board are in any case entitled to submit their observations on any further evidence produced by third parties and, by 9 — In my Opinion in Gabalfrisa, I referred in particular to the the same token, individuals whose appoint- judgment in Dorsch Consult, cited above, in which the Court, in dismissing the Commission's submission that ment or promotion is contested are 'according to the [referring body]'s own evidence, procedure before that body is not inter partes', merely stated that 'the informed of the appeal and are likewise requirement that the procedure before the hearing body entitled to submit their own observations. concerned must be inter partes is not an absolute criterion'. That statement, which was not explained with respect to the case in question, gives rise to some perplexity if we consider that the Court had previously accepted references for a preliminary ruling in cases where the procedure, although not inter partes at the time, would (or in some cases might) be so later (see judgments in Politi and Pretore di Salò v X, cited above, and Case 70/77 Simmenthal [1978] ECR 1453 and Case 338/85 Pardini [1988] ECR 2041. 10 — There is support for that interpretation in academic writing on the subject. See, in particular, Hans Ragne- malm, Administrative justice, Juristförlaget, Stockholm 1991, p. 210, and Strömberg Håkan, Allmän förvaltnings- I therefore take the view that, although this rät, Liber Ekonomi, 19th ed., Lund 1998, in particular p. 80. form of inter partes procedure is 'atypical',

there are grounds for considering that the On the other hand, the fact that there are Appeals Board does meet the requirement no specific rules on the conditions and in that respect, which must be fulfilled if detailed arrangements for terminating the reference for a preliminary ruling is to members' appointments raises doubts be admissible under Community law. about the body's actual independence. I wonder whether that characteristic really can, as the Swedish Government supposes, be extrapolated from the constitutional rule enshrining the principle that all national authorities are independent (Article 7 of Chapter 11,). I note that the Constitution gives an exhaustive list of all the circum- 19. (b) As regards the second factor, the stances in which judges may be removed independence of the members of the from office but that rule applies only to Appeals Board, I would repeat what I have judges, not to administrative bodies and already said on other occasions, namely consequently not to the members of the that the requirement that the adjudicators Appeals Board (Article 5). of an administrative body be independent is of central importance in determining whe- ther it is to be recognised as a 'court or tribunal' within the meaning and for the purposes of Article 177 of the Treaty and it is essential to proceed with the greatest care in assessing whether national rules meet the 20. In the Swedish legal order, apart from requirement of independence appropriate the abovementioned constitutional rule to a body regarded — albeit in a specific enshrining the principle that administrative context and for certain purposes — as a bodies are independent as regards the court or tribunal. adoption of their decisions, the Law on Administrative Management contains a list of the circumstances in which the adminis- trative authorities may object to members of administrative bodies and requires mem- bers of such bodies to inform the autho- rities of anything that could constitute grounds for objection (Articles 11 and 12). In the present case, it appears that the members of the Board are appointed by the government and serve for a limited period (Article 9 of the Regulation on instructions applicable to the Board). The laws and regulations relating to the Board do not specify the period for which members serve However, according to the Court's recent or the circumstances in which the autho- judgment in Köllensperger,11quoted by the rities may terminate the appointment. It Swedish Government, the combined provi- can in any case be assumed that the term of sions of the rule on challenges to, or office is mentioned in the appointment withdrawals by, members of a body and document and that can be regarded as providing a sufficient guarantee of the permanence and stability of the body. 11 — Case C-103/97 Köllensperger [1999] ECR I-551.

21. In the light of the foregoing considera- tions, I propose that the Court hold the present reference for a preliminary ruling to be inadmissible. It follows from that judgment that, if the combined provisions of those two rules apply, the instrument of removing members of administrative authorities from office cannot possibly constitute a form of inter- ference with the freedom and independence enjoyed by members of the Board. In other words, it follows that, in that legislative Substance context, the right to remove members from office cannot serve as an instrument to undermine the independence of the Board. However, I consider that to be an exces- sively generous view in that, on that interpretation, assessment of the indepen- 22. In examining the substance of the case, dence of the referring body does not depend I propose to take the first and third solely on whether there are grounds equal questions together and then the second or similar to those that may justify the and fourth questions. The first pair are removal of judges from office but also on concerned with the general rules on posi- whether there is a general duty not to tive action with regard to appointments in interfere in the activities of State adminis- institutes of higher education and universi- trative bodies associated with the right to ties, while the second pair concern the object to the members of individual autho- rities and the duty of those members to abstain. In my view, such a duty is in any 12 — I doubt therefore whether the presumption that the actions of State bodies are lawful, referred to in the judgment in case insufficient to guarantee the absolute Köllensperger, provides a sufficient guarantee because an independence of the Appeals Board because administrative authority adjudicates in full and complete independence. The independence of the 'referring court' such an essential requirement as indepen- does not depend on whether the acts of such bodies are lawful but on the content of the rules on which those acts dence must be guaranteed by clear rules, are based.

The first and third questions 24. The questions therefore raise once again a problem which I addressed in my Opinion delivered on 10 June 1999 in Case C-158/97 Badeck, to which I refer you for general observations on the scope of posi- 23. By the first and third questions, the tive national action and the limits imposed Appeals Board seeks to ascertain whether on such action by Community law. I draw the positive measures referred to in Arti- attention, in this connection, to the guide- cle 2(4) of the Directive include national lines on the subject laid down in the Court's rules such as the Swedish rules which judgments in Kalanke, cited above, and provide for the appointment of candidates Marschall. 13 of the under-represented sex to university teaching posts, even if they are not placed first, provided that they are deemed suita- ble on the basis of their merits and qualifications to perform the functions pertaining to the post to be filled and that the difference between the candidates placed first and second respectively is not such as to entail, should the latter be 25. In the judgment in Case C-450/93 selected, a breach of the duty of objectivity Kalanke in 1995 — cited by the claimants in the making of appointments laid down in the proceedings before the national court in the Law on Public Employment in support of their claims and mentioned by (1994:260). the national court in the order for refer- ence — the positive action had been decreed by a Bremen law which provided that 'in the case of an appointment (includ- ing establishment as a civil servant or judge) which is not made for training purposes, women who have the same Should the answer to that question be in qualifications as men applying for the same the negative, the Court is asked whether post are to be given priority in sectors such rules may nevertheless be regarded as where they are under-represented' and that lawful in the light of administrative prac- 'qualifications are to be evaluated exclu- tice whereby a candidate belonging to the under-represented sex may be given priority only if that candidate is equal (or nearly 13 — Case C-409/95 Marschall [1997] ECR I-6363.

sively in accordance with the requirements where there are fewer women than men at of the occupation, post to be filled or career the level of the relevant post in the career bracket'. The Court held that a rule that, bracket, women are to be given priority for where candidates of different sexes short- promotion in the event of equal suitability, listed for promotion are equally qualified, competence and professional performance. women are automatically to be given The Law adds a rider to the effect that the priority in sectors where they are under- employer may refrain from complying with represented is contrary to Article 2(1) of that provision if 'reasons specific to an the Directive, inasmuch as it 'involves individual male candidate tilt the balance in discrimination on grounds of sex' (para- his favour'. 14 On the basis of that 'saving graph 16), and cannot be included among the positive actions referred to in para- clause', the Court held that the system was graph 4 of that Article, inasmuch as sufficiently flexible, that is to say it did not 'national rules which guarantee women have the automatic character of the Bremen absolute and unconditional priority for law at issue in Kalanke, and that the appointment or promotion go beyond pro- measures adopted by the Land of North moting equal opportunities and overstep Rhine-Westphalia were consequently not the limits of the exception in Article 2(4) of precluded by Directive 76/207 on equal the Directive' (paragraph 22). The Court opportunities. The operative part of the added that 'in so far as it seeks to achieve judgment states that such a rule is not equal representation of men and women in precluded by Article 2(1) and (4) of the all grades and levels within a department, Directive, provided that 'in each individual such a system substitutes for equality of case the rule provides for male candidates opportunity as envisaged in Article 2(4) the who are equally as qualified as the female result which is only to be arrived at by candidates a guarantee that the candida- providing such equality of opportunity' tures will be the subject of an objective (paragraph 23). assessment which will take account of all criteria specific to the candidates and will override the priority accorded to female candidates where one or more of those

27. The Swedish rules under discussion have two characteristics: they allow — and in some cases require — the authorities to give priority to a candidate of the under- represented sex even if that candidate is inferior in terms of merit and qualifications to the candidate who was placed first;16 and — according to the legislative sources cited by the referring body — they do not allow the authorities, when making the selection, to give due consideration to the particular personal circumstances of candi- 26. In my observations on the Badeck case, dates who are not the subject of positive I noted that on the basis of that case-law it action. may be concluded that 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 sector, is to be regarded as lawful from the point of view of the Community legal order In view of these two characteristics, it if it allows the employer to select the seems to me that there can be no doubt candidate with the most suitable profes- sional profile. In no case must such action affect the assessment of the merits and 15 — I added that the whole situation that gave rise to the qualifications of male candidates. To that' corrective measure must of necessity be taken into account in determining whether the measure is lawful. Any end, on the one hand sex must be an disproportion berween the corrective measure and the social context in which it applies (1 am thinking, for additional criterion in defining candidates' example, of an insignificant difference in. the proportion of women and men employed in a company or in the public profiles, one of a number of criteria on sector) may mean that the conditions for positive action, which the overall assessment of candidates which are essentially bound up with actual circumstances, are no longer fulfilled. It is for the national court to is usually based, and on the other the determine whether those conditions are fulfilled in a case concerning a particular recruitment or promotion, where requirement to give priority to women must the requirement to give priority to women is challenged. not mean that, in assessing candidates who 16 — Under Article 15a of Regulation 1993:100 on Universities, are not the subject of positive action, due a candidate belonging to the under-represented sex who is suitable for the post to be filled may be appointed in consideration is not accorded to particular preference to a candidate who would otherwise have been appointed on the basis of merit and competence. Under personal circumstances which, although Article 3 of Regulation 1995:936 concerning certain they have nothing to do with the assess- professors' and research assistants' posts, including the post at issue in the main proceedings, the authorities are ment of the candidates' professional pro- required to give priority to candidates of the under- represented sex if the conditions laid down in Article 15a files, may indicate social situations that are of Regulation 1993:100 are fulfilled.

28. As I have already pointed out, in Community law positive action to give priority to women in working life is considered to be compatible with the principle of non-discrimination if the requirement to give priority applies only where the shortlisted candidates are equal in terms of qualifications and merits. That consideration is not refuted by the While — as I have already pointed out in Appeals Board's remarks about the scope of my Opinion in Badeck — such equality is a the 'requirement of objectivity' which the fiction in that it is impossible or extremely authorities must in any case observe in difficult for two or more candidates to be assessing candidates for the purposes of on an equal footing, it does nevertheless selection. According to the referring body, modify the requirement to give priority. To 'the requirement of objectivity [laid down allow or require the candidate belonging to in the Swedish Constitution and mentioned the under-represented sex to be appointed in the travaux préparatoires for Regulation even if there is a difference in qualifications 1995:936 concerning certain professors' and merits would, in my view, give rise to a and research assistants' posts created for system according absolute and uncondi- the purpose of promoting equal opportu- tional priority and consequently reserving nities] should mean that positive special posts for women. That would have the treatment is not to be applied where it further consequence of rendering the selec- would involve a risk of an obvious loss of tion process meaningless, since the criterion effectiveness in those sectors if the most would not be a comparison of the candi- qualified candidates were not selected'. 17 dates but the ability of those with priority to perform the functions pertaining to the post to be filled. 17 — See p. 7 of the order for reference (English version).

30. In any case, as I have already pointed 29. In its third question, the referring body out, for positive action to be regarded as states that, in accordance with Swedish compatible with Community law, the rules administrative practice pursuant to Arti- must also allow the authorities, when cle 15a of the Regulation on Universities making the selection, to give due consid- (Regulation 1993:100), priority is given to eration to particular personal circum- candidates belonging to the under-repre- stances of candidates who are not the sented sex only where candidates can be subject of positive action which may indi- regarded as equal or nearly equal in terms cate social situations that are just as of qualifications. The referring body significant as those normally faced by women. It does not appear from what the referring body and the Swedish Govern- 18 — In response to a question from the Court on the ment say that the legislation instituting the interpretation of Article 15a of Chapter 4 of Regulation 1993:100, the Swedish Government said that, out of 21 positive action at issue and the adminis- appointments to posts in institutes of higher education, five women had been appointed under the programme for trative practice in that connection provide the promotion of women. Three of those five appoint- for any such derogation. However, it is for ments had been contested before the Appeals Board. In two cases, the Board had held that the appointment of the female candidate was contrary to the requirement of objectivity and had consequently declared the appoint- ments void. 19 — See p. 7 of the order for reference (English version).

31. In the light of the foregoing considera- The second and fourth questions tions, I take the view that Community law, in particular Article 2(1) and (4) of Direc- tive 76/207/EEC, does not allow a Member State to adopt rules on appointments whereby a candidate of the under-repre- sented sex who has sufficient qualifications must be appointed in preference to a candidate of the other sex shortlisted on 32. By the second and fourth questions, the the basis of merit and competence, even if Appeals Board seeks to ascertain whether such positive action is not applied in cases the Swedish rules contained in the above- where the difference between the candi- mentioned legislation are still unlawful dates in terms of qualifications is so great even if the programme to promote equal that the measure would be contrary to the opportunities is restricted to 'a limited principle of objectivity which the authori- number of pre-determined posts', as under ties are required to observe in making the Regulation concerning certain profes- appointments. sors' and research assistants' posts created for the purpose of promoting equal oppor- tunities (1995:936) or appointments made by an individual institute of higher educa- tion or university on the basis of Arti- cle 15a of Chapter 4 of Regulation 1993:100 (second question); or if the same rules apply only to lower or higher grade posts (fourth question). On the other hand, Community law does not preclude an administrative practice whereby a candidate belonging to the under-represented sex may be given priority over a candidate of the opposite sex as long as they are equal or nearly equal in terms of qualifications, provided that the national legislation requires the authorities, in asses- sing candidates who are not the subject of positive action, to give due consideration to The question is essentially whether positive particular personal circumstances which action which is inherently unlawful may be

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Conclusion

35. In the light of the foregoing considerations, I propose that the Court declare the questions referred by the Överklagandenämnden för högskolan to be inadmissible on the ground that that body is not a court or tribunal within the meaning of Article 177 of the Treaty.

In the alternative, I propose that the Court give the following answer:

(1) 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 conditions do not allow a Member State to adopt rules on appointments whereby a candidate of the under-represented sex who has sufficient qualifications must be appointed in preference to a candidate of the other sex who is judged more suitable in terms of merit and competence, even if the requirement to give priority is waived in cases where the difference between the applicants in terms of qualifications is so great that the measure would be contrary to the principle of objectivity which the authorities are required to observe in making appointments.