C-79/99
ECLI:EU:C:2000:370
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OPINION OF ADVOCATE GENERAL JACOBS delivered on 6 July 2000 *
1. Do the Community rules on equal treat- discrimination whatsoever on grounds of ment preclude a national provision under sex either directly or indirectly'. Among which, where the number of qualified other exceptions, however, Article 2(4) applicants for a practical course for trainee provides that the Directive is to be 'without lawyers exceeds the number of places prejudice to measures to promote equal available for a particular intake, priority opportunity for men and women, in par- is to be given within certain temporal limits ticular by removing existing inequalities to those meeting generally-defined 'hard- which affect women's opportunities' in the ship' criteria, one specified example of areas to which it relates. which — that of having completed mili- tary service — can in fact be fulfilled only by men? That is the essential issue raised in this reference for a preliminary ruling from the Verwaltungsgericht (Administrative Court), Frankfurt am Main. 3. Article 4 provides:
The Equal Treatment Directive 'Application of the principle of equal treatment with regard to access to all types and to all levels, of vocational guidance, 2. Council Directive 76/207 1 was adopted vocational training, advanced vocational to put into effect in the Member States the training and retraining, means that Mem- principle of equal treatment for men and ber States shall take all necessary measures women as regards, inter alia, access to to ensure that: vocational training (Article 1). According to Article 2(1), the principle of equal treatment means that there may be 'no
* Original language: English. 1 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men (a) any laws, regulations and administra- and women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 tive provisions contrary to the principle L 39, p. 40. of equal treatment shall be abolished;
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6. After completion of secondary school- ing, four years of university study in law are required, followed by the First State Examination in law, which generally takes up a further semester. Although a limited number of minor career opportunities may (c) ... vocational guidance, vocational be available at that stage, most would-be training, advanced vocational training lawyers must then go on to follow, gener- and retraining shall be accessible on the ally for two years, a course of practical basis of the same criteria and at the training/work experience in various capa- same levels without any discrimination cities under the supervision of the judiciary. on grounds of sex.' During this period, trainees are paid and acquire pension entitlement as temporary civil servants. At the end of it, they sit the Second State Examination in law, success in which qualifies them fully for entry into any of the legal professions. 4. Under Article 6:
'Member States shall introduce into their national legal systems such measures as are 7. The present case concerns admission to necessary to enable all persons who con- the practical legal training course in the sider themselves wronged by failure to Land of Hessen. This was governed at the apply to them the principle of equal material time (March 1998) by Paragraphs treatment within the meaning of Articles 3, 23 and 24 of the (Hessen) Juristenausbil- 4 and 5 to pursue their claims by judicial dungsgesetz (Law on Legal Training, here- process after possible recourse to other inafter 'JAG') and Paragraph 14a of the competent authorities.' Juristische Ausbildungsordnung ('JAO'), an implementing regulation.
National provisions and their context 8. Under Paragraph 23(1) of the JAG, admission to practical legal training is guaranteed to any person having passed the First State Examination. Paragraph 5. In Germany, training for the legal pro- 24(1) provides for two-monthly intakes, fessions is thorough and lengthy. Although beginning on the first working day of details may vary from one Land to another, January, March, May, July, September and the general pattern is as follows. November in each year. The number of
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places available for each intake is limited, 2. The following, in particular, may be under separate budgetary provisions, to regarded as cases of particular hard- 140. Situations in which there are more ship: applicants than available places are dealt with in Paragraph 24(2) of the JAG, which provided, at the material time:
(1) proven severe disability,
'If the number of applications for admis- sion to practical legal training on a partic- (2) special social or family circum- ular commencement date received before stances attested by certificates from expiry of the deadline exceeds the number the relevant authorities, of available training places, appointment may be deferred by up to 12 months. This shall not apply if deferment would result in particular hardship. Lots will be drawn to select the candidates whose admission will be deferred.' (3) delays in commencing and com- pleting studies through no fault of the applicant including, in partic- ular, delays arising out of the pur- suit of education as a mature student or owing to membership of university-based or other self- governing student organisations, 9. Cases of 'particular hardship' were defined in Paragraph 14a of the JAO:
(4) completion of compulsory service pursuant to Article 12a(1) or (2) of the Grundgesetz [German Basic Law], or a period of at least two years spent as development-aid '1. A case of particular hardship for the volunteer within the meaning of purposes of Paragraph 24(2) of the the Entwicklungshelfer-Gesetz [JAO] exists where deferment would [Law on development-aid volun- result in detriment to the applicant teers]... or completion of a volun- which, judged by exacting standards, tary community service year within goes significantly beyond the detriment the meaning of the Gesetz zur usually associated with a refusal. Förderung eines freiwilligen sozia-
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len Jahres [Law on the promotion The main proceedings and the order for of a voluntary community service reference year]...'
12. Ms Julia Schnorbus passed the First State Examination in law in October 1997 and applied to be admitted to practical legal training in the January 1998 intake. She was one of 360 applicants on that occasion, so that Paragraph 24(2) of the 10. The reference to compulsory service JAG came into play, in order to decide on concerns compulsory military service (Art- the filling of the 140 available places. Once icle 12a(1) of the Grundgesetz), which lasts the 'hardship' rule had been applied, lots 10 months, and compulsory civilian service were drawn for the remaining places and (Article 12a(2)), which lasts 13 months. M s S c h n o r b u s w a s unsuccessful. She Both are applicable only to men. I shall applied again for the March 1998 intake refer to them jointly as 'compulsory but was again unsuccessful, finding herself national service'. in 250th place on the list drawn up after drawing of lots. Finally, she was allocated a place in the May 1998 intake, again after drawing of lots.
1 3 . In t h e m e a n t i m e , h o w e v e r , M s 11. The statutory provisions in Hessen Schnorbus h a d commenced legal and were subsequently a m e n d e d , in M a y administrative proceedings challenging the 1998. Since then, essentially, 5 0 % of the refusal of 11 February 1998 to allocate her places for each intake are to be filled on the a place in the March intake. basis of the applicants' qualifications and results, 1 5 % on the basis of 'hardship' and 3 5 % on the basis of the length of time since the initial application. The definition of 'hardship' remained basically the same, although the order of examples (3) and (4) was reversed, and it was specified that if the number of persons claiming 'hardship' 14. On the one hand, she applied to the exceeded 1 5 % of available places, cases Verwaltungsgericht Frankfurt am Main for falling within example ( 1 ) were to be given an interlocutory order that she be employed priority, followed by those in example (2), as a trainee from the first working day in with lots being drawn among the remainder March 1998. That order was granted on for any remaining places. 23 February 1998, but set aside on appeal
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four days later by the Hessische Verwal- constitute, either directly or indirectly, tungsgerichtshof (Administrative Court of discrimination on grounds of sex within Appeal for Hessen). the meaning of Article 2( 1) thereof? (Ques- tions 2 and 3)
15. On the other hand, she lodged an administrative objection to the refusal, Is justification under Article 2(4) of the which was rejected on 2 April 1998 in a Directive precluded either because the pref- reply stating that the procedure did not erence operates automatically in favour of constitute unlawful direct discrimination men, without reference to individual cir- against women and the rule referring to cumstances or other relevant factors, thus those who had completed compulsory going beyond a measure to promote equal national service related to an objective opportunity, (Question 4) or because thai- distinguishing factor. provision allows only measures which serve to promote equal opportunity in favour of women? (Question 5)
16. She then brought further legal proceed- ings before the Verwaltungsgericht seeking a declaration that the rejection of her If not, is the fact that only men are subject objection was unlawful and constituted a to compulsory national service a sufficient breach of her rights. (An application for an 'existing inequality' — to the disadvantage order that she be awarded a place in the of men — within the meaning of Art- May 1998 intake was withdrawn when a icle 2(4), or must the disadvantages which place was awarded to her.) It is in the women are likely to face in employment context of those proceedings that the because of their sex also be taken into Verwaltungsgericht has sought a prelimin- account? (Question 6) Alternatively, can ary ruling by the Court on eight questions, the preference be justified under Art- which may be summarised as follows: icle 2(4) simply on the ground that it offsets disadvantages which women do not face because they are not subject to compulsory national service? (Question 7)
Does the preference granted to men who have completed compulsory national ser- vice (a condition which women cannot fulfil) fall within the scope of Directive Finally, can Article 6 of the Directive found 76/207/EEC? (Question 1) If so, does it a right of access to training where refusal of
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access is based on discrimination and there 19. It is true that nothing much of sub- is no right to compensation? (Question 8) stance seems to turn on the interpretation of Community law in the present case. It is also true that the Verwaltungsgericht expli- citly states in its order for reference that one of its considerations in making a reference was that the questions to be 17. Written observations have been sub- answered will be relevant in future cases mitted by the Land Hessen (the defendant concerning other legislative provisions, in the main proceedings) and by the regardless of the outcome of the present Commission. Ms Schnorbus has not sub- proceedings, which implies that its interest mitted any observations, although her is to a certain extent hypothetical. arguments are amply set out in the order for reference made by the Verwaltungsger- icht, which seems inclined to view them in a favourable light. There was no oral hearing.
20. However, I do not think there is any real objection to the admissibility of the reference. Analysis
Admissibility 21. The amendment to the legislation is irrelevant in that regard. The Court held in Pierrel 2 that Article 177 of the EC Treaty (now Article 234 EC) 'confers jurisdiction 18. The Land Hessen questions whether on the Court to interpret Community law the reference for a preliminary ruling is and... therefore changes in national legisla- admissible. Since the legislation has been tion after the order making the reference amended, it argues, any ruling as to its cannot influence that interpretation'. The compatibility with Community law would present situation is no different in essence be irrelevant in future cases. Such a ruling (even though the change in the legislation would also be irrelevant to the outcome of occurred before the order for reference), in the main proceedings: since Ms Schnorbus that the national court has to apply domes- came in 250th place after drawing of lots, tic law as it stood before the change and she could not have been allocated a place has sought an interpretation of Community even if there had been no priority candi- dates; in addition, her action for declara- tory relief is inadmissible since she has no 2 — Case C-83/92 Pierrel v Ministero della Sanità [1993] ECR interest in bringing it. I-6419, paragraph 32 of the judgment.
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law in that context. Indeed, since the the Court delivered its judgment in Kreil,4 questions relate specifically to the criterion a case which might appear to have some of completion of compulsory national ser- relevance here. Any such appearance vice and since that criterion remains in the quickly dissipates, however, on closer amended legislation, albeit with more lim- examination. ited repercussions, the amendment does not remove the original relevance.
22. For the rest, the Verwaltungsgericht has made it clear that Ms Schnorbus's only outstanding claim is for a declaration that the reply to her objection was unlawful and 24. The question in Kreil was whether injured her in her rights. It is not for this Directive 76/207 precludes the application Court to judge the admissibility of that of national provisions, such as those of claim — which she must be able to make German law, which bar women from under Article 6 of the Directive 3 — and military posts involving the use of arms, most of the questions posed do not appear allowing them access only to the medical irrelevant to the decision to be reached on and military-music services, and the Court's it. Even the national court's eighth ques- answer was in the affirmative. tion, although it might not seem immedi- ately relevant to the outstanding issue, may be necessary for procedural reasons con- nected with a possible subsequent claim for compensation in the civil courts.
25. However, that judgment had no bear- ing on the obligation imposed exclusively The Kreil judgment on men to perform military or civilian service, which is relevant to the present- case, but concerned the blanket denial to women of any right to serve voluntarily in military posts involving the use of arms. 23. On 11 January 2000, after the close of The discrimination which was found to the written procedure in the present case, exist was thus wholly distinct from any discrimination which might be germane to the present case. 3 — The importance of which the Court has stressed in a series of cases from Case 14/83 Vou Coiso» and Kamann v Land Nordrheìn-Weslfalen [1984] ECR 1891 to Case C-185/97 Coote v Granada Hospitality [1998] ECR I-5199. 4 — Case C-285/98 Kred v Bundesrepublik Deutschland.
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The issues in the present case if for no more than 12 months. The difference in treatment at this stage will not only entail a degree of temporary financial hardship but will also have reper- cussions on career progress for some time. In addition, any delay at this stage of legal — Do the disputed provisions fall within study may be significantly disruptive, inter- the scope of Directive 76/207? fering with the continuing acquisition and active retention of knowledge, particularly if it lasts for a full 12 months. Where an insufficiency of resources means that rules must be laid down to determine which candidates are admitted immediately and which must wait, then Directive 76/207 — 26. The national court expresses the view in particular Article 4 — applies fairly and that Directive 76/207 applies to the system squarely to those rules, which must there- of priorities laid down in the disputed fore avoid any discrimination, direct or legislation, since they affect the timing of indirect, on grounds of sex. access to vocational training even if they do not affect the right of access itself. The Land Hessen considers that it does not: the rules in question do not affect any person's right of access to vocational training but merely regulate the length of the possible waiting period. The Commission, however, considers that 'equal treatment with regard to access' relates to the question not just — The rule in issue 'whether' but also 'when'; any delay imposed upon a person in gaining access to vocational training, and thus to the subsequent professional activity, may con- stitute a discriminatory disadvantage com- pared with those who have not suffered it and may even, if excessive, amount to a refusal of access. It is important to ensure 28. Certain of the observations submitted that the provisions of the Directive are not to the Court by both the Land Hessen and circumvented. the Commission stress the fact that the disputed provisions of the JAG and the JAO accord priority in cases of 'hardship' in general and that completion of compul- sory national service is merely one of several instances included in a non-exhaust- ive list of such cases. They point out that 27. I agree with the national court and the other cases, whether specifically mentioned Commission. It is self-evident that a candi- in the legislation or not, may apply equally date for paid vocational training who is to women, and draw from that fact certain admitted immediately is treated more conclusions as to the discriminatory nature favourably than one who has to wait, even or otherwise of those provisions.
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29. I consider that approach to be erro- on grounds of sex. No distinction is drawn, neous. The national court's questions spe- for example, in Article 119 of the EC cifically and explicitly concern the legality, Treaty (now, after amendment, Article 141 in the light of the Directive, of the priority EC) or in the Equal Pay Directive. 6 Indeed, accorded to those who have completed the form of words used in Directive 76/207 compulsory national service. What has to ('no discrimination whatsoever on grounds be considered is whether any unequal of sex either directly or indirectly') seems treatment involved in according priority in designed rather to be all-encompassing such circumstances constitutes unlawful than to establish two different categories discrimination or whether it can be justi- of discrimination. fied. 5 It is irrelevant to those questions that priority may be accorded in other circum- stances without giving rise to unlawful discrimination. It would on the other hand be relevant if, say, an obligation of a comparable nature were imposed upon women without their being accorded the same priority. However, Ms Schnorbus does not base her claim on any such 31. However, as will appear, the distinction allegation, nor is there any indication of may be relevant to the question of what such a situation in the national court's justification is possible. order for reference. I shall therefore confine my analysis to the specific rule in issue, which accords priority to those who have completed compulsory national service.
32. A legislative definition of indirect dis- — Direct and indirect discrimination on crimination, which encapsulates much of grounds of sex: general considerations and the development in the case-law since the possible justifications distinction was first drawn by the Court, is to be found in Article 2(2) of Directive 97/80: 7 'indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a sub- stantially higher proportion of the members 30. It is not always necessary to distinguish of one sex unless that provision, criterion between direct and indirect discrimination or practice is appropriate and necessary
5 —There is a terminological difficulty to he overcome here. 'Discrimination', m one sense, implies no more than a 6 — Council Directive 75/117/EEC of 10 February 1975 on the recognition of distinctions. However, it has been defined in approximation of the laws of the Member States relating to Community law as 'the application of different rules to the application of the principle of equal pay for men and comparahle situations or the application of the same rule to women, OJ 1975 L 45, p. 19. different situations' (sec, for example. Case C-411/96 Boyle 7 —Council Directive 97/80/E of 15 December 1997 on the and Olbers v Equal Opportunities Commission [1998] ECR I-6401, paragraph 39 of the judgment). Further confusion burden of proof in cases of discrimination based on sex, may arise in discussions of whether discrimination, in the OJ 1998 L 14, p. 6; see also recital 19 in the preamble. This latter sense, may he 'justified', a matter which I shall address directive applies to situations covered by, inter aha. helow. Directive 76/207 but the deadline for its implementation is not until 1 January 2001.
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and can be justified by objective factors with which the national court is concerned unrelated to sex'. in its questions 4 to 7, namely the exception for 'measures to promote equal opportun- ity for men and women, in particular by removing existing inequalities which affect women's opportunities' — in other words, 'affirmative' or 'positive action'. 33. To state matters simply, it may be said that discrimination on grounds of sex arises where members of one sex are treated more favourably than the other. The discrimina- tion is direct where the difference in treatment is based on a criterion which is 35. The two types of justification are either explicitly that of sex or necessarily different in nature. The former relates to linked to a characteristic indissociable from the definition of unlawful discrimination sex. It is indirect where some other criter- itself; if it is present, there is no such ion is applied but a substantially higher discrimination and no need to look any proportion of one sex than of the other is in further. The latter is a possible 'defence' to fact affected. be examined once the existence of such discrimination has been established. In addition, the former appears capable of relating only to indirect discrimination, since where there is direct discrimination the criterion is by definition necessarily linked to sex, whereas the latter seems 34. There are two ways in which a differ- capable of relating to either form. ence in treatment may be 'justified'. On the one hand, according to the Court's case- law, a difference in treatment 'justified by objective factors unrelated to any discrimi- nation based on sex' 8 does not constitute unlawful discrimination. On the other hand, a number of provisions prohibiting discrimination state that they are to be — Does the rule in issue entail direct without prejudice to certain measures con- discrimination on grounds of sex? sidered to be necessary or in the general interest. 9 In particular, there is the saving clause in Article 2(4) of Directive 76/207,
8 — See, for example, Case C-167/97 Regina v Secretary of State for Employment, ex parte Seymour-Smith and Perez [1999] ECR 1-623, paragraphs 60 and 65 of the judgment. 36. The Verwaltungsgericht is of the opin- 9 — See, for example, Articles 4(2) and 7 of Council Directive ion that there is direct discrimination on 79/7/EEC of 19 December 1978 on the progressive imple- grounds of sex because the rule in issue mentation of the principle of equal treatment for men and women in matters of social security, OJ 1979 L 6, p. 24, or favours a category which can only comprise (now) Article 141(4) EC; see also Council Directive 92/85/ men. Both the Land Hessen and the Com- EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of mission consider that there is not, stressing pregnant workers and workers who have recently given birth or are breastfeeding, OJ 1992 L 348, p. 1. essentially the various categories mentioned
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in Paragraph 14a(2) of the JAO which may nancy, such a refusal constitutes direct comprise women. discrimination on grounds of sex.
37. I take the view that there is no dis- 40. However, there is a distinction to be crimination directly on grounds of sex — drawn between a criterion based on an though not, as I have explained above, for obligation imposed by law on one sex alone the reasons given by the Land Hessen and and a criterion based on a physical char- the Commission, since it is only the specific acteristic inherent in one sex alone. No priority accorded to those who have com- amount of legislation can render men pleted compulsory national service which is capable of bearing children, whereas legis- in issue. lation might readily remove any discrimi- nation between men and women in relation to compulsory national service.
38. It is true that under German law as it stands women cannot be accorded priority under the rule in issue whereas the over- 41. In the present case, therefore, there is whelming majority of men can, as a direct no direct discrimination because the rule in result of the fact that the criterion used — issue differentiates between those who have completion of compulsory national ser- and those who have not completed com- vice — relates to an obligation imposed pulsory national service as a result of a by law on all men and on men alone. statutory obligation, and not between men and women as such.
39. This might be compared to the situ- ation as regards pregnancy. The Court has — Does the rule in issue entail indirect held, in a series of cases starting with discrimination on grounds of sex? Dekker, 10 that since only women can be refused employment on grounds of preg-
10 — C a s e C-177/88 Dekker v Stichting VJV-Cenlruni Plus [1990] ECR I-3941, paragraph 12 of the judgment; see also Case C-179/88 Handels- og Forbund v Dansk Arbejdsgiverforening Kontorfunktionærernes [1990] ECR 42. The national court considers that there I-3979, paragraph 13, Case C-421/92 Habermann-Belter- is in any event indirect discrimination, a mann v Arbeiterwoblfabrt Bezirksverband [1994] ECR I-1657, paragraph 15, Case C-32/93 Webb v E M O Air view which it reaches on the basis of figures Cargo [1994] ECR I-3567, paragraph 19, and Case C-207/98 Mahlburg v Land Mecklenburg-Vorpommern, provided by the Land Hessen: of the 12000] ECR I-549, paragraph 20. 394 applicants for admission to training
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in March 1998, 157 were men and 237 of the number of applicants allocated a women; of the 140 successful applicants, training place in accordance with the rule there were 94 men and 46 women; and 107 in issue — that is to say, on the ground of of the 140 were admitted under the hard- completion of compulsory national service. ship rule — 84 men (67 of whom had completed compulsory national service) and 23 women. Thus a considerably higher proportion of women were disadvantaged than of men, without that difference being due to any objective criteria unrelated to sex. The Land Hessen itself does not 44. In that connection, the Court's case-law specifically address this question in its stresses that there must be a 'considerable' observations to the Court, but disputes difference in percentage for indirect discri- the relevance of a single set of figures; in mination to be established. 12 As regards contrast with the March 1998 situation, for the criterion of completion of compulsory example, the percentage of women given a national service, the difference is clearly place was 51.2% for the July 1997 intake 'considerable'; 100% of those who meet it and 50.9% for September 1997. The Com- are necessarily men, 0% are women. mission agrees here with the Verwaltungs- gericht, on the basis of the figures cited in the order for reference, but points out that the national court must make the necessary findings of fact. It refers to the Court's case- law to the effect that indirect discrimina- 45. From that viewpoint, I have no diffi- tion exists when a rule affects 'a consider- culty whatever in concluding that the rule ably smaller percentage', 'a much lower in issue entails prima facie indirect discri- proportion', or a 'much higher proportion' mination on grounds of sex. of one sex than of the other. 11
46. However, if one were to take the course of examining the overall statistics — implying an evaluation of the hardship rules as a whole, rather than of the single rule in issue — it would be unwise to base any conclusion simply on the gross figures 43. Again, I consider that it is not the for March 1998. As the Commission sug- correct approach to look at the overall gests, the national court would have to figures. The figure we must look at is that investigate the situation further before it could reach any sound conclusion; other intakes would have to be examined. I do 11 — See Case 96/80 Jenkins v Kingsgate [1981] ECR 911, paragraph 13 of the judgment; Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 29; Case C-457/93 Kuratorium für Dialyse und Nierentrans- 12 — See, for example, Seymour-Smith and Perez, cited in note plantation v Lewark [1996] ECR I-243, paragraph 28; 8, paragraphs 63 and 64 of the judgment, where a and Case C-278/93 Freers and Speckmann v Deutsche difference between 77.4% of men and 68.9% of women Bundespost [1996] ECR I-1165, paragraph 22. was not regarded as 'considerable'.
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not, though, consider that the other figures tion in Directive 97/80, 13 however, I take it produced by the Land Hessen prove any to mean that (indirect) discrimination is not particular point either. If — as I gather is unlawful when the difference in treatment the case — the principal sessions of the is justified by objective factors not in First State Examination are held once or themselves (that is to say, not directly) twice a year, but there are intakes for the related to sex. practical training every two months, and if the discrimination is as alleged, one would expect to find a higher percentage of men in the intakes immediately following one such session and a higher percentage of women in the intakes preceding the next. But if we disregard the number of men given priority in accordance with the single criterion of completion of compulsory national service, in March 1998 27 men were allocated places (17 under the 'hardship' rules) compared to 46 women (23 of them under the 'hardship' rules). Those figures thus do not appear to disclose any discrimination 48. It may be helpful here to point out that other than in relation to the rule in issue, the 'hardship' rules in general do not have where the conclusion is inescapable. the effect of imposing a difference in treatment on a population all of whose members could otherwise be subject to identical conditions. The difference in treatment is imposed by the need to limit the number of candidates allocated a train- ing post in each intake. Where the number of qualified applicants does not exceed the number of available places, all applicants are treated equally. Where there are in- — Is the rule in issue 'justified by objective sufficient places for the number of qualified factors unrelated to any discrimination applicants, some must be treated less based on sex'? favourably than others. The 'hardship' rules lay down a series of priorities whose underlying principle is clearly an intention to spread the inevitable disadvantages as fairly as possible by treating more favour- ably — at this particular juncture — those who have already suffered some form of disadvantage and less favourably those who have not. It is also worth recalling that the priority accorded affects no more than 47. The Court's usual formulation may the timing of the allocation of a training seem circular. To say that there is no place, and then only within defined tem- discrimination based on sex when a differ- poral limits. ence in treatment is justified by factors unrelated to discrimination based on sex appears self-evident. In line with the defini- 13 — See above, paragraph 32.
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49. For the criterion of completion of with statistically probable, yet uncertain, compulsory military service, there is justi- future disadvantages. fication based on objective factors which — like the criterion itself — are not directly related to sex. The rule in issue is designed to compensate for (or perhaps rather to avoid exacerbating) a delay of approximately one year in the commence- ment of legal studies. That disadvantage is defined objectively and applies to members of one sex only because the law (for the time being) imposes it on members of one 51. That is not to say that appropriate steps sex only. Thus steps taken to mitigate its taken to compensate for delays incurred as effects do not fall within the definition of a result of motherhood would constitute unlawful discrimination — unless either unlawful discrimination. Clearly they there is some other comparable disadvant- would not — they would be authorised age suffered by members of the other sex in under Article 2(4) of Directive 76/207 and, respect of which no equivalent steps are now, under Article 141(4) EC. However, taken (and, as I have indicated above, there the fact that such steps would be lawful — is no such issue in the present case) or they and commendable — if taken does not go beyond what is necessary to compensate mean that their absence can render unlaw- for the disadvantage (and the rule in issue is ful other steps taken to mitigate the effects incapable of conferring an advantage of of other, objectively defined, delays. more than 12 months, which is the delay suffered as a result of completion of compulsory national service).
— Can the rule in issue be justified under Article 2(4) of the Directive (positive action) ?
50. I am aware that underlying the national court's sixth and seventh questions is the concern that the delay to men's careers as a result of compulsory national service should not be compensated for at the 52. I take the view that the rule in issue expense of women since women will later entails no unlawful discrimination because incur even greater delays connected with the difference in treatment is justified by motherhood. However, the rule in issue is objective factors not directly related to sex. concerned with objectively ascertainable I thus consider that there is no need to look disadvantages already suffered and not at Article 2(4). However, any examination
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of possible justification under that provi- 55. If the Court were to give an answer, sion 14 would have to take account, to a however, it would seem right to stress the large extent, of the same considerations as I firmly-worded case-law to the effect that all have set out above with regard to objective persons have a right to obtain an effective justification. remedy against breaches of the principle of equal treatment. 15In accordance with the Court's explanation of the meaning and scope of Article 6 of the Directive in Marshall II, 16 measures must be available to restore equality where it has not been observed; in the present case such measures would have to involve either ensuring non- 53. In any event, it seems clear that the discriminatory access to training or, if that national court is misguided in its suggestion is not possible, granting adequate financial that Article 2(4) applies only to measures in compensation such as to enable the loss and favour of women. The Commission is right damage actually sustained as a result of the to point out that the Directive applies to unlawful discrimination to be made good in equal treatment for both men and women full in accordance with the applicable and that the reference to 'existing inequal- national rules. ities which affect women's opportunities' is merely an example. The fact that only women are cited in that example is no doubt due to the fact that, as is common knowledge, most existing discrimination on grounds of sex, whether direct or indirect, is to their disadvantage.
— Can Article 6 of the Directive found a right of access to training if there is no right to compensation?
54. In the light of the conclusion I have reached on the issue tional court's last question does not require an answer. 15 — See, for example, Coote, cited in note 3, paragraph 22 of the judgment. 16 — Case C-271/91 Marshall v Souithampton and South West Hampshire Area Health Authority [1993] ECR I - 4 3 6 7 , at 14 — Or, had it been applicable ratione temporis, Article 141(4) paragraphs 17 to 26, and in particular 24 to 26, of the EC. judgment.
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OPINION OF MR JACOBS — CASE C-79/99
Conclusion
56. I am therefore of the opinion that the Court should answer the questions raised by the Verwaltungsgericht Frankfurt am Main as follows:
Laws, regulations or administrative provisions of a Member State which regulate the order of priority for access to vocational training fall within the scope of Council Directive 76/207/EEC and must comply with the principle of equal treatment laid down therein.
A rule which accords priority in order of access to vocational training to all persons who have fulfilled an obligation imposed by law on members of one sex alone does not constitute discrimination directly on grounds of sex but is capable of constituting discrimination indirectly on grounds of sex.
Such a rule is none the less justified by objective factors unrelated to sex where it goes no further than to compensate for a delay already suffered as a result of compliance with the statutory obligation in question and where members of the other sex are not subject to any comparable delay for which there is no equivalent compensation; in such circumstances, the difference in treatment does not constitute unlawful discrimination.
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