C-476/99

LOMMERS

OPINION OF ADVOCATE GENERAL ALBER delivered on 6 November 1999 1

I — Introduction special working condition within the mean- ing of the Directive.

2. The question also arises as to whether child-care places form part of 'pay' within the meaning of Article 119 of the EC 1. By this request for a preliminary ruling Treaty applicable at the material time of 8 December 1999 — lodged at the (now, after amendment, Article 141 EC), Registry of the Court of Justice on 16 De- under which men and women should cember 1999 — the referring court, the receive equal pay. Since the possibility of Centrale Raad van Beroep (Higher Social maintaining or adopting specific advan- Security Court) (Netherlands), seeks to tages in favour of the under-represented sex ascertain whether Article 2(1) and (4) of also in relation to pay, was only intro- Council Directive 76/207/EEC 2of 9 Feb- duced — at least formally — into ruary 1976 on the implementation of the Article 141(4) EC by the Treaty of Amster- principle of equal treatment for men and dam of 1 May 1999, it is also relevant women as regards access to employment, whether such advantages might have been vocational training and promotion and possible before Article 141(4) EC came working conditions precludes an into force, through Article 6(3) of the employer's rules under which subsidised Agreement annexed to the Protocol No 14 child-care places are available only to on social policy. female employees, male employees being eligible only in the event of an emergency. The latter subparagraph (4) provides, by way of derogation from the general prin- ciples of equal treatment and non-discrimi- nation laid down in subparagraph (1), for measures to promote equal opportunities for women in order to remove existing II — Facts and procedure inequalities. The referring court assumes that the provision ofchild-care places is a

4. On 5 April 1996, the plaintiff lodged an 6. The Ministry of Agriculture has been appeal on the grounds of failure to take a providing or promoting nursery places decision on his complaint in due time. On since 1989, on the basis of a circular issued 25 June 1996, the Commission for Equal on 15 November 1993 implementing the Treatment ruled that, in respect of the Interior Ministry's child-care programme. plaintiff, the Minister of Agriculture had It involves renting local authority nursery made no distinction on grounds of sex places, whilst for officials working in The contrary to Article la(l) read in conjunc- Hague the Ministry has its own day tion with Article 5 of the Wet gelijke nursery. A number of nursery places are behandeling mannen en vrouwen (General allocated to each division of the Ministry Law relating to Equal Treatment of Men (directorate or service) according to the and Women, hereinafter 'the WGB') of number of female employees. The ratio is 1 March 1980. By the decision of 11 Sep- approximately one place per twenty female tember 1996, the Minister of Agriculture employees. In 1995 the total number of rejected the plaintiff's complaint. He thus places was 128. The Ministry has a waiting followed the opinion of the Advisory list for childcare places.

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8. During the pre-litigation procedure, the Minister of Agriculture had conceded, before the Commission for Equal Treat­ ment, that a distinction is drawn on grounds of sex in the child-care rules. He stated that this is intended deliberately to combat existing inequalities in the position of women. Within the Ministry of Agricul­ ture, women are at a disadvantage both numerically and in terms of their distribu­ tion across the grades. On 31 December 1994, there were 2 792 women out of a 10. The question for the referring court is total workforce of 11 251. Moreover, whether the Ministry of Agriculture's women are under-represented at the higher refusal is compatible with Article 2(1) and grades. The view of the Minister of Agri­ (4) of Directive 76/207. It assumes that culture was that the establishment of child- there is no dispute about the fact that the care facilities could help to overcome these scheme rules at issue in this case are existing inequalities. additional working conditions. It goes into the Community legal framework for posi­ tive action in favour of women, both at the 4 legislative level and on the basis of the

3 — Council Recommendation 92/241/EEC of 31 March 1992 on child care (OJ 1992 L 123, p. 16). 4 — Council Recommendation 84/635/EĽC of 13 Decemher 1984 on the promotion of positive action for women (OJ 1984 1. 331, p. 34); Council Recommendation 92/241 on child care (cited at footnote 31; Article 6(3) of the 9. In stating his grounds of appeal before Agreement of 1 November 1993 on Protocol No 14 on Social Rolicy; Article 141(4) EC and Declaration No 28 on the referring court, the plaintiff averred Article 141 (ex Article 119) (4).

5 — Judgment in Case 312/86 Commission v France [1988] ECR 6315; Judgment in Case C-450/93 Kalanke v Freie Hansest- adt Bremen [1995] ECR I-3051, including the Opinion of 12. The Netherlands Government and the Advocate General Tesauro of 6 April 1995 [1995] ECR 1-3053 and the judgment in Case C-409/95 Marschall Commission participated in the procedure [1997] ECR I-6363, including the Opinion of Advocate before the Court. Oral proceedings took General Jacobs of 15 May 1997 [1997] ECR 1-6365. 6 — Opinion of Advocate General Jacobs (cited at footnote 5, place. The Court put to the Netherlands paragraph 43). Government a question for written reply, 7 — Footnote 45 of Advocate General Jacobs' Opinion (cited at footnote 5). regarding the funding of child-care facil-

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ities. During the oral proceedings, it also respect of his employment from his asked the parties to give their views on the employer. question whether provision of childcare places could be described as 'pay'.

...'

III — Relevant provisions

2. Declaration No 28 on Article 141 or compensate for disadvantages in their professional careers.'

15. Declaration No 28 on Article 141 (ex Article 119(4) of the Treaty establishing 4. Directive 76/207 8 the European Community), annexed to the Treaty of Amsterdam, reads as follows:

17. Article 2(1) and (4) of Directive 76/207 reads as follows: 'When adopting measures referred to in Article 141(4) of the Treaty establishing the European Communities, Member States should in the first instance aim at improv- ing the situation of women in working life.'

'(1) For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimi- nation whatsoever on grounds of sex either directly or indirectly by reference in par- 3. Agreement on Protocol No 14 on social ticular to marital or family status. policy

16. Article 141(4) EC draws on the content of Article 6(3) of the Agreement of 1 No- vember 1993 on Protocol No 14 on social policy. Article 6(3) of this Agreement reads:

(4) This Directive shall be without preju- dice to measures to promote equal oppor- tunity for men and women, in particular by removing existing inequalities which affect '(3) This Article shall not prevent any women's opportunities in the areas referred Member State from maintaining or adopt- to in Article 1(1).' ing measures providing for specific advan- tages in order to make it easier for women to pursue a vocational activity or to prevent 8 — Cited at footnote 2.

18. Referring expressly to Article 2(4) of Directive 76/207, the Council recom- mended the following to the Member 19. Article 6 of this Recommendation States: reads as follows:

'1. To adopt a policy designed to eliminate 'As regards responsibilities arising from the existing inequalities affecting women care and upbringing of children, it is in working life and to promote a better recommended that Member States should balance between the sexes in employ- promote and encourage, with due respect

9 — Cited at footnote 4. 10 — Cited at footnote 3.

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IV — Submissions of the parties 22. In its response to the question referred for a preliminary ruling, the Netherlands Government first points out that individ- uals can invoke a directive directly against 1. The Netherlands Government the State, in its capacity of either employer

21. The Netherlands Government submits 11 — Ruling 130/90121 of 22 August 1988; Ruling 519/92/56 of 7 October 1992; Ruling D334v/94/34 of 14 May 1996 that the aim of the child-care scheme is to and ruling D282v/96/35 of 14 May 1996.

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or public authority. 12 It is settled case-law 25. Advocate General Tesauro, in his that Article 2(4) of Directive 76/207 was Opinion in Case C-450/93 Kalanke, 15 specifically and exclusively designed to stated that child-care provision structures allow measures which, although discrimi- may be viewed as measures falling within natory in appearance, are in fact intended the scope of Article 2(4) of Directive to eliminate actual instances of inequality 76/207. The Netherlands Government also which may exist in the reality of social draws a parallel with the judgment in life. 13 Badeck 16 to the extent that the quota arrangement at issue in that case pertained to occupational training measures. Finally, the Netherlands Government points out that the measure does have a degree of flexibility as it contains a hardship clause for men.

23. The Netherlands Government also points out that this provision permits national measures specifically in favour of women and designed to enhance their ability to compete on the job market and to develop their professional careers on an 26. To the Court's questions regarding the equal footing with men. 14 method of calculation used to determine the contribution payable by a female employee for a child-care place, the Nether- lands Government responded as follows:

for a lower contribution. 17 The rules also declared, in response to the Court's ques- specify that, in the case of a woman in tion as to how far the measure could be part-time employment, the hours when she equated to pay, that the Netherlands Gov- is at work are to be reserved for her in the ernment was proceeding on the basis that it nursery. The contribution is then deter- was not remuneration, but rather an addi- mined according to her use of the child-care tional condition of employment. The con- facilities. Since 2001, net income has been cept of working conditions was wider than replaced by taxable family income as the that of pay. Pay was directly linked to work basis for calculating the parental contribu- done, which is not the case in regard to tion. conditions of employment. Advantages which are a function of the employment relationship but are none the less distinct from the employee's performance can be viewed as working conditions, for example, further training opportunities or the provi- sion of sports facilities or a gym.

27. In response to the Court's question as to the proportion of the costs of the nursery place to be borne by the employee, the Netherlands Government states that it varies between 30% and 50%. The par- ental contribution is used entirely to fund the nursery place. The level of parental contribution depends on the actual situ- ation, the determining factors being 29. The provision of child-care does not income, number of children and the cost constitute remuneration because the par- of the nursery. After the second child the ental contribution is, for example, calcu- financial contribution is higher. lated on the basis of fixed rules, whilst the subsidised portion is variable.

Article 2(1) and (4) of Directive 76/207 must be interpreted as not precluding rules adopted by a public authority employer which reserve subsidised child-care places to female employees, whilst male 31. The representative of the Netherlands employees only have access in an emerg- Government explained why the Nether- ency situation to be determined by the lands Government viewed this measure as employer but on condition that falling within the scope of Article 2(4) of the Directive. For many women, combining paid employment and child-care was a problem. The measure was also propor- tionate, in that there were insufficient nursery places, and equal access by women — the rules although apparently discrimi- and women would have operated to the natory are in fact intended to eliminate detriment of women. The cost factor too or reduce inequalities existing in social was significant, since nursery places are life, and expensive and can make substantial inroads into a modest salary. Between the intro- duction of the measures and 1999, the proportion of women employed at the Ministry of Agriculture had risen by 4%, though this was also partially attributable — the rules are not completely inflexible to other factors, with the result that it was and are only intended to promote difficult to assert that there was a causal equality of opportunity for women link. without precluding the possibility for- men to benefit from those facilities.

2. The Commission 32. In conclusion, the representative of the Netherlands Government pointed out that the contested rules were abolished in 2000, since there were now more nursery places 34. The Commission is proceeding on the available. basis that the contested rules constitute

35. The Commission's view is that the question of the compatibility with Com- munity law of positive measures in the area of childcare was already decided in the judgment of 25 October 1988 in Case 312/86 Commission v France. 18 In that judgment the Court implicitly rejected the 37. This approach is confirmed by the French Government's assertion that the case-law. Following the judgment in the provisions and rules in that case were case of Kalanke, positive measures may not intended to reflect the actual situation in give women absolute and unconditional the majority of French households. It is precisely this argument of actual inequality, 19 — Cited at footnote 5. 20 — Cited at footnote 5. 21 — Marschall judgment (cited at footnote 5, paragraph 29). 18 — Case 312/86 Commission v France, cited at footnote 5. 22 — Marschall judgment (cited in footnote 5, paragraph 31).

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priority. There should rather be a guarantee V — Assessment that in each individual case all criteria relating to a male applicant will be con- sidered. This is the 'saving clause' within the meaning of the judgment in Marschall. In the opinion of the Commission, the rule fails the proportionality test.

40. The question asked by the referring court pertains expressly and exclusively to the interpretation of Article 2(1) and (4) of Directive 76/207, since the Court assumes that the disputed rule is part of the working conditions. It is settled case-law 23 that the 38. In its response to the Court's question, referring court must appraise the relevance as to whether the provisions might con- of the question referred to the Court. stitute pay, the Commission has revised the However, it must also ascertain indepen- opinion it expressed in its written sub- dently thereof, whether the rules do provide mission. Since child-care places are sub- for pay within the meaning at the material sidised by up to the level of at least 50%, it time of Article 119 of the EC Treaty (now must be assumed that this is a payment in Article 141 EC). kind by the employer to the employee.

43. In assessing the merits of the case, the Court of First Instance took this as its basic premiss in finding that the Commission decision on the scales of parental contribu tion payable by the staff must comply with the principle of equal treatment. 30 In this 42. In examining the issue of admissibility case, the Court of First Instance faced the at the material time, the Commission problem of how to bring the social service having raised a plea of inadmissibility on at issue within the scope of the Staff the ground that there was no act adversely Regulations in order to be able to apply affecting the official, took the view that the the general principle of equal treatment. problem of defining the term 'social service For this purpose alone, the social service at at issue' 25 in one of the categories of the issue was to be treated as a payment in Staff Regulations of the European Com

It therefore submits that the social service at issue is 'to be treated as a 44. Over and above this one crucial cri terion, there are other arguments militating 25 — See paragraph 21 of the judgment cited at footnote 24. against the application of the Vander- 26 — This involved Article 62 of the Staff Regulations and haeghen judgment to this case. Vander- whether it covered the social service at issue. Article 62 reads '. . . an official who is duly appointed shall be entitled haeghen concerned the inclusion of the to the remuneration carried by his grade and step. An social service at issue under the Staff Regu official may not waive his entitlement to remuneration. Remuneration shall comprise basic salary, family allow lations of Officials of the European Com ances and other allowances.' munities, which is certainly not the case 27 — Referring to the judgment of the Court on 4 June 1992 in the case of Bötel, Case C-360/90 [1992] ECR I-3589, here. The child-care facilities for EC offi paragraph 12, the Court of First Instance in paragraph 21 cials differ in some respects from other of the judgment quotes: 'the concept of pay within the meaning of Article 119 of the Treaty comprises any child-care establishments. The Regulation

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governing them at the time, the 'reglement 46. The question is whether, irrespective of d'admission et de fonctionnement des étab- the judgment of the Court of First Instance lissements du CPE' 31 (crèche, garderie, in the case of Vanderhaeghen, the contested centre d'études) states that the purpose of rules are to be deemed pay or an additional providing child-care is to enable parents element subsumed under working con- from the various Member States of the ditions. European Union who are a long distance from home, to find child-care for their young children upon their arrival in Lux- embourg, without excessive difficulty. This gives the parents peace of mind and enables them to devote themselves to the work for which they have been recruited by the Community institutions and agencies, tak- ing into account the working hours, par- ticular constraints and the multiplicity of languages and customs.

48. As regards the classification of the 50. In this context, the Netherlands Gov- benefit, the provision of child-care — that ernment advances an interesting argument, is the practical side of the facility — is the namely that the provision of child-care main focus. When asked whether this facilities does not amount to pay because facility amounted to pay, the Commission there is no mutual obligation in terms of focused on the measure as a possible work carried out. Pay is normally linked to payment in kind. It is the provision of the performance, and implies a right to claim child-care place that is vital from the it, which is not the case with the provision perspective of the official, who then pays of child-care facilities. This interpretation the parental contribution. With his or her of the term pay is very close to that given by agreement, the contribution can be the Court in its judgment of 15 June 1978 deducted from salary. The method of in Case 149/77, the case of Defrene III. 33 calculating this sum is laid down, in the The Court stated: interests of transparency, and the amount is determined using a table of pre-determined factors. This, however, is only an account- ing method.

'In particular, the fact that the fixing of certain conditions of employment — such as a special age limit — may have pecuni- ary consequences is not sufficient to bring such conditions within the field of appli- cation of Article 119, which is based on the close connexion which exists between the nature of the services provided and the amount of remuneration.

52. The question therefore arises as to whether child-care provision does fall 'On the other hand, as regards the relation- within the scope of Directive 76/207. ships of employer and employee which are subject to national law, the Community had not, at the time of the events now before the Belgian Courts, assumed any responsibility for supervising and guaran- teeing the observance of the principle of equality between men and women in work- ing conditions other than remuneration.' 37 53. It is assumed that the principle of equal This despite the fact that in the same treatment set down in Directive 76/207 is judgment the Court went on to observe: comprehensive and also applies to public 'The Court has repeatedly stated that authorities. 35 As regards the principle of respect for fundamental personal human equality between men and women in rights is one of the general principles of employment initially it was only the prin- Community law, the observance of which it ciple of equal pay which was laid down in has a duty to ensure.

34 — Sec judgment in case 149/77 (cited at footnote 33 36 — Council Directive of 10 February 1975 on the Approxi- paragraph 21 et seq.). mation of the laws of Member States relating to the 35 — See judgment m Marshall (cited at footnote 12, paragrapl application of the principle of equality for men and 2 of the operative part of the |udgment); Judgment o women. 11 January 2000 in Case C-285/98 Kml |2000] ECR 1-69 37 — Sec paragraph 30 of the judgment in the case of Defrenne paragraph 18 and subsequent references. III (cited at footnote 33).

55. With these provisos, the disputed rules and the provision of child-care are both deemed to fall within the scope of the term '... it is not only the conditions obtaining 'working conditions', to the extent that before an employment relationship comes they flow directly from the employment into being which are involved in the con- relationship. They may also affect access to cept of access to employment.' The pros- employment. pect of obtaining family credit encourages an unemployed worker to accept... work with the result that the benefit is related to considerations governing access to employ- ment. 41 Moreover, respect for the funda- mental principle of equal treatment implies in respect of a benefit such as Family Credit 56. Article 2(1) of Directive 76/207 con- which is necessarily linked to the employ- tains a prohibition on both direct and ment relationship, that it does represent a indirect discrimination on grounds of working condition within the terms of gender. The contested rules provide for Article 5 of the Directive. 'To confine the manifestly unequal treatment on the latter concept solely to those working con- grounds of gender in respect of access to ditions which are set out in the contract of child-care places subsidised by the Ministry of Agriculture. 38 — See paragraphs 26 and 27 of the judgment in Defrenne HI (cited at footnote 33). 39 — [1995] ECR I-2131. 42 — See paragraph 24 of the judgment (cited at footnote 39). 40 — See paragraph 25 of the judgment (cited at footnote 39). 43 — [1998] ECR I-5199. 41 — See paragraph 22 of the judgment (cited at footnote 39). 44 — See paragraph 25 of the judgment (cited at footnote 43).

58. The Court has already dealt with the question of positive measures in the judg- ments in the cases of Kaianke, Marschall, Badeck and Abrahamsson. 45 All these 'Positive action may assume several forms. cases deal extensively with quotas applying A first model aims to remove, not discrimi- to recruitment or promotion in the public nation in the legal sense, but a condition of services. The Court set out the conditions disadvantage which characterises women's and limits of these measures, so that for presence on the employment market. In this example in Kalanke, a measure providing case, the objective is to eliminate the cause that where applicants were equally quali- of the fewer employment and career oppor- fied automatic priority had to be given to tunities which (still) beset female employ- the female applicant was rejected. In Mars- ment by taking action with respect, among chall a similarly structured measure, albeit other things to vocational guidance and one containing a saving clause, was deemed training. A second model of positive action compatible with Community law. may be discerned in actions designed to foster balance between family and career responsibilities and a better distribution of these responsibilities between the two sexes. In that case, priority is given to measures relating to the arrangement of working hours, the development of child- 59. This case involves a different type of care structures, the return to work of measure, so the structures set out in the women who have devoted themselves to abovementioned judgment cannot simply bringing up their children, and social be transposed to the present case. security and fiscal offsetting policies which take account of family duties. In both those cases, positive action, albeit entailing the adoption of specific measures for women alone, designed in particular to foster the employment of women, has the aim of 60. Advocate General Tesauro in his equal opportunities and, in the final analy- Opinion in the case of Kalanke, sought to sis, the attainment of substantive equality. A third model of positive action is that of action as a remedy for the persistent effects 45 — See judgments in the cases of Kalanke, Marschall, (cited at of historical discrimination of legal signifi- footnote 5) and Badeck, (cited at footnote 16); see also the judgment of 6 July 2000 in Case C-407/98 Abrahamsson cance; in this case, the action takes on a [2000] LCR I-5539. compensatory nature, with the result that

63. The first question is whether the judg- ment in Case 312/86 Commission v France, prejudges the present case. The Commis- sion's complaint against the French Repub- lic centres on its attempt to maintain all the special rights for women recognised in 62. Remaining with Advocate General collective agreements for an indefinite Tesauro's classifications for simplicity's period. The Commission acknowledged sake, one may note that the second cat- that some of these rights may be covered by the exceptions to the application of the 46 — See paragraph 9 of the Opinion (cited at footnote 5). 47 — Pfarr, Quotas and the Basic Law, p. 203 et seq.; An attempt at categorisation, Maidowski, Reverse discrimi- 48 — See Hörburger, Do Europe's Women enjoy Equal Rights?, nation, p. 38 et seq., On the Problems of 'typology'. See p. 144 et seq.; Pfarr, Quotas and the Basic Law, p. 201 and p. 42. Pfarr, The Law on Equal Treatment, p. 109.

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Directive provided for in Article 2(3) and 66. On Article 2(4) of the Directive, the (4) thereof. 49 Court held:

'The exception provided for in Article 2(4) is specifically and exclusively designed to allow measures which, although discrimi- 64. The French Government's defence was natory in appearance, are in fact intended that special rights for women are compat- to eliminate or reduce actual instances of ible with the principle of equal treatment if inequality which may exist in the reality of these special rights derive from a concern social life. Nothing in the papers of the for protection. 50 Moreover, it avers, the case, however, makes it possible to con- special rights in the collective agreements clude that a generalised preservation of are designed to take account of the situ- specific rights for women in collective ation existing in the majority of French agreements may correspond to the situation households. 51 envisaged in that provision.' 53

circumstances. It is however important to inequality which may exist in the reality of note in this respect that the Court has never social life'. 55 expressed a view on this matter. It found against the French Republic because of the general nature of the maintenance of these special rights for women, without any one of the provisions being examined. One can infer from the Court's comments on the burden of proof imposed on the French Government, that the latter had never adduced any evidence to justify the special 70. Given the prevailing social structures, rights for women. Therefore, in my view, it the responsibilities borne by women in their cannot be inferred from that judgment role as mothers often constitute a formal which special rights for women are covered barrier to employment. Recital 10 of Rec- by Article 2(4) and which are not. The ommendation 92/241 on child-care states: Court has certainly not held that all special 'Whereas inadequate provision of child- rights for women under collective agree- care services at prices affordable to parents ments are incompatible with the Directive, and other initiatives to reconcile responsi- with the result that that judgment does not bility for the family and the upbringing of prejudge the problems arising in this case. children with the employment, or with the education and training of parents in order to obtain employment constitute a major barrier to women's access to and more effective participation in the labour market, on equal terms with men, the effective participation of women in all areas of society and the effective use of their talents skills and abilities in the current demo- graphic situation.' 56

73. Although the Recommendation seeks to foster a family structure where the occupational role is shared, — not for nothing does the plaintiff not invoke Article 6 of the Regulation — that docu- ment nevertheless assumes that in the reality of society, the lack of adequate child-care facilities is one of the main 76. Such measures can be considered to barriers to women working. come within the scope of Article 2(4) of Directive 76/207, since it seeks to remove existing inequalities in present society. Article la of Recommendation 84/635 indeed refers to promotion of action for women as 'eliminating or counteracting the prejudicial effects' on women. 74. The provision of child-care is an appro- priate means of eliminating practical bar- 59 — There is no need to invoke the Court's established riers which might prevent a woman from case-law, under which an admissible quota arrangement relating to recruitment and promotion must take account of 'all criteria specific to the individual candidates" (Mars- chall judgment, cited at footnote 5, paragraphs 33 and 35), which could create a situation where women 'arc not to he 57 — See 14th recital of the Recommendation {cited at footnote given priority in promotion if reasons specific to an .3, my italics). individual male candidate tilt the balance in his favour 58 — See 16th recital of the Recommendation (cited at footnote ("saving clause")' (Marschall judgment, cited at footnote .1. my italics) 5, paragraph 24).

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81. Irrespective of whether Article 2(4) of the Directive requires such a proportional- ity test, 63 in this case a gender-neutral right of access to child-care would not lead to the same result. The Netherlands Ministry of Agriculture employs substantially more 79. The real question is whether a measure men. If their children were equally entitled such as that in the present case which to a nursery place, in a situation where focuses on the role of the mother is places are limited far fewer women would unlawful purely because it fails to focus have the opportunity to accommodate their on parenthood, although it undoubtedly is child or children there. This is moreover appropriate for eliminating barriers to typical, for example, if a situation where employment. equality before the law or rather formal equality in fact works to the detriment of women. 64 Therefore it is incorrect to term 60 — Preschal Sascha, Common Market Law Review 1996, this a positive measure for women in the p. 1245, 1253. first instance. Nor does the fundamental 61 — It cannot be denied that a distinction must be made between the payment of child-care subsidies on the one hand, and the provision of child-care places which are limited, on the other. The provision of funding is sufficient in the former case, whilst for the latter an appropriate 63 — The judgments in Marschall, Badeck and Abrahamsson infrastructure must first be established tend to suggest the contrary. 62 — See No la of the Recommendation (cited at footnote 4). 64 — See Maidowski, (cited at footnote 47, p. 82).

65 — See third recital or Recommendation 84/635 on the 84. The appeal to Member States to work Promotion of positive action for women, (cited at footnote 4): 'Whereas existing legal provisions on equal treatment, towards an equal division of parental which are designed to afford rights to individuals, are responsibilities does not necessarily imply inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides the right to a nursery place for male OR of industry and other bodies concerned, to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures.' See the judgment in Marschall (cited at footnote 5, paragraph 29), tile judgment in Badeck (cited at footnote 16, paragraph 66 — A Recommendation to Member States does not confer 49) ana Maidowski (cited at footnote 47, p. 35 et seq.). legal rights which may he invoked by an individual.

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female officials in a situation where places 86. The rules must therefore be deemed to are limited, 67 particularly since preferential come within Article 2(4) of Directive access for female employees is one of the 76/207. measures to foster equality of opportunity within the meaning of Article 2(4) of Directive 76/207.

68 — Thus the Commission in its written pleadings. 67 — In this instance, the public sector employer guaranteed 69 — Cited at footnote 16, paragraph 32. equal access to the limited number of nursery places when 70 — Judgment of 3 February 2000 in Case C-207/98 [2000] the shortage of places became less acute. ECR I-549, paragraph 26.

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admissible positive measures, or rather Article 9, the Commission will adopt and specific rules for women are the expression publish every three years a report estab­ of the principle of equal treatment because lishing a comparative assessment of the this aims to bring about substantive rather positive measures adopted by the Member than purely formal equality. This logic is States pursuant to Article 141(4) EC of the inherent in the principle of equal treatment Treaty.' and finds expression as positive law in Article 2(4) of Directive 76/207, and later as a source of primary law in Article 6(3) of the Agreement to the Protocol on Social Policy, and finally in the Treaty in the form of Article 141(4) EC. Thus, Article 141(4) may be taken to cover at least all those measures coming under Article 2(4) of Directive 76/207.

90. The justification for this is to be inferred from the seventh recital, that 'The possibility for Member States to maintain or adopt positive measures is enshrined in the Article 141(4) of the Treaty. This T r e a t y provision makes the existing Article 2(4) of Directive 76/207 redundant. 89. This interpretation is supported by the The publication of periodical reports by the amendment to Directive 76/207 7 1 pro­ Commission on the implementation of the posed by the Commission. Article 2(4) possibility offered by Article 141(4) will would be completely replaced by the fol­ help Member States to compare the way it lowing text: is implemented...'.

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