C-380/01

3. Because of the availability of this addi- 2. In the national proceedings the applicant tional judicial process through the civil in the main proceedings (hereinafter 'the courts at several levels, as a result of which applicant') — over whom a woman was the requirements of Article 6 of the afore- preferred for promotion — in addition to mentioned directive could immediately be satisfied, it is doubtful whether the refer- ence for a preliminary ruling made by the 1 — Original language: German. V e r w a l t u n g s g e r i c h t s h o f based on its 2 — OJ 1976 L 39, p. 40. exclusive jurisdiction is admissible at all.

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SCHNEIDER

II — Legal background B — National law

6. Paragraph 3 of the B-GBG (in the version applicable at the relevant date) provides: A — Community law

'Nobody shall be directly or indirectly 4. Article 3(1) of Directive 76/207 reads as discriminated against on grounds of sex in follows: connection with an employment or training relationship pursuant to Paragraph 1(1), particularly

8. Paragraph 19(2) of the B-GBG provides: Landesgericht and, on appeal, the Ober- landesgericht Wien both ruled that judicial process in the civil courts was admissible but that the claim was unsubstantiated. In the final instance the Oberster Gerichtshof (Supreme Court, hereinafter 'the OGH'), as the court of judicial review, dismissed the appeal but stated that in its judgment it was 'Male or female civil servants must exercise always the civil courts that were respon- their rights under Paragraph 15... by bring- sible for deciding compensation claims ing a claim against the State before the under Paragraph 23 of the Bundes-Ver- relevant authority....' fassungsgesetz (Federal constitutional law) and brought under the Amtshaftungsgesetz (Government Liability Act, hereinafter 'the AHG') or under the principles governing State liability. Paragraphs 15 and 19 of the B-GBG could n o t p r e c l u d e those — wider — claims in whole or in part.

Ill — Facts and main proceedings

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SCHNEIDER

12. In addition to the civil claim the women as regards access to employment, applicant also submitted a claim to the vocational training and promotion, and competent authority, the Bundesminister working conditions to be interpreted as für Justiz (Federal Minister for Justice), by meaning that the possibility required by letter of 11 January 1999, for compen- that article of pursuing claims (in the sation for harm suffered due to his not present case, a claim for compensation) by being appointed judge of the Oberland- judicial process is not adequately satisfied esgericht Wien as a result of discrimination. by the Austrian Verwaltungsgerichtshof He appealed to the Verwaltungsgerichtshof alone, in view of that court's legally limited against the minister's decision dismissing powers (a court which hears appeals on his claim. He argued inter alia that the points of law only with no fact-finding decision was unlawful because Paragraph powers)?' 19 of the B-GBG obliged him to bring a claim for compensation before the very authority that had caused the harm. He also argued that a judicial review of such decisions carried out by the Verwaltungs- gerichtshof did not adequately satisfy the 14. The Austrian Government and the requirements of effective judicial protection Commission have submitted observations because that court, as a court which only in the proceedings before the Court. hears appeals on points of law, had no right to review the assessment of evidence so that the examination of questions of fact fell solely within the competence of the admin- istrative authority itself.

The Commission was asked to submit ing the matter it is for the legal system of answers to the following questions: each Member State to determine which court or tribunal has jurisdiction to hear disputes; however, it is the Member States' responsibility to ensure that individual rights derived from Community law are (1) Can the requirements regarding the effectively protected in each case and to duty to adduce evidence laid down in observe the principles of equivalence and Directive 97/80 be satisfied in judicial effectiveness. The observance of those proceedings in which issues of law principles and assurance of legal protection alone are examined? involve not just a process of judicial review that empowers the competent national courts to substitute their assessments of the facts for the assessment made by the administrative authority concerned. Since — as can be seen from the Upjohn (2) Do appeal proceedings before an judgment — the Community judicature administrative authority such as those must also restrict itself to examining the in the main proceedings in this case findings of fact and law made by the come within the scope of application of Community authorities and to verifying, Directive 97/80? If so, would the in particular, whether the action taken by directive apply to the proceedings in those authorities is vitiated by a manifest question in view of the fact that the error or a misuse of powers, Community contested order of the Bundesminister law does not require a more extensive für Justiz was pronounced before the review to be carried out by the national expiry of the deadline for transposition courts in similar cases. of the directive?

2 1 . On the basis of the answer given by the Austrian Government to the question raised by the Court and the judgment of 19. To summarise, therefore, the Austrian the O G H in the parallel proceedings in the Government considers that Article 6 of civil courts attached thereto, the Commis- Directive 76/207 should be interpreted as sion took the view during the oral pro- meaning that the possibility required by cedure that the proceedings in which com- that article of pursuing claims by judicial pensation was claimed against the State process is adequately satisfied by the Ver- satisfied all of the procedural requirements waltungsgerichtshofs review of the admin- under Community law for judicial proceed- istrative authority's decision. ings based on sexual discrimination. In the opinion of the Commission, therefore, reservations as to the admissibility of the reference for a preliminary ruling have now become a certainty.

2. The Commission

24. In answering the questions raised by the Court, the Commission states that the Bundesminister für Justiz cannot be con- sidered an 'other competent authority' within the meaning of Article 4(1) of Directive 97/80 as he is responsible for 23. It is apparent from Council Directive the very promotion practice complained of. 97/80/EC of 15 December 1997 on the The Commission takes the view, with burden of proof in cases of discrimination regard to the applicability of the directive, based on sex, 6in particular, that effective that the fact that the applicant's case had judicial protection is only guaranteed if the not been finally decided by the date on court is able to appraise in full all of the which the period for transposition came to facts relevant to the decision. In requiring an end is decisive. Member States to take such measures as are necessary, in accordance with their national judicial systems, to ensure that, in complaints of breach of the principle of equal treatment, it is for the respondent to prove that there has been no breach of that principle, Article 4(1) of Directive 97/80 assumes that it is for the respondent in the judicial proceedings not only to state the correct application of the law but also to 25. Consequently, the Commission is of the mention in the judicial proceedings all of opinion that Article 6 of Directive 76/207 the facts relevant to the decision. It also and Article 4 of Directive 97/80 should be assumes that the court must be in a position interpreted as meaning that the precept to appraise those facts in full. This is embodied therein, namely the guarantee of particularly apparent from Article 4(3) effective judicial protection in the event of because it is provided there that Member alleged discrimination based on sex, must States can fail to apply paragraph 1 only if not just permit the court before which a it is for the court to investigate the facts of case has been brought to examine whether the case in any event. The reference to the the relevant law has been correctly inter- facts of the case in this provision makes it preted and applied by the authority con- cerned but also whether all of the relevant facts have been correctly ascertained and 6 — OJ 1998 L 14, p. 6. properly taken into account.

VI — Legal appraisal the State, did examine in detail the issue of infringement of the principle of equal treatment under Directive 76/207. This applies both factually in relation to the personal reasons submitted by the appli- The admissibility of the reference for a cant and also legally in relation to the preliminary ruling wealth of case-law of the Court on the principle of equal treatment. In the present case the substantive objective of both claims (for compensation against the State and under Paragraph 15 of the B-GBG) is indemnification for harm sustained in relation to professional advancement as a 26. In the present case the principal ques- result of infringement of the principle of tion is whether the reference for a pre- equal treatment, albeit that the infringe- liminary ruling is admissible. The Commis- ment alleged in the proceedings for com- sion has already expressed certain doubts in pensation against the State is based on the this respect in its written observations. The argument that the national legislative extent of the problem and the circum- stance is in breach of Community law, stances enabling t h a t p r o b l e m to be whilst the proceedings before the Verwal- assessed were not brought to the attention tungsgerichtshof are based on the alleged of the Court during the course of the illegality of the decision by the Bundes- present proceedings until the Austrian minister für Justiz. The B-GBG would not Government gave its answers to the ques- appear expressly to preclude other rights to tion raised by the Court. compensation. Consequently, the O G H , as the highest national civil court, has ruled in a final judgment that Paragraph 15 of the B-GBG does not preclude other rights to compensation under the Amtshaftungs- gesetz or principles governing State liability that are guaranteed by constitutional law. 27. In answer to the question put by the Even though, formally speaking, these are Court the Austrian Government firstly two different rights to compensation, the observed that the decisions of the auth- ultimate objective of both of them is to orities concerned do not, in principle, have obtain financial indemnity for loss of any binding effect on each other; secondly, higher pay. it attached and explained the judgment of the O G H , which was the final court of appeal in the claim for compensation against the State.

30. On the question of the admissibility of a reference for a preliminary ruling the Court has consistently held that the pro- cedure provided for by Article 234 EC is an instrument for cooperation between the 32. However, the Court cannot give a Court and the national courts. 7 preliminary ruling where it is quite obvious that the interpretation of Community law sought by a national court bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypo- thetical. 1 1 The Court ruled in this con- nection in Meilicke 1 2 that: 3 1 . In the division of functions in the administration of justice between national courts and the Court provided for by Article 234 EC the Court gives preliminary rulings without, in principle, having to examine the circumstances in which the national courts have been led to refer questions and propose to apply the provi- sion of Community law which they have asked the Court to interpret. 8 It is, in 'in order to determine whether it has principle, solely for the national courts jurisdiction, it is a matter for the Court of before which proceedings are pending, Justice to examine the conditions in which and which must assume responsibility for the case has been referred to it by the the judgment to be given, to determine in national court. The spirit of cooperation the light of the particular circumstances of which must prevail in the preliminary individual cases both the need for a pre- ruling procedure requires the national court liminary ruling to enable them to give to have regard to the function entrusted to judgment and the relevance of the questions the Court of Justice, which is to assist in the which they submit to the Court. 9 Con- administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.' 7 — Case 16/65 Schwarze [1965] ECR 877; Case C-147/91 Ferrer Laderer [1992] ECR I-4097, paragraph 6; and Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 22. 8 — Case C-231/89 Gmurzynska-Bscber [1990] ECR 1-4003, 10 — Case C-369/89 Piageme and Others [1991] ECR I-2971, paragraph 22. paragraph 10. 9 — Joined Cases C-332/92, C-333/92 and C-335/92 Eurico 11 — Order of the Court of 25 May 1998 in Case C-361/97 Italia and Others [1994] ECR I-711, paragraph 17; Case Rouhollah Nour [1998] ECR I-3101. C-143/94 Furlanis [1995] ECR I-3633, paragraph 12; and 12 — Cited in footnote 7, paragraph 25, referring to Case Case C-264/96 ICI [1998] ECR I-4695, paragraph 15. 244/80 Foglia [1981] ECR 3045, paragraphs 18 to 2 1 .

34. The possibility of judicial pursuit of rights required by Article 6 of Directive 76/207 is therefore provided in Austria by the claim for compensation against the State that is to be pursued in the civil courts. In a Community law context it does not matter whether there is also another channel through which to pursue an infringement of the principle of equal treatment or whether that channel does in 36. Hence, the Court does not have juris- itself meet the requirements of effective diction to rule on the question referred to judicial protection. A single possibility of it. The question referred for a preliminary effective judicial protection will suffice. ruling must therefore be deemed inadmiss- ible. Consequently, there is no need to go into any other substantive issues, such as 13 — Dorsch Consult, cited in footnote 4, paragraph 23. the applicability of Directive 97/80.

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OPINION OF MR ALBER — CASE C-380/01

VII — Conclusion

37. In the light of the foregoing considerations, it is recommended that the question referred by the national court should be answered as follows:

The reference for a preliminary ruling is inadmissible.