CELEX: 62001CJ0380
Directive 76/207/EEC
Equal treatment for men and women
Promotion
Principle of effective control by the courts
Inadmissibility

By order of 13 September 2001, received at the Court on 4 October following, the Verwaltungsgerichtshof referred to the Court
for a preliminary ruling under Article 234 EC a question on the interpretation of Article 6 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 (OJ 1976 L 39, p. 40).
The question was raised in proceedings between Mr Schneider and the Bundesminister für Justiz concerning the latter's rejection
of his claim for compensation for harm allegedly suffered by him because he was not appointed judge of the Oberlandesgericht
Wien (Austria).
Legal background
Community law
Article 1(1) of Directive 76/207 provides: The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women
as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on
the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as
the principle of equal treatment.
Article 6 of Directive 76/207 reads as follows: Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider
themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5
to pursue their claims by judicial process after possible recourse to other competent authorities.
National law
In Austria a general claim for compensation may be brought against the State on the basis of Paragraph 1(1) of the Amtshaftungsgesetz
(
Government Liability Act, hereinafter
the AHG). Such a claim for compensation against the State must be brought before the civil courts.
Paragraph 15 of the Bundes-Gleichbehandlungsgesetz (Federal law on equal treatment, BGBl. I, 1993/100, hereinafter
the B-GBG) provides that when a male or female civil servant is refused an appointment as a result of the State's violating the principle
of equal treatment as required by Paragraph 3(5) of the B-GBG, the State shall be liable to compensate for the harm suffered.
The latter provision prohibits all discrimination in career advancement, in particular in cases of promotion and appointment
to better-paying positions.
Under Paragraph 19(2) of the B-GBG, the civil servants concerned must exercise their rights under Paragraph 15 of that law
within six months by bringing a claim against the State before the relevant authority. The decision given may be challenged
before the Verwaltungsgerichtshof, which is an administrative court, under the procedure provided for by Paragraph 130 of
the BundesVerfassungsgesetz (Federal constitutional law).
Main proceedings and questions referred for a preliminary ruling
Mr Schneider, born in 1953, is a judge of the Arbeits- und Sozialgericht Wien (Austria). In 1997 and 1998 he twice applied
for a specialised post corresponding to his qualifications with the Oberlandesgericht Wien. Both times preference was given
to a younger female candidate with less seniority on the grounds that the quota earmarked for women's career advancement had
not been filled.
Following those decisions, Mr Schneider brought a claim for compensation against the State on the basis of the AHG before
the Landesgericht für Zivilrechtsachen Wien in order to obtain compensation for the harm he claims to have suffered. He argued
that, in the promotion decisions, account was not taken of reasons specific to him. After his claim was dismissed, he appealed
to the Oberlandesgericht Wien, which in turn dismissed his appeal. Mr Schneider then appealed to the Oberster Gerichtshof
for
Revision (judicial review). By decision of 30 January 2001, that court dismissed the appeal. Referring to the Court's case-law on
the principle of equal treatment under Directive 76/207 (Case C-450/93
Kalanke
[1995] ECR I-3051; Case C-409/95
Marschall
[1997] ECR I-6363; Case C-158/97
Badeck and Others
[2000] ECR I-1875; and Case C-407/98
Abrahamsson and Anderson
[2000] ECR I-5539), it held that, for want of a saving clause, the Austrian measure for women's career advancement was not
compatible with Community law. It also held, however, that there was no causal link between the infringement of the law and
the alleged harm. It found that Mr Schneider had not put forward any reasons specific to him which, had there been a saving
clause, should have been taken into account.
In addition, by letter of 11 January 1999, Mr Schneider submitted a claim to the Bundesminister für Justiz for compensation
for harm allegedly suffered by him due to his not being appointed judge of the Oberlandesgericht Wien following his application
of 14 April 1998. That claim, submitted on the basis of the B-GBG, was dismissed by that minister.
Mr Schneider challenged that decision before the Verwaltungsgerichtshof. He argued inter alia that it was unlawful because
the law in question obliged the injured party to claim compensation for harm from the authority which had caused it. He also
argued that the judicial review of such a decision carried out by the Verwaltungsgerichtshof, acting as a court of appeal,
did not adequately satisfy the requirements of effective judicial protection. He argued that that court had no right to
review the assessment of the evidence, so that questions of fact fell definitively within the competence of the administrative authority.
In the order for reference, the Verwaltungsgerichtshof states that the action brought before it is, by its very nature, an
appeal. As an appeal court, it can carry out only a limited review of the facts. In that context, and in light of the Court's
case-law, it considers that it is at the very least doubtful whether the judicial protection provided in this case by the
Verwaltungsgerichtshof alone satisfies the legal requirements of Community law as laid down in Article 6 of Directive 75/207.
That being so, taking the view that a decision on that point was necessary for resolving the dispute pending before it, the
Verwaltungsgerichtshof decided to stay proceedings and to refer the following question to the Court: Is Article 6 of Council Directive 76/207 ... 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 to be interpreted as meaning that
the possibility required by that article of pursuing claims (in the present case, a claim for compensation) by judicial process
is not adequately satisfied by the Austrian Verwaltungsgerichtshof (Administrative Court) alone, in view of that court's legally
limited powers (a court which hears appeals on points of law only with no fact-finding powers)?
Subsequent to the Advocate General's Opinion, the Verwaltungsgerichtshof sent the Court an order issued by it on 26 March
2003 and in which it comments on the relationship between the procedure for a claim for compensation pursuant to Paragraph
15(1) of the B-GBG and the one for a civil claim for compensation under Paragraph 1(1) of the AHG.
Admissibility of the question referred for a preliminary ruling
In response to a written question from the Court on the relationship between the two sets of proceedings brought by Mr Schneider,
one before the Landesgericht für Zivilrechtsachen Wien and the other before the Verwaltungsgerichtshof, the Austrian Government
states that a claim for compensation against the State before the civil courts cannot exclude or limit an administrative action
for compensation against the State based on the provisions of the B-GBG. It states that, conversely, if an applicant relies
before an administrative court on the rights it derives from a violation of the provisions of the B-GBG, the civil courts,
by virtue of their general powers, retain jurisdiction to rule on disputes involving State liability. Accordingly, actions
such as those in the main proceedings here can, in Austria, be brought before both the civil and the administrative courts.
The Austrian Government adds that
res judicata
in civil proceedings does not in principle bind the administrative courts and vice versa. Since decisions of civil and administrative
courts have different subject-matters, a decision that a right relied on before a civil court is held to be unfounded cannot
bind the administrative court in its assessment as to whether the allegations made before it are well founded.
Moreover, that response from the Austrian Government shows that Mr Schneider brought a claim for compensation against the
State under the AHG alleging inadequate transposition of Article 2(4) of Directive 76/207 and that the civil courts which
successively heard the case dismissed Mr Schneider's action on the grounds that there was no direct link between the alleged
violation of Community law, namely the lack of a saving clause, and the alleged harm.
The Commission of the European Communities observes, as a preliminary point, that in so far as the claims for compensation
brought against the State by Mr Schneider before the Landesgericht für Zivilrechtsachen Wien and the Oberlandesgericht Wien
provided the opportunity for a comprehensive factual and legal review of the Bundesminister für Justiz's decision at issue
in the main proceedings, the restrictions involved in the parallel administrative proceedings seem to be of no import. Provided
the proceedings before the civil courts comply with the requirements of Article 6 of Directive 76/207, the main proceedings
satisfy the requirements of Community law governing the matter and the question referred for a preliminary ruling thereby
becomes inadmissible. Although the proceedings before the civil and administrative courts in question here are different and
based on different pieces of legislation, proceedings commenced with a view to obtaining compensation do in fact pursue the
same objective as proceedings brought before an administrative court.
Having regard to the order of 26 March 2003 of the Verwaltungsgerichtshof, which arrived at the Court after the Opinion of
the Advocate General, the Court observes, as a first point, that the oral procedure before it was closed after that opinion.
Under its Rules of Procedure, however, the Court could have decided to re-open the oral procedure and to forward that order
to the parties to the main proceedings and other parties concerned to the preliminary ruling proceedings in order to allow
them to submit their observations. In this case, the Court found that there was no need to re-open the oral procedure and
so informed the national court, the parties to the main proceedings, the Member States and the institutions which had submitted
observations.
As regards the question referred for a preliminary ruling, it must be observed that the procedure provided for by Article
234 EC is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides
the national courts with the points of interpretation of Community law which they need in order to decide the disputes before
them (see  Case C-83/91
Meilicke
[1992] ECR I-4871, paragraph 22; Case C-378/93
La Pyramide
[1994] ECR I-3999, paragraph 10; and Case C-361/97
Nour
[1998] ECR I-3101, paragraph 10).
In the context of that cooperation, it is solely for the national court before which the dispute has been brought, and which
must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances
of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions
which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation
of Community law, the Court of Justice is, in principle, bound to give a ruling (see  Case C-415/93
Bosman
[1995] ECR I-4921, paragraph 59; Case C-379/98
PreussenElektra
[2001] ECR I-2099, paragraph 38; and Case C-390/99
Canal Satélite Digital
[2002] ECR I-607, paragraph 18).
However, the Court has also held that in exceptional circumstances it can examine the conditions in which the case was referred
to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred
for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that
is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where
the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted
to it (see
PreussenElektra
, cited above, paragraph 39, and
Canal Satélite Digital
, cited above, paragraph 19).
The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard
to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States
and not to deliver advisory opinions on general or hypothetical questions (
Meilicke
, cited above, paragraph 25, and the case-law cited therein).
It should be observed that Article 6 of Directive 76/207, which enables all persons who consider themselves wronged by failure
to apply to them the principle of equal treatment to pursue their claims by judicial process, does not specify the nature
of the court to which the Member States must entrust that task. So long as persons who consider themselves wronged by failure
to apply the principle of equal treatment to them are able to pursue their claims effectively before a competent court, the
requirements of Article 6 are satisfied.
Directive 76/207 was transposed into Austrian law by the B-GBG, the application of which may be challenged before an administrative
authority and then before an administrative court.
However, as evidenced by the case-file submitted to the Court, in Austria there is also the possibility of bringing a general
claim before the civil courts for compensation against the State based on Paragraph 1(1) of the AHG with a view to obtaining
compensation for harm suffered as a result of a decision found to be unlawful having regard to the principle of equal treatment
for men and women in the promotion of civil servants and magistrates.
Thus, as pointed out by the Advocate General in paragraph 35 of his Opinion, through the general State liability provisions,
the application of which is subject to three levels of judicial review of the facts and the law, the Austrian legal order
offers individuals a means by which they may pursue a claim concerning failure to apply the principle of equal treatment to
them.
Such a judicial process undeniably satisfies the requirement of adequate and effective judicial protection as contemplated
in Article 6 of Directive 76/207.
In the main proceedings, moreover, Mr Schneider brought proceedings before the Landesgericht Wien and the Oberlandesgericht
Wien, as well as before the Oberster Gerichtshof, in order to obtain compensation for the harm he allegedly suffered as a
result of the violation of the principle of equal treatment for men and women occasioned by the decision dismissing his claim.
Accordingly, in a judicial system such as that at issue in the main proceedings, the requirements of Article 6 of Directive
76/207 are fully satisfied by the judicial processes for State liability available before the civil courts under the general
provisions such as those of the AHG, on which Mr Schneider has relied.
That being so, the question whether the proceedings before the administrative court satisfy the requirements of Article 6
of Directive 76/207 is not relevant for resolving the main dispute, so that the question referred for a preliminary ruling
is hypothetical. Accordingly, as evidenced by paragraphs 22 and 23 of this judgment, the Court does not have jurisdiction
to answer such a question.
In light of all of the foregoing considerations, the Court finds that the question referred for a preliminary ruling is inadmissible.
Costs
The costs incurred by the Austrian Government and by the Commission, which have submitted observations to the Court, are not
recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the
national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the question referred to it by the Verwaltungsgerichtshof (Austria) by decision received at the Court on 4 October
2001, hereby rules:
Jann
Timmermans
Rosas
Delivered in open court in Luxembourg on 5 February 2004.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: German.