Opinion of the Advocate General — ECLI:EU:C:2004:398
Date: 2004-06-29
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment Social policy – Men and women – Access to employment and working conditions – Equal treatment – Derogations – Measures to promote equal opportunity for men and women – Benefit of an exemption from the age limit to enter public employment allowed only to widows who have not remarried – Not permissible (Art. 141(4) EC; Council Directive 76/207, Arts 2(4) and 3(1)) Articles 3(1) and 2(4) of 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 must be interpreted as meaning that they preclude a national provision which reserves the exemption from the age limit for entry to competitive examinations organised for the recruitment of civil servants to widows who have not remarried who are obliged to work, excluding widowers who have not remarried who are in the same situation. First, that provision is contrary to Article 3(1) of Directive 76/207 as it results in discrimination on grounds of sex. Secondly, it cannot be allowed under Article 2(4) of that directive which exclusively authorises measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life. Therefore such a measure which is intended to give priority in promotion to women in sectors of the public service is incompatible with Community law when it automatically and unconditionally gives priority to the candidatures of certain categories of women, excluding men who are in the same situation. (see paras 20, 22-23, 27, 32, operative part)