Opinion of the Advocate General — ECLI:EU:C:1997:243
Date: 1997-05-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgmen t 
Social policy — Men and women — Access to employment and working conditions — Equal 
treatment — Derogations — Measures to promote equality of opportunity between men and 
women — Scope — National provision giving priority to the promotion of women over men 
where women have equal qualifications and are under-represented — Saving cUuse allowing an 
objective assessment of each individual case on the baas of criteria not discriminatory towards 
women — Whether permissible 
(Council Directive 76/207, Art. 2(1) and (4)) 
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SUMMARY — CASE C-409/95 
A national rule which, in a case where there 
are fewer women than men at the level of the 
relevant post in a sector of the public service 
and both female and male candidates for the 
post are equally qualified in terms of their 
suitability, competence and professional per­
formance, requires that priority be given to 
the promotion of female candidates unless 
reasons specific to an individual male candi­
date tilt the balance in his favour is not pre­
cluded by Article 2(1) and (4) of Directive 
76/207 on the implementation of the prin­
ciple of equal treatment for men and women 
as regards access to employment, vocational 
training and promotion, and working condi­
tions, provided that: 
— in each individual case the rule provides 
for male candidates who are equally as 
qualified as the female candidates a guar­
antee that the candidatures will be the 
subject of an objective assessment which 
will take account of all criteria specific to 
the candidates and will override the pri­
ority accorded to female candidates 
where one or more of those criteria tilts 
the balance in favour of the male candi­
date, and 
— such criteria are not such as to discrimi­
nate against the female candidates. 
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