61999CC0476_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 By this request for a preliminary ruling of 8 December 1999 - lodged at the Registry of the Court of Justice on 16 December 1999 - the referring court, the Centrale Raad van Beroep (Higher Social Security Court) (Netherlands), seeks to ascertain whether Article 2(1) and (4) of Council Directive 76/207/EEC (1) 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 precludes an employer's rules under which subsidised child-care places are available only to 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 principles of equal treatment and non-discrimination laid down in subparagraph (1), for measures to promote equal opportunities for women in order to remove existing inequalities. The referring court assumes that the provision of child-care places is a special working condition within the meaning 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 Treaty applicable at the material time (now, after amendment, Article 141 EC), under which men and women should receive equal pay. Since the possibility of maintaining or adopting specific advantages in favour of the under-represented sex also in relation to pay, was only introduced - at least formally - into Article 141(4) EC by the Treaty of Amsterdam of 1 May 1999, it is also relevant whether such advantages might have been possible before Article 141(4) EC came into force, through Article 6(3) of the Agreement annexed to the Protocol No 14 on social policy.
II - Facts and procedure
3 The plaintiff and appellant in the main proceedings, Mr Lommers (hereinafter `the plaintiff'), is an official at the Netherlands Ministry of Agriculture. On 5 December 1995, he requested a reservation of a nursery place for his son who was subsequently born on 5 July 1996. On 20 December 1995, his application was rejected on the grounds that male officials could only reserve a place in the Ministry of Agriculture's day nursery in an emergency situation, which did not exist in his case. The plaintiff lodged a complaint against that decision on 28 December 1995. On the same day, independently thereof, he sought a ruling from the Commissie gelijke behandeling (Commission for Equal Treatment). The Adviescommissie personele aangelegenheden (Advisory committee on Personnel Matters) of the Ministry of Agriculture deferred consideration of the plaintiff's case until the Commission for Equal Treatment had issued its ruling, which as such is not binding.
4 On 5 April 1996, the plaintiff lodged an appeal on the grounds of failure to take a decision on his complaint in due time. On 25 June 1996, the Commission for Equal Treatment ruled that, in respect of the plaintiff, the Minister of Agriculture had made no distinction on grounds of sex contrary to Article 1a(1) read in conjunction with Article 5 of the Wet gelijke behandeling mannen en vrouwen (General Law relating to Equal Treatment of Men and Women, hereinafter `the WGB') of 1 March 1980. By the decision of 11 September 1996, the Minister of Agriculture rejected the plaintiff's complaint. He thus followed the opinion of the Advisory Committee on Personnel Matters, which had itself endorsed the opinion of the Commission for Equal Treatment.
5 By judgment of 8 October 1996, the Arrondissementsrechtbank Den Haag (District Court, The Hague) ruled on the appeal, declaring it unfounded in so far as it related to the decision of 11 September 1996. On 13 November 1996, the plaintiff lodged an appeal against that judgment before the referring court.
6 The Ministry of Agriculture has been providing or promoting nursery places since 1989, on the basis of a circular issued on 15 November 1993 implementing the Interior Ministry's child-care programme. It involves renting local authority nursery places, whilst for officials working in The Hague the Ministry has its own day nursery. A number of nursery places are allocated to each division of the Ministry (directorate or service) according to the number of female employees. The ratio is approximately one place per twenty female employees. In 1995 the total number of places was 128. The Ministry has a waiting list for childcare places.
7 These limited places are normally allocated on the basis that nursery places are available only to female employees of the Ministry of Agriculture, save in the case of an emergency, for example where a father is a single parent. If a child-care place is allocated, the parent pays a contribution to the Ministry of Agriculture which is deducted from the official's salary, with his or her agreement.
8 During the pre-litigation procedure, the Minister of Agriculture had conceded, before the Commission for Equal Treatment, 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 Agriculture, women are at a disadvantage both numerically and in terms of their distribution across the grades. On 31 December 1994, there were 2 792 women out of a total workforce of 11 251. Moreover, women are under-represented at the higher grades. The view of the Minister of Agriculture was that the establishment of child-care facilities could help to overcome these existing inequalities.
9 In stating his grounds of appeal before the referring court, the plaintiff averred that the Ministry of Agriculture had failed to demonstrate that more women had in fact remained at work as a result of the child-care scheme. He submitted that in most other Netherlands Ministries, men and women were able to benefit equally from child-care facilities. The level of funding available could not be invoked as an argument for excluding men. He referred to Article 6 of Council Recommendation 92/241/EEC of 31 March 1992 on childcare. (2) He further referred to Article 2(4) of Directive 76/207, averring that it did not cover the approach in question.
10 The question for the referring court is whether the Ministry of Agriculture's refusal is compatible with Article 2(1) and (4) of Directive 76/207. It assumes that there is no dispute about the fact that the scheme rules at issue in this case are additional working conditions. It goes into the Community legal framework for positive action in favour of women, both at the legislative level (3) and on the basis of the present case-law. (4) It raises, for example, the question of how Article 2(1) and (4) of Directive 76/207 and Article 141(4) EC interrelate. It further refers to the Opinion of Advocate General Jacobs in the Marschall case in which he stated that: `a gender-specific measure ... will not be proportionate to the aims of remedying specific inequalities faced by women in practice and promoting equal opportunity if the same result could be achieved by a gender-neutral provision.' (5) In a footnote he goes on to say that restricting to women the benefit of measures concerning childcare in particular may even be seen as running counter to the goal of treating men and women as equal participants in the workforce, since it reinforces the assumption that women should have primary responsibility for childcare. (6) In Dutch literature too, some writers argue that measures such as childcare provision rules should be taken out of the scope of Article 2(4) of the Directive if they can be framed in gender-neutral terms, open to both sexes, so as to avoid the reinforcement of roles. Finally, the referring court points out that the exclusion of male Ministry of Agriculture officials works to the detriment of their working wives if the latter's own employer is unable to provide childcare facilities.
11 The referring court submits the following question to the court for a preliminary ruling:
`Does Article 2(1) and (4) 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 preclude rules of an employer under which subsidised child-care places are made available only to female employees save where, in the case of a male employee, an emergency situation, to be determined by the employer, arises?'
12 The Netherlands Government and the Commission participated in the procedure before the Court. Oral proceedings took place. The Court put to the Netherlands Government a question for written reply, regarding the funding of child-care facilities. During the oral proceedings, it also asked the parties to give their views on the question whether provision of childcare places could be described as `pay'.
III - Relevant provisions
A - Community law
1. EC Provisions of the EC Treaty
13 Article 119 of the EC Treaty (now, after amendment, Article 141 EC), in the version relevant at the material time, reads as follows:
`Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.
For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.
...'
14 Since the Treaty of Amsterdam came into effect on 1 May 1999, Article 141(1) and (4) - the latter paragraph inserted by that Treaty - have read as follows:
`(1) Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
...
(4) With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.'
2. Declaration No 28 on Article 141
15 Declaration No 28 on Article 141 (ex Article 119(4) of the Treaty establishing the European Community), annexed to the Treaty of Amsterdam, 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 improving the situation of women in working life.'
3. Agreement on Protocol No 14 on social policy
16 Article 141(4) EC draws on the content of Article 6(3) of the Agreement of 1 November 1993 on Protocol No 14 on social policy. Article 6(3) of this Agreement reads:
`(3) This Article shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers.'
4. Directive 76/207 (7)
17 Article 2(1) and (4) of Directive 76/207 reads as follows:
`(1) For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
...
(4) This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1(1).'
(The areas mentioned there are:
- access to employment, including promotion
- access to vocational training - working conditions and
- social security.)
5. Recommendation 84/635 on the promotion of positive action for women (8)
18 Referring expressly to Article 2(4) of Directive 76/207, the Council recommended the following to the Member States:
`1. To adopt a policy designed to eliminate existing inequalities affecting women in working life and to promote a better balance between the sexes in employment, comprising appropriate general and specific measures, within the framework of national policies and practices, while fully respecting the spheres of competence of the two sides of industry, in order:
(a) to eliminate or counteract the prejudicial effects on women in employment or seeking employment which arise from existing attitudes, behaviour and structures based on the idea of a traditional division of roles in society between men and women;
(b) ...'
6. Recommendation 92/241 on childcare (9)
19 Article 6 of this Recommendation reads as follows:
`As regards responsibilities arising from the care and upbringing of children, it is recommended that Member States should promote and encourage, with due respect for freedom of the individual, increased participation by men, in order to achieve a more equal sharing of parental responsibilities between men and women and to enable women to have a more effective role in the labour market.'
B - National law
20 At the relevant time, the Ministry of Agriculture applied the following rule in allocating child-care places. It is based on the Circular of 15 November 1993 on the implementation of the child-care programme established by the Interior Ministry:
`In principle, nursery places are available only to female employees of the Ministry of Agriculture, Nature Management and Fisheries, save in the case of an emergency, to be determined by the Director.'
IV - Submissions of the parties
1. The Netherlands Government
21 The Netherlands Government submits that the aim of the child-care scheme is to prevent female employees from leaving and to enhance their prospects of promotion to higher grades. When the scheme was adopted, women were under-represented in the Ministry, both numerically (approximately 25%), and in terms of senior posts (approximately 14% at Grade 10 or higher). The Ministry therefore decided to reserve subsidised child-care places to women, since the number of places available was limited. If no distinction had been made between men and women as regards access to subsidised nursery places, representation of female employees at the Ministry would not have been increased. The Ministry's attempt to increase the proportion of women on its staff would thus have been seriously hindered. According to rulings of the Commission for Equal Treatment (10) on matters of child-care provision, it is generally recognised that women are more likely to give up or discontinue employment than men as soon as looking after children is at stake.
22 In its response to the question referred for a preliminary ruling, the Netherlands Government first points out that individuals can invoke a directive directly against the State, in its capacity of either employer or public authority. (11) It is settled case-law that Article 2(4) of Directive 76/207 was specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact intended to eliminate actual instances of inequality which may exist in the reality of social life. (12)
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 equal footing with men. (13)
24 The contested measure concerns working conditions, in particular in the matter of childcare. It is thus to be construed as a measure in accordance with Article 2(4) of Directive 76/207, to the extent that, although apparently discriminatory, it is in fact intended to eliminate or reduce actual inequalities in the reality of social life.
25 Advocate General Tesauro, in his Opinion in Case C-450/93 Kalanke, (14) stated that child-care provision structures may be viewed as measures falling within the scope of Article 2(4) of Directive 76/207. The Netherlands Government also draws a parallel with the judgment in Badeck (15) 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.
26 To the Court's questions regarding the method of calculation used to determine the contribution payable by a female employee for a child-care place, the Netherlands Government responded as follows:
The level of parental contribution depends on family income. The higher the net monthly income of the family, the higher the monthly contribution. By way of illustration, the Netherlands Government sets out a contribution table. The rules specify that the parental contribution is set at the maximum where the individual concerned does not demonstrate that they are eligible for a lower contribution. (16) The rules also specify that, in the case of a woman in part-time employment, the hours when she is at work are to be reserved for her in the nursery. The contribution is then determined according to her use of the child-care facilities. Since 2001, net income has been replaced by taxable family income as the basis for calculating the parental contribution.
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 parental contribution is used entirely to fund the nursery place. The level of parental contribution depends on the actual situation, the determining factors being income, number of children and the cost of the nursery. After the second child the financial contribution is higher.
28 During oral proceedings, the representative of the Netherlands Government declared, in response to the Court's question as to how far the measure could be equated to pay, that the Netherlands Government was proceeding on the basis that it was not remuneration, but rather an additional condition of employment. The concept of working conditions was wider than that of pay. Pay was directly linked to work done, which is not the case in regard to 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 provision of sports facilities or a gym.
29 The provision of child-care does not constitute remuneration because the parental contribution is, for example, calculated on the basis of fixed rules, whilst the subsidised portion is variable.
30 Moreover, it was argued on behalf of the Netherlands Government that there was no entitlement to provision of child-care - it was simply a facility provided by the employer. Even if it were to be regarded as remuneration, the service would come under Article 6(3) of the Agreement to the Protocol on Social Policy.
31 The representative of the Netherlands Government explained why the Netherlands Government viewed this measure as 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 proportionate, in that there were insufficient nursery places, and equal access by women and women would have operated to the detriment of women. The cost factor too was significant, since nursery places are expensive and can make substantial inroads into a modest salary. Between the introduction 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 to other factors, with the result that it was difficult to assert that there was a causal link.
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 available.
33 The Netherlands Government proposes the following reply to the request for a preliminary ruling:
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 employees only have access in an emergency situation to be determined by the employer but on condition that
- the rules although apparently discriminatory are in fact intended to eliminate or reduce inequalities existing in social life, and
- the rules are not completely inflexible and are only intended to promote equality of opportunity for women without precluding the possibility for men to benefit from those facilities.
2. The Commission
34 The Commission is proceeding on the basis that the contested rules constitute indirect discrimination on the basis of gender. In its view, the sole issue is whether this is a positive measure within the meaning of Article 2(4) of Directive 76/207. The provision by an employer of subsidised child-care places clearly falls under working conditions within the meaning of Article 1(1) of Directive 76/207. The benefit stems from the employment relationship. The rules expressly provide that places are reserved for female employees of the Ministry of Agriculture. The child-care facility is funded by the employer, either in the form of a workplace nursery as in The Hague, or through local authority nurseries. Finally, the parental contribution is deducted from the salary and the amount depends on the income of the individual concerned.
35 The Commission's view is that the question of the compatibility with Community 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. (17) In that judgment the Court implicitly rejected the French Government's assertion that the provisions and rules in that case were intended to reflect the actual situation in the majority of French households. It is precisely this argument of actual inequality, which is invoked by the Ministry of Agriculture in defence of its rules.
36 The Court has already made clear its views on positive measures in the judgments in Kalanke (18) and Marschall. (19) It based its judgment on Recommendation 84/635, and maintained that, owing to certain prejudices and stereotyped views as to the role and abilities of women, male candidates tend to be promoted in priority to women. (20) The positive measure must, as the Court held, counteract the adverse effects stemming from these attitudes and this behaviour and reduce actual inequalities in social life. (21) However, in the Commission's view, the contested rule singularly fails to counterbalance these stereotyped perceptions of women, and is far more likely to reinforce traditional attitudes to mothers. It is thus in contradiction with the justification of positive actions in favour of women enshrined in Community law.
37 This approach is confirmed by the case-law. Following the judgment in the case of Kalanke, positive measures may not give women absolute and unconditional priority. There should rather be a guarantee that in each individual case all criteria relating to a male applicant will be considered. 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.
38 In its response to the Court's question, as to whether the provisions might constitute pay, the Commission has revised the opinion it expressed in its written submission. Since child-care places are subsidised by up to the level of at least 50%, it must be assumed that this is a payment in kind by the employer to the employee.
39 Accordingly, the Commission proposes that the request for a preliminary ruling be answered as follows:
Article 2(4) of Directive 76/207 precludes rules established by an employer whereby subsidised child-care places are reserved for female employees whilst men may be eligible in the case of an emergency to be determined by the employer.
V - Assessment
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 (22) that the referring court must appraise the relevance of the question referred to the Court. However, it must also ascertain independently thereof, whether the rules do provide for pay within the meaning at the material time of Article 119 of the EC Treaty (now Article 141 EC).
41 The Court therefore asked the parties in writing for their comments at the hearing on whether the rules could constitute remuneration, and in that context expressly referred to the judgment of the Court of First Instance in Case T-297/94, the case of Vanderhaeghen. (23) This case concerned a complaint by an official of the European Communities in Luxembourg, regarding equality of treatment with officials based in Brussels in terms of the level of parental contribution payable for the Community institutions' nursery places. The parental contribution payable in Luxembourg was substantially more than that payable by Brussels-based officials on the same salary.
42 In examining the issue of admissibility at the material time, the Commission having raised a plea of inadmissibility on the ground that there was no act adversely affecting the official, took the view that the problem of defining the term `social service at issue' (24) in one of the categories of the Staff Regulations of the European Communities arose. (25) The Court of First Instance initially invoked the broader interpretation of the concept of pay in Article 119 of the EC Treaty, (26) observing that the definition is an `expression of a general principle' which is `also to be taken into account in determining the extent of the rights of all workers'. (27) The opinion of the Court of First Instance is that the term pay should be construed in its wider meaning. It therefore submits that the social service at issue is `to be treated as a payment in kind covered by the statutory definition of "pay"'. (28)
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 contribution payable by the staff must comply with the principle of equal treatment. (29) In this case, the Court of First Instance faced the problem of how to bring the social service at issue within the scope of the Staff Regulations in order to be able to apply the general principle of equal treatment. For this purpose alone, the social service at issue was to be treated as a payment in kind. Significantly, at no point in the judgment did the Court of First Instance hold that the social service at issue was pay. To that extent, the ruling of the Court of First Instance is without prejudice to the classification of the contested rules in this case.
44 Over and above this one crucial criterion, there are other arguments militating against the application of the Vanderhaeghen judgment to this case. Vanderhaeghen concerned the inclusion of the social service at issue under the Staff Regulations of Officials of the European Communities, which is certainly not the case here. The child-care facilities for EC officials differ in some respects from other child-care establishments. The Regulation governing them at the time, the `règlement d'admission et de fonctionnement des établissements du CPE' (30) (crèche, garderie, centre d'études) states that the purpose of providing child-care is to enable parents from the various Member States of the European Union who are a long distance from home, to find child-care for their young children upon their arrival in Luxembourg, 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, taking into account the working hours, particular constraints and the multiplicity of languages and customs.
45 Even if the European Institutions' child-care provision contributes towards bringing about equality of opportunity between male and female employees, (31) it is nevertheless not its actual prime objective. Since these nurseries are especially designed to cater for the particular child-care difficulties which may be encountered by those working for an international organisation, certain observations pertaining to this system will not necessarily apply as such to child-care facilities in the Member States.
46 The question is whether, irrespective of the judgment of the Court of First Instance in the case of Vanderhaeghen, the contested rules are to be deemed pay or an additional element subsumed under working conditions.
47 The question arising is whether, owing to the fact that nursery places are subsidised, it means that one is dealing with a benefit granted to officials such as to constitute remuneration. The problem with this approach is that the Ministry of Agriculture both operates its own day nursery in The Hague and reserves places in local authority child-care establishments. This makes it difficult - if not impossible - to quantify the supposed benefit to the employee. The multi-faceted system of child-care provision, on the one hand, and the variable nature of the parental contribution on the other (it being a function of income and number of children, thus making it difficult to quantify the level of cost subsidy), all combine to preclude this variable child-care subsidy from being considered to be pay. The value of the benefit to officials should be quantifiable in monetary terms.
48 As regards the classification of the benefit, the provision of child-care - that is the practical side of the facility - is the main focus. When asked whether this facility amounted to pay, the Commission focused on the measure as a possible payment in kind. It is the provision of the child-care place that is vital from the perspective of the official, who then pays the parental contribution. With his or her agreement, the contribution can be deducted from salary. The method of calculating this sum is laid down, in the interests of transparency, and the amount is determined using a table of pre-determined factors. This, however, is only an accounting method.
49 The fact that the parental contribution appears on the salary slip does not imply that these arrangements amount to remuneration. The use of a child-care place at no point appears on the salary slip as a receipt, but rather simply implies expenditure on the part of the official. If child-care provision were to amount to payment in kind, forming part of the salary, then it should at the very least appear as income in the tax calculation. It would then be up to the referring court to investigate the matter. For the sake of our further analysis, it will be assumed that this is not the case, since otherwise it would most likely have arisen during the course of discussion on whether the benefit constituted pay.
50 In this context, the Netherlands Government advances an interesting argument, namely that the provision of child-care facilities does not amount to pay because there is no mutual obligation in terms of work carried out. Pay is normally linked to performance, and implies a right to claim it, which is not the case with the provision of child-care facilities. This interpretation of the term pay is very close to that given by the Court in its judgment of 15 June 1978 in Case 149/77, the case of Defrenne III. (32) The Court stated:
`In particular, the fact that the fixing of certain conditions of employment - such as a special age limit - may have pecuniary consequences is not sufficient to bring such conditions within the field of application of Article 119, which is based on the close connexion which exists between the nature of the services provided and the amount of remuneration.
This is a fortiori true since the touchstone which forms the basis of Article 119 - that is the comparable nature of the services provide by workers of either sex - is a factor as regards which all workers are ex hypothesi on an equal footing, whereas in many respects an assessment of the other conditions of employment and working conditions involves factors connected with the sex of the workers, taking into account considerations affecting the special position of women in the work process.' (33)
51 The provision of child-care facilities by the Ministry of Agriculture cannot therefore be considered remuneration, since the amount of income it represents is unquantifiable.
52 The question therefore arises as to whether child-care provision does fall within the scope of Directive 76/207.
53 It is assumed that the principle of equal treatment set down in Directive 76/207 is comprehensive and also applies to public authorities. (34) As regards the principle of equality between men and women in employment initially it was only the principle of equal pay which was laid down in Article 119 of the EC Treaty. It was subsequently developed through secondary legislation in Directive 75/117/EEC. (35) Working conditions and conditions of employment were outwith the scope of Community lawmaking at that point. The Court in Case 149/77 held;
`On the other hand, as regards the relationships 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 guaranteeing the observance of the principle of equality between men and women in working conditions other than remuneration.' (36) This despite the fact that in the same judgment the Court went on to observe: `The Court has repeatedly stated that respect for fundamental personal human rights is one of the general principles of Community law, the observance of which it has a duty to ensure.
There can be no doubt that the elimination of discrimination based on sex forms part of these fundamental rights.' (37)
With the adoption of Directive 76/207 the Community legislature created an instrument to attain the objective of equal treatment of men and women in a comprehensive manner. This is illustrated in the Court's judgment in Case C-116/94 Meyers, (38) which dealt with the question of whether a social security benefit such as `family credit' fell within the scope of Directive 76/207. The Court responded in the affirmative, saying that both access to employment and working conditions were the objective of the benefit. (39) It went on to state that:
`... it is not only the conditions obtaining before an employment relationship comes into being which are involved in the concept of access to employment.' The prospect of obtaining family credit encourages an unemployed worker to accept ... work with the result that the benefit is related to considerations governing access to employment. (40) Moreover, respect for the fundamental principle of equal treatment implies in respect of a benefit such as Family Credit which is necessarily linked to the employment relationship, that it does represent a working condition within the terms of Article 5 of the Directive. `To confine the latter concept solely to those working conditions which are set out in the contract of employment or applied by the employer in respect of a workers employment would remove situations directly covered by the employment relationship from the scope of the Directive.' (41)
54 The Court's judgment in Case C-185/97, the case of Coote (42) on 22 September 1998 confirms its position that the Directive is applicable to measures taken after the employment relationship has ended. (43)
55 With these provisos, the disputed rules and the provision of child-care are both deemed to fall within the scope of the term `working conditions', to the extent that they flow directly from the employment relationship. They may also affect access to employment.
56 Article 2(1) of Directive 76/207 contains a prohibition on both direct and indirect discrimination on grounds of gender. The contested rules provide for manifestly unequal treatment on the grounds of gender in respect of access to child-care places subsidised by the Ministry of Agriculture.
57 The question is therefore whether they fall within the scope of Article 2(4) of the Directive which permits measures to promote equality of opportunity through the elimination of existing inequalities which restrict opportunities available to women.
58 The Court has already dealt with the question of positive measures in the judgments in the cases of Kalanke, Marschall, Badeck and Abrahamsson. (44) All these cases deal extensively with quotas applying to recruitment or promotion in the public services. The Court set out the conditions and limits of these measures, so that for example in Kalanke, a measure providing that where applicants were equally qualified automatic priority had to be given to the female applicant was rejected. In Marschall a similarly structured measure, albeit one containing a saving clause, was deemed compatible with Community law.
59 This case involves a different type of measure, so the structures set out in the abovementioned judgment cannot simply be transposed to the present case.
60 Advocate General Tesauro in his Opinion in the case of Kalanke, sought to set out a classification of positive measures in favour of women. He said:
`Positive action may assume several forms. A first model aims to remove, not discrimination in the legal sense, but a condition of disadvantage which characterises women's presence on the employment market. In this case, the objective is to eliminate the cause of the fewer employment and career opportunities which (still) beset female employment by taking action with respect, among other things to vocational guidance and training. A second model of positive action 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-care structures, the return to work of women who have devoted themselves to bringing up their children, and social 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 equal opportunities and, in the final analysis, the attainment of substantive equality. $ A third model of positive action is that of action as a remedy for the persistent effects of historical discrimination of legal significance; in this case, the action takes on a compensatory nature, with the result that preferential treatment in favour of disadvantaged categories is legitimised, in particular through systems of quotas and goals.' (45)
Academic writers have also commented on the classification of positive measures. (46)
61 Even if the connecting factor applied by Advocate General Tesauro in Kalanke is less far-reaching than that used by the Court, that does not preclude the conclusion, based on his classification, that the contested rules belong to another category of positive measures than those hitherto the subject of case-law. Whilst the positive measures thus far considered by the Court in the abovementioned judgments can be categorised as belonging to Advocate General Tesauro's third category, this set of rules is predominantly to be classified as belonging to his second category.
62 Remaining with Advocate General Tesauro's classifications for simplicity's sake, one may note that the second category concerns the working environment, whilst the third category deals directly with employment itself. With the exception of Case 312/86 Commission v France, to which we shall return, the Court has not yet issued a ruling on positive measures for women as part of a framework of social rules. These measures, moreover deemed unrestrictedly admissible by Advocate General Tesauro, are a `classical' form of positive measures for women. (47) So, for example the Council Recommendation 84/635 on the promotion of Positive Action for women at point 4 lists a number of aspects on which action should focus, inter alia on:
`-adapting working conditions, adjusting the organisation of work and working time.'
63 The first question is whether the judgment in Case 312/86 Commission v France, prejudges the present case. The Commission's complaint against the French Republic centres on its attempt to maintain all the special rights for women recognised in collective agreements for an indefinite period. The Commission acknowledged that some of these rights may be covered by the exceptions to the application of the Directive provided for in Article 2(3) and (4) thereof. (48)
64 The French Government's defence was that special rights for women are compatible with the principle of equal treatment if these special rights derive from a concern for protection. (49) Moreover, it avers, the special rights in the collective agreements are designed to take account of the situation existing in the majority of French households. (50)
65 The Court rejected these arguments in fairly general terms. On Article 2(3) of the Directive it stated:
`... As some of these examples show, some of the special rights preserved relate to the protection of women in their capacity as older workers or parents - categories to which both men and women may equally belong.' (51)
66 On Article 2(4) of the Directive, the Court held:
`The exception provided for in Article 2(4) is specifically and exclusively designed to allow 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. Nothing in the papers of the case, however, makes it possible to conclude that a generalised preservation of specific rights for women in collective agreements may correspond to the situation envisaged in that provision.' (52)
67 The Court continued:
`The French Government has therefore not succeeded in demonstrating that the equal treatment which forms the subject-matter of this application, and which it acknowledges, falls within the limits laid down by the Directive.' (53)
68 The Commission deduced from those extracts that the Court has implicitly rejected its argument that the special rights for women should take account of existing circumstances. It is however important to note in this respect that the Court has never 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 rights for women. Therefore, in my view, it cannot be inferred from that judgment which special rights for women are covered by Article 2(4) and which are not. The Court has certainly not held that all special rights for women under collective agreements are incompatible with the Directive, with the result that that judgment does not prejudge the problems arising in this case.
69 Against that background, it falls to be determined whether the contested rules come within the exception provided for in Article 2(4) of Directive 76/207. That provision allows positive measures to promote equality of opportunity particularly where they are intended to remove existing inequalities. As the Court of Justice has repeatedly held, that provision is specifically and exclusively designed to allow 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'. (54)
70 Given the prevailing social structures, the responsibilities borne by women in their role as mothers often constitute a formal barrier to employment. Recital 10 of Recommendation 92/241 on child-care states: `Whereas inadequate provision of child-care services at prices affordable to parents and other initiatives to reconcile responsibility for the family and the upbringing of 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 demographic situation.' (55)
71 The recitals continue: `Whereas child-care is a broad concept, which may involve the provision of child-care services which answer the needs of children, the grant of special leave to parents and the development of a working environment structure and organisation which is adapted to the sharing between women and men of occupational, family and upbringing responsibilities arising from the care of children.' (56)
72 The 16th recital is worded as follows: `Whereas the standard clause included in the Community support frameworks for structural policy stipulates consideration must be given to training and infrastructure requirements which facilitate labour force participation by women with children.' (57)
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 document nevertheless assumes that in the reality of society, the lack of adequate child-care facilities is one of the main barriers to women working.
74 The provision of child-care is an appropriate means of eliminating practical barriers which might prevent a woman from obtaining work. This measure takes effect at an earlier stage than that contained in the contested rules at issue in the judgments of Kalanke, Marschall, Badeck and Abrahamsson, so its effect on the competition between men and women at the workplace is correspondingly less. (58)
75 The provision of child-care is as such an appropriate means of improving access to employment for women with children. Such initiatives can offer an incentive to seek employment with a particular employer. At the same time, the provision of child-care can constitute a working condition if availability is guaranteed.
76 Such measures can be considered to come within the scope of Article 2(4) of Directive 76/207, since it seeks to remove existing inequalities in present society. Article 1a of Recommendation 84/635 indeed refers to promotion of action for women as `eliminating or counteracting the prejudicial effects' on women.
77 The referring court also alludes to an academic writer (59) who suggests that measures such as subsidising child-care costs (60) for mothers are precisely the measures provided for in Article 2(4) of Directive 76/207, since they contribute towards eliminating barriers along the road to equality of opportunity, without entailing the risk of perpetuating the traditional division of roles between the sexes.
78 Positive measures within the meaning of Recommendation 84/635 on The Promotion of Positive Action for women by definition seek to eliminate the attitudes, behaviour and structures which are based on a traditional division of roles between men and women. (61)
79 The real question is whether a measure such as that in the present case which focuses on the role of the mother is unlawful purely because it fails to focus on parenthood, although it undoubtedly is appropriate for eliminating barriers to employment.
80 To begin the analysis at an abstract level, if the measure were gender-neutral it would not require a reference to Article 2(4) of the Directive. Advocate General Jacobs in his Opinion in the case of Marschall - without any necessary inferences as regards that case - expressed the view that a specific measure in favour of women could fail the proportionality test if the same result could be achieved by a gender-neutral measure.
81 Irrespective of whether Article 2(4) of the Directive requires such a proportionality test, (62) 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 men. If their children were equally entitled to a nursery place, in a situation where places are limited far fewer women would have the opportunity to accommodate their child or children there. This is moreover typical, for example, if a situation where equality before the law or rather formal equality in fact works to the detriment of women. (63) Therefore it is incorrect to term this a positive measure for women in the first instance. Nor does the fundamental objective of creating a gender-neutral means of fostering the family suggest that Article 2(4) of Directive 76/207 cannot be extended to cover measures such as those in the present case.
82 It cannot be denied that the risk of perpetuating traditional gender roles is latent in specific measures in favour of women of the type mentioned above. Bearing this in mind, one must therefore consider the extent to which legislative changes could be an appropriate means of bringing about changes in attitude, behaviour and structures. In the final analysis, this is a matter germane to the social sciences. Given the equality between men and women which exists in respect of work, legal equality - contrary to expectations - has not led to actual equality of opportunity. (64) Otherwise the whole discussion on positive measures for women would be superfluous. Consideration of the social implications of the long-term efficiency of gender-specific measure for women is unlikely to cast doubt on the legality thereof under Article 2(4) of Directive 76/207.
83 This is not altered by the plaintiff's submission in respect of Article 6 of Recommendation 92/241 on Child-care changes. This Recommendation proposes that Member States should `... Promote and encourage$increased participation by men, in order to achieve a more equal sharing of parental responsibilities between men and women ...'. Neither in terms of substance nor in terms of its nature (65) does this provision create a legally enforceable right. The Recommendation focuses on particular concerns of parents, for example child-care facilities, special leave, work environment and organisation, division of responsibilities between parents.
84 The appeal to Member States to work towards an equal division of parental responsibilities does not necessarily imply the right to a nursery place for male or female officials in a situation where places are limited, (66) particularly since preferential access for female employees is one of the measures to foster equality of opportunity within the meaning of Article 2(4) of Directive 76/207.
85 Nor has the plaintiff indicated that he was in any way obliged to restrict his professional activity in order to take care of his son. It appears rather that his wife was in part-time employment and wished to continue in employment after the birth of the child. This combination of circumstances raises the further question of whether a public authority employer, such as the Ministry of Agriculture, can be obliged to promote the employment prospects of a spouse working for another employer. This question is to be answered in the negative, in my opinion, since the employer is only obliged to ensure equal treatment of his own employees. Moreover the welfare obligation of a public authority employer in the first instance extends only to his own employees. If the employer adopts a measure seeking to promote female employment, he is entitled to focus on the female staff in his employment.
86 The rules must therefore be deemed to come within Article 2(4) of Directive 76/207.
87 Although the following point is not crucial to the solution proposed, it should none the less be covered for the sake of completeness. The admissibility of the contested rules should be considered in the event that they should be classified as remuneration rather than working conditions. In that case the Ministry of Agriculture could have invoked Article 6(3) of the Agreement on the Protocol on Social Policy (67) which is no less effective than Article 2(4) of Directive 76/207.
88 Similarly, the question of the interrelationship between Article 2(4) of the Directive and Article 141(4) EC raised by the referring court is of purely theoretical interest to the present case. Although Article 141(4) EC was not in force at the material time, it is nevertheless important to the understanding of the principles of equal treatment involved, and to that extent to the interpretation of the contested provisions. It may be inferred from the Court's judgments, inter alia, in the Badeck (68) and Mahlburg (69) cases, that admissible positive measures, or rather specific rules for women are the expression of the principle of equal treatment because this aims to bring about substantive rather than purely formal equality. This logic is inherent in the principle of equal treatment 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.
89 This interpretation is supported by the amendment to Directive 76/207 (70) proposed by the Commission. Article 2(4) would be completely replaced by the following text:
`(4) On the basis of information provided by the Member States pursuant to Article 9, the Commission will adopt and publish every three years a report establishing a comparative assessment of the positive measures adopted by the Member States pursuant to Article 141(4) EC of the Treaty.'
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 Treaty provision makes the existing Article 2(4) of Directive 76/207 redundant. The publication of periodical reports by the Commission on the implementation of the possibility offered by Article 141(4) will help Member States to compare the way it is implemented ...'.
91 By way of conclusion, therefore, where the number of child-care places available is limited, a public authority employer's rules restricting access to female employees save for a few exceptions is a measure covered by Article 2(4) of Directive 76/207 on positive action.
VI - Conclusion
92 In conclusion I therefore propose that the Court should reply as follows to the question submitted for preliminary ruling:
Article 2(1) and (4) 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 does not preclude an employer's rules specifying that subsidised child-care places are in principle available only to female employees save in the case of an emergency regarding a male employee.
(1) - Council Directive of 9 February 1976 (OJ 1976 L 39, p. 40, hereinafter `the Directive').
(2) - Council Recommendation 92/241/EEC of 31 March 1992 on child care (OJ 1992 L 123, p. 16).
(3) - Council Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women (OJ 1984 L 331, p. 34); Council Recommendation 92/241 on child care (cited at footnote 3); Article 6(3) of the Agreement of 1 November 1993 on Protocol No 14 on Social Policy; Article 141(4) EC and Declaration No 28 on Article 141 (ex Article 119) (4).
(4) - Judgment in Case 312/86 Commission v France [1988] ECR 6315; Judgment in Case C-450/93 Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051, including the Opinion of Advocate General Tesauro of 6 April 1995 [1995] ECR I-3053 and the judgment in Case C-409/95 Marschall [1997] ECR I-6363, including the Opinion of Advocate General Jacobs of 15 May 1997 [1997] ECR I-6365.
(5) - Opinion of Advocate General Jacobs (cited at footnote 5, paragraph 43).
(6) - Footnote 45 of Advocate General Jacobs' Opinion (cited at footnote 5).
(7) - Cited at footnote 2.
(8) - Cited at footnote 4.
(9) - Cited at footnote 3.
(10) - Ruling 130/90121 of 22 August 1988; Ruling 519/92/56 of 7 October 1992; Ruling D334v/94/34 of 14 May 1996 and ruling D282v/96/35 of 14 May 1996.
(11) - Judgment in Case 152/84 Marschall [1986] ECR 723.
(12) - Case 312/86 Commission v France (cited at footnote 5, paragraph 15); Case C-450/93 Kalanke (cited at footnote 5, paragraph 18); Case 152/84 Marshall (cited at footnote 12, paragraph 26).
(13) - See Kalanke (cited at footnote 5, paragraph 19) and Marschall (cited at footnote 5, paragraph 27).
(14) - Opinion of the Advocate General (cited at footnote 5, paragraph 9).
(15) - Judgment in Case C-158/97 Badeck [2000] ECR I-1875.
(16) - The table shows for example, that where net family income is NLG 4 901 or more, full-time care for a five-day week would amount to NLG 995 per week. For a second child, NLG 299 would be payable. A half-day place for five days per week would cost NLG 657 for one child and NLG 197 for a second child.
(17) - Case 312/86 Commission v France, cited at footnote 5.
(18) - Cited at footnote 5.
(19) - Cited at footnote 5.
(20) - Marschall judgment (cited at footnote 5, paragraph 29).
(21) - Marschall judgment (cited in footnote 5, paragraph 31).
(22) - See judgment of 13 March 2001 in Case C-379/98 Preussen Elektra [2001] ECR I-2099, paragraph 38.
(23) - Case T-297/94 Vanderhaeghen v Commission ECR-SC-I-A-7 and II-13.
(24) - See paragraph 21 of the judgment cited at footnote 24.
(25) - This involved Article 62 of the Staff Regulations and whether it covered the social service at issue. Article 62 reads `... an official who is duly appointed shall be entitled to the remuneration carried by his grade and step. An official may not waive his entitlement to remuneration. Remuneration shall comprise basic salary, family allowances and other allowances.'
(26) - Referring to the judgment of the Court on 4 June 1992 in the case of Bötel, Case C-360/90 [1992] ECR I-3589, paragraph 12, the Court of First Instance in paragraph 21 of the judgment quotes: `the concept of pay within the meaning of$Article 119 of the Treaty comprises any consideration, whether in cash or in kind, whether immediate or future provided that the worker receives it, albeit indirectly as a result of his employment from his employer, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis.'
(27) - See paragraph 21 of the judgment (cited at footnote 24).
(28) - See paragraph 21 of the judgment (cited at footnote 24, my italics).
(29) - See paragraph 49 of the judgment (cited at footnote 24).
(30) - Centre polyvalent de l'enfance.
(31) - See judgment in Vanderhaeghen (cited at footnote 24, paragraph 49).
(32) - [1978] ECR 1365.
(33) - See judgment in case 149/77 (cited at footnote 33, paragraph 21 et seq.).
(34) - See judgment in Marshall (cited at footnote 12, paragraph 2 of the operative part of the judgment); Judgment of 11 January 2000 in Case C-285/98 Kreil [2000] ECR I-69 paragraph 18 and subsequent references.
(35) - Council Directive of 10 February 1975 on the Approximation of the laws of Member States relating to the application of the principle of equality for men and women.
(36) - See paragraph 30 of the judgment in the case of Defrenne III (cited at footnote 33).
(37) - See paragraphs 26 and 27 of the judgment in Defrenne III (cited at footnote 33).
(38) - [1995] ECR I-2131.
(39) - See paragraph 25 of the judgment (cited at footnote 39).
(40) - See paragraph 22 of the judgment (cited at footnote 39).
(41) - See paragraph 24 of the judgment (cited at footnote 39).
(42) - [1998] ECR I-5199.
(43) - See paragraph 25 of the judgment (cited at footnote 43).
(44) - See judgments in the cases of Kalanke, Marschall, (cited at footnote 5) and Badeck, (cited at footnote 16); see also the judgment of 6 July 2000 in Case C-407/98 Abrahamsson [2000] ECR I-5539.
(45) - See paragraph 9 of the Opinion ( cited at footnote 5).
(46) - Pfarr, Quotas and the Basic Law, p. 203 et seq.; An attempt at categorisation, Maidowski, Reverse discrimination, p. 36 et seq., On the Problems of `typology'. See p. 42.
(47) - See Hörburger, Do Europe's Women enjoy Equal Rights?, p. 144 et seq.; Pfarr, Quotas and the Basic Law, p. 201 and Pfarr, The Law on Equal Treatment, p. 109.
(48) - See paragraph 9 of the judgment (cited at footnote 5, my italics).
(49) - See paragraph 10 of the judgment (cited at footnote 5).
(50) - See paragraph 11 of the judgment (cited at footnote 5).
(51) - See paragraph 14 of the judgment (cited at footnote 5, my italics).
(52) - See paragraph 15 of the judgment (cited at footnote 5, my italics).
(53) - See paragraph 16 of the judgment (cited at footnote 5, my italics).
(54) - Case 312/86 (cited at footnote 5, paragraph 15), and Kalanke (cited at footnote 5), Marschall (cited at footnote 5), Badeck (cited at footnote 16) and Abrahamsson (cited at footnote 45).
(55) - See 10th recital of the Recommendation (cited at footnote 3, my italics).
(56) - See 14th recital of the Recommendation (cited at footnote 3, my italics).
(57) - See 16th recital of the Recommendation (cited at footnote 3, my italics)
(58) - There is no need to invoke the Court's established case-law, under which an admissible quota arrangement relating to recruitment and promotion must take account of `all criteria specific to the individual candidates' (Marschall judgment, cited at footnote 5, paragraphs 33 and 35), which could create a situation where women `are not to be given priority in promotion if reasons specific to an individual male candidate tilt the balance in his favour ("saving clause")' (Marschall judgment, cited at footnote 5, paragraph 24).
(59) - Preschal Sascha, Common Market Law Review 1996, p. 1245, 1253.
(60) - 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 infrastructure must first be established
(61) - See No 1a of the Recommendation, (cited at footnote 4).
(62) - The judgments in Marschall, Badeck and Abrahamsson tend to suggest the contrary.
(63) - See Maidowski, (cited at footnote 47, p. 82).
(64) - See third recital of Recommendation 84/635 on the Promotion of positive action for women, (cited at footnote 4): `Whereas existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides 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), the judgment in Badeck (cited at footnote 16, paragraph 49) and Maidowski (cited at footnote 47, p. 35 et seq.).
(65) - A Recommendation to Member States does not confer legal rights which may be invoked by an individual.
(66) - In this instance, the public sector employer guaranteed equal access to the limited number of nursery places when the shortage of places became less acute.
(67) - Thus the Commission in its written pleadings.
(68) - Cited at footnote 16, paragraph 32.
(69) - Judgment of 3 February 2000 in Case C-207/98 [2000] ECR I-549, paragraph 26.
(70) - See proposal for a Directive of the European Parliament and of the Council amending Council Directive 76/207/EEC 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 COM(2000) 334 final, tabled by the Commission on 11 June 2000 (OJ 2000 C 337 E, p. 204).