3.

To begin with, I would point out that, contrary to the view expressed by the German Government, the Court has never recognized, not even by implication, that a directly applicable constitutional principle is sufficient to transpose a directive into national law. In its judgment of 26 October 1983 in Case 163/82 (Commission v Italy [1983] ECR 3273), the Court merely quoted the explanations given by the Italian Government and stated that the Commission had not been able to contest them. That government, moreover, explained on the same occasion the operation of Article 24 of the Italian Constitution (which provides that ‘any person may have recourse to the courts in order to safeguard his rights’). It contended that ‘once the existence of a basic rule protecting an individual interest is established (as a general rule) no specific legislative measure is needed’ to protect that interest since such protection is universally and unconditionally afforded by a superior rule of law. In other words, Article 24 was relied upon as a final provision in a system already containing a large number of substantive and procedural provisions (namely those which the Italian Government took care to indicate first). However, the German Government's argument proceeds from a premise diametrically opposed to that of the Italian Government. It states that Articles 3, 12 and 33 of the Constitution are not only in themselves sufficient to bring into operation the principle of equal treatment, but they even make it impossible to adopt ordinary rules giving effect to that principle. In other words, those articles are of necessity the only rules capable of implementing the directives in question. However, and this is the point are they also capable of guaranteeing such implementation in reality? There is no doubt that they may be able to do so. No provision of the Treaty or of secondary legislation expressly excludes implementation of a directive through constitutional rules. It is clear, however, that such rules must fulfil the requirements and conditions imposed by the Community measure with the same degree of effectiveness, certainty and clarity as would be possible with ordinary rules adopted ad hoc. That is precisely where the problems arise. Let me begin with the observation that the articles in dispute, and above all Article 3, are binding on the legislature, influence the approach by the courts and are directly binding on the public authorities. On the other hand, they do not confer on private individuals and, in particular, on workers and nationals seeking employment, subjective rights which may be asserted in the courts. The German Government recognizes that those articles ‘constitute solely the expression of general value judgments’. Moreover, it is for that reason that the Bundestag considered that it was under an obligation to implement Directive No 76/207 by inserting in the Civil Code the paragraph to which I have referred. The German Government contends that no such action was necessary as regards access to the public service. Since the authorities are directly bound by constitutional rules, the principle of equality laid down in Article 3 is sufficient to exclude the possibility of discrimination against an applicant on grounds of sex. This then is the first source of doubt. The same rule produces effects which are horizontally different, that is, it operates in different ways according to the circumstances in which it is relied upon. If a scale of 0 to 10 is applied to a person who is about to enter into a contract of employment, the effectiveness of the protection provided by Article 3 is equal to zero, or, if account is taken of the fact that Article 3 expresses a ‘general value judgment’, at most equal to one. In the case of an applicant for a post in the public service, however, that effectiveness (although it is otherwise in practice) corresponds to 10. That situation is in itself rather disturbing. It becomes very disturbing if it is borne in mind that, as was stated at the hearing, only a few employees of the public authorities are recruited by an instrument constituting a public service contract. The other applicants are recruited on the basis of a contract of employment and are consequently afforded protection by the provisions recently inserted in the Civil Code. In the judgment of 30 January 1985 which I referred to earlier, the Court stated that ‘the principles of legal certainty and the protection of individuals ... require an unequivocal wording which would give the persons concerned a clear and precise understanding of their rights and obligations’. The scale of values to which I have referred thus makes it impossible for Article 3 to satisfy those strict requirements of certainty with regard to the two means of access to the public service. That article must instead be regarded as an inadequate and ambiguous provision, at least as regards its capacity to provide an impartial guarantee of equal treatment as far as access to employment in the public service is concerned. Moreover, in view of its very nature (or, possibly, its status or function), it is not totally impossible, though it is certainly highly improbable, that Article 3 really constitutes, as the German Government contends, a situation of ‘pre-existing conformity’. With the Court's permission, I would like to enlarge on that concept, which seems to me to be of great theoretical and practical importance. Directive No 75/117 merely provided for the ‘approximation’ of national laws relating to equal pay because the Council took account of the fact that the principle of equal pay was already to be found in the legal weaponry of the Member States, albeit in different forms and with differing degrees of effectiveness. It is therefore understandable that, taking the view that their legislation was in conformity with the requirements prescribed by the Community, certain States considered that they were exempt from the obligation to transpose the measure in question into national law. The case of Directive No 76/207 is quite different. Its direct purpose is the implementation of the principle of equality between men and women, whether or not there are any rules to that effect in the various national legal systems. Furthermore, it requires the abolition not only of rules that are contrary to that principle but also of those which are ambiguous or out of date. In other words, there is no doubt that Directive No 76/207 is the more incisive, the more forceful of the two measures. I believe that this explains why the great majority of the Member States have transposed it into national law by means of specific provisions. I would add that many national legal systems have been brought into line with the Community requirements as regards all forms of work, and therefore including employment in the public service, even though in certain Member States this area was already sufficiently regulated by legislation. France, for example, adopted two laws, in 1982 (dealing exclusively with the public sector) and in 1983 respectively. Similar action was taken by the Netherlands, Belgium, Denmark and Greece. The case of Italy, however, is more significant than all the others. That State could claim to possess constitutional rules concerning the public sector which were even more explicit than those in the German Constitution (Article 51 provides that ‘all citizens of either sex may enter the public service... on equal terms’), as well as specific provisions for the implementation of such rules (Article 1 of Law No 66 of 9 February 1963 which provides that ‘women shall have access to all offices, professions and posts in the public service ... without any limit as to the duties which they may perform or as to the course of their careers’). None the less, Italy accepted the need for clarity and certainty which the Community rules were designed to achieve and, as the Court has been able to see for itself, implemented the principle of equal treatment so as to exclude, in so far as is humanly possible, any discrimination between its citizens. Does this mean that the Federal Republic was obliged to adopt such legislation solely because other Member States had done so? Certainly not. That is not the point I wish to emphasize. The fact that the directive takes no account of preexisting national rules to the same effect, the rigorous nature of its provisions, its unusually incisive language and the manner in which the majority of the Member States considered themselves obliged to transpose it into national law demonstrate that its central purpose is to preclude any discretion (or, as the Court would put it, any lack of certainty or clarity) in the application of the principle which prohibits the unequal treatment of men and women. Moreover, no provisions are less suited to ensuring that such a result is achieved than constitutional provisions. An illustration is provided by Article 3 of the German Constitution. The effects of that provision are well known. It is clear however that it is addressed primarily to the legislature, whose principal task is to prevent discrimination from being introduced through legislation and to remove existing discrimination. What of unequal treatment deriving from factual circumstances which cannot in any event be imputed to an ordinary statutory provision? It is clearly impossible for a victim of discrimination to obtain, by challenging unequal treatment on grounds of unconstitutionality, a judgment having effect erga omîtes which can be relied upon by anyone who falls victim to a similar practice. Unequal treatment can be removed, where possible, only by recourse to an ordinary court. Redress is therefore available on a case-to-case basis only and is granted as a matter of absolute discretion. The argument advanced by the German Government (to the effect that there can be preexisting conformity even where the only rules in the matter are constitutional rules) is thus extremely tenuous. Moreover, my impression is that this argument does not reflect an authentic theoretical conviction but is merely an expedient, a deus ex machina, as it were, brought on to the stage of the dispute in order to act as a bulwark against the Commission's accusations. I now propose to consider whether the other counterarguments put forward by the German Government are more tenable.