OUTSET THE EMPLOYER , ON ACCOUNT OF THE SEX OF THE CANDIDATE DISCRIMINATED AGAINST , DISREGARDED THAT CANDIDATE IN MAKING HIS DECISION ON THE BASIS OF ACCEPTABLE CRITERIA?
' ' 3.IF THE ESSENTIAL ISSUE IS THE OBJECTIVE ASSESSMENT OF THE CANDIDATE ' S QUALIFICATIONS WITHIN THE MEANING OF QUESTIONS 2 ( A ), ( B ) AND ( C ):
IS THAT ISSUE TO BE DECIDED WHOLLY BY THE COURT AND WHAT CRITERIA AND PROCEDURAL RULES RELATING TO EVIDENCE AND BURDEN OF PROOF ARE APPLICABLE IN THAT REGARD?
' ' 4.IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE , IN PRINCIPLE :
WHERE THERE ARE MORE THAN TWO CANDIDATES FOR A POST AND FROM THE OUTSET MORE THAN ONE PERSON IS ON THE GROUND OF SEX DISREGARDED FOR THE PURPOSES OF THE DECISION MADE ON THE BASIS OF ACCEPTABLE CRITERIA , IS EACH OF THOSE PERSONS ENTITLED TO BE OFFERED A CONTRACT OF EMPLOYMENT?
IS THE COURT IN SUCH A CASE OBLIGED TO MAKE ITS OWN CHOICE BETWEEN THE CANDIDATES DISCRIMINATED AGAINST?
IF THE QUESTION CONTAINED IN THE FIRST PARAGRAPH IS ANSWERED IN THE NEGATIVE , WHAT OTHER SANCTION OF SUBSTANTIVE LAW IS AVAILABLE?
' ' 5.IF QUESTION 1 IS ANSWERED IN THE NEGATIVE , IN PRINCIPLE :
UNDER THE PROVISIONS OF DIRECTIVE NO 76/207/EEC WHAT SANCTION APPLIES WHERE THERE IS AN ESTABLISHED CASE OF DISCRIMINATION IN RELATION TO ACCESS TO EMPLOYMENT?
IN THAT REGARD MUST A DISTINCTION BE DRAWN BETWEEN THE SITUATIONS DESCRIBED IN QUESTION 2 ( A ), ( B ) AND ( C)?
' ' 6.DOES DIRECTIVE NO 76/207/EEC AS INTERPRETED BY THE COURT OF JUSTICE IN ITS ANSWERS TO THE QUESTIONS SET OUT ABOVE CONSTITUTE DIRECTLY APPLICABLE LAW IN THE FEDERAL REPUBLIC OF GERMANY?
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7 THOSE QUESTIONS ARE INTENDED PRIMARILY TO ESTABLISH WHETHER DIRECTIVE NO 76/207 REQUIRES MEMBER STATES TO LAY DOWN LEGAL CONSEQUENCES OR SPECIFIC SANCTIONS IN THE EVENT OF DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT ( QUESTIONS 1 TO 5 ) AND WHETHER INDIVIDUALS MAY , WHERE APPROPRIATE , RELY ON THE PROVISIONS OF THE DIRECTIVE BEFORE THE NATIONAL COURTS WHERE THE DIRECTIVE HAS NOT BEEN TRANSPOSED INTO THE NATIONAL LEGAL ORDER WITHIN THE PERIODS PRESCRIBED ( QUESTION 6 ).
( A ) QUESTION 1
8 IN ITS FIRST QUESTION THE ARBEITSGERICHT ASKS ESSENTIALLY WHETHER DIRECTIVE NO 76/207 REQUIRES DISCRIMINATION ON GROUNDS OF SEX IN THE MATTER OF ACCESS TO EMPLOYMENT TO BE PENALIZED BY AN OBLIGATION , IMPOSED ON AN EMPLOYER WHO IS GUILTY OF DISCRIMINATION TO CONCLUDE A CONTRACT OF EMPLOYMENT WITH THE CANDIDATE WHO WAS THE VICTIM OF DISCRIMINATION .
9 ACCORDING TO THE ARBEITSGERICHT , IT IS CLEAR FROM THE RECITALS IN THE PREAMBLE TO AND FROM THE ACTUAL PROVISIONS OF THE DIRECTIVE THAT THE DIRECTIVE REQUIRES MEMBER STATES TO ADOPT LEGAL PROVISIONS WHICH PROVIDE EFFECTIVE SANCTIONS . IN ITS VIEW ONLY COMPENSATION IN KIND , ENTAILING THE APPOINTMENT OF THE PERSONS WHO WERE THE VICTIMS OF DISCRIMINATION , IS EFFECTIVE .
10 ACCORDING TO THE PLAINTIFFS IN THE