CELEX: 62003CJ0319
Language: en
Date: 2004-09-30
Title: Judgment of the Court (Second Chamber) of 30  September  2004. # Serge Briheche v Ministre de l'Intérieur, Ministre de l'Éducation nationale and Ministre de la Justice. # Reference for a preliminary ruling: Tribunal administratif de Paris - France. # Social policy - Equal treatment of men and women - Article 141(4) EC - Directive 76/207/EEC - Conditions of access to public-sector employment - Provisions reserving to widows who have not remarried the benefit of the exemption from the age limit for obtaining access to that employment. # Case C-319/03.

Case C-319/03
      Serge Briheche
      v
      Ministre de l’Intérieur and Others
      (Reference for a preliminary ruling from the Tribunal administratif de Paris)
      (Social policy – Equal treatment for men and women – Article 141(4) EC – Directive 76/207/EEC – Conditions of access to public-sector employment – Provisions reserving to widows who have not remarried the benefit of the exemption from the age limit for obtaining access
         to that employment)
      
      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)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Second Chamber)30 September 2004(1)
         
         
            
         
               (Social policy  –  Equal treatment of men and women  –  Article 141(4) EC  –  Directive 76/207/EEC  –  Conditions of access to public-sector employment  –  Provisions reserving to widows who have not remarried the benefit of the exemption from the age limit for obtaining access
                  to that employment)
               
               
             In Case C-319/03,REFERENCE for a preliminary ruling under Article 234 ECfrom the Tribunal administratif de Paris (France), made by decision of 3 July 2003, received at the Court on 24 July 2003, in the proceedings
            
            
            Serge Briheche
            
            v
            
            Ministre de l'Intérieur, Ministre de l'Éducation nationale  andMinistre de la Justice, 
            
            
            
            THE COURT (Second Chamber),,
            
             composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen, F. Macken (Rapporteur) and N. Colneric,
            Judges,
            
             Advocate General: M. Poiares Maduro,Registrar: R. Grass,
             having regard to the written procedure,after considering the observations submitted on behalf of:
            
            –
             Mr Briheche, by himself,
            
            –
             the French Government, by G. de Bergues et C. Bergeot-Nunes, acting as Agents,
            
            –
             the Commission of the European Communities, by M.-J. Jonczy et N. Yerrell, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 29 June 2004,
         gives the following
         
         
         Judgment
         1
            
          The reference for a preliminary ruling concerns the interpretation 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 (OJ 1976 L 39, p. 40) (‘the Directive’).
         
         
         
         2
            
          That question was raised in proceedings between Serge Briheche and the Ministre de l’Intérieur (Minister for the Interior),
         the Ministre de l’Éducation nationale (Minister of National Education) and the Ministre de la Justice (Minster for Justice)
         concerning the defendants’ refusal of his application to sit several competitive examinations organised for the recruitment
         of administrative assistants or secretaries on the ground that he did not fulfil the age requirement laid down by the French
         legislation for entry to those competitive examinations.
         
         
            
               Relevant provisions
            Community legislation
         
         3
            
          Article 141(4) EC provides:
         ‘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 underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional
         careers.’
         
         
         
         4
            
          In the words of Article 2(1) and (4) of the Directive:
         ‘1.     For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination
         whatsover 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).’
         
         
         
         5
            
          Under Article 3(1) of the Directive:
         ‘Application of the principle of equal treatment means that there shall be no discrimination whatsover on grounds of sex in
         the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity,
         and to all levels of the occupational hierarchy.’ 
         
         National legislation
         
         6
            
          Under the first paragraph of Article 5 of Decree No 90-713 of 1 August 1990 concerning common statutory provisions applicable
         to administrative assistants within the State administration (JORF of 11 August 1990, p. 9795), the age limit for recruitment
         of those civil servants by competitive examination is fixed at 45 years. 
         
         
         
         7
            
          Article 1 of Decree No 75-765 of 14 August 1975 concerning age limits applicable to recruitment by competitive examination
         of civil servants classified in categories B, C and D (JORF of 19 August 1975, p. 8444) also provides that the age limit for
         entry to a competitive examination is fixed at 45 years, unless specific provisions establish a higher age limit.
         
         
         
         8
            
          In the words of the first paragraph of Article 8 of Law No 75-3 of 3 January 1975 enacting various measures to improve and
         simplify pensions or benefits for surviving spouses, mothers and the elderly (JORF of 4 January 1975, p. 198) ‘the age limit
         for obtaining access to public‑sector employment is not applicable to women who are obliged to work following the death of
         their husband’.
         
         
         
         9
            
          That exception was amended by Law No 79-569 of 7 July 1979 abolishing the age limit for obtaining access to public-sector
         employment for certain categories of women (JORF of 8 July 1979) to make it applicable, if they are obliged to work, to mothers
         with three or more children, widows who have not remarried, divorced women who have not remarried, legally separated women
         and unmarried women with at least one dependent child.
         
         
         
         10
            
          Article 34 of Law No 2001-397 of 9 May 2000 concerning equality at work for men and women (JORF of 10 May 2001, p. 7320) adds
         to that list of categories of persons referred to in the preceding paragraph unmarried men with at least one dependent child
         who are obliged to work.
         
         The main proceedings and the question referred for a preliminary ruling
         
         11
            
          Serge Briheche, a 48-year-old widower who had not remarried with one dependent child, applied to sit various competitive examinations
         organised by the French public administration, including a competitive examination organised by the Ministry for the Interior
         in 2002 for the recruitment of administrative assistants within central government.
         
         
         
         12
            
          His application to sit the latter competitive examination was rejected by decision of 28 January 2002 on the ground that he
         did not fulfil the age requirement laid down in the first paragraph of Article 5 of Decree No 90-713 for entry to that examination.
         
         
         
         13
            
          He brought an administrative appeal against that decision rejecting his application, in which he claimed that, following the
         entry into force of Law No 2001-397, the age limit of 45 years could no longer be enforced against him.
         
         
         
         14
            
          That appeal was dismissed by decision of the Minister for the Interior of 8 March 2002 in which the Minister, first, reiterates
         his decision of 28 January 2002, and secondly, states that, except for certain categories of women, only unmarried men with
         at least one dependent child who are obliged to work may benefit from the abolition of the age limit for obtaining access
         to public-sector employment.
         
         
         
         15
            
          On 28 March 2002, Serge Briheche applied to the Tribunal administratif de Paris (Administrative Court of Paris) for, inter
         alia, annulment of the decisions of 28 January and 8 March 2002 rejecting his application to sit the said competitive examination.
         He claims that the first paragraph of Article 8 of Law No 75-3, as amended by Law No 2001-397, in so far as it reserves to
         ‘widows who have not remarried’ the benefit of the exemption from the age limit for obtaining access to public-sector employment,
         is not in accordance with the objectives of the Directive. Although the Directive is to be without prejudice to measures removing
         existing inequalities which affect women’s opportunities of obtaining employment, it obliges the Member States to review provisions
         for which the objective of protection on which they were originally based is no longer justified.
         
         
         
         16
            
          It is in those circumstances that the Tribunal administratif de Paris has decided to stay proceedings and refer the following
         question to the Court for a preliminary ruling:
         ‘Does Directive 76/207/EEC of 9 February 1976 preclude France from maintaining in force the provisions of Article 8 of Law
         No 75-3 of 3 January 1975, as amended by Law No 79-569 of 7 July 1979 and Law No 2001-397 of 9 May 2001, concerning widows
         who have not remarried?’
         
         The question referred for a preliminary ruling
         
         17
            
          By its question, the national court asks, essentially, whether Article 3(1) and Article 2(4) of the Directive must be interpreted
         as meaning that they preclude a national provision such as that in question in the main proceedings which reserves the exemption
         from the age limit for obtaining access to public-sector employment to widows who have not remarried who are obliged to work,
         excluding widowers who have not remarried who are in the same situation.
         
         
         
         18
            
          In accordance with settled case-law, tthe principle of equal treatment laid down by the Directive is of general application and that directive applies to employment
         in the public service (see, in particular, Case C-285/98 Kreil [2000] ECR I-69, paragraph 18, and Case C-476/99 Lommers [2002] ECR I-2891, paragraph 25).
         
         
         
         19
            
          That principle, in the words of Article 3(1) of the Directive, means that ‘there shall be no discrimination whatsover on grounds
         of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of
         activity, and to all levels of the occupational hierarchy.’
         
         
         
         20
            
          A national provision such as that in question in the main proceedings which provides, as regards entry to competitive examinations
         organised for the recruitment of civil servants, that the age limit is not applicable to widows who have not remarried who
         are obliged to work, results in discrimination on grounds of sex, contrary to Article 3(1) of the Directive, against widowers
         who have not remarried who are in the same situation as those widows.
         
         
         
         21
            
          In those circumstances it must be considered whether such a provision may nevertheless be allowed under Article 2(4) of the
         Directive, which states that it ‘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).’
         
         
         
         22
            
          As the Court has already held, Article 2(4) is specifically and exclusively designed to authorise 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 (Case C‑409/95 Marschall [1997] ECR I-6363, paragraph 26).
         
         
         
         23
            
          A measure which is intended to give priority in promotion to women in sectors of the public service must be regarded as compatible
         with Community law if it does not automatically and unconditionally give priority to women when women and men are equally
         qualified, and the candidatures are the subject of an objective assessment which takes account of the specific personal situations
         of all candidates (see, to that effect, Case C-158/97 Badeck and Others [2000] ECR I-1875, paragraph 23).
         
         
         
         24
            
          Those conditions are guided by the fact that, in determining the scope of any derogation from an individual right such as
         the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality,
         which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the
         aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus
         pursued (Lommers, cited above, paragraph 39).
         
         
         
         25
            
          Article 2(4) of the Directive thus authorises national measures relating to access to employment which give a specific advantage
         to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing
         with men. The aim of that provision is to achieve substantive, rather than formal, equality by reducing de facto inequalities
         which may arise in society and, thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in
         the professional career of the persons concerned (see, to that effect, Case C-450/93 Kalanke [1995] ECR I-3051, paragraph 19, and Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 48).
         
         
         
         26
            
          In its observations, the French Government maintains that the national provision in question in the main proceedings was adopted
         with a view to reducing actual instances of inequality between men and women, in particular due to the fact that women take
         on most of the housework, above all when there are children in the family, and with a view to facilitating the integration
         of women into work.
         
         
         
         27
            
          As the Commission has correctly pointed out, such a provision automatically and unconditionally gives priority to the candidatures
         of certain categories of women, including widows who have not remarried who are obliged to work, reserving to them the benefit
         of the exemption from the age limit for obtaining access to public-sector employment and excluding widowers who have not remarried
         who are in the same situation. 
         
         
         
         28
            
          It follows that such a provision, under which an age limit for obtaining access to public-sector employment is not applicable
         to certain categories of women, while it is to men in the same situation as those women, cannot be allowed under Article 2(4)
         of the Directive.
         
         
         
         29
            
          In those circumstances, it is necessary to establish whether a provision such as that in question in the main proceedings
         is nevertheless allowed under Article 141(4) EC.
         
         
         
         30
            
          Article 141(4) EC authorises the Member States to maintain or adopt measures providing for specific advantages in order, inter
         alia, to prevent or compensate for disadvantages in professional careers, with a view to ensuring full equality in practice
         between men and women in working life.
         
         
         
         31
            
          Irrespective of whether positive action which is not allowed under Article 2(4) of the Directive could perhaps be allowed
         under Article 141(4) EC, it is sufficient to state that the latter provision cannot permit the Member States to adopt conditions
         for obtaining access to public-sector employment of the kind in question in the main proceedings which prove in any event
         to be disproportionate to the aim pursued (see, to that effect, Abrahamsson and Anderson, cited above, paragraph 55).
         
         
         
         32
            
          It follows from the foregoing that the answer to the question referred must be that Article 3(1) and Article 2(4) of the Directive
         must be interpreted as meaning that they preclude a national provision, such as that in question in the main proceedings,
         which reserves the exemption from the age limit for obtaining access to public-sector employment to widows who have not remarried
         who are obliged to work, excluding widowers who have not remarried who are in the same situation.
         
         Costs
         
         33
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Second Chamber) rules as follows:
         Article 3(1) and Article 2(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
               must be interpreted as meaning that they preclude a national provision, such as that in question in the main proceedings,
               which reserves the exemption from the age limit for obtaining access to public-sector employment to widows who have not remarried
               who are obliged to work, excluding widowers who have not remarried who are in the same situation. Signatures.
      
      
          1 –
            
            Language of the case: French.