H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij.
Date: 2002-03-19
24 Articles 1a and 5 of the WGB transposed Articles 1(1) and 2(1) and (4) of the Directive in relation to the Netherlands public sector. According to settled case-law, when applying national law, in particular the provisions of a national law specifically enacted in order to implement a directive, national courts are required to interpret their national law in the light of the wording and purpose of the directive (see, as regards the Directive, Case 222/84 Johnston [1986] ECR 1651, paragraph 53).
25 The Court has also held that the principle of equal treatment laid down by the Directive is of general application and that the Directive applies to employment in the public service (see, in particular, Case C-273/97 Sirdar [1999] ECR I-7403, paragraph 18, and Case C-285/98 Kreil [2000] ECR I-69, paragraph 18).
28 In that connection, it should be noted that the Court has previously held that the fact that the fixing of certain working conditions may have pecuniary consequences is not sufficient to bring such conditions within the scope of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), which is a provision based on the close connection existing between the nature of the work done and the amount of pay (Case 149/77 Defrenne III [1978] ECR 1365, paragraph 21, and Case C-236/98 Jämo [2000] ECR I-2189, paragraph 59).
30 Secondly, a scheme under which nursery places made available by an employer to his staff are reserved only for female employees does in fact create a difference of treatment on grounds of sex, within the meaning of Articles 2(1) and 5(1) of the Directive. The situations of a male employee and a female employee, respectively father and mother of young children, are comparable as regards the possible need for them to use nursery facilities because they are in employment (see, to that effect, Case 312/86 Commission v France [1988] ECR 6315, paragraph 14, and, by analogy, as regards the situation of female employees and male employees assuming the upbringing of their children, judgment of 29 November 2001 in Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 56).
32 As far as that question is concerned, it is settled case-law that 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. It authorises national measures relating to access to employment, including promotion, 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 (Kalanke, paragraphs 18 and 19, Marschall, paragraphs 26 and 27, and Case C-158/97 Badeck and Others [2000] ECR I-1875, paragraph 19).
33 More particularly, the Court has held that Article 2(1) and (4) of the Directive does not preclude adoption of a national rule relating to the public service which, in trained occupations in which women are under-represented and for which the State does not have a monopoly of training, allocates at least half the training places to women. The Court pointed out that such a rule forms part of a restricted concept of equality of opportunity. It is not places in employment which are reserved for women but places in training with a view to obtaining qualifications with the prospect of subsequent access to trained occupations in the public service. It is therefore limited to improving the chances of female candidates in the public sector. The Court therefore held that such a measure belongs to that group of measures that are designed to eliminate the causes of women's reduced opportunities of access to employment and careers and intended to improve the ability of women to compete on the labour market and pursue a career on an equal footing with men (Badeck and Others, paragraphs 52 to 55).
39 Nevertheless, according to settled case-law, 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 (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).
40 Under the division of jurisdiction provided for by Article 234 EC, it is in principle the task of the national court to ensure that the principle of proportionality is duly observed. However, according to the Court's case-law, the Court may provide the national court with an interpretation of Community law on all such points as may enable that court to assess the compatibility of a national measure with Community law for the purposes of the judgment to be given in the case before it. In the present case, as appears from paragraph 22 of the present judgment, the national court has also raised a number of specific queries which should be answered.
41 A measure such as that at issue in the main proceedings, whose purported aim is to abolish a de facto inequality, might nevertheless also help to perpetuate a traditional division of roles between men and women.
44 Moreover, a measure such as that at issue does not have the effect of depriving the male employees concerned, any more than other female staff who have not been able to obtain a nursery place under the nursery places scheme subsidised by the Ministry of Agriculture, of all access to nursery places for their children, since such places still remain accessible mainly on the relevant services market (see, by analogy, as regards training places, Badeck and Others, paragraph 53).