Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen.
Date: 1984-04-10
15 ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 189 : ' ' A DIRECTIVE SHALL BE BINDING , AS TO THE RESULT TO BE ACHIEVED , UPON EACH MEMBER STATE TO WHICH IT IS ADDRESSED , BUT SHALL LEAVE TO THE NATIONAL AUTHORITIES THE CHOICE OF FORM AND METHODS ' ' . ALTHOUGH THAT PROVISION LEAVES MEMBER STATES TO CHOOSE THE WAYS AND MEANS OF ENSURING THAT THE DIRECTIVE IS IMPLEMENTED , THAT FREEDOM DOES NOT AFFECT THE OBLIGATION IMPOSED ON ALL THE MEMBER STATES TO WHICH THE DIRECTIVE IS ADDRESSED , TO ADOPT , IN THEIR NATIONAL LEGAL SYSTEMS , ALL THE MEASURES NECESSARY TO ENSURE THAT THE DIRECTIVE IS FULLY EFFECTIVE , IN ACCORDANCE WITH THE OBJECTIVE WHICH IT PURSUES .
18 ARTICLE 6 REQUIRES MEMBER STATES TO INTRODUCE INTO THEIR NATIONAL LEGAL SYSTEMS SUCH MEASURES AS ARE NECESSARY TO ENABLE ALL PERSONS WHO CONSIDER THEMSELVES WRONGED BY DISCRIMINATION ' ' TO PURSUE THEIR CLAIMS BY JUDICIAL PROCESS ' ' . IT FOLLOWS FROM THE PROVISION THAT MEMBER STATES ARE REQUIRED TO ADOPT MEASURES WHICH ARE SUFFICIENTLY EFFECTIVE TO ACHIEVE THE OBJECTIVE OF THE DIRECTIVE AND TO ENSURE THAT THOSE MEASURES MAY IN FACT BE RELIED ON BEFORE THE NATIONAL COURTS BY THE PERSONS CONCERNED . SUCH MEASURES MAY INCLUDE , FOR EXAMPLE , PROVISIONS REQUIRING THE EMPLOYER TO OFFER A POST TO THE CANDIDATE DISCRIMINATED AGAINST OR GIVING THE CANDIDATE ADEQUATE FINANCIAL COMPENSATION , BACKED UP WHERE NECESSARY BY A SYSTEM OF FINES . HOWEVER THE DIRECTIVE DOES NOT PRESCRIBE A SPECIFIC SANCTION ; IT LEAVES MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE .
23 ALTHOUGH , AS HAS BEEN STATED IN THE REPLY TO QUESTION 1 , FULL IMPLEMENTATION OF THE DIRECTIVE DOES NOT REQUIRE ANY SPECIFIC FORM OF SANCTION FOR UNLAWFUL DISCRIMINATION , IT DOES ENTAIL THAT THAT SANCTION BE SUCH AS TO GUARANTEE REAL AND EFFECTIVE JUDICIAL PROTECTION . MOREOVER IT MUST ALSO HAVE A REAL DETERRENT EFFECT ON THE EMPLOYER . IT FOLLOWS THAT WHERE A MEMBER STATE CHOOSES TO PENALIZE THE BREACH OF THE PROHIBITION OF DISCRIMINATION BY THE AWARD OF COMPENSATION , THAT COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE SUSTAINED .
24 IN CONSEQUENCE IT APPEARS THAT NATIONAL PROVISIONS LIMITING THE RIGHT TO COMPENSATION OF PERSONS WHO HAVE BEEN DISCRIMINATED AGAINST AS REGARDS ACCESS TO EMPLOYMENT TO A PURELY NOMINAL AMOUNT , SUCH AS , FOR EXAMPLE , THE REIMBURSEMENT OF EXPENSES INCURRED BY THEM IN SUBMITTING THEIR APPLICATION , WOULD NOT SATISFY THE REQUIREMENTS OF AN EFFECTIVE TRANSPOSITION OF THE DIRECTIVE .
26 HOWEVER , THE MEMBER STATES '  OBLIGATION ARISING FROM A DIRECTIVE TO ACHIEVE THE RESULT ENVISAGED BY THE DIRECTIVE AND THEIR DUTY UNDER ARTICLE 5 OF THE TREATY TO TAKE ALL APPROPRIATE MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE THE FULFILMENT OF THAT OBLIGATION , IS BINDING ON ALL THE AUTHORITIES OF MEMBER STATES INCLUDING , FOR MATTERS WITHIN THEIR JURISDICTION , THE COURTS . IT FOLLOWS THAT , IN APPLYING THE NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL LAW SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT DIRECTIVE NO 76/207 , NATIONAL COURTS ARE REQUIRED TO INTERPRET THEIR NATIONAL LAW IN THE LIGHT OF THE WORDING AND THE PURPOSE OF THE DIRECTIVE IN ORDER TO ACHIEVE THE RESULT REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 189 .
28 IT SHOULD , HOWEVER , BE POINTED OUT TO THE NATIONAL COURT THAT ALTHOUGH DIRECTIVE NO 75/207/EEC , FOR THE PURPOSE OF IMPOSING A SANCTION FOR THE BREACH OF THE PROHIBITION OF DISCRIMINATION , LEAVES THE MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE , IT NEVERTHELESS REQUIRES THAT IF A MEMBER STATES CHOOSES TO PENALIZE BREACHES OF THAT PROHIBITION BY THE AWARD OF COMPENSATION , THEN IN ORDER TO ENSURE THAT IT IS EFFECTIVE AND THAT IT HAS A DETERRENT EFFECT , THAT COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE SUSTAINED AND MUST THEREFORE AMOUNT TO MORE THAN PURELY NOMINAL COMPENSATION SUCH AS , FOR EXAMPLE , THE REIMBURSEMENT ONLY OF THE EXPENSES INCURRED IN CONNECTION WITH THE APPLICATION . IT IS FOR THE NATIONAL COURT TO INTERPRET AND APPLY THE LEGISLATION ADOPTED FOR THE IMPLEMENTATION OF THE DIRECTIVE IN CONFORMITY WITH THE REQUIREMENTS OF COMMUNITY LAW , IN SO FAR AS IT IS GIVEN DISCRETION TO DO SO UNDER NATIONAL LAW .