European External Action Service v Chantal Hebberecht.
Date: 2020-11-19
38


While the principle of equality between men and women, as an individual right, does not require, for the purposes of its application, any implementing measure (see, by analogy, concerning Article 157(1) TFEU, judgment of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 24), that is not, however, the case with specific advantages intended to make it easier for the under-represented sex to pursue a vocational activity, referred to in the second part of Article 1d(2) of the Staff Regulations.
39


The second part of that provision is specifically and exclusively designed to authorise measures which, although discriminatory against one gender, are in fact intended to eliminate or reduce actual instances of inequality (see, by analogy, judgment of 28 March 2000, Badeck and Others, C‑158/97, EU:C:2000:163, paragraph 19).
40


A measure that is intended to give priority to the promotion of women in sectors of the European public service where they are under-represented must thus be regarded as compatible with Article 1d(2) of the Staff Regulations 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, by analogy, judgments of 28 March 2000, Badeck and Others, C‑158/97, EU:C:2000:163, paragraph 23, and of 30 September 2004, Briheche, C‑319/03, EU:C:2004:574, paragraph 23).
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Those conditions are guided by the fact that, in determining the scope of any derogation from an individual right such as equal treatment of men and women, due regard must be had to the principle of proportionality, which requires that derogations 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 (see, by analogy, judgment of 30 September 2004, Briheche, C‑319/03, EU:C:2004:574, paragraph 24).
43


Furthermore, the application of criteria which are manifestly intended to ensure substantive, rather than formal, equality must be transparent and amenable to review, so as to preclude any arbitrary assessment of the qualifications of candidates (see, by analogy, judgment of 6 July 2000, Abrahamsson and Anderson, C‑407/98, EU:C:2000:367, paragraph 49).
55


In that regard, it must be borne in mind that the EU institutions have a broad discretion when adopting decisions concerning the organisation of their departments to suit the tasks entrusted to them and in the assignment of staff, on condition that that is in the interests of the service and in conformity with the principle of assignment to an equivalent post (see, to that effect, judgment of 23 March 1988, Hecq v Commission, 19/87, EU:C:1988:165, paragraph 6). However, it is for those institutions, when adopting decisions relating to the organisation of their departments, to weigh up the various interests at stake, taking into account, inter alia, the principle of equal treatment and the interests of the service.