Nils Draehmpaehl v Urania Immobilienservice OHG.
Date: 1997-04-22
17 In paragraph 22 of its judgment in Case C-177/88 Dekker [1990] ECR I-3941 the Court held that the Directive does not make liability on the part of the person guilty of discrimination conditional on proof of fault or on the absence of any ground discharging such liability.
18 In paragraph 25 of that judgment the Court also stated that, when the sanction chosen by the Member State is provided for in rules governing employers' civil liability, any breach of the prohibition of discrimination must, in itself, be sufficient to render the employer fully liable, without there being any possibility of invoking the grounds of exemption provided for by domestic law.
21 It must be pointed out in this regard that, as was stated in paragraph 25 of the judgment in Dekker, the Directive does not provide for any ground of exemption from liability on which the person guilty of discrimination could rely and does not make reparation of such damage conditional on the existence of fault, no matter how easy if would be to adduce proof of fault.
24 In this regard, it must be pointed out first of all that, even though the Directive does not impose a specific sanction on the Member States, nevertheless Article 6 obliges them to adopt measures which are sufficiently effective for achieving the aim of the Directive and to ensure that those measures may be effectively relied on before the national courts by the persons concerned (Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 18).
25 Moreover, the Directive requires that, if a Member State chooses to penalize breach of the prohibition of discrimination by the award of compensation, that compensation must be such as to guarantee real and effective judicial protection, have a real deterrent effect on the employer and must in any event be adequate in relation to the damage sustained.  Purely nominal compensation would not satisfy the requirements of an effective transposition of the Directive (Von Colson and Kamann, paragraphs 23 and 24).
27 As the Court held in paragraph 23 of its judgment in Von Colson and Kamann, once the Member States choose to make good damage suffered as a result of discrimination prohibited by the Directive pursuant to rules governing employers' civil liability, the compensation awarded must be adequate in relation to the damage sustained.
29 In choosing the appropriate solution for guaranteeing that the objective of the Directive is attained, the Member States must ensure that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of domestic law of a similar nature and importance (Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 24).
39 As the Court held in paragraph 23 of its judgment in Von Colson and Kamann, the Directive entails that the sanction chosen by the Member States must have a real dissuasive effect on the employer and must be adequate in relation to the damage sustained in order to ensure real and effective judicial protection.
40 It is clear that a provision such as Paragraph 61b(2) of the ArbGG, which places a ceiling of six months' salary on the aggregate amount of compensation for all applicants harmed by discrimination on grounds of sex in the making of an appointment, where several applicants claim compensation, may lead to the award of reduced compensation and may have the effect of dissuading applicants so harmed from asserting their rights.  Such a consequence would not represent real and effective judicial protection and would have no really dissuasive effect on the employer, as required by the Directive.
42 However, as the Court has already held, the procedures and conditions governing a right to reparation based on Community law must not be less favourable than those laid down by comparable national rules (Case 68/88 Commission v Greece, paragraph 24).