Georg Badeck and Others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen.
Date: 2000-03-28
17 The Court held in Kalanke, paragraph 16, that a national rule to the effect that where equally qualified men and women are candidates for the same promotion, in sectors where there are fewer women than men at the level of the relevant post, women are automatically to be given priority involves discrimination on grounds of sex.
18 In Case C-409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363 the Court had to rule on whether a national rule containing a clause to the effect that women are not to be given priority in promotion if reasons specific to an individual male candidate tilt the balance in his favour (Öffnungsklausel, hereinafter saving clause) is designed to promote equal opportunity for men and women within the meaning of Article 2(4) of the Directive.
19 The Court noted, first, that since 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 (Marschall, paragraphs 26 and 27).
20 It then referred to the third recital in the preamble to Recommendation 84/635, mentioned in paragraph 4 above (Marschall, paragraph 28).
21 The Court observed, finally, that even where candidates are equally qualified, male candidates tend to be promoted in preference to female candidates particularly because of prejudices and stereotypes concerning the role and capacities of women in working life, so that the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances (Marschall, paragraphs 29 and 30).
23 It follows that a measure which is intended to give priority in promotion to women in sectors of the public service where they are under-represented 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.
25 However, under the case-law the Court has jurisdiction to supply the national court with an interpretation of Community law on all such points as may enable that court to determine that issue of compatibility for the purposes of the case before it (see, inter alia, Case 223/78 Grosoli [1979] ECR 2621, paragraph 3, and Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others [1997] ECR I-3561, paragraph 36).
The first part of the question
52 The provision at issue in the main proceedings 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.
53 Since the quota applies only to training places for which the State does not have a monopoly, and therefore concerns training for which places are also available in the private sector, no male candidate is definitively excluded from training. Taking an overall view of training (public and private sectors), the provision at issue therefore merely improves the chances of female candidates in the public sector.
54 The measures provided for are thus measures which are intended to eliminate the causes of women's reduced opportunities of access to employment and careers, and moreover consist of measures regarding vocational orientation and training. Such measures are therefore among the measures authorised by Article 2(4) of the Directive, which are intended to improve the ability of women to compete on the labour market and to pursue a career on an equal footing with men.
55 The answer must therefore be that Article 2(1) and (4) of the Directive does not preclude a national rule which, in so far as its objective is to eliminate under-representation of women, 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, unless despite appropriate measures for drawing the attention of women to the training places available there are not enough applications from women.
The fourth part of the question