Commission of the European Communities v French Republic.
Date: 1988-06-30
11 The category of head warders responsible for the direction of prisons does not appear as such in the contested list since the head warders in question do not constitute a "corps" within the meaning of the French legislation . On the other hand, the list refers to the "corps du personnel de surveillance" ( corps of custodial staff ) as part of the corps in the external departments of the prison service for which separate recruitment of men and women may be provided for .
12 As far as custodial staff in general are concerned, the Commission admits that the specific nature of the post of warder and the conditions under which warders carry out their activities justify reserving such posts primarily for men in male prisons and primarily for women in female prisons . To that extent, the different access to the custodial staff corps arising from a system of separate recruitment for men and women does not go beyond the limits laid down in Article 2 ( 2 ) of the directive .
13 However, the Commission considers that an exception should be made in the case of "surveillants chefs" in charge of prisons . They carry out management functions which involve no regular contact with the prisoners . Their duties are thus comparable to those of a "directeur d' établissement" ( governor of a penal institution ), the only difference residing in the capacity of the penal institution managed by the official concerned . However, the French Government has admitted that, in the case of governors of large establishments, belonging to one sex or the other is not a determining factor .
14 The French Government contends that governors belong to the management staff corps (" personnel de direction" ) whereas head warders always belong to the custodial staff corps, even if they are required to take charge of a prison ( maison d' arrêt ). Recruitment of that body of personnel is therefore in accordance with the requirements of the directive, since separate recruitment is necessary for the custodial staff corps in general, as the Commission has admitted, and the list of candidates eligible for appointment to a post of head warder of a prison is drawn up without account being taken of a candidate' s sex .
15 It can be seen from the documents before the Court that the custodial staff corps is composed of different grades, in particular those of "surveillant" ( warder ) and "surveillant principal" ( principal warder ), "premier surveillant" ( leading warder ) and "surveillant chef" ( head warder ). The applicable provisions state that head warders may be appointed governors of prisons ( chefs de maison d' arrêt ) if the establishment in question can accommodate no more than 100 prisoners . Head warders and, subject to their authority, leading warders, are "responsible for organizing and directing the work of warders and principal warders" (" sont chargés de l' encadrement des surveillants et surveillants principaux "). Head warders appointed "chefs de maison d' arrêt" are responsible for the operation of their own institution .
16 The question to be considered accordingly concerns a corps in respect of which separate recruitment of male and female candidates is regarded as justified under Article 2 ( 2 ) of the directive, in which promotion is carried out without discrimination but in which promotion to the highest grade may, in certain cases, lead to a situation in which the person concerned carries out activities of such a nature that sex does not constitute a determining factor .
17 In such a situation, the derogation provided for in Article 2 ( 2 ) of the directive extends to activities corresponding to the highest grade of the corps concerned, even if certain of those activites do not necessarily have to be carried out by persons of one sex . Although it is true, as the Commission has emphasized, that the French authorities could have avoided the problem by organizing their departments differently, for example by creating a separate corps for prison governors, or by including that post in the management staff corps, it must also be admitted that there could be reasons for appointing to the post of head warder only persons having actually performed the duties of a warder . However, the French Government gave the Court to understand that such reasons exist in this case, having regard to the need to provide for opportunities for promotion within the corps of warders and to the fact that the professional experience acquired in that corps is desirable for the performance of the duties of a prison governor . For its part, the Commission has not shown that those arguments are not valid .
18 The Commission' s complaints relating to head warders responsible for the direction of prisons must therefore be rejected .
( b ) The five corps in the national police force
25 It follows from those provisions that the exceptions provided for in Article 2 ( 2 ) may relate only to specific activities, that they must be sufficiently transparent so as to permit effective supervision by the Commission and that in principle they must be capable of being adapted to social developments . The last requirement gives rise to no difficulties in this case; however, French law is not in accordance with the other two requirements .
27 This lack of transparency also has consequences for compliance with the second requirement laid down by the directive, which relates to the activities involved . The contested system of recruitment makes it impossible to exercise any form of supervision, not only by the Commission and the courts but also by persons adversely affected by discriminatory measures, in order to verify whether the percentages fixed for the the recruitment of each sex actually correspond to specific activities for which the sex of the persons to be employed constitutes a determining factor within the meaning of Article 2 ( 2 ) of the directive .