Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist.
Date: 2000-07-06
29 In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33).
32 The Överklagandenämnden undertakes an independent examination of appeals lodged against decisions on appointments taken in universities and higher educational institutions. Pursuant to Article 9 of Chapter 1 of the Swedish Constitution, consideration must be given in that connection to the equality of everyone before the law and objectivity and impartiality must be ensured. Pursuant to Article 7 of Chapter 11 of the Swedish Constitution, no authority, not even the Parliament, may decide how the Överklagandenämnden is to decide any particular case referred to it. The only appeals considered are those in which the appellant personally seeks a declaration that he or she should have been appointed to a particular post.
36 As regards independence, it is clear from the provisions of the Swedish Constitution mentioned in paragraph 32 of this judgment that the Överklagandenämnden gives judgment without receiving any instructions and in total impartiality on appeals against certain decisions adopted within universities and higher educational institutions.
43 Finally, in its judgment in Case C-158/97 Badeck and Others [2000] ECR I-0000, paragraph 23, the Court held 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
- where it does not automatically and unconditionally give priority to women when women and men are equally qualified, and
- where the candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates.
The first question
48 The clear aim of such criteria is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in the professional career of persons belonging to the under-represented sex.
49 It is important to emphasise in that connection that the application of criteria such as those mentioned in paragraph 47 above must be transparent and amenable to review in order to obviate any arbitrary assessment of the qualifications of candidates.
55 In that connection, it is enough to point out that, even though Article 141(4) EC allows the Member States to maintain or adopt measures providing for special advantages intended to prevent or compensate for disadvantages in professional careers in order to ensure full equality between men and women in professional life, it cannot be inferred from this that it allows a selection method of the kind at issue in the main proceedings which appears, on any view, to be disproportionate to the aim pursued.