1. The reference for a preliminary ruling concerns the interpretation of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) (‘the Directive’).
2. That question was raised in proceedings between Serge Briheche and the Ministre de l’Intérieur (Minister for the Interior), the Ministre de l’Éducation nationale (Minister of National Education) and the Ministre de la Justice (Minster for Justice) concerning the defendants’ refusal of his application to sit several competitive examinations organised for the recruitment of administrative assistants or secretaries on the ground that he did not fulfil the age requirement laid down by the French legislation for entry to those competitive examinations. Relevant provisions Community legislation
3. Article 141(4) EC provides: ‘With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’
4. In the words of Article 2(1) and (4) of the Directive: ‘1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsover on grounds of sex either directly or indirectly by reference in particular to marital or family status. … 4. This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1(1).’
5. Under Article 3(1) of the Directive: ‘Application of the principle of equal treatment means that there shall be no discrimination whatsover on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.’ National legislation
6. Under the first paragraph of Article 5 of Decree No 90-713 of 1 August 1990 concerning common statutory provisions applicable to administrative assistants within the State administration (JORF of 11 August 1990, p. 9795), the age limit for recruitment of those civil servants by competitive examination is fixed at 45 years.
7. Article 1 of Decree No 75-765 of 14 August 1975 concerning age limits applicable to recruitment by competitive examination of civil servants classified in categories B, C and D (JORF of 19 August 1975, p. 8444) also provides that the age limit for entry to a competitive examination is fixed at 45 years, unless specific provisions establish a higher age limit.
8. In the words of the first paragraph of Article 8 of Law No 75-3 of 3 January 1975 enacting various measures to improve and simplify pensions or benefits for surviving spouses, mothers and the elderly (JORF of 4 January 1975, p. 198) ‘the age limit for obtaining access to public‑sector employment is not applicable to women who are obliged to work following the death of their husband’.
9. That exception was amended by Law No 79-569 of 7 July 1979 abolishing the age limit for obtaining access to public-sector employment for certain categories of women (JORF of 8 July 1979) to make it applicable, if they are obliged to work, to mothers with three or more children, widows who have not remarried, divorced women who have not remarried, legally separated women and unmarried women with at least one dependent child.
10. Article 34 of Law No 2001-397 of 9 May 2000 concerning equality at work for men and women (JORF of 10 May 2001, p. 7320) adds to that list of categories of persons referred to in the preceding paragraph unmarried men with at least one dependent child who are obliged to work. The main proceedings and the question referred for a preliminary ruling
11. Serge Briheche, a 48-year-old widower who had not remarried with one dependent child, applied to sit various competitive examinations organised by the French public administration, including a competitive examination organised by the Ministry for the Interior in 2002 for the recruitment of administrative assistants within central government.
12. His application to sit the latter competitive examination was rejected by decision of 28 January 2002 on the ground that he did not fulfil the age requirement laid down in the first paragraph of Article 5 of Decree No 90-713 for entry to that examination.
13. He brought an administrative appeal against that decision rejecting his application, in which he claimed that, following the entry into force of Law No 2001-397, the age limit of 45 years could no longer be enforced against him.
14. That appeal was dismissed by decision of the Minister for the Interior of 8 March 2002 in which the Minister, first, reiterates his decision of 28 January 2002, and secondly, states that, except for certain categories of women, only unmarried men with at least one dependent child who are obliged to work may benefit from the abolition of the age limit for obtaining access to public-sector employment.
15. On 28 March 2002, Serge Briheche applied to the Tribunal administratif de Paris (Administrative Court of Paris) for, inter alia, annulment of the decisions of 28 January and 8 March 2002 rejecting his application to sit the said competitive examination. He claims that the first paragraph of Article 8 of Law No 75-3, as amended by Law No 2001-397, in so far as it reserves to ‘widows who have not remarried’ the benefit of the exemption from the age limit for obtaining access to public-sector employment, is not in accordance with the objectives of the Directive. Although the Directive is to be without prejudice to measures removing existing inequalities which affect women’s opportunities of obtaining employment, it obliges the Member States to review provisions for which the objective of protection on which they were originally based is no longer justified.
16. It is in those circumstances that the Tribunal administratif de Paris has decided to stay proceedings and refer the following question to the Court for a preliminary ruling: ‘Does Directive 76/207/EEC of 9 February 1976 preclude France from maintaining in force the provisions of Article 8 of Law No 75-3 of 3 January 1975, as amended by Law No 79-569 of 7 July 1979 and Law No 2001-397 of 9 May 2001, concerning widows who have not remarried?’ The question referred for a preliminary ruling
17. By its question, the national court asks, essentially, whether Article 3(1) and Article 2(4) of the Directive must be interpreted as meaning that they preclude a national provision such as that in question in the main proceedings which reserves the exemption from the age limit for obtaining access to public-sector employment to widows who have not remarried who are obliged to work, excluding widowers who have not remarried who are in the same situation.
18. In accordance with settled case-law, t t he principle of equal treatment laid down by the Directive is of general application and that directive applies to employment in the public service (see, in particular, Case C-285/98 Kreil [2000] ECR I-69, paragraph 18, and Case C-476/99 Lommers [2002] ECR I-2891, paragraph 25).
19. That principle, in the words of Article 3(1) of the Directive, means that ‘there shall be no discrimination whatsover on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.’
20. A national provision such as that in question in the main proceedings which provides, as regards entry to competitive examinations organised for the recruitment of civil servants, that the age limit is not applicable to widows who have not remarried who are obliged to work, results in discrimination on grounds of sex, contrary to Article 3(1) of the Directive, against widowers who have not remarried who are in the same situation as those widows.
21. In those circumstances it must be considered whether such a provision may nevertheless be allowed under Article 2(4) of the Directive, which states that it ‘shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1(1).’
22. As the Court has already held, 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 (Case C‑409/95 Marschall [1997] ECR I-6363, paragraph 26).
23. A measure which is intended to give priority in promotion to women in sectors of the public service 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 (see, to that effect, Case C-158/97 Badeck and Others [2000] ECR I-1875, paragraph 23).
24. Those conditions are guided by the fact that, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must 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 ( Lommers , cited above, paragraph 39).
25. Article 2(4) of the Directive thus authorises national measures relating to access to employment 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. The aim of that provision 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 the persons concerned (see, to that effect, Case C-450/93 Kalanke [1995] ECR I-3051, paragraph 19, and Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraph 48).
26. In its observations, the French Government maintains that the national provision in question in the main proceedings was adopted with a view to reducing actual instances of inequality between men and women, in particular due to the fact that women take on most of the housework, above all when there are children in the family, and with a view to facilitating the integration of women into work.
27. As the Commission has correctly pointed out, such a provision automatically and unconditionally gives priority to the candidatures of certain categories of women, including widows who have not remarried who are obliged to work, reserving to them the benefit of the exemption from the age limit for obtaining access to public-sector employment and excluding widowers who have not remarried who are in the same situation.
28. It follows that such a provision, under which an age limit for obtaining access to public-sector employment is not applicable to certain categories of women, while it is to men in the same situation as those women, cannot be allowed under Article 2(4) of the Directive.
29. In those circumstances, it is necessary to establish whether a provision such as that in question in the main proceedings is nevertheless allowed under Article 141(4) EC.
30. Article 141(4) EC authorises the Member States to maintain or adopt measures providing for specific advantages in order, inter alia, to prevent or compensate for disadvantages in professional careers, with a view to ensuring full equality in practice between men and women in working life.
31. Irrespective of whether positive action which is not allowed under Article 2(4) of the Directive could perhaps be allowed under Article 141(4) EC, it is sufficient to state that the latter provision cannot permit the Member States to adopt conditions for obtaining access to public-sector employment of the kind in question in the main proceedings which prove in any event to be disproportionate to the aim pursued (see, to that effect, Abrahamsson and Anderson , cited above, paragraph 55).
32. It follows from the foregoing that the answer to the question referred must be that Article 3(1) and Article 2(4) of the Directive must be interpreted as meaning that they preclude a national provision, such as that in question in the main proceedings, which reserves the exemption from the age limit for obtaining access to public-sector employment to widows who have not remarried who are obliged to work, excluding widowers who have not remarried who are in the same situation. Costs
33. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.