JUDGMENT OF THE COURT

11 November 1997(1)

(Equal treatment of men and women — Equally qualified male and femalecandidates — Priority for female candidates — Saving clause)

In Case C-409/95,

REFERENCE to the Court under Article 177 of the EC Treaty by theVerwaltungsgericht Gelsenkirchen (Germany) for a preliminary ruling in theproceedings pending before that court between

Hellmut Marschall

and

Land Nordrhein-Westfalen

on the interpretation of Article 2(1) and (4) of Council Directive 76/207/EEC of9 February 1976 on the implementation of the principle of equal treatment for menand women as regards access to employment, vocational training and promotion,and working conditions (OJ 1976 L 39, p. 40),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm andM. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,P.J.G. Kapteyn (Rapporteur), J.L. Murray, D.A.O. Edward, J.-P. Puissochet,G. Hirsch, P. Jann and L. Sevón, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

• Land Nordrhein-Westfalen, represented by the Bezirksregierung Arnsberg,by Juliane Kokott, Professor at Heinrich Heine University, Düsseldorf,
  
  
• the Spanish Government, by Alberto José Navarro González, Director-General of Legal Coordination and Community Affairs, assisted by GloriaCalvo Díaz, Abogado del Estado, of the State Legal Service, acting asAgents,
  
  
• the French Government, by Catherine de Salins, Head of Subdirectorate inthe Legal Directorate of the Ministry of Foreign Affairs, and Anne deBourgoing, Chargé de Mission in the same directorate, acting as Agents,
  
  
• the Austrian Government, by Wolf Okresek, Ministerialrat in theConstitutional Service of the Federal Chancellor's Office, acting as Agent,
  
  
• the Finnish Government, by Tuula Pynnä, Legal Adviser at the Ministry ofForeign Affairs, acting as Agent,
  
  
• the Swedish Government, by Lotty Nordling, Under-Secretary for LegalAffairs at the Department of Foreign Trade of the Ministry of ForeignAffairs, acting as Agent,
  
  
• the United Kingdom Government, by Lindsey Nicoll, of the TreasurySolicitor's Department, acting as Agent, and by Eleanor Sharpston,Barrister,
  
  
• the Norwegian Government, by Beate B. Ekeberg, Head of Service actingfor the Minister for Foreign Affairs, acting as Agent,
  
  
• the Commission of the European Communities, by Jürgen Grunwald, LegalAdviser, and Marie Wolfcarius, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Land Nordrhein-Westfalen, represented byJuliane Kokott; of the Netherlands Government, represented by Hans van denOosterkamp, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent; ofthe Finnish Government, represented by Holger Rotkirch, Head of the LegalAffairs Department of the Ministry of Foreign Affairs, acting as Agent; of theSwedish Government, represented by Lotty Nordling; of the United KingdomGovernment, represented by Lindsey Nicoll, Eleanor Sharpston and Michael Beloff,QC; and of the Commission, represented by Jürgen Grunwald and MarieWolfcarius, at the hearing on 11 March 1997,

after hearing the Opinion of the Advocate General at the sitting on 15 May 1997,

gives the following

Judgment

1. By order of 21 December 1995, received at the Court on 29 December 1995, theVerwaltungsgericht (Administrative Court) Gelsenkirchen referred to the Court fora preliminary ruling under Article 177 of the EC Treaty a question on theinterpretation of Article 2(1) and (4) of Council Directive 76/207/EEC of 9February 1976 on the implementation of the principle of equal treatment for menand women as regards access to employment, vocational training and promotion,and working conditions (OJ 1976 L 39, p. 40, hereinafter 'the Directive‘).
   
   
2. That question has been raised in proceedings between Hellmut Marschall and LandNordrhein-Westfalen (Land of North Rhine-Westphalia, hereinafter 'the Land‘)concerning his application for a higher grade post at the Gesamtschule(comprehensive school) Schwerte in Germany.
   
   
3. The second sentence of Paragraph 25(5) of the Beamtengesetz für das LandNordrhein-Westfalen (Law on Civil Servants of the Land), in the version publishedon 1 May 1981 (GVNW, p. 234), as last amended by Paragraph 1 of the SeventhLaw amending certain rules relating to the civil service, of 5 February 1995(GVNW, p. 102, hereinafter 'the provision in question‘), provides:
   
   'Where, in the sector of the authority responsible for promotion, there are fewerwomen than men in the particular higher grade post in the career bracket, womenare to be given priority for promotion in the event of equal suitability, competenceand professional performance, unless reasons specific to an individual [male]candidate tilt the balance in his favour.‘
   
   
4. According to the observations of the Land, the rule of priority laid down by thatprovision introduced an additional promotion criterion, that of being a female, inorder to counteract the inequality affecting female candidates as compared withmale candidates applying for the same post: where qualifications are equal,employers tend to promote men rather than women because they apply traditionalpromotion criteria which in practice put women at a disadvantage, such as age,seniority and the fact that a male candidate is a head of household and solebreadwinner for the household.
   
   
5. In providing that priority is to be given to the promotion of women 'unless reasonsspecific to an individual [male] candidate tilt the balance in his favour‘, thelegislature deliberately chose, according to the Land, a legally imprecise expressionin order to ensure sufficient flexibility and, in particular, to allow the administrationlatitude to take into account any reasons which may be specific to individualcandidates. Consequently, notwithstanding the rule of priority, the administrationcan always give preference to a male candidate on the basis of promotion criteria,traditional or otherwise.
   
   
6. According to the order for reference, Mr Marschall works as a tenured teacher forthe Land, his salary being that attaching to the basic grade in career bracket A 12.
   
   
7. On 8 February 1994 he applied for promotion to an A 13 post ('teacher qualifiedfor teaching in a first-grade secondary school and so employed‘) at theGesamtschule Schwerte. The Bezirksregierung (District Authority) Arnsberginformed him, however, that it intended to appoint a female candidate to theposition.
   
   
8. Mr Marschall lodged an objection which the Bezirksregierung rejected by decisionof 29 July 1994 on the ground that, in view of the provision in question, the femalecandidate must necessarily be promoted to the position since, according to theirofficial performance assessments, both candidates were equally qualified and sinceat the time when the post was advertised there were fewer women than men incareer bracket A 13.
   
   
9. Mr Marschall then brought legal proceedings before the VerwaltungsgerichtGelsenkirchen for an order requiring the Land to promote him to the post inquestion.
   
   
10. The Verwaltungsgericht, finding that Mr Marschall and the woman candidateselected were equally qualified for the post, decided that the outcome of theproceedings depended on the compatibility of the provision in question with Article2(1) and (4) of the Directive.
    
    
11. Relying on the judgment of this Court in Case C-450/93 Kalanke v Freie HansestadtBremen [1995] ECR I-3051, the Verwaltungsgericht considers that the priority whichthe provision in question accords in principle to women seems to constitutediscrimination within the meaning of Article 2(1) of the Directive and that suchdiscrimination is not eliminated by the possibility of giving preference, exceptionally,to male candidates.
    
    
12. That court also doubts whether the provision in question is covered by theexception provided for in Article 2(4) of the Directive concerning measures topromote equality of opportunity between men and women. The basis for assessingcandidates is unduly narrowed since only the numerical proportion of men towomen at the level concerned is taken into account. Furthermore, the provisionin question does not improve women's ability to compete on the labour market andto pursue a career on an equal footing with men but prescribes a result, whereasArticle 2(4) of the Directive allows only measures for promoting equality ofopportunity.
    
    
13. The Verwaltungsgericht therefore decided to stay proceedings and to refer thefollowing question to the Court for a preliminary ruling:
    
    'Does Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 onthe implementation of the principle of equal treatment for men and women asregards access to employment, vocational training and promotion, and workingconditions, preclude a rule of national law which provides that, in sectors of thepublic service in which fewer women than men are employed in the relevant highergrade post in a career bracket, women must be given priority where male andfemale candidates for promotion are equally qualified (in terms of suitability,competence and professional performance), unless reasons specific to an individualmale candidate tilt the balance in his favour (”sofern nicht in der Person einesmännlichen Mitbewerbers liegende Gründe überwiegen")?‘
    
    
14. The Land, the Spanish, Austrian, Finnish, Swedish and Norwegian Governmentsand the Commission consider that a national rule such as the provision in questionconstitutes a measure for promoting equality of opportunity between men andwomen which falls within the scope of Article 2(4) of the Directive.
    
    
15. The Land observes in this regard that the priority accorded to female candidatesis intended to counteract traditional promotion criteria without, however, replacingthem. The Austrian Government considers that a national rule such as that inquestion is designed to correct discriminatory procedures in the selection of staff.
    
    
16. The Finnish, Swedish and Norwegian Governments add that the national rule inquestion promotes access by women to posts of responsibility and thus helps torestore balance to labour markets which, in their present state, are still broadlypartitioned on the basis of gender in that they concentrate female labour in lowerpositions in the occupational hierarchy. According to the Finnish Government, pastexperience shows in particular that action limited to providing occupational trainingand guidance for women or to influencing the sharing of occupational and familyresponsibilities is not sufficient to put an end to this partitioning of labour markets.
    
    
17. Finally, the Land and all those governments take the view that the provision inquestion does not guarantee absolute and unconditional priority for women andthat it is therefore within the limits outlined by the Court in Kalanke.
    
    
18. The French and the United Kingdom Governments, on the other hand, considerthat the provision in question is not covered by the derogation provided for inArticle 2(4) of the Directive.
    
    
19. Those two governments submit that in providing for priority to be accorded tofemale candidates the provision goes further than promoting equality of opportunityand aims to bring about equality of representation between men and women, sothat the Court's reasoning in Kalanke applies.
    
    
20. Nor, in their view, does the presence of a saving clause make the provision inquestion any less discriminatory. That clause applies only exceptionally andtherefore has no impact in a 'normal‘ case where there are no reasons specific tothe male candidate which are such as to outweigh the general requirement toappoint the female candidate. Since, moreover, it is formulated in terms that areboth general and imprecise the clause is contrary to the principle of legal certainty.
    
    
21. The Court observes that the purpose of the Directive, as is clear from Article 1(1),is to put into effect in the Member States the principle of equal treatment for menand women as regards, inter alia, access to employment, including promotion. Article 2(1) states that the principle of equal treatment means that 'there shall beno discrimination whatsoever on grounds of sex either directly or indirectly‘.
    
    
22. According to Article 2(4), the Directive is to 'be without prejudice to measures topromote equal opportunity for men and women, in particular by removing existinginequalities which affect women's opportunities in the areas referred to in Article1(1)‘.
    
    
23. In paragraph 16 of its judgment in Kalanke, the Court held that a national rulewhich provides that, where equally qualified men and women are candidates for thesame promotion in fields where there are fewer women than men at the level ofthe relevant post, women are automatically to be given priority, involvesdiscrimination on grounds of sex.
    
    
24. However, unlike the provisions in question in Kalanke, the provision in question inthis case contains a clause ('Öffnungsklausel‘, hereinafter 'saving clause‘) to theeffect that women are not to be given priority in promotion if reasons specific toan individual male candidate tilt the balance in his favour.
    
    
25. It is therefore necessary to consider whether a national rule containing such aclause is designed to promote equality of opportunity between men and womenwithin the meaning of Article 2(4) of the Directive.
    
    
26. Article 2(4) is specifically and exclusively designed to authorize measures which,although discriminatory in appearance, are in fact intended to eliminate or reduceactual instances of inequality which may exist in the reality of social life (Case312/86 Commission v France [1988] ECR 6315, paragraph 15, and Kalanke,paragraph 18).
    
    
27. It thus authorizes national measures relating to access to employment, includingpromotion, which give a specific advantage to women with a view to improvingtheir ability to compete on the labour market and to pursue a career on an equalfooting with men (Kalanke, paragraph 19).
    
    
28. As the Council stated in the third recital in the preamble to Recommendation84/635/EEC of 13 December 1984 on the promotion of positive action for women(OJ 1984 L 331, p. 34), 'existing legal provisions on equal treatment, which aredesigned to afford rights to individuals, are inadequate for the elimination of allexisting inequalities unless parallel action is taken by governments, both sides ofindustry and other bodies concerned, to counteract the prejudicial effects onwomen in employment which arise from social attitudes, behaviour and structures‘(Kalanke, paragraph 20).
    
    
29. As the Land and several governments have pointed out, it appears that even wheremale and female candidates are equally qualified, male candidates tend to bepromoted in preference to female candidates particularly because of prejudices andstereotypes concerning the role and capacities of women in working life and thefear, for example, that women will interrupt their careers more frequently, thatowing to household and family duties they will be less flexible in their workinghours, or that they will be absent from work more frequently because of pregnancy,childbirth and breastfeeding.
    
    
30. For these reasons, the mere fact that a male candidate and a female candidate areequally qualified does not mean that they have the same chances.
    
    
31. It follows that a national rule in terms of which, subject to the application of thesaving clause, female candidates for promotion who are equally as qualified as themale candidates are to be treated preferentially in sectors where they are under-represented may fall within the scope of Article 2(4) if such a rule may counteractthe prejudicial effects on female candidates of the attitudes and behaviourdescribed above and thus reduce actual instances of inequality which may exist inthe real world.
    
    
32. However, since Article 2(4) constitutes a derogation from an individual right laiddown by the Directive, such a national measure specifically favouring femalecandidates cannot guarantee absolute and unconditional priority for women in theevent of a promotion without going beyond the limits of the exception laid downin that provision (Kalanke, paragraphs 21 and 22).
    
    
33. Unlike the rules at issue in Kalanke, a national rule which, as in the case in pointin the main proceedings, contains a saving clause does not exceed those limits if,in each individual case, it provides for male candidates who are equally as qualifiedas the female candidates a guarantee that the candidatures will be the subject ofan objective assessment which will take account of all criteria specific to theindividual candidates and will override the priority accorded to female candidateswhere one or more of those criteria tilts the balance in favour of the malecandidate. In this respect, however, it should be remembered that those criteriamust not be such as to discriminate against female candidates.
    
    
34. It is for the national court to determine whether those conditions are fulfilled onthe basis of an examination of the scope of the provision in question as it has beenapplied by the Land.
    
    
35. The answer to be given to the national court must therefore be that a national rulewhich, in a case where there are fewer women than men at the level of the relevantpost in a sector of the public service, and both female and male candidates for thepost are equally qualified in terms of their suitability, competence and professionalperformance, requires that priority be given to the promotion of female candidatesunless reasons specific to an individual male candidate tilt the balance in his favouris not precluded by Article 2(1) and (4) of the Directive, provided that:
    
    
    • in each individual case the rule provides for male candidates who areequally as qualified as the female candidates a guarantee that thecandidatures will be the subject of an objective assessment which will takeaccount of all criteria specific to the individual candidates and will overridethe priority accorded to female candidates where one or more of thosecriteria tilts the balance in favour of the male candidate, and
      
      
    • such criteria are not such as to discriminate against the female candidates.

    Costs
    
    

36. The costs incurred by the Spanish, French, Dutch, Austrian, Finnish, Swedish,United Kingdom and Norwegian Governments and by the Commission of theEuropean Communities, which have submitted observations to the Court, are notrecoverable. Since these proceedings are, for the parties to the main proceedings,a step in the proceedings pending before the national court, the decision on costsis a matter for that court.
    
    On those grounds,

    THE COURT,

    
    
    in answer to the question referred to it by the Verwaltungsgericht Gelsenkirchenby order of 21 December 1995, hereby rules:
    
    A national rule which, in a case where there are fewer women than men at the levelof the relevant post in a sector of the public service and both female and malecandidates for the post are equally qualified in terms of their suitability,competence and professional performance, requires that priority be given to thepromotion of female candidates unless reasons specific to an individual malecandidate tilt the balance in his favour is not precluded by Article 2(1) and (4) ofCouncil Directive 76/207/EEC of 9 February 1976, on the implementation of theprinciple of equal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions, provided that:
    
    —    in each individual case the rule provides for male candidates who areequally as qualified as the female candidates a guarantee that thecandidatures will be the subject of an objective assessment which will takeaccount of all criteria specific to the candidates and will override thepriority accorded to female candidates where one or more of those criteriatilts the balance in favour of the male candidate, and
    
    —    such criteria are not such as to discriminate against the female candidates.
    
    
    

Rodríguez IglesiasGulmann Ragnemalm WatheletMancini Moitinho de Almeida KapteynMurray Edward Puissochet Hirsch Jann Sevón

Delivered in open court in Luxembourg on 11 November 1997.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: German.