The Court analyses whether the Law of the Land of Hesse on equal rights for women and men and the removal of discrimination against women in the public service is compatible with Directive 76/207/EEC
On 28 November 1994, Mr Badeck and 45 other members of the Landtag of Hesse applied to the Staatsgerichtshof (State Constitutional Court) of Hesse for a review of the legality of a Land law of 1993 on equal treatment for men and women.
Under that law, administrative departments of the Land of Hesse are required to contribute to equal treatment of men and women in the public service, and in particular to eliminate under-representation of women, by means of advancement plans for women. Each plan must provide that more than half the posts to be filled (by appointment or promotion) in a sector in which women are under-represented must be given to women. The Law lays down the details, selection criteria and exceptions.
The members of the Landtag considered that the Law was incompatible with the principle of equal treatment - to the disadvantage of men - and in particular with the "Community Directive 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".
The Staatsgerichtshof stayed the proceedings and referred a question to the Court of Justice of the European Communities on the compatibility of the Law with the directive.
The Court of Justice pointed out that, in accordance with its earlier judgments in Kalanke (17 October 1995) and Marschall (11 November 1997), a measure which is intended to give priority in promotion to women in sectors of the public service where women are under-represented must be regarded as compatible with Community law if
The Hesse Law, which provides for a "flexible result quota", does not determine quotas uniformly for all the sectors and departments concerned, but states that the characteristics of those sectors and departments are to be decisive for fixing the binding targets. Second, the Law does not necessarily determine from the outset - automatically - that the outcome of each selection procedure must, in a "stalemate" situation (candidates have equal qualifications), necessarily favour the woman.
The Court of Justice found that the selection procedure for candidates under the Law must start with an assessment of their suitability, capability and professional performance with respect to the requirements of the post to be filled or the office to be conferred.
According to the Court, the assessment criteria laid down by the Law, although formulated in terms which are neutral as regards sex and thus capable of benefiting men too, in general favour women. They are manifestly intended to lead to an equality which is substantive rather than formal by reducing the inequalities which may occur in practice in social life.
In the Court's view, the priority rule introduced by the Law is not absolute and unconditional in the sense of the Kalanke judgment, however; reasons of greater legal weight (for example, the priority to be given to seriously disabled persons, or to end a long period of unemployment) allow the rule of priority for women to be overridden. It is for the national court to assess whether the rule ensures that candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates.
In those circumstances, the Court held that the Community directive does not preclude the law in question.
The Court also stated that since the special system for temporary posts in the academic sector and for academic assistants does not fix an absolute ceiling but refers to the percentage of women with degrees in that sector, it is compatible with Community law.
The Law prescribes that at least half the training places in occupations for which the State does not have a monopoly of training are to be reserved for women, in order to enable access by them to trained occupations in which they are under-represented. The Court found that that rule, which does not prevent men from receiving similar training organised by the private sector, is compatible with Community law.
The Court held, finally, that the Community directive does not preclude a national rule on the composition of representative bodies of workers and administrative and supervisory bodies which recommends that the legislative provisions adopted for its implementation take into account the objective that at least half the members of those bodies should be women.
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