Advocate General Francis Jacobs recommended that the Court of Justice should confirm the reasoning which it had adopted in its judgment in the Kalanke case in October 1995 and hold that, even where national rules include a proviso allowing reasons specific to a male candidate to predominate, the Equal Treatment Directive precludes such rules from providing that, where fewer women than men are employed in the relevant higher-grade post in a career group, women must be given priority where male and female candidates for promotion are equally qualified.
Mr Marschall, a teacher in Schwerte, Germany, applied for a higher position. He was informed that a woman candidate was to be appointed to the position: the two candidates were equally suitable and, since fewer women than men were employed in the relevant pay and career bracket, the woman candidate had to be promoted by virtue of the Law on officials of the Land of North Rhine-Westphalia. Mr Marschall brought legal proceedings seeking an order that the defendant authority should appoint him to the post. The Verwaltungsgericht (Administrative Court), Gelsenkirchen had doubts as to whether the German legislation was compatible with Article 2(1) and (4) of the Equal Treatment Directive. The Verwaltungsgericht therefore stayed the proceedings and referred a question to the Court of Justice for a preliminary ruling.
During the written procedure and at the hearing before the Court of Justice observations were submitted on behalf of the Land of North Rhine Westphalia, the Austrian, Finnish, French, Netherlands, Norwegian, Swedish, Spanish and United Kingdom governments and by the European Commission.
The purpose of the Equal Treatment Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards, in particular, access to employment, including promotion.
Article 2(1) of the Directive provides that that principle means that there must be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. Article 2(4) provides an exception to that general principle in respect of measures intended "to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities". The present case concerns the scope of that exception which had previously been considered by the Court in its judgment in the Kalanke case.
The task of the Advocate General is to assist the Court by giving a reasoned opinion on the case including a recommendation as to how the Court of Justice should answer the question submitted by the Verwaltungsgericht. He acts with complete impartiality and independence; his Opinion however is not binding on the Court.
The Advocate General emphasized that the Court was not being asked in this case - nor would it be appropriate for it to be asked - to rule on the desirability of positive discrimination or affirmative action generally: the question it had been asked concerned solely the conformity of the national rule at issue with two specific provisions of the Directive.
He then examined the Court's previous case-law in this area, in particular the Kalanke case. In that case the Court had concluded that national rules which guaranteed women "absolute and unconditional" priority for appointment or promotion went beyond promoting equal opportunities and overstepped the limits of the exception in Article 2(4) of the Directive.
For the Advocate General it was clear that the particular rule at issue in this case was also discriminatory and therefore contrary to the Directive unless it fell within the scope of the exception in Article 2(4) as a result of the effect of a proviso in the national Law under which reasons specific to the other (male) candidate could predominate.
The Land of North Rhine-Westphalia, the European Commission and several of the governments had submitted that the flexibility of the national rule in the present case - namely the existence of the proviso - was sufficient ground to distinguish the decision in Kalanke since there was no guarantee of absolute and unconditional priority for women. The Advocate General found however that there were several flaws in that argument.
In his view the distinction between equality of opportunity and equality of result which lies behind the Court's reasoning in Kalanke was conceptually clear. It will therefore, in his view, normally be apparent on which side of the line a given measure falls. He then considered whether the proviso to the national rule at issue affected the conclusion that the rule was unlawful and concluded that it did not.
First, if the proviso is applied it merely displaces the rule giving priority to women in a particular case; it does not alter the discriminatory nature of the rule in general. Furthermore, the scope of the proviso at issue in the present case is unclear.
In any event, such a proviso could only make the rule compatible with the Directive if the proviso itself was unobjectionable. The Advocate General did not consider that to be the case. He found that the proviso appeared to envisage that so-called "traditional secondary criteria" (such as marital or family circumstances), which were themselves discriminatory, would be applied where the proviso was relied upon. If an absolute rule giving priority to women on the ground of their sex was unlawful, then a conditional rule which either gives priority to women on the ground of their sex or gives priority to men on the basis of admittedly discriminatory criteria must a fortiori be unlawful.
In concluding the Advocate General added some observations on the types of measure which might fall within the exception in Article 2(4) and reiterated that, in endorsing an interpretation of Article 2(4) which excludes measures giving direct preference to the promotion or appointment of women in sectors where they are under-represented, he was not expressing any view as to the desirability of such measures as a matter of principle.
Following the delivery of his Opinion at today's hearing the Court will deliberate on the case and will deliver its judgment at a future date which will be announced to the public in due course.
This press release is an unofficial document solely for the use of the press. It is available in all the official languages. For further information or for a copy of the Opinion please contact Tom Kennedy, telephone 00352 4303 3355, or Gillian Byrne, telephone 00352 4303 3366 or send a fax to 00352 4303 2500.