The Court expands on and further defines the scope of its earlier ruling in the Kalanke case.

It states that a qualification introduced by a saving clause which enables male candidates to be made the subject of an objective assessment excludes absolute and unconditional priority for women, which would go beyond the limits set by the relevant Community provisions and which the Court had found unlawful in the Kalanke judgment.

It makes it clear, however, that that assessment must not result in discrimination against women.

According to the Court, in the working world a male candidate will tend to be promoted even if a female candidate is equally qualified for the post in question. Certain deep-rooted prejudices and stereotypes as to the role and capacities of women in working life still persist. The Court concludes from this that priority given to equally qualified women - which is designed to restore the balance - is not contrary to Community law provided that an objective assessment of each individual candidate, irrespective of the sex of the candidate in question, is assured and that, accordingly, promotion of a male candidate is not excluded from the outset.

Mr Marschall works as a tenured teacher in the service of the Land. On 8 February 1994 he submitted his application for promotion to a post in the comprehensive school in Schwerte. The competent authority informed him, however, that it planned to appoint a female candidate to the post. According to a provision of the Law governing civil servants of the Land, "[w]here, in the sector of the authority responsible for promotion, there are fewer women than men in the particular higher grade post in the career bracket, women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless reasons specific to an individual [male] candidate tilt the balance in

his favour". Mr Marschall then brought an action before the Administrative Court, Gelsenkirchen, Germany, for an order directing the Land to promote him to the post in question.

The German court observed that the priority accorded as a matter of principle to women seemed to amount to discrimination which was not eliminated by the possibility of giving preference, exceptionally, to a male candidate. It therefore stayed proceedings and asked the Court of Justice to interpret the 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.

That directive does not preclude measures designed in particular to remedy actual instances of inequality which affect the chances of women.

The Court of Justice considered that where a promotion is involved, men tend to be chosen in preference to women where they have equal qualifications, since they benefit from deep-rooted prejudices and from stereotypes as to the role and capacities of women.

Thus, for instance, the fear that women will interrupt their careers more frequently, that owing to household and family duties they will be less flexible in their working hours or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding, leads to discrimination against them.

For those reasons, the mere fact that a male and a female candidate are equally qualified does not mean that they have the same chances.

Accordingly, a provision such as that enacted by the Land Nordrhein-Westfalen may help to reduce actual instances of inequality by introducing an additional criterion for promotion, namely status as a woman, and is in conformity with the directive provided that automatic priority over men is precluded.

After recalling the social prejudices mentioned above, the Court emphasized that the criteria to be used when deciding on promotions must not be such as to discriminate against women. It also approved the flexibility afforded by the German provision, which leaves a margin of discretion to the administrative authorities.

It is now for the German court to determine whether those conditions are satisfied and to decide Mr Marschall's case.

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For further information, see the Homepage of the Court on the Internet: www.curia.eu.int. or contact Jessica Larsson (tel (352) 43033651, fax (352) 43032668)