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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0450

	Název: Title:		Judgment of the Court of 17 October 1995. Eckhard Kalanke v Freie Hansestadt Bremen. Reference for a preliminary ruling: Bundesarbeitsgericht - Germany. Equal treaetment of men and women - Directive 76/207/EEC - Article 2 (4) - Promotion - Equally qualified candidates of different sexes - Priority given to women. Case C-450/93.

	Publikace: Publication:		European Court Reports 1995 page I-3051

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case 312/86 Commission v France [1988] ECR 6315 · Johnston Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651


	Plný text: Fulltext:		Ne

Fakta:
In the Bremen Parks Department the post of section manager was vacant. In the final round of selection two candidates were shortlisted, Ms Glißmann and Mr Kalanke, both of whom were according to the findings of the national court equally qualified. Ms Glißmann was ultimately appointed for the post. This decision was in accordance with the applicable law according to which in the case of an appointment or promotion, women are to be given priority, provided that they have the same qualifications as the male candidates and that there is an under-representation of women in the department and the salary bracket concerned. Under-representation was deemed to exist, according to the law, if women did not make up at least half of the staff in the personnel group concerned.
Mr Kalanke instituted proceedings against the decision. In the final instance, the Bundesarbeitsgericht (Federal Labour Court), considered that the relevant provisions of law could be incompatible with Community law. It therefore stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the question (as restated by the Court) whether Articles 2(1) and (4) 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).
precludes national rules such as those in the present case which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are under-represented, under-representation being deemed to exist when women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group or in the function levels provided for in the organization.

Názor soudu a komentář:
The purpose of Directive 76/207 is to put into effect the principle of equal treatment. Article 2(1) therefore provides that “there shall be no discrimination whatsoever on grounds of sex either directly or indirectly”. Article 2(4), however, provides for an exception in so far that the 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”. This latter provision is “specifically and exclusively designed to allow 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 312/86). “It thus permits measures relating to access to employment, including promotion, 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 Court illustrates the reasoning behind this exception with reference to the third recital in the preamble to Recommendation 84/635/EEC
Of 13 December 1984 on the promotion of positive action for women (OJ 1984 L 331, p. 34).
which states: “existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides of the industry and other bodies concerned, to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures”. However, as the Court has held in
Johnston
(), as a derogation from an individual right, Article 2(4) is to be construed narrowly.
This is the legal framework in which the law in question had to be examined. It is obvious, first, that a law according to which women are automatically be given priority in sectors where they are under-represented is a direct discrimination on grounds of sex, prohibited by Article 2(1) of Directive 76/207.
The discrimination resulting from the provision here at issue cannot be justified under Article 2(4) of the directive. The Court finds that, because of its
absolute and unconditional
nature, the priority to be given to women goes beyond promoting equal opportunities and thus oversteps the limits of the exception of Article 2(4) of the Directive. “Furthermore, in so far as it seeks to achieve equal representation of men and women in all grades and levels within a department, such a system substitutes for equality of opportunity as envisaged in Article 2(4) the result which is only to be arrived at by providing such equality of opportunity.” Article 2(4) can, in other words, only justify rules designed to put applicants of both sexes on an equal footing but not a regulation which gives women an absolute and unconditional priority when competing with men solely on the ground that their sex is under-represented in the respective field.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):