Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

1 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - IMPLEMENTATION BY THE MEMBER STATES - NEED TO ENSURE THAT DIRECTIVES ARE EFFECTIVE - OBLIGATIONS OF NATIONAL COURTS

( EEC TREATY , ARTS 5 AND 189 , THIRD PARA .)

2 . SOCIAL POLICY - MALE AND FEMALE WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - DIRECTIVE NO 76/207/EEC - DISCRIMINATION IN ACCESS TO EMPLOYMENT - NO SANCTIONS PROVIDED FOR IN THE DIRECTIVE - EFFECT - CHOICE OF SANCTIONS BY THE MEMBER STATES - AWARD OF COMPENSATION - NEED FOR ADEQUATE COMPENSATION - OBLIGATIONS OF NATIONAL COURTS

( COUNCIL DIRECTIVE NO 76/207/EEC )

Summary

1 . ALTHOUGH THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY LEAVES MEMBER STATES FREE TO CHOOSE THE WAYS AND MEANS OF ENSURING THAT THE DIRECTIVE IS IMPLEMENTED , THAT FREEDOM DOES NOT AFFECT THE OBLIGATION , IMPOSED ON ALL THE MEMBER STATES TO WHICH THE DIRECTIVE IS ADDRESSED , TO ADOPT WITHIN THE FRAMEWORK OF THEIR NATIONAL LEGAL SYSTEMS , ALL THE MEASURES NECESSARY TO ENSURE THAT THE DIRECTIVE IS FULLY EFFECTIVE , IN ACCORDANCE WITH THE OBJECTIVE WHICH IT PURSUES .

THE MEMBER STATES ' OBLIGATION ARISING FROM A DIRECTIVE TO ACHIEVE THE RESULT ENVISAGED BY THE DIRECTIVE AND THEIR DUTY UNDER ARTICLE 5 OF THE TREATY TO TAKE ALL APPROPRIATE MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE THE FULFILMENT OF THAT OBLIGATION , IS BINDING ON ALL THE AUTHORITIES OF MEMBER STATES INCLUDING , FOR MATTERS WITHIN THEIR JURISDICTION , THE COURTS . IT FOLLOWS THAT , IN APPLYING NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL LAW SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT A DIRECTIVE , THE NATIONAL COURT IS REQUIRED TO INTERPRET ITS NATIONAL LAW IN THE LIGHT OF THE WORDING AND THE PURPOSE OF THE DIRECTIVE IN ORDER TO ACHIEVE THE RESULT REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 189 .

2 . DIRECTIVE NO 76/207/EEC DOES NOT REQUIRE DISCRIMINATION ON GROUNDS OF SEX REGARDING ACCESS TO EMPLOYMENT TO BE MADE THE SUBJECT OF A SANCTION BY WAY OF AN OBLIGATION IMPOSED ON THE EMPLOYER WHO IS THE AUTHOR OF THE DISCRIMINATION TO CONCLUDE A CONTRACT OF EMPLOYMENT WITH THE CANDIDATE DISCRIMINATED AGAINST .

AS REGARDS SANCTIONS FOR ANY DISCRIMINATION WHICH MAY OCCUR , THE DIRECTIVE DOES NOT INCLUDE ANY UNCONDITIONAL AND SUFFICIENTLY PRECISE OBLIGATION WHICH , IN THE ABSENCE OF IMPLEMENTING MEASURES ADOPTED WITHIN THE PRESCRIBED TIME-LIMITS , MAY BE RELIED ON BY AN INDIVIDUAL IN ORDER TO OBTAIN SPECIFIC COMPENSATION UNDER THE DIRECTIVE , WHERE THAT IS NOT PROVIDED FOR OR PERMITTED UNDER NATIONAL LAW .

ALTHOUGH DIRECTIVE NO 76/207/EEC , FOR THE PURPOSE OF IMPOSING A SANCTION FOR THE BREACH OF THE PROHIBITION OF DISCRIMINATION , LEAVES THE MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE , IT NEVERTHELESS REQUIRES THAT IF A MEMBER STATE CHOOSES TO PENALIZE BREACHES OF THAT PROHIBITION BY THE AWARD OF COMPENSATION , THEN IN ORDER TO ENSURE THAT IT IS EFFECTIVE AND THAT IT HAS A DETERRENT EFFECT , THAT COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE SUSTAINED AND MUST THEREFORE AMOUNT TO MORE THAN PURELY NOMINAL COMPENSATION SUCH AS , FOR EXAMPLE , THE REIMBURSEMENT ONLY OF THE EXPENSES INCURRED IN CONNEXION WITH THE APPLICATION . IT IS FOR THE NATIONAL COURT TO INTERPRET AND APPLY THE LEGISLATION ADOPTED FOR THE IMPLEMENTATION OF THE DIRECTIVE IN CONFORMITY WITH THE REQUIREMENTS OF COMMUNITY LAW , IN SO FAR AS IT IS GIVEN DISCRETION TO DO SO UNDER NATIONAL LAW .

Parties

IN CASE 79/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARBEITSGERICHT ( LABOUR COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

DORIT HARZ

AND

DEUTSCHE TRADAX GMBH ,

Subject of the case

ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 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 ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ),

Grounds

1 BY ORDER OF 5 JULY 1982 , WHICH WAS RECEIVED AT THE COURT ON 3 MAY 1983 , THE ARBEITSGERICHT ( LABOUR COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 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 ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ).

2 THOSE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN DORIT HARZ , A GRADUATE IN BUSINESS STUDIES , AND DEUTSCHE TRADAX GMBH . IT APPEARS FROM THE GROUNDS OF THE ORDER FOR REFERENCE THAT THE ARBEITSGERICHT CONSIDERS THAT THE DEFENDANT UNDERTAKING PRACTISED SEX DISCRIMINATION IN THE RECRUITMENT PROCEDURE COMMENCED BY IT IN WHICH MRS HARZ WAS A CANDIDATE . 3 IN THE ARBEITSGERICHT ' S VIEW , UNDER GERMAN LAW , THE ONLY SANCTION FOR DISCRIMINATION IN A RECRUITMENT PROCEDURE IS COMPENSATION FOR ' ' VERTRAUENSSCHADEN ' ' , NAMELY THE LOSS INCURRED BY CANDIDATES WHO ARE VICTIMS OF DISCRIMINATION AS A RESULT OF THEIR BELIEF THAT THERE WOULD BE NO DISCRIMINATION IN THE ESTABLISHMENT OF THE EMPLOYMENT RELATIONSHIP . SUCH COMPENSATION IS PROVIDED FOR IN PARAGRAPH 611A ( 2 ) OF THE BURGERLICHES GESETZBUCH .

4 UNDER THAT PROVISION , IN THE EVENT OF DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT , THE EMPLOYER IS LIABLE FOR ' ' DAMAGES IN RESPECT OF THE LOSS INCURRED BY THE WORKER AS A RESULT OF HIS RELIANCE ON THE EXPECTATION THAT THE ESTABLISHMENT OF THE EMPLOYMENT RELATIONSHIP WOULD NOT BE PRECLUDED BY SUCH A BREACH ( OF THE PRINCIPLE OF EQUAL TREATMENT ) ' ' . THAT PROVISION PURPORTS TO IMPLEMENT COUNCIL DIRECTIVE NO 76/207 .

5 CONSEQUENTLY THE ARBEITSGERICHT FOUND THAT , UNDER GERMAN LAW , IT COULD ORDER THE PAYMENT ONLY OF MINIMAL COMPENSATION , OF DM 2.31 IN THE CASE IN POINT , IN RESPECT OF EXPENSES INCURRED BY MRS HARZ IN RELATION TO HER APPLICATION . IT CONSIDERED THAT SUCH COMPENSATION WAS NOT SUFFICIENT TO ENSURE COMPLIANCE WITH THE COMMUNITY DIRECTIVE , SINCE IT WOULD NOT SERVE TO ENSURE THAT EMPLOYERS CONDUCT THEMSELVES IN CONFORMITY WITH THE LAW .

6 IN ORDER TO DETERMINE THE RULES OF COMMUNITY LAW APPLICABLE IN THE EVENT OF DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT , THE ARBEITSGERICHT REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE :

1 . IN AN ESTABLISHED CASE OF DISCRIMINATION , DOES THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT CONTAINED IN ARTICLES 1 ( 2 ), 2 ( 1 ) AND 2 ( 3 ) OF COUNCIL DIRECTIVE NO 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 ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ) CONFER ON A FEMALE APPLICANT A RIGHT TO A CONTRACT OF EMPLOYMENT AGAINST AN EMPLOYER WHO HAS REFUSED TO ENGAGE HER ON ACCOUNT OF HER SEX?

2.IN THE CASE OF AN AFFIRMATIVE REPLY TO QUESTION 1 DOES THAT ANSWER APPLY ONLY

( A ) WHERE THE FEMALE APPLICANT DISCRIMINATED AGAINST IS THE BEST QUALIFIED OF ALL THE APPALICANTS , WHETHER MALE OR FEMALE , OR

( B)ALSO WHERE , ALTHOUGH THERE WAS DISCRIMINATION IN THE SELECTION PROCEDURE , IN THE RESULT A BETTER QUALIFIED MALE APPLICANT WAS APPOINTED?

3.IF QUESTIONS 1 , 2 ( A ) AND 2 ( B ) ARE ANSWERED IN THE NEGATIVE , DOES IT FOLLOW , AS A LEGAL CONSEQUENCE , FROM THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS LAID DOWN BY THE PROVISIONS OF DIRECTIVE NO 76/207/EEC THAT A FINANCIALLY APPRECIABLE SANCTION IS NECESSARY , FOR EXAMPLE A RIGHT IN FAVOUR OF THE FEMALE WORKER DISCRIMINATED AGAINST TO DAMAGES TO BE ASSESSED , ACCORDING TO THE POSITION IN THE PARTICULAR CASE , IN A SUM NOT EXCEEDING THE EARNINGS WHICH SHE COULD PROPERLY HAVE EXPECTED TO RECEIVE FOR THE PERIOD OF SIX MONTHS , THE PERIOD IN WHICH UNDER THE LAW OF THE FEDERAL REPUBLIC OF GERMANY WORKERS MAY NOT PLEAD SOCIALLY UNJUSTIFIED DISMISSAL , AND/OR THAT THE STATE MUST IMPOSE PENALTIES OR ADMINISTRATIVE FINES?

4.IF QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE , DOES THAT ANSWER APPLY ONLY

( A)WHERE THE FEMALE APPLICANT DISCRIMINATED AGAINST IS THE BEST QUALIFIED OF ALL THE CANDIDATES , WHETHER MALE OR FEMALE , OR

( B)ALSO WHERE , EVEN THOUGH THERE WAS DISCRIMINATION IN THE SELCTION PROCEDURE , IN THE RESULT A BETTER QUALIFIED MALE CANDIDATE WAS APPOINTED?

5.IF QUESTIONS 1 , 2 , 3 OR 4 ARE ANSWERED IN THE AFFIRMATIVE , ARE ARTICLES 1 , 2 AND 3 OF DIRECTIVE NO 76/207/EEC DIRECTLY APPLICABLE IN THE MEMBER STATES?

7 THOSE QUESTIONS ARE INTENDED PRIMARILY TO ESTABLISH WHETHER DIRECTIVE NO 76/207 REQUIRES MEMBER STATES TO LAY DOWN LEGAL CONSEQUENCES OR SPECIFIC SANCTIONS IN THE EVENT OF DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT ( QUESTIONS 1 TO 4 ) AND WHETHER INDIVIDUALS MAY , WHERE APPROPRIATE , RELY ON THE PROVISIONS OF THE DIRECTIVE BEFORE THE NATIONAL COURTS WHERE THE DIRECTIVE HAS NOT BEEN TRANSPOSED INTO THE NATIONAL LEGAL ORDER WITHIN THE PERIODS PRESCRIBED . ( QUESTION 5 ).

( A ) QUESTION 1

8 IN ITS FIRST QUESTION THE ARBEITSGERICHT ASKS ESSENTIALLY WHETHER DIRECTIVE NO 76/207 REQUIRES DISCRIMINATION ON GROUNDS OF SEX IN THE MATTER OF ACCES