Opinion of the Advocate-General
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1 Is national legislation under which women are given priority in recruitment and/or in obtaining promotion provided that they have the same qualifications as the male applicants and that women are under-represented - in so far as they do not constitute one half of the personnel - in the individual remuneration brackets in the relevant personnel group, compatible with the principle of equal treatment for men and women laid down by the relevant Community legislation? In other words, does a system of quotas in favour of women, even if it is dependent on the conditions which I have just described, embody sex discrimination contrary to Community law or does it constitute permitted positive action inasmuch as is designed to promote effective equal opportunities in the world of work?
That is, in essence, the purport of the questions referred to the Court for a preliminary ruling by the Bundesarbeitsgericht (Federal Labour Court) concerning, more particularly, the interpretation of Article 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 (1) (hereinafter `the directive').
2 The purpose of the directive, as set out in Article 1(1), is to `put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security'. Article 2(1) then states that `the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status'. However, Article 2(4), whose interpretation is sought, authorizes the Member States to adopt and/or maintain in force `measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1(1)'.
Express reference is made to Article 2(4) in the preamble to Council Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women, (2) which stresses the need for parallel action `to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures' on the ground that existing legal provisions on equal treatment are `inadequate for the elimination of all existing inequalities'. (3) The recommendation therefore calls on the Member States to `adopt a positive action policy designed to eliminate existing inequalities affecting women in working life and to promote a better balance between the sexes in employment' (point 1) and, in particular, to take steps to ensure that positive action includes as far as possible actions having a bearing on `encouraging women candidates and the recruitment and promotion of women in sectors and professions and at levels where they are under-represented, particularly as regards positions of responsibility' (sixth indent of point 4). In sum, in the face of existing inequalities, Member States are recommended to encourage women candidates and the recruitment and promotion of women.
Lastly, it should be observed that a provision with substantially similar scope to Article 2(4) is contained in Article 6(3) of the Agreement on social policy concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britain and Northern Ireland annexed to the Maastricht Treaty with Protocol No 14. According to that provision, the principle of equal pay affirmed by the Agreement `shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers'.
3 To turn to the relevant national legislation, this is the Gesetz zur Gleichstellung von Frau und Mann im oeffentlichen Dienst des Landes Bremen (4) (Law on Equal Treatment of Men and Women in the Public Service of the Land of Bremen, hereinafter referred to as `the LGG') of 20 November 1990, Paragraph 4 of which provides as follows:
`Appointment, assignment to an official post and promotion
(1) In the case of an appointment (including establishment as a civil servant or judge) which is not made for training purposes, women who have the same qualifications as men applying for the same post are to be given priority in sectors where they are under-represented.
(2) In the case of an assignment to a position in a higher pay, remuneration and salary bracket, women who have the same qualifications as men applying for the same post are to be given priority if they are under-represented. This also applies in the case of assignment to a different official post and promotion.
(3) ...
(4) Qualifications are to be evaluated exclusively in accordance with the requirements of the occupation, post to be filled or career bracket. Specific experience and capabilities, such as those acquired as a result of family work, social commitment or unpaid activity, are part of the qualifications within the meaning of subparagraphs (1) and (2) if they are of use in performing the duties of the position in question.
(5) There is under-representation if women do not make up at least half of the staff in the individual pay, remuneration and salary brackets in the relevant personnel group within a department. This also applies to the function levels provided for in the organization chart.'
4 I shall now turn to the facts which gave rise to these proceedings. In July 1990 the city of Bremen published a vacancy notice for the post of section manager of Section 21 of the city's Parks Department, a post in BAT (5) remuneration bracket II a/I b. In particular, the candidatures of Mr Kalanke and Mrs Glissmann, technical staff in BAT remuneration bracket III since 1973 and 1975 respectively. Mr Kalanke, the holder of a diploma in horticulture and landscape gardening, was the section manager's deputy at the material time. Mrs Glissmann, who completed her studies as a horticultural scientist in 1967, had been the holder of a diploma in landscape gardening since 1983, when she passed the relevant State examination.
The departmental management of the Parks Department suggested that Mr Kalanke should be promoted, but this was opposed by the Personnel Committee. The subsequent arbitration, which resulted in a recommendation in favour of Mr Kalanke, was regarded as a failure by the Personnel Committee, which asked for the matter to be referred to the Conciliation Board. The Board ruled on 20 February 1991 that `both candidates possess the same qualifications for this post and the female candidate should therefore be given priority, inter alia on the basis of the Landgleichstellungsgesetz (Land Law on Equal Treatment)'.
5 Mr Kalanke brought an action against that decision in the Arbeitsgericht (Labour Court) Bremen in which he argued that the Conciliation Board had failed to take account of the fact that he was better qualified and that, in any event, Paragraph 4 of the LGG conflicted with Article 3(2) and (3) and Article 33(2) of the Grundgesetz (Basic Law), Article 2(2) of the Constitution of the Land and Paragraph 611 of the Buergerliches Gesetzbuch (Civil Code). The Arbeitsgericht dismissed the case; an appeal brought in the Landesarbeitsgericht (Regional Labour Court) was also unsuccessful.
Mr Kalanke therefore brought an appeal on points of law (`Revision') in the Bundesarbeitsgericht. That court pointed out first that the decision in the case depended essentially on the applicability of Paragraph 4 of the LGG in so far as the decision taken by the Conciliation Board would be unlawful only if the Board had wrongly applied the relevant law: if that were to be the case, Mrs Glissmann would have been given an unjustified advantage inasmuch as it was based solely on sex. Given that, as the appeal court had found, the Conciliation Board's decision as to the candidates' having equal qualifications did not contravene any legal provision and that women were in fact under-represented in the sector in question, (6) the Bundesarbeitsgericht reached the conclusion that, under Paragraph 4 of the LGG, the Conciliation Board had rightly refused to agree to the appointment of Mr Kalanke. Lastly, it held that the quota rules set out in Paragraph 4 of the LGG were consistent with the national provisions which Mr Kalanke had argued had been infringed.
6 The Bundesarbeitsgericht, however, also considered it appropriate to assess Paragraph 4 of the LGG in the light of the principle of equal treatment as enshrined in Community provisions, in particular Article 2(1) and (4) of the directive. It therefore requested the Court to give a preliminary ruling on (a) whether Article 2(4) of the directive should be interpreted as covering national provisions such as the ones described above and (b), if not, whether, having regard to the principle of proportionality, Article 2(1) of the directive means that such national provisions should be disapplied.
In fact, the two questions are closely linked and, as will become clearer subsequently, they do not call for two separate answers. Since Article 2(1) lays down the principle of equal treatment of men and women in general, peremptory terms and Article 2(4) constitutes a derogation to that principle, it follows that the interpretation of Article 2(4) cannot but take account of the principle set out in Article 2(1); consideration of the question of proportionality will be necessary in any event.
7 Having said that, it is a question first of establishing whether the quota system set up by Paragraph 4 of the LGG falls within the scope of Article 2(4) of the directive.
This is the first occasion on which the Court has been asked to rule on the interpretation of Article 2(4) of the directive in relation to a quota system in favour of women and, more generally, to positive action. The question is therefore certainly not a trivial one, quite the contrary. Although the derogation set out in Article 2(4) is in issue here, what is under discussion above all is the significance of the principle of equal treatment, the contrast between formal equality, in the sense of equal treatment as between individuals belonging to different groups, and substantive equality, in the sense of equal treatment as between groups. In the final analysis, must each individual's right not to be discriminated against on grounds of sex - which the Court itself has held is a fundamental right the observance of which it ensures (7) - yield to the rights of the disadvantaged group, in this case, women, in order to compensate for the discrimination suffered by that group in the past?
8 Before turning to the merits of the question, I consider that it is worth making a few observations on the idea of positive action.
Positive, or affirmative, action stems from the requirement to eliminate the existing obstacles affecting particular categories or groups of persons who are disadvantaged at work as a result. Positive action is, in particular, a means of achieving equal opportunities for minority or, in any event, disadvantaged groups, which generally takes place through the granting of preferential treatment to the groups in question. (8) In taking the group as such into consideration, positive action moreover marks a transition from the individual vision to the collective vision of equality. (9)
9 Positive action may assume several forms. A first model aims to remove, not discrimination in the legal sense, but a condition of disadvantage which characterizes women's presence on the employment market. In this case, the objective is to eliminate the causes of the fewer employment and career opportunities which (still) beset female employment by taking action with respect, among other things, to vocational guidance and training. A second model of positive action may be discerned in actions designed to foster balance between family and career responsibilities and a better distribution of those responsibilities between the two sexes. In that case, priority is given to measures relating to the arrangement of working hours, the development of child-care structures, the return to work of women who have devoted themselves to bringing up their children, and social security and fiscal offsetting policies which take account of family duties. In both those cases, positive action, albeit entailing the adoption of specific measures for women alone, designed in particular to foster the employment of women, has the aim of achieving equal opportunities and, in the final analysis, the attainment of substantive equality. However, the results will certainly not be immediate in terms of a quantitative increase in female employment.
A third model of positive action is that of action as a remedy for the persistent effects of historical discrimination of legal significance; in this case, the action takes on a compensatory nature, with the result that preferential treatment in favour of disadvantaged categories is legitimized, in particular through systems of quotas and goals. (10) Ultimately that model took hold or, at any event, came to be regarded as a panacea for eliminating existing inequalities in the reality of social life: in that way, an effective situation of equal opportunities comes to equated with equal results. The measure consisting of the imposition of quotas has come up for much discussion, in particular from the point of view of its constitutionality: whilst it is true that it is an instrument which is certainly suitable for bringing about a quantitative increase in female employment, it is also true that it is the one which most affects the principle of equality as between individuals, a principle which is safeguarded constitutionally in most of the Member States legal systems.
10 The strictness of quotas may vary. In the instant case, as has already been mentioned, the quotas concerned are not strict (that is to say, quotas laying down a target percentage of posts which must be attained regardless of the merits of the persons affected by the procedure) and neither do they fix mandatory minimum requirements. Rather, the quotas provide for preferential treatment for women only if they have equivalent qualifications to the male candidates.
This having been said, it only too obvious that even in this case there is discrimination on grounds of sex.
11 It is true that any specific action in favour of a minority or, in any event, weak category conflicts with the principle of equality in the formal sense. It therefore is a question of establishing whether it is nevertheless conceivable that, in clearly defined circumstances, provisions may be adopted that conflict with that principle yet are nevertheless permitted by law in order to achieve an objective corresponding to a social choice, which, in turn, is calculated to cancel out the inequalities caused by past prejudice.
More specifically for the purposes of the instant case, matters turn on whether Article 2(4) of the directive constitutes a proper legal basis for that purpose, that is to say, whether actions of the type in question are covered by the derogation laid down in that provision.
12 Article 2(4), as I have already mentioned, authorizes Member States to adopt and/or maintain in force `measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1(1)'. (11)
It is evident in the first place from the wording of the provision in question that, alongside negative measures, such as the prohibition of direct and covert (hence indirect) discrimination, the directive provides - still with a view to guaranteeing effective equal treatment - for the adoption of measures requiring some action in order to implement them. This means that Article 2(4) of the directive does indeed authorize the Member States to implement positive actions, but, as Article 2(4) itself specifies, only to the extent to which those actions are designed to promote and achieve equal opportunities for men and women, in particular by removing the existing inequalities which affect women's opportunities in the field of employment.
13 Next, in order to establish what positive actions are authorized by Article 2(4), it is necessary to define the concept of equal opportunities, more specifically in order to clarify whether that expression means equality with respect to starting points or with respect to points of arrival. To my mind, giving equal opportunities can only mean putting people in a position to attain equal results and hence restoring conditions of equality as between members of the two sexes as regards starting points. In order to achieve such a result, it is obviously necessary to removing the existing barriers standing in the way of the attainment of equal opportunities as between men and women in the field of employment: it will therefore be necessary first to identify the barriers and then remove them, using the most suitable instruments for the purpose.
It seems to me to be all too obvious that the national legislation at issue in this case is not designed to guarantee equality as regards starting points. The very fact that two candidates of different sex have equivalent qualifications implies in fact by definition that the two candidates have had and continue to have equal opportunities: they are therefore on an equal footing at the starting block. By giving priority to women, the national legislation at issue therefore aims to achieve equality as regards the result or, better, fair job distribution simply in numerical terms between men and women. This does not seem to me to fall within either the scope or the rationale of Article 2(4) of the directive.
14 That having been said, it should not be overlooked that the ultimate objective of equal opportunities is to promote the employment of women and attain substantive equality, and that equality as regards starting points alone will not in itself guarantee equal results, which, apart from depending on the merits of the persons concerned and the individual efforts which they make, (12) may also be influenced by a particular social structure which penalizes women, in particular because of their dual role, on account of past discrimination, which causes their presence in some sectors, particularly at management level, to be marginal.
Accordingly, it remains to be considered whether Article 2(4) of the directive can be interpreted in such a way as to encompass also actions entailing the predetermination of `results' through the imposition of quotas, be they strict or, as in this case, dependent on the fulfilment of specific conditions.
15 On the only occasion on which the Court has ruled on the interpretation of Article 2(4), it held that the exception provided for in that 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'. (13) As a result, the Court held that the derogating provision contained in Article 2(4) did not cover special rights for women, such as shortening of working hours, advancement of the retirement age, obtaining leave when a child is ill, granting additional days of annual leave in respect of each child, payment of an allowance to mothers who have to meet the cost of nurseries and the like, and so on.
The Court therefore considered that Article 2(4) authorizes treatment which is only discriminatory in appearance but designed in practice to remove existing obstacles standing in the way of equal opportunities for women. (14) This confirms that the objective is substantive equality; but, in my view, it also confirms that that objective may be pursued only through measures designed to achieve an actual situation of equal opportunities, with the result that the only inequalities authorized are those necessary to eliminate the obstacles or inequalities which prevent women from pursuing the same results as men on equal terms. Indeed, it is from that point of view that the measures specifically intended for women are only discriminatory in appearance; and it is only in this way that real and effective substantive equality will be achieved.
16 The principle of substantive equality necessitates taking account of the existing inequalities which arise because a person belongs to a particular class of persons or to a particular social group; it enables and requires the unequal, detrimental effects which those inequalities have on the members of the group in question to be eliminated or, in any event, neutralized by means of specific measures.
Unlike the principle of formal equality, which precludes basing unequal treatment of individuals on certain differentiating factors, such as sex, the principle of substantive equality refers to a positive concept by basing itself precisely on the relevance of those different factors themselves in order to legitimize an unequal right, which is to be used in order to achieve equality as between persons who are regarded not as neutral but having regard to their differences. In the final analysis, the principal of substantive equality complements the principle of formal equality and authorizes only such deviations from that principle as are justified by end which they seek to achieve, that of securing actual equality. The ultimate objective is therefore the same: securing equality as between persons.
17 Moreover, this is the very logic underlying the derogations from the principle of equal treatment. Rather than being genuine derogations from the prohibition of discrimination on grounds of sex, those provisions aim at ensuring that the principle of equal treatment is effective by authorizing such inequalities as are necessary in order to achieve it. In the final analysis, what is involved is only discrimination in appearance in so far as it authorizes or requires different treatment in favour of women and in order to protect them with a view to attaining substantive and not formal equality, which would in contrast be the negation of equality.
It is precisely in this light that the Court's case-law on the derogation set out in Article 2(3) (15) should be read, where it held, in particular, that `the directive leaves Member States with a discretion as to the social measures which must be adopted in order to guarantee, within the framework laid down by the directive, the protection of women in connection with pregnancy and maternity and to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment'. (16)
Essentially, the derogation in question enables Member States to adopt measures designed to eliminate the unfavourable consequences for women of their biological condition. Consequently, the differentiated treatment reserved for women in particular situations, such as pregnancy, is only discriminatory in appearance: in actual fact, it aims to neutralize the effects of specific male/female differences and thereby to secure substantive equality. Accordingly, it is the difference which legitimizes the deviations from formal equality, the specific measures conferring unequal entitlements: the law has regard to the existing difference in order to promote substantive equality as between persons.
18 In the case of the derogation set out in Article 2(4), the differentiated treatment is not linked with any specific condition of women but relates to all women as such. The rationale for the preferential treatment given to women lies in the general situation of disadvantage caused by past discrimination and the existing difficulties connected with playing a dual role.
It is only too obvious that such difficulties will certainly not be resolved by means of quota systems and the like, which are even irrelevant to that end. Instead, what is required is measures relating to the organization of work, in particular working hours, and structures for small children and other measures which will enable family and work commitments to be reconciled with each other. Moreover, as I have already observed, the Court has held, to my mind, however, with excessive severity, that even national measures of that type do not fall within the derogation set out in Article 2(4) of the directive and are therefore incompatible with the principle of equal treatment. (17)
19 Next, as regards past discrimination against women, it is certainly undeniable that its effects are still felt today. The existence of a different (historical) social and cultural condition (for instance, the disparity in education and vocational training) continues to marginalize women on the employment markets. There is no doubt in fact that that condition constitutes existing inequality and a disadvantage which should be eliminated.
With respect to a situation of that type, however, Article 2(4) of the directive does enable intervention by means of positive action, but, as I have already said, only so as to raise the starting threshold of the disadvantaged category in order to secure an effective situation of equal opportunity. Positive action must therefore be directed at removing the obstacles preventing women from having equal opportunities by tackling, for example, educational guidance and vocational training. In contrast, positive action may not be directed towards guaranteeing women equal results from occupying a job, that is to say, at points of arrival, by way of compensation for historical discrimination. In sum, positive action may not be regarded, even less employed, as a means of remedying, through discriminatory measures, a situation of impaired inequality in the past.
20 No different conclusion may be reached on the basis of a reading of the provision in question in the light of the aforementioned recommendation on the promotion of positive action. Although a recommendation is not a legally binding instrument, it may, as the Court has held, certainly be used as an aid for interpreting other Community provisions which it is intended to complement. (18)
However, the recommendation in question, whose preamble refers expressly to Article 2(4) of the directive, contains no definition of positive action, but only a list of possible aims for such action. Yet it is clear from the listed aims that it equates positive action with measures designed to abolish existing barriers and/or inequalities affecting women, together, more generally, with measures calculated to eliminate the situation of disadvantage in which women find themselves vis-à-vis the world of work. The actual promotion of women's presence and involvement in all sectors and professions and at all levels of responsibility is defined in terms of encouragement, certainly not of mechanical preference. Positive action is therefore based on two premises: the presence of existing obstacles which stand in the way of the achievement of equal opportunities as between men and women and the (implicitly) temporary nature of positive action, whose legitimacy therefore depends on the continuance of the existing obstacles which are to be removed.
21 In the final analysis, the recommendation, too, classes positive action as a instrument of a policy of equal opportunities; in contrast, there is no mention of giving women the advantage in order to foster female employment, with the result that it cannot be interpreted as authorizing sex discrimination which is not designed to remove the obstacles adversely affecting women's opportunities and hence, ultimately, the achievement of substantive equality.
This conclusion is not altered by the fact that the ideas of advantage and compensation for disadvantages are embodied in Article 6(3) of the abovementioned Agreement on social policy, which prescribes equal pay for men and women. In fact, to my mind, specific advantages in the matter of pay, such as to compensate for career disadvantages and/or facilitate the exercise of an occupation, may consist at most in allowances for mothers who have to pay nursery charges and relate to other similar contingencies, and certainly not consist of discriminatory measures based on sex which are not designed to remove any obstacle. Once again, therefore, what is being contemplated is the elimination of the unfavourable consequences for women of their specific condition; the objective is still that of attaining an actual situation of equal opportunities for men and women.
22 The foregoing observations definitely confirm that Article 2(4) of the directive only enables existing inequalities affecting women to be eliminated, but certainly not through pure and simple reverse discrimination, that is to say, through measures not in fact designed to remove the obstacles preventing women from pursuing the same results on equal terms, but to confer the results on them directly or, in any event, to grant them priority in attaining those results simply because they are women.
In the final analysis, measures based on sex and not intended to eliminate an obstacle - to remove a situation of disadvantage - are, in their discriminatory aspect, as unlawful today for the purposes of promotion as they were in the past.
23 This conclusion cannot be regarded as conflicting with the discretion which the directive leaves to the Member States as regards the social provisions which they adopt with a view to guaranteeing equal opportunities for women, since, as the Court has explained with regard to the derogation set out in Article 2(3), that discretion must be exercised within the confines laid down by the directive itself. (19)
Moreover, with regard to the derogation contained in Article 2(2), the Court has specifically held that `it should first be observed that that provision, being a derogation from an individual right laid down in the directive, must be interpreted strictly'. (20) It then went on to hold that `in determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed'. (21) Consequently, the national measure in question must not exceed that which is appropriate and necessary to achieve the intended aim.
24 The national measure at issue requires priority to be given to women in recruitment and/or promotion, provided only that they have the same qualifications as male candidates and are under-represented in the wage bracket in the relevant personnel group, that is to say, where they do not amount to half the staff. That measure, I would recall, applies solely to employment in the public service, consequently in the sector in which equal treatment of the two sexes is by definition - or, at least, ought to be - effectively guaranteed. By contrast, Article 2(4) of the directive, as I have already mentioned, requires there to be obstacles to be removed and the measure taken to be temporary, inasmuch as it is lawful only so long as conditions of disadvantage exist and persist.
The national legislation at issue is temporary - albeit long-term - in so far as it will cease to have any raison d'être once women account for one half of the persons in each remuneration bracket in each personnel group. It is not clear, however, whether it will be repealed on the day when the fateful figure of 50% is reached or whether it will continue to be triggered whenever the number of women falls below the prescribed level: in any case, it is reasonable to suppose that very long time-scales will be involved. As for the obstacles which it sets out to remove, they are manifestly identified with under-representation. If it is assumed that under-representation of women in a given sector reflects existing inequality, such a measure tends merely to rebalance the numbers of men and women, but it will not remove the obstacles which brought about that situation. In other words, the obstacles are not removed but constitute the cause which purportedly renders the differentiated - on grounds of sex - legislative treatment lawful.
In this connection, however, it may be observed that under-representation of women in a given segment of the employment market, albeit indicative of inequality, is not necessarily attributable to a consummate determination to marginalize women. Hence the element of arbitrariness inherent in any preferential treatment which is mechanically confined to the under-represented group and based solely on that ground.
25 It is clear from the foregoing observations that a measure of the kind at issue is definitely disproportionate in relation to the aim pursued or, in any event, pursuable under Article 2(4) of the directive, since that aim remains that of achieving equal opportunities for men and women and not of guaranteeing women the result where conditions are equal.
In the final analysis, whilst the national measure in question manifestly and unquestionably conflicts with the principle of equal treatment as defined in Article 2(1), it is not caught by the exception contained in Article 2(4) of the directive, since, far from fostering equal opportunities for women, it aims to confer the results on them directly.
26 I am fully aware that the considerations set out above and the conclusion which I have reached are not consonant with the positions adopted by numerous authorities which have, directly or indirectly, considered this issue. I refer, among other things, to a number of stands taken by the European Parliament even recently and also to some of the literature, not only in the legal field. I am also conscious that a position different from the one which I regard as the correct one would be supported, not only by the legislation which is the subject of the main proceedings, but also by a number of measures adopted in Member States of the Community and in non-member countries in order to guarantee, for their part too, not equal opportunities but an equal share of jobs.
27 Nevertheless, I consider that I can and must resist the temptation to follow the trend, convinced as I am - and firmly so - that I would have to follow it, and propose that the Court should follow it, only if I agreed that that were the right direction to take.
This is not the case here in so far as I believe that the fundamental, inviolable objective of equality - the real equality not that equality which is only called for - may only be pursued in compliance with the law, in this case with a fundamental principle.
28 Moreover, in saying this I am not referring only to the limits of the law. I am convinced that women do not merit the attainment of numerical - and hence only formal - equality - moreover at the cost of an incontestable violation of a fundamental value of every civil society: equal rights, equal treatment for all. Formal, numerical equality is an objective which may salve some consciences, but it will remain illusory and devoid of all substance unless it is goes together with measures which are genuinely destined to achieve equality, which was not the case in this instance and, in any event, it was not claimed that any such measures were significant. In the final analysis, that which is necessary above all is a substantial change in the economic, social and cultural model which is at the root of the inequalities, a change which will certainly not be brought about by numbers and dialectical battles which are now on the defensive.
29 In the light of the foregoing considerations, I therefore propose that the Court should reply to the questions referred by the Bundesarbeitsgericht in the following terms:
`Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 precludes the application of national legislation under which women are given priority in recruitment and/or in promotion provided only that they have the same qualifications as male applicants, simply because they are under-represented in a remuneration bracket in the relevant personnel group, that is to say, where they do not account for one half of the personnel.'
(1) - OJ 1976 L 39, p. 40.
(2) - OJ 1984 L 331, p. 34.
(3) - See the third recital in the preamble.
(4) - Bremisches Gesetzblatt, p. 433.
(5) - BAT stands for Bundesangestelltentarifvertrag, that is to say, the collective pay agreement for clerical staff in the public sector.
(6) - It appears from the order for reference that the administration of the city of Bremen employs on aggregate 49% men and 51% women. However, if the distribution of the sexes is broken down according to career brackets, the picture is different, with the proportion of women in the various classes being as follows: sub-clerical class 75%, clerical class 52%, executive class 50%, administrative class 30%.
(7) - Judgment in Case 149/77 Defrenne II [1978] ECR 1365, paragraph 27. See also the recent judgment of 28 January 1992 in Case T-45/90 Speybrouck [1992] ECR II-33, in which the Court of First Instance reaffirmed that `the principle of equal treatment for men and women in matters of employment and, at the same time, the principle of the prohibition of any direct or indirect discrimination on grounds of sex form part of the fundamental rights the observance of which the Court of Justice and the Court of First Instance must ensure pursuant to Article 164 of the EEC Treaty' (paragraph 47).
(8) - `Affirmative action' received its name in the United States from the Democratic administrations of the 1960s, which utilized a typical judicial measure (until then affirmative action had been imposed by the courts on employers responsible for discriminatory conduct) and made it into an administrative instrument. It arises in particular with the obligation of undertakings with government contracts to carry out action plans for the benefit of the black population, failing which they lose the contracts which they have obtained. On the basis of those conceptual precepts, the transition was made to affirmative action in favour of other ethic minorities or, in any event, weak strata of society, such as women. In the name of fairness, plans for preferential treatment were therefore planned and implemented, especially in the fields of access to higher eduction and recruitment.
(9) - Indeed, it is the use of the concept of the group which does not find unequivocal favour. In this regard, there is in fact a tendency to assert that preferential treatment in favour of certain groups will end up by increasing the feeling of inferiority vis-à-vis the majority, thus triggering a definitive marginalization of those in whose favour it is done within rigid social cages. Another accusation levelled against preferential treatment in favour of disadvantaged groups is that it lowers the rate of efficiency of the system by jeopardizing the social commitment of the best.
(10) - In fact, quotas and goals are the two systems which have been used in the United States since the late 1960s to pursue the objective of eliminating existing inequalities. The quotas are used to reserve a number of posts for the most disadvantaged categories with a view to rebalancing their representation; the system of goals, on the other hand, is used to give higher points to members of the category in question, but without compromising every candidate's entitlement to compete for all available posts. The case-law of the Supreme Court has consistently been particularly hostile to the criterion of strict quotas (see Regents of the University of California v Bakke 483 U.S. 265 1978) and, while accepting the criterion of goals, it has specified forms and conditions for them. In short, the plan of affirmative action must first be transitional in nature: it serves in fact to correct situations of imbalance by restoring equality at the starting point and does not set out to reproduce them artificially even when the effects of past discrimination have been wiped out (see United Steelworkers of America, AFL-CIO-CLC v Webster 443 U.S. 193 1979). Secondly, the plan must be justified by a number of objectively verifiable factual preconditions: for example, a manifest discrepancy between the racial breakdown of the civil community and that of the world of the university; or between the number of women occupying higher posts in relation to the female population as a whole. In Europe, positive action has begun to take hold or, at any event, to become the object of attention at the very time when affirmative action seems to be a state of crisis in its country of origin. Indeed, in the United States, recourse is now had to the criterion of strict scrutiny, whereby rules affecting a fundamental right can be justified only if they satisfy a compelling government interest (see, for example, City of Richmond v Croson 488 U.S. 469 1989).
(11) - My emphasis.
(12) - It further goes without saying that, in so far as the method employed to assess candidates' merits indirectly discriminated against women, the terms of the problem would change completely: what would then be involved is actual - albeit indirect - discrimination, against which action could be taken pursuant to specific provisions of the directive.
(13) - Judgment in Case 312/86 Commission v France [1988] ECR 6315, paragraph 15.
(14) - Existing inequalities affecting women may ensue, for instance, also from the conditions, organization and distribution of work, which have differing effects on the sexes vis-à-vis employees, resulting in women being adversely affected in their occupational training and advancement and careers. From this perspective, in order to be effective, positive action should instead bear upon educational and vocational guidance so as to promote the employment of women in sectors where they are under-represented. At the same time, it should be observed that some of the French measures referred to above (in particular, flexible working hours and allowances for nurseries) are definitely discriminatory only in appearance, in so far as they are specifically designed to eliminate the existing obstacles standing in the way of the achievement of equal opportunities.
(15) - That provision authorizes the Member States to adopt and/or maintain in force `provisions concerning the protection of women, particularly as regards pregnancy and maternity'.
(16) - Judgment in Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 22. The same wording was used in the earlier judgment in Case 184/83 Hofmann [1984] ECR 3047, paragraph 27.
(17) - Judgment in Commission v France, cited in footnote 13, paragraphs 15 and 16.
(18) - See the judgment in Case C-322/88 Grimaldi [1989] ECR I-4407, paragraphs 18 and 19.
(19) - See most recently the judgment in Habermann-Beltermann, cited in footnote 16, paragraph 22.
(20) - Judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 36. Similar considerations are also set out in paragraph 44 of that judgment with regard to the derogation set out in Article 2(3).
(21) - Judgment in Johnston, cited in the preceding footnote, paragraph 38.
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