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E.C.H.R.
Abdulaziz, Cabales and Balkandali v UK, 28 May 1985
Different treatment based on sex as regards the entry and residence in the country for the non-national spouse.
"The Court accepts that the 1980 Rules had the aim of protecting the domestic labour market. (.)Whilst the aforesaid aim was without doubt legitimate, this does not in itself establish the legitimacy of the difference made in the 1980 Rules as to the possibility for male and female immigrants settled in the United Kingdom to obtain permission for, on the one hand, their non-national wives or fiancées and, on the other hand, their non-national husbands or fiancés to enter or remain in the country. (.)As to the present matter, it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention." (Par. 78)
"According to the Court's established case-law, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter. (.)" (Par. 71)
"[The Court] would point out that Article 14 is concerned with the avoidance of discrimination in the enjoyment of the Convention rights in so far as the requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention." (Par. 82)
Petrovic v Austria, 27 March 1998
Different treatment based on sex for the payment of parental leave allowances.
"Maternity leave and the associated allowances are primarily intended to enable the mother to recover from the fatigue of childbirth and to breastfeed her baby if she so wishes. Parental leave and the parental leave allowance, on the other hand, relate to the period thereafter and are intended to enable the beneficiary to stay at home to look after the infant personally. While aware of the differences which may exist between mother and father in their relationship with the child, the Court starts from the premise that so far as taking care of the child during this period is concerned, both parents are "similarly placed".
It is true that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and very weighty reasons would be needed for such a difference in treatment to be regarded as compatible with the Convention. (.)
However, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (.)
It is clear that at the material time, that is at the end of the 1980s, there was no common standard in this field, as the majority of the Contracting States did not provide for parental leave allowances to be paid to fathers." (Par. 36 to 39)
C.J.E.C.
General interpretation of Article 141 EC (principle of equal pay pour the same work or work of the same value) and of Council Directive 75/117/EEC, of 10 February 1975, on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.
Defrenne v Sabena, (Defrenne II) 8 April 1976, Case 43/75.
"The principle that men and women should receive equal pay, which is laid down by Article 119 [now Article 141 EC] , is one of the foundations of the Community. It may be relied on before the national courts. These courts have a duty to ensure the protection of the rights which that provision vests in individuals, in particular in the case of those forms of discrimination which have their origin directly in legislative provisions or collective labour agreements, as well as where men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public.
Important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question of pay as regards the past. The direct effect of Article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim.
Even in the areas in which Article 119 has no direct effect, that provision cannot be interpreted as reserving to the national legislature exclusive power to implement the principle of equal pay since, to the extent to which such implementation is necessary, it may be achieved by a combination of Community and national provisions."
Defrenne v Sabena, (Defrenne III) 15 June 1978, Case 149/77.
"The field of application of Article 119 [now Article 141 EC] must be determined within the context of the system of the social provisions of the Treaty, which are set out in the chapter formed by Article 117 et seq. [now Articles 136 and ff.].
The general features of the conditions of employment and working conditions are considered in Articles 117 AND 118 from the point of view of the harmonization of the social systems of the Member States and of the approximation of their laws in that field.
There is no doubt that the elimination of discrimination based on the sex of workers forms part of the programme for social and legislative policy. (.)
In contrast to the provisions of Articles 117 and 118, which are essentially in the nature of a programme, Article 119, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors.
In these circumstances it is impossible to extend the scope of that article to elements of the employment relationship other than those expressly referred to.
In particular, the fact that the fixing of certain conditions of employment - such as a special age-limit - may have pecuniary consequences is not sufficient to bring such conditions within the field of application of Article 119, which is based on the close connection which exists between the nature of the services provided and the amount of remuneration."
Worringham and Humphreys v Lloyds Bank, 11 March 1981, Case 69/80.
"The Court admitted that a temporal restriction on the direct effect of Article 119 [now Article 141 EC] of the Treaty might be taken into account exceptionally (.) having regard, first, to the fact that the parties concerned, in the light of the conduct of several Member States and the views adopted by the Commission and repeatedly brought to the notice of the circles concerned, had been led to continue, over a long period, with practices which were contrary to Article 119 and having regard, secondly, to the fact that important questions of legal certainty affecting not only the interests of the parties to the main action but also a whole series of interests, both public and private, made it undesirable in principle to reopen the question of pay as regards the past.
In this case neither of these conditions has been fulfilled, either in respect of the information available at present to the circles concerned as to the scope of Article 119 of the Treaty, in the light in particular of the decisions of the Court in the meantime on this subject, or in respect of the number of the cases which would be affected in this instance by the direct effect of that provision."
Garland v British Rail, 9 February 1982, Case 12/81.
"Where a national court is able, using the criteria of equal work and equal pay, without the operation of Community or national measures, to establish that the grant by an employer of special travel facilities solely to retired male employees represents discrimination based on difference of sex, the provisions of Article 119 of the Treaty [now Article 141EC] apply directly to such a situation."
Judgment of 20 March 1984, Razzouk and Beydoun v Commission, Joined cases 75 and 117/82.
" (.)The Court recognized the need to ensure equal treatment of men and women employed by the Community itself within the framework of the staff regulations. Consequently, in relations between the Community institutions, on the one hand, and their employees and the dependants of employees, on the other, the requirements imposed by the principle of equal treatment are in no way limited to those resulting from Article 119 of the EEC Treaty [now Article 141 EC] or from the Community directives adopted in this field."
Murphy and others v An Bord Telecom Eireann, 4 February 1988, Case 157/86.
"Article 119 of the EEC Treaty [now Article 141 EC], which is directly applicable in the sense that the workers concerned may rely on it in legal proceedings and in the sense that national courts or tribunals must take it into account as a constituent part of Community law, must be interpreted as covering in addition to the case of unequal pay for equal work or work of equal value, the case where a worker who relies on that provision to obtain equal pay within the meaning thereof is engaged in work of higher value than that of the person with whom a comparison is to be made."
Stadt Lengerich and others v Helmig and others, 15 December 1994, Case 399/92.
"The principle of equal pay excludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination."
Dietz, 24 October 1996, Case 435/93.
"The right to join an occupational pension scheme falls within the scope of Article 119 of the Treaty [now Article 141 CE] and is therefore covered by the prohibition of discrimination laid down therein.
Although the administrators of a pension scheme are not involved in the employment relationship, they are called upon to pay out benefits which constitute pay within the meaning of Article 119 of the Treaty and therefore must comply with that provision, like the employer, by doing all within their power to ensure that the principle of equal treatment is observed in this respect, and members of the scheme must be able to rely upon it as against them.
The effectiveness of Article 119 would be considerably diminished and the legal protection required to achieve real equality would be impaired if an employee could rely on that provision only as against the employer and not against the administrators of the scheme who are expressly charged with performing the employer' s obligations.
The limitation of the effects in time of the Barber judgment (Case 262/88) does not apply to the right to join an occupational pension scheme or to the right to payment of a retirement pension where the worker was excluded from membership of the scheme in breach of Article 119 of the Treaty.
The limitation of the effects in time of that judgment concern only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions.
That does not cover discrimination in relation to membership of occupational pension schemes, held to be unlawful under Article 119 of the Treaty in the Bilka judgment (Case 170/84) (.) In the absence of such a limitation, the direct effect of Article 119 can be relied upon in order to claim retroactively equal treatment in relation to the right to join an occupational pension scheme and the right to payment of a pension under such a scheme, and this may be done as from 8 April 1976, the date of the judgment in Case 43/75 Defrenne in which the Court held for the first time that Article 119 has direct effect.
However, the fact that a worker can claim retroactive membership of an occupational pension scheme does not enable him to avoid paying contributions for the period of membership concerned."
Lisa Jacqueline Grant v South-West Trains Ltd, 17 February 1998, Case 249/96.
"The refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship, where such concessions are allowed to a worker's spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the Treaty [now Article 141 CE] or Directive 75/117. (.)
First, the condition for the grant of those concessions cannot be regarded as constituting discrimination directly based on sex, since it applies in the same way to female and male workers, as the concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex. Second, in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex, and an employer is not therefore required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex. It is for the legislature alone to adopt, if appropriate, measures which may affect that position."
Høj Pedersen, 19 November 1998, Case 66/96.
"It is contrary to Article 119 of the Treaty and Directive 75/117 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women for national legislation to provide that a pregnant woman who, before the beginning of her maternity leave, is unfit for work by reason of a pathological condition connected with her pregnancy, as attested by a medical certificate, is not entitled to receive full pay from her employer but benefits paid by a local authority, when in the event of incapacity for work on grounds of illness, as attested by a medical certificate, a worker is in principle entitled to receive full pay from his or her employer.
The fact that a woman in such a situation is deprived of her full pay must be regarded as treatment based essentially on the pregnancy and thus as discriminatory."
Barber v Guardian Royal Exchange Assurance Group, 17 May 1999, Case 262/88.
"Article 119 of the Treaty [now Article 141 EC] applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision . The national court before which that provision is relied upon must safeguard the rights which it confers on individuals, in particular where a private occupational pension scheme which operates in part as a substitute for the statutory scheme refuses to pay to a man on redundancy an immediate pension such as would be granted in a similar case to a woman .
Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality . Accordingly, it is contrary to that provision to impose an age condition which differs according to sex for the purposes of entitlement to a pension under a private occupational scheme which operates in part as a substitute for the statutory scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme."
Griesmar, 29 November 2001, Case 366/99.
"Pensions provided under a scheme such as the French retirement scheme for civil servants fall within the scope of Article 119 of the EC Treaty. (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC)
Notwithstanding what is provided in Article 6(3) of the Agreement on Social Policy, a provision such as Article L. 12(b) of the French Civil and Military Retirement Pensions Code infringes the principle of equal pay inasmuch as it excludes male civil servants who are able to prove that they assumed the task of bringing up their children from entitlement to the credit which it introduces for the calculation of retirement pensions."
Brunnhofer, 26 June 2001, Case 381/99.
"The principle of equal pay for men and women laid down in Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and elaborated by Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women must be interpreted as follows:
- a monthly salary supplement to which the employees concerned are entitled under their individual employment contracts, paid by the employer in respect of their employment, constitutes pay within the scope of Article 119 of the Treaty and the Directive; equal pay must be ensured not only on the basis of an overall assessment of all the consideration granted to employees but also in the light of each aspect of pay taken in isolation;
- the fact that a female employee who claims to be the victim of discrimination on grounds of sex and the male comparator are classified in the same job category under the collective agreement governing their employment is not in itself sufficient for concluding that the two employees concerned are performing the same work or work to which equal value is attributed within the meaning of Article 119 of the Treaty and Article 1 of the Directive, since this fact is only one indication amongst others that this criterion is met;
- as a general rule, it is for employees who consider themselves to be the victims of discrimination to prove that they are receiving lower pay than that paid by the employer to a colleague of the other sex and that they are in fact performing the same work or work of equal value, comparable to that performed by the chosen comparator; the employer may then not only dispute the fact that the conditions for the application of the principle of equal pay for men and women are met in the case but also put forward objective grounds, unrelated to any discrimination based on sex, to justify the difference in pay;
- a difference in pay is capable of being justified by circumstances not taken into consideration under the collective agreement applicable to the employees concerned, provided that they constitute objective reasons unrelated to any discrimination based on sex and in conformity with the principle of proportionality;
- in the case of work paid at time rates, a difference in pay awarded, at the time of their appointment, to two employees of different sex for the same job or work of equal value cannot be justified by factors which become known only after the employees concerned take up their duties and which can be assessed only once the employment contract is being performed, such as a difference in the individual work capacity of the persons concerned or in the effectiveness of the work of a specific employee compared with that of a colleague."
Part-time work
Jenkins v Kingsgate, 31 March 1981, Case 96/80.
Legitimate indirect discrimination, pursuing an essential aim of social policy: a lower hourly rate of pay for part-time workers than for full-time workers, for the purpose of encouraging full-time work, irrespective of the sex of the worker.
"The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week is not contrary to the principle of equal pay laid down in Article 119 of the Treaty [now Article 141 EC] in so far as the difference in pay between part-time work and full-time work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex. It is for the national courts to decide in each individual case whether, regard being had to the facts of the case, its history and the employer's intention, a pay policy represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker .
Therefore a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or predominantly of women."
Bilka v Karin Weber von Hartz, 13 May 1986, Case 170/84.
"If, therefore, it should be found that a much lower proportion of women than of men work full time, the exclusion of part-time workers from the occupational pension scheme would be contrary to Article 119 of the Treaty [now Article 141 EC] where, taking into account the difficulties encountered by women workers in working full time, that measure could not be explained by factors which exclude any discrimination on grounds of sex.
However, if the undertaking is able to show that its pay practice may be explained by objectively justified factors unrelated to any discrimination on grounds of sex, there is no breach of Article 119. Such factors may lie in the fact that the undertaking seeks to employ as few part-time workers as possible, where it is shown that that objective corresponds to a real need on the part of the undertaking and the means chosen for achieving it are appropriate and necessary."
Rinner-Kühn v FWW, 13 July 1989,Case 171/88.
"Article 119 of the Treaty [now Article 141 EC] precludes national legislation which permits employers to exclude employees whose normal working hours do not exceed 10 hours a week or 45 hours a month from the continued payment of wages in the event of illness, if that measure affects a far greater number of women than men, unless the Member State shows that the legislation concerned is justified by objective factors unrelated to any discrimination of grounds of sex, which concern one of the essential aims of its social policy."
Kowalska v Freie und Hansestadt Hamburg, 27 June 1990, Case 33/89.
"It is apparent from the documents before the Court that the collective agreement at issue allows the severance grant to be paid only to full-time workers on termination of the employment relationship . A collective agreement like the one at issue, which allows employers to maintain a difference in total pay as between two categories of workers - those who work a specified minimum number of hours each week and those who, whilst performing the same tasks, do not work that minimum number of hours - leads to discrimination against female workers as compared with male workers in cases where a considerably lower percentage of men than of women work part time . Such an agreement must, in principle, be regarded as infringing Article 119 of the Treaty [now Article 141 CE]. The position would be different only if the difference in the treatment accorded to the two categories of workers could be explained by objectively justified factors unrelated to any discrimination on grounds of sex(.)"
Gerster v Freistaat Bayern, 2 October 1997, Case 1/95.
"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 precludes national legislation which requires that, for the purposes of calculating the length of service of public servants, periods of employment during which the hours worked are between one-half and two-thirds of normal working hours are counted only as two-thirds of normal working hours, save where such legislation is justified by objective criteria unrelated to any discrimination on grounds of sex.
Although the fact that such legislation affects a greater number of women than men suggests that it is in principle contrary to Directive 76/207, that is not the case where - despite the fact that, in the case of part-time employees (principally women), length of service was calculated in accordance with a criterion more generous than strict proportionality in relation to working hours - it appears that part-time employees are generally slower than full-time employees in acquiring job-related abilities and skills, and the competent authorities are in a position to establish that the measures chosen reflect a legitimate social policy aim, are an appropriate means of achieving that aim and are necessary in order to do so."
Hill and Stapleton v The Revenue Commissioners and Department of Finance, 17 June 1998, Case 243/95.
"According to settled case-law, Article 4 (1) of the Directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex.
Article 119 of the EC Treaty and Council Directive 75/117/EEC (.)on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women are to be interpreted as precluding legislation which provides that, where a much higher percentage of female workers than male workers are engaged in job-sharing, job-sharers who convert to full-time employment are given a point on the pay scale applicable to full-time staff which is lower than that which those workers previously occupied on the pay scale applicable to job-sharing staff due to the fact that the employer has applied the criterion of service calculated by the actual length of time worked in a post, unless such legislation can be justified by objective criteria unrelated to any discrimination on grounds of sex."
Krüger v Kreiskrankenhaus Ebersberg, 9 September 1999, Case 281/97.
"Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) must be interpreted as meaning that exclusion by a collective agreement from entitlement to a special annual bonus provided for by that collective agreement of persons in employment which involves a normal working week of less than 15 hours and normal pay not exceeding a fraction of the monthly baseline and is, on that basis, exempt from compulsory social insurance constitutes indirect discrimination based on sex, where that exclusion applies independently of the sex of the worker but actually affects a considerably higher percentage of women than men."
Interpretation of Council Directive 76/207/EEC of 9 February 1976, on implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions
Von Colson and Kamann v Land Nordrhein-Westfalen, 10 April 1984, Case 14/83.
"Article 6 requires Member States to introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by discrimination 'to pursue their claims by judicial process' . It follows from the provision that Member States are required to adopt measures which are sufficiently effective to achieve the objective of the directive and to ensure that those measures may in fact be relied on before the national courts by the persons concerned. Such measures may include, for example, provisions requiring the employer to offer a post to the candidate discriminated against or giving the candidate adequate financial compensation, backed up where necessary by a system of fines. However the directive does not prescribe a specific sanction; it leaves Member States free to choose between the different solutions suitable for achieving its objective.
It should, however, be pointed out to the national court that although Directive No 75/207/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 connection with the application."
Johnston v Chief Constable of the Royal Ulster Constabulary, 15 May 1986, Case 222/84.
On effective judicial remedy
"The principle of effective judicial control laid down in Article 6 of Council Directive 76/207 , a principle which underlies the constitutional traditions common to the Member States and which is laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, does not allow a certificate issued by a national authority stating that the conditions for derogating from the principle of equal treatment for men and women for the purposes of protecting public safety are satisfied to be treated as conclusive evidence so as to exclude the exercise of any power of review by the Courts. The provision contained in Article 6 to the effect that all persons who consider themselves wronged by discrimination between men and women must have an effective judicial remedy may be relied upon by individuals as against a Member State which has not ensured that it is fully implemented in its internal legal order."
On derogations to equal treatment allowed by Directive 76/207, for the purpose of protecting women. (pregnancy and maternity)
"It must be observed in this regard that, like Article 2 (2) of the Directive, Article 2 (3), which also determines the scope of Article 3 (2) (C), must be interpreted strictly. It is clear from the express reference to pregnancy and maternity that the directive is intended to protect a women's biological condition and the special relationship which exists between a woman and her child. That provision of the directive does not therefore allow women to be excluded from a certain type of employment on the ground that public opinion demands that women be given greater protection than men against risks which affect men and women in the same way and which are distinct from women's specific needs of protection, such as those expressly mentioned."
Stoecke, 25 July 1991, Case 345/89.
"Article 5 of Council Directive 76/207/EEC (.) is sufficiently precise to impose on the Member States the obligation not to lay down by legislation the principle that nightwork by women is prohibited, even if that is subject to exceptions, where nightwork by men is not prohibited."
Marshall v Southampton and South-West Hampshire Area Health Authority, 2 August 1993, Case 271/91.
"Although Directive 76/207, the purpose of which is to put into effect in the Member States the principle of equal treatment for men and women as regards the various aspects of employment, in particular working conditions, including the conditions governing dismissal, leaves Member States, when providing a remedy for breach of the prohibition against discrimination, free to choose between the different solutions suitable for achieving the objective of the directive, it nevertheless entails that if financial compensation is to be awarded where there has been discriminatory dismissal in breach of Article 5(1), such compensation must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules.
Accordingly, the interpretation of Article 6 of Directive 76/207 must be that reparation of the loss and damage sustained by a person injured as a result of discriminatory dismissal may not be limited to an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the effluxion of time until the capital sum awarded is actually paid."
Larsson v Føtex Supermarked A/S, 29 May 1997, Case 400/95.
"Without prejudice to provisions of national law for the protection of women, particularly with regard to pregnancy and maternity, adopted pursuant to Article 2(3) of Directive 76/207 (.), Article 5(1) in conjunction with Article 2(1) thereof does not preclude dismissals which are the result of absences due to an illness attributable to pregnancy or confinement, even where that illness arose during pregnancy and continued during and after maternity leave.
In particular, the principle of equal treatment enshrined in the Directive does not preclude account being taken of a woman's absence from work between the beginning of her pregnancy and the beginning of her maternity leave when calculating the period providing grounds for her dismissal under national law.
During the maternity leave accorded to her pursuant to national law, a woman is protected against dismissal on grounds of absence. To take absence during such a period into account as grounds for a subsequent dismissal would thus be contrary to the objective pursued by Article 2(3) of the Directive, and would deprive that provision of its effectiveness. Outside periods of maternity leave, however, and in the absence of any national or, as the case may be, Community provisions affording women specific protection, a woman is not protected under the Directive against dismissal on grounds of periods of absence due to an illness attributable to pregnancy."
Brown v Rentokil Ltd, 30 June 1998, Case 394/96.
"Under consistent case-law, discrimination consists in the application of different rules to comparable situations or of the same rule to different situations (…)" (par. 30)
" It is well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations (see, in particular, Case 342/93 Gillespie and Others v Northern Health and Social Services Board and Others"
"(.) Contrary to the Court's ruling [of 29 May 1997, Larsson] (.) Articles 2(1) and 5(1) of Directive 76/207 (.) preclude dismissal of a female worker at any time during her pregnancy for absences due to incapacity for work caused by an illness resulting from that pregnancy.
In that regard, the fact that a female worker has been dismissed during her pregnancy on the basis of a contractual term providing that the employer may dismiss employees of either sex after a stipulated number of weeks of continuous absence is irrelevant.
Dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy. Such a dismissal can affect only women and therefore constitutes direct discrimination on grounds of sex. However, where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness. It follows that, where an illness of that kind arose during pregnancy and persisted during and after maternity leave, a worker's absence not only during maternity leave but also during the period extending from the start of her pregnancy to the start of her maternity leave cannot be taken into account for computation of the period justifying her dismissal under national law. As to her absence after maternity leave, this may be taken into account under the same conditions as a man's absence, of the same duration, through incapacity for work."
Coote v Granada Hospitality Ltd, 22 September 1998, Case 185/97.
"Article 6 of Directive 76/207 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 requires Member States to introduce into their national legal systems such measures as are necessary to ensure judicial protection for workers whose employer, after the employment relationship has ended, refuses to provide references as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of that directive. The principle of effective judicial control laid down in Article 6, a principle which underlies the constitutional traditions common to the Member States and which is also enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive."
Høj Pedersen, 19 November 1998, Case 66/96.
"It is contrary to Directive 76/207 (.) and to Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding for national legislation to provide that an employer may send home a woman who is pregnant, although not unfit for work, without paying her salary in full when he considers that he cannot provide work for her."
Sirdar v The Army Board and Secretary of State for Defence, 26 October 1999, Case 273/97.
"Although it is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to take decisions on the organisation of their armed forces, it does not follow that such decisions must fall entirely outside the scope of Community law. To recognise that there is inherent in the Treaty a general exception covering all measures taken for reasons of public security, above and beyond the specific cases contemplated in certain provisions, might impair the binding nature of Community law and its uniform application. Decisions taken by Member States, concerning access to employment, vocational training and working conditions in the armed forces, for the purpose of ensuring combat effectiveness do not fall altogether outside the scope of Community law.
If, when adopting such measures, the competent national authorities exercise the option available under Article 2(2) of Directive 76/207, they enjoy a certain measure of discretion which, in the case of combat units such as the British Royal Marines, entitles them, without abusing the principle of proportionality, to come to the view that the specific conditions for deployment of such units - in particular the rule of interoperability to which they are subject - justify their composition remaining exclusively male. Accordingly, the exclusion of women from service in such special combat units may be justified under the above provision by reason of the nature of the activities in question and the context in which they are carried out."
Kreil v Germany, 11 January 2000, Case 285/98.
"(.) The refusal to engage the applicant in the main proceedings in the service of the Bundeswehr in which she wished to be employed was based on provisions of German law which bar women outright from military posts involving the use of arms and which allow women access only to the medical and military-music services. In view of its scope, such an exclusion, which applies to almost all military posts in the Bundeswehr, cannot be regarded as a derogating measure justified by the specific nature of the posts in question or by the particular context in which the activities in question are carried out. The derogations provided for in Article 2(2) of the Directive can apply only to specific activities. (.)
In those circumstances, even taking account of the discretion which they have as regards the possibility of maintaining the exclusion in question, the national authorities could not, without contravening the principle of proportionality, adopt the general position that the composition of all armed units in the Bundeswehr had to remain exclusively male.
Finally, as regards the possible application of Article 2(3) of the Directive, upon which the German Government also relies, this provision, as the Court held in paragraph 44 of its judgment in Johnston, is intended to protect a woman's biological condition and the special relationship which exists between a woman and her child. It does not therefore allow women to be excluded from a certain type of employment on the ground that they should be given greater protection than men against risks which are distinct from women's specific needs of protection, such as those expressly mentioned.
It follows that the total exclusion of women from all military posts involving the use of arms is not one of the differences of treatment allowed by Article 2(3) of the Directive out of concern to protect women." (Par. 26 to 31)
Mahlburg v Land Mecklenburg-Vorpommern, 3 February 2000, Case 207/98.
"Article 2(1) and (3) of Directive 76/207 (.) precludes a refusal to appoint a pregnant woman to a post for an indefinite period on the ground that a statutory prohibition on employment attaching to the condition of pregnancy prevents her from being employed in that post from the outset and for the duration of the pregnancy. The application of provisions concerning the protection of pregnant women cannot result in unfavourable treatment regarding their access to employment."
Jørgensen, 6 April 2000, Case 226/98.
" In order to determine whether indirect discrimination on grounds of sex exists, Directive 76/207 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 and Directive 86/613 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood must be interpreted as requiring a separate assessment to be made of each of the key conditions governing the exercise of a professional activity laid down in specified provisions, in so far as those key elements constitute in themselves specific measures based on their own criteria of application and affecting a significant number of persons belonging to a determined category.
With regard to this latter condition, a situation may reveal a prima facie case of indirect discrimination only if the statistics describing that situation are valid, that is to say, if they cover enough individuals, do not illustrate purely fortuitous or short-term phenomena, and appear, in general, to be significant."
Positive discrimination (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)
Commission v France, 25 October 1988, Case 312/86.
"The exception provided for in Article 2 (3) of Directive 76/207 on the implementation of the principle of equal treatment for men and women, which covers measures concerning the protection of women, particularly as regards pregnancy and maternity, may not apply to measures relating to the protection of women in capacities, such as those of older workers or parents, which are not specific to them .
The exception provided for in Article 2 (4) of that directive 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 .
Those provisions concern only specific derogations from the principle of equal treatment and cannot justify national legislation which authorizes, in general, the maintenance of special rights for women recognized in collective agreements concluded before the directive came into force ."
Kalanke v Freie Hansestadt Bremen, 17 October 1995, Case 450/93.
"Article 2(1) and (4) of Council Directive 76/207 (.) precludes national rules which, where candidates of different sexes short listed 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 chart.
Article 2(4) of that directive, which must be interpreted strictly and which provides that the directive is to be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women' s opportunities, is specifically and exclusively designed to allow measures which, although apparently giving rise to discrimination on grounds of sex, are in fact intended to eliminate or reduce actual instances of inequality between men and women which may exist in the reality of social life. It thus permits national 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. A national rule which guarantees women absolute and unconditional priority for appointment or promotion is not a measure of that kind, since it goes beyond promoting equal opportunities and substitutes for it the result - equality of representation - which is only to be arrived at by providing such equality."
Marschall v Land Nordrhein-Westfalen, 11 November 1997, Case 409/95.
" (..) A national rule which, in a case where there are fewer women than men at the level of the relevant post in a sector of the public service, and both female and male candidates for the post are equally qualified in terms of their suitability, competence and professional performance, requires that priority be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour is not precluded by Article 2(1) and (4) of the Directive, provided that:
- in each individual case the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate, and
- such criteria are not such as to discriminate against the female candidates."
Badeck, 28 March 2000, Case 158/97.
"Article 2(1) and (4) of Directive 76/207 (.)does not preclude a national rule which - in sectors of the public service where women are under-represented, gives priority, where male and female candidates have equal qualifications, to female candidates where that proves necessary for ensuring compliance with the objectives of the women's advancement plan, if no reasons of greater legal weight are opposed, provided that that rule guarantees that candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates, - prescribes that the binding targets of the women's advancement plan for temporary posts in the academic service and for academic assistants must provide for a minimum percentage of women which is at least equal to the percentage of women among graduates, holders of higher degrees and students in each discipline:
- in so far as its objective is to eliminate under-representation of women, in trained occupations in which women are under-represented and for which the State does not have a monopoly of training, allocates at least half the training places to women, unless despite appropriate measures for drawing the attention of women to the training places available there are not enough applications from women,
- where male and female candidates have equal qualifications, guarantees that qualified women who satisfy all the conditions required or laid down are called to interview, in sectors in which they are under-represented,
- relating to the composition of employees' representative bodies and administrative and supervisory bodies, recommends that the legislative provisions adopted for its implementation take into account the objective that at least half the members of those bodies must be women."
Abrahmsson and Anderson v Elisabet Fogelqvist, 6 July 2000, Case 407/98.
"Article 2(1) and (4) of Directive 76/207 (.) and Article 141(4) EC preclude national legislation under which a candidate for a public post who belongs to the under-represented sex and possesses sufficient qualifications for that post must be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed, where this is necessary to secure the appointment of a candidate of the under-represented sex and the difference between the respective merits of the candidates is not so great as to give rise to a breach of the requirement of objectivity in making appointments.
First, such a method of selection is not such as to be permitted by Article 2(4) of the Directive since the selection of a candidate from among those who are sufficiently qualified is ultimately based on the mere fact of belonging to the under-represented sex, and this is so even if the merits of the candidate so selected are inferior to those of a candidate of the opposite sex. Second, even though Article 141(4) EC allows the Member States to maintain or adopt measures providing for special advantages intended to prevent or compensate for disadvantages in professional careers in order to ensure full equality between men and women in professional life, it cannot be inferred from this that it allows a selection method which appears, on any view, to be disproportionate to the aim pursued.
Furthermore, Community law does not in any way make application of the principle of equal treatment for men and women concerning access to employment conditional upon the level of the posts to be filled. It follows that the question whether national rules providing for positive discrimination in the making of appointments in higher education are lawful cannot depend on the level of the post to be filled.
Article 2(1) and (4) of Directive 76/207 (.)does not preclude a rule of national case-law under which a candidate for a public post who belongs to the under-represented sex may be granted preference over a competitor of the opposite sex, provided that the candidates possess equivalent or substantially equivalent merits, where the candidatures are subjected to an objective assessment which takes account of the specific personal situations of all the candidates."
Lommers, 19 March 2002, Case 476/99.
"Article 2 (1) and (4) of Council Directive 76/207/EEC (.) does not preclude a scheme set up by a Minister to tackle extensive under-representation of women within his Ministry under which, in a context characterised by a proven insufficiency of proper, affordable care facilities, a limited number of subsidised nursery places made available by the Ministry to its staff is reserved for female officials alone whilst male officials may have access to them only in cases of emergency, to be determined by the employer. That is so, however, only in so far, in particular, as the said exception in favour of male officials is construed as allowing those of them who take care of their children by themselves to have access to that nursery places scheme on the same conditions as female officials."
Alexander Dory v. Germany, 11 March 2003, Case 186/01.
Compatibility with Community law of Germany’s compulsory military service being limited to men. Interpretation of Article 2 of Directive 76/207/EEC.
‘The German Government submits that compulsory military service is of great importance in Germany, both politically and in terms of the organisation of the armed forces. It stated, in its written observations and at the hearing, that the institution of such service makes a contribution to the democratic transparency of the military, national integration, the link between the armed forces and the population, and the mobilisation of the manpower needed by the armed forces in the event of a conflict.
‘Such a choice, enshrined in the Grundgesetz, consists in imposing an obligation to serve the interests of territorial security, albeit in many cases to the detriment of access of young people to the labour market. It thus takes precedence over the objectives of policies aimed at the work prospects of young people.
‘The decision of the Federal Republic of Germany to ensure its defence in part by compulsory military service is the expression of such a choice of military organisation to which Community law is consequently not applicable.
‘It is true that limitation of compulsory military service to men will generally entail a delay in the progress of the careers of those concerned, even if military service allows some of them to acquire further vocational training or subsequently to take up a military career.
‘Nevertheless, the delay in the careers of persons called up for military service is an inevitable consequence of the choice made by the Member State regarding military organisation and does not mean that that choice comes within the scope of Community law. The existence of adverse consequences for access to employment cannot, without encroaching on the competences of the Member States, have the effect of compelling the Member State in question either to extend the obligation of military service to women, thus imposing on them the same disadvantages with regard to access to employment, or to abolish compulsory military service.
‘In the light of all the foregoing, the answer to the national court's question must be that Community law does not preclude compulsory military service being reserved to men.’ (§§ 37-42)
Interpretation 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
Busch, 27 February 2003, Case 320/01.
"Article 2(1) of Council Directive 76/207 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 is to be interpreted as precluding a requirement that an employee who, with the consent of her employer, wishes to return to work before the end of her parental leave, must inform her employer that she is pregnant in the event that, because of certain legislative prohibitions, she will be unable to carry out all of her duties. [...]
When an employer takes an employee's pregnancy into consideration in the refusal to allow her to return to work before the end of her parental leave, that constitutes direct discrimination on grounds of sex. Since the employer may not take the employee's pregnancy into consideration for the purpose of applying her working conditions, she is not obliged to inform the employer that she is pregnant."
Such discrimination could not be justified by the temporary prohibition on performing certain work duties for which she was hired and would be contrary to the objective of protection pursued by Article 2(3) of Directive 76/207 and Article 4(1) and (5) of Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, and would rob them of any practical effect. Nor could such discrimination be justified by the financial consequences which might ensue for the employer from the obligation to reinstate a pregnant employee, nor by the fact that the employee intended, by asking to be reinstated, to receive a maternity allowance higher than the parental leave allowance, as well as the supplementary allowance paid by the employer.
Rinke, 9 September 2003, Case 25/02.
1. Compliance with the prohibition of indirect discrimination on grounds of sex, which is a fundamental right as a general principle of Community law, is a condition governing the legality of all measures adopted by the Community institutions.
2. Article 5(1) of Council Directive 86/457/EEC on specific training in general medical practice and Article 34(1) of Council Directive 93/16/EEC to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, according to which part-time training in general medical practice must include a certain number of periods of full-time training, are not incompatible with the prohibition of discrimination on grounds of sex within the meaning of Directive 76/207.
While such a requirement works to the disadvantage of a much higher percentage of women then men, it must nevertheless be considered justified by objective factors unrelated to discrimination on grounds of sex. The Community legislature takes the view that that requirement enables doctors to acquire the experience necessary by following patients' pathological conditions as they may evolve over time, and to obtain sufficient experience in the various situations likely to arise more particularly in general medical practice.
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