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In Case 14/83, Sabine von Colson and Elisabeth Kamann applied for two vacant posts for social workers in a prison in North Rhine Westphalia. Although they were placed at the top of the list of candidates by the social worker's committee, they were moved clown the list by the recruiting authority which finally selected two male candidats instead. According to the Arbeitsgericht Hamm, it was quite clear from the attitude of the appointing authority that the two candidates had been discriminated against because of their sex.

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The Arbeitsgericht Hamburg reached a similar conclusion in the proceedings brought by Dorit Harz: Deutsche Tradax GmbH rejected her application precisely on the grounds that she was a woman, because of the particular nature of the post in question.

1. 

Does a breach of the principle of equal treatment of male and female workers regarding access to employment as laid down in Directive No 76/207:

2. 

Is Directive No 76/207 and in particular Articles 1, 2 and 3 thereof, directly applicable (Case 14/83, Question 6; Case 79/83, Question 5)?

1.

The exact extent of the States' powers with regard to the implementation of the directive therefore depends on the result to be attained. That is the principle laid down by the Court in the Lee case in which it was necessary to determine whether Council Directive No 72/159/EEC on the modernization of farms ( 3 ) required the Member States to make judicial remedies available against administrative decisions concerning the advantages contemplated by the directive. ( 4 ) Generally it is necessary to examine the framework laid down by the directive in order to define the exact nature of the Member States' obligations as to the result to be attained and thus what margin of discretion they have in the implementation of that obligation.

2.

That process may be applied to Directive No 76/207. Its purpose is “the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions”. That purpose is repeated in Article 1, whilst Article 2 defines the principle of equal treatment and its limits. Articles 3 to 8 delineate the scope of that principle, as so defined. It has a dual significance:

Therefore none of the provisions of the directive expressly requires the Member States to lay down a sanction of any kind whatsoever, still less a specific form of sanction, for failure to comply with the principle of equal treatment. Only Articles 6 and 7 suggest that such a breach will not remain unpunished by national sanctions. However the availability of a judicial remedy and the requirement that protection be afforded to the plaintiff do not predetermine the final choice of the kind of sanction to be adopted.

3.

That analysis leads to a twofold conclusion.

1.

With regard to equal treatment for men and women, the Court held in the judgment in Case 61/81 that the purpose of Council Directive No 75/117/EEC of 10 February 1975 was to implement the principle, laid down in Article 119 of the Treaty, ( 13 ) that men and women should receive equal pay, and concluded therefrom that “it is primarily the responsibility of the Member States to ensure the application of this principle by-means of appropriate laws, regulations and administrative provisions in such a way that all employees in the Community can be protected in these matters”. ( 14 )

In the same case the Court referred ( 15 ) to Article 6 of Directive No 75/117 which provides that Member States

“shall, in accordance with their national circumstances and legal systems, take the measures necessary to ensure that the principle of equal pay is applied. They shall see that effective means are available to take care that this principle is observed”.

The Court found that United Kingdom legislation, which allowed employers to refuse any system of job classification and thereby prevented employees from establishing the equivalent value of work carried out for the purpose of applying the principle of equal pay, did not conform to the objectives of the directive. In that case, the United Kingdom's failure compromised the very efectiveness of the principle of equal pay for men and women.

It is true that Directive No 76/207 does not include a provision comparable to Article 6 of Directive No 75/117; nevertheless, it does require the Member States to adopt all the “measures necessary” to implement the directive National measures intended to implement a directive must actually serve to bring about the results that the Member States are required to achieve. ( 16 ) It is clear in that respect that the effectiveness of the principle of equal treatment itself, as laid down in Article 119, depends on the fulfilment of that obligation. I consider that it is possible to define more precisely the extent of the obligation thus imposed on Member States.

2.

In more general terms, leaving aside for the moment the implementation of Article 119 of the EEC Treaty, certain limits are imposed on the reference to national law.

On the question of the recovery of sums wrongly paid, the Court held in Fromme that:

“the application of national law must not adversely affect the scope or impair the effectiveness of Community law by making the recovery of sums wrongly paid impossible in practice”.

Nor must it make that recovery subject

“to conditions or detailed rules less favourable than those which apply to similar procedures governed by national law alone. In such matters the national authorities must proceed with the same care as they exercise in implementing corresponding national laws so as not to impair, in any way, the effectiveness of Community law”.

Finally, in placing such limits on the reference to national law, the Court stated that:

“with regard to the relationship to procedures for determining similar, but purely national, disputes ... the application of national law on the basis of that reference must be effected in a nondiscriminatory manner as compared with those procedures”. ( 17 )

It emerges from that decision, which combines the different elements of the Court's previous decisions, that there is a threefold requirement, as was pointed out by Mr Advocate General VerLoren van Themaat: ( 18 )

To sum up, the measures in question must be neutral with regard to Community law, as effective as national implementing rules, and not discriminatory for the nationals of Member States. Those overlapping conditions determine the scope of the obligations imposed on Member States whenever Community law leaves them a margin of discretion in the implementation of Community provisions. It is not therefore surprising that the Court has applied those principles with particular clarity to sanctions which a Member State may impose for infringement of administrative formalities for the control of aliens.

3.

In the matter of the free movement of persons, Member States have retained their power to control the presence on their territory of foreign nationals. ( 20 ) Thus they may inter alia require those persons to comply with the administrative formalities laid down in Council Directive No 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families ( 21 ) such as the possession of certain documents establishing identity or the right to residence, ( 22 ) or the obligation to report to the authorities, provided for in Article 8 (2). ( 23 ) Although the Member States may consequently lay down sanctions for the breach of national provisions adopted in conformity with the directive, there are limits on the sanctions which they may impose. The sanctions must be “comparable to those attaching to infringements of provisions of equal importance by nationals” and they must be proportionate to the nature of the infringement committed so as not to obstruct the principle of the free movement of persons. ( 24 )

Such national sanctions imposed by the Member States are intended to ensure compliance with administrative provisions for the control of the lawful presence, movement and establishment on the territory of the Member States of nationals of other Member States. If the threefold condition referred to above is applied to such measures, it may be said that two limits are placed on the effectiveness of the sanctions:

That interpretation — an effective sanction but proportionate to the offence and equivalent to a national sanction — is explained by the following consideration. The formalities which Directive No 68/360 imposed on migrant workers represent a necessary adjustment to the fundamental principle of their freedom of movement. The Member States' power of control thus recognized must therefore be interpreted particularly strictly, so as to prevent such provisions from depriving the rights conferred on the Community nationals by the Treaty itself (Articles 7 and 48) ( 25 ) of any practical effect.

4.

On the other hand, the same interpretation indicates that priority should be given to the requirement of effectiveness where national sanctions are intended to ensure compliance with a fundamental principle of the Treaty, such as the principle of equal treatment for male and female workers. ( 26 ) In order to be capable of ensuring fulfilment of the obligation imposed by the Treaty and repeated in Article 2 of Directive No 76/207, in accordance with the general requirement laid down in the first paragraph of Article 5 of the Treaty, those sanctions must be effective, or, in other words, they must have a deterent effect. Any other solution would undermine both the economic and social ( 27 ) objectives of Article 119; undertakings would be able to disregard the Community provisions with impunity and female workers would be deprived of the protection which they are entitled to expect under the Treaty itself. Those sanctions must, in my view, satisfy the two conditions which the Court has laid down with regard to the restrictive effect of sanctions imposed for the infringement of administrative formalities in the matter of freedom of movement. The requirement that they must be equivalent and proportionate still applies, since they are sanctions, but in this context it is subject to the requirement that they be effective, as they are sanctions intended to ensure compliance with a fundamental principle of the Community. In consequence, in order to be appropriate, the national sanctions which a Member State imposes in respect of non-compliance with the principle of equal treatment for male and female workers must be:

The deterrent effect of the sanctions provided for by a particular national law or regulation must be assessed on the basis of those requirements.

5.

In the light of those considerations we may now examine Paragraph 611 a (2) of the Bürgerliches Gesetzbuch, the provision at issue in these proceedings. In their arguments before the Court on this point, the applicants and the Federal German Government's agent expressed differing views on the discretionary power of the national courts with regard to that provision, in particular whether they may derogate from it in order to apply general legal provisions on compensation. The Commission questioned the effectiveness of allowing the courts to develop the law in that way. In addition the parties discussed at length the kind of alternative sanctions capable of replacing the compensation provided for under Paragraph 611 a (2). They cited the right to the conclusion of a contract and, if that were not possible, the right to financial compensation of an economically appreciable amount, on the basis of various national provisions governing the matter.

In proceedings under Article 177 it is not for me to express a view on questions which fall exclusively within the jurisdiction of the national courts inasmuch as they concern the application of national law. However, in relation to sanctions applicable to the failure to comply with measures for the control of aliens, the Court has recognized that when a national court is confronted with national law that has been inadequately adjusted in the matter of sanctions, it is to “use its judicial discretion to impose a punishment appropriate to the character and objective of the provisions of Community law the observance of which the penalty is intended to safeguard.” ( 28 ) I consider that the same obligation applies to a national court which, having regard to the criteria established by the Court, finds that the sanctions attaching to a breach of the principle of equal treatment for men and women laid down in Article 119 of the Treaty and defined in Directive No 76/207 are inappropriate.

In the light of those comments and all the cases cited, what reply can be given to the national courts?

The first point is that in their observations the parties to the main action acknowledged that the compensation deriving from Paragraph 611 a (2) of the Bürgerliches Gesetzbuch did not have a deterrent effect, in so far as heavier sanctions, involving reparation in kind or financial penalties, may be imposed.

Secondly, compensation for reliance on a proper expectation (“Vertrauensschaden”) is even less approprirate because it seems to involve an element of chance: Dorit Harz pointed out, without being contradicted, that in the light of the purpose of the national provision in question — to compensate the candidates' frustrated legitimate expectation — a candidate might not be entitled to any compensation where the employer had openly declared his intention not to recruit female candidates.

Finally, if the requirements set out above are applied to Paragraph 611a (2), it is clear that compensation for “Vertrauensschaden” alone is not sufficiently effective. At the hearing, the Agent of the Federal German Government had to acknowledge that offences comparable to sex discrimination, committed with regard to access to employment, such as racial or religious discrimination in particular, or again fraud or corruption in connection with recruitment, are subject to both penal and civil sanctions, the latter entailing reparation in kind or, where that is not possible, the payment of substantial damages. Compensation limited to the expenses incurred by the candidate discriminated against is therefore not capable of ensuring compliance with a principle of such fundamental importance as the equal treatment of male and female workers, which is moreover provided. for in the Grundgesetz [Basic Law of the Federal Republic of Germany], since comparable offences carry penalties which have more deterrent effect and are proportionate to the seriousness of the offence comitted.

In conclusion I propose that the Court should hold, in reply to the questions referred to it for a preliminary ruling by the Arbeitsgericht Hamm and the Arbeitsgericht Hamburg, that:

The reimbursement of the costs incurred by a candidate in applying for a particular post does not constitute appropriate compensation in order to ensure compliance with the principle of equal treatment for male and female workers laid down by Article 119 of the Treaty and Directive No 76/207, since the provisions of national laws and regulations impose, for comparable offences, sanctions which are more proportionate to the seriousness of the offence committed.