Keywords
Summary

Keywords

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

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

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

( COUNCIL DIRECTIVE NO 76/207/EEC )

Summary

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

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

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

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

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