Keywords
Summary

Keywords

1. Preliminary rulings - Reference to the Court - National court within the meaning of Article 177 of the EC Treaty (now Article 234 EC) - Meaning - Överklagandenämnden för Högskolan, which has jurisdiction for cases concerning higher education - Included

(EC Treaty, Art. 177 (now Art. 234 EC))

2. Social policy - Men and women - Access to employment and working conditions - Equal treatment - Derogations - Measures to promote equality of opportunity between men and women - Selection procedure for a public post - National rules under which priority must be given to candidates of the under-represented sex, provided only that 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 - Not permissible - Restriction of the scope of the measure - Level of the post to be filled - Not relevant

(Art. 141(4) EC; Council Directive 76/207, Arts 2(1) and (4))

3. Social policy - Men and women - Access to employment and working conditions - Equal treatment - Derogations - Measures to promote equality of opportunity between men and women - Selection procedure for a public post - Case-law by virtue of which priority must be given to candidates of the under-represented sex - Whether permissible - Conditions

(Council Directive 76/207, Arts 2(1) and 4)

Summary

1. In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 177 of the Treaty (now Article 234 EC), it is important to take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. The Swedish Överklagandenämnden för Högskolan, which has jurisdiction to examine appeals against certain decisions taken in relation to higher education, satisfies those requirements.

( see paras 29-30 )

2. Article 2(1) and (4) 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, 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.

The fact of restricting the scope of a positive discrimination measure of the kind in point here is not, moreover, capable of changing its absolute and disproportionate nature, so that the abovementioned provisions also preclude national legislation of that kind where it applies only to procedures for filling a predetermined number of posts or to posts created as part of a specific programme of a particular higher educational institution allowing the application of positive discrimination measures.

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.

( see paras 53, 55-56, 58-59, 64-65, operative part 1-2, 4 )

3. Article 2(1) and (4) 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 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.

( see para. 62, operative part 3 )