Keywords
Summary

Keywords

1 Social policy - Men and women - Access to employment and working conditions - Equal treatment - Implementation by Member States - Choice of sanctions to penalize discrimination - Recourse to civil liability - Inapplicability of grounds of exemption provided for by national law - Requirement of fault - Not permissible

(Council Directive 76/207, Arts 2(1) and 3(1))

2 Social policy - Men and women - Access to employment and working conditions - Equal treatment - Implementation by Member States - Choice of sanctions to penalize discrimination - Need for an effective, deterrent sanction analogous to those applicable to similar infringements of domestic law - Award of compensation - Ceiling on compensation which may be awarded to a job applicant discriminated against on grounds of sex in the making of an appointment - Permissible only in the case of discrimination which is not a decisive factor in the refusal to engage the applicant - Ceiling for aggregate of the compensation awards which may be made where there is discrimination against a number of applicants - Not permissible

(Council Directive 76/207)

Summary

3 Where a Member State chooses to penalize, under rules governing employers' civil liability, breach of the prohibition of discrimination between male and female workers, the breach of that prohibition must, in itself, be sufficient to render the person responsible for the breach fully liable, without there being any possibility of invoking the grounds of exemption provided for by domestic law. It follows that Directive 76/207, and in particular Articles 2(1) and 3(1) thereof, preclude provisions of domestic law which make reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault.

4 If a Member State chooses to penalize breach of the prohibition of discrimination between male and female workers by the award of compensation, that compensation must be such as to guarantee real and effective judicial protection, have a real deterrent effect on the employer and must in any event be adequate in relation to the damage sustained.

Such a system of compensation must enable that breach to be penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of domestic law of a similar nature and importance.

It follows that

- Directive 76/207 precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, prescribe an upper limit of three months' salary for the amount of compensation which may be claimed by an applicant discriminated against on grounds of sex in the making of an appointment where that applicant would have obtained the vacant position if the selection process had been carried out without discrimination, but does not preclude provisions of domestic law which prescribe an upper limit of three months' salary for the amount of compensation which may be claimed by an applicant where the employer can prove that, because the applicant engaged had superior qualifications, the unsuccessful applicant would not have obtained the vacant position even if there had been no discrimination in the selection process.

- Directive 76/207 precludes provisions of domestic law which, unlike other provisions of domestic civil and labour law, impose a ceiling of six months' earnings on the aggregate amount of compensation which, where several applicants claim compensation, may be claimed by applicants who have been discriminated against on grounds of their sex in the making of an appointment.