Hellmut Marschall v Land Nordrhein-Westfalen.

• Jurisdiction: European Union
• Celex Number: 61995CJ0409
• ECLI: ECLI:EU:C:1997:533
• Date: 11 November 1997
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-409/95

Avis juridique important

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61995J0409

Judgment of the Court of 11 November 1997. - Hellmut Marschall v Land Nordrhein-Westfalen. - Reference for a preliminary ruling: Verwaltungsgericht Gelsenkirchen - Germany. - Equal treatment of men and women - Equally qualified male and female candidates - Priority for female candidates - Saving clause. - Case C-409/95.

European Court reports 1997 Page I-06363

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

Social policy - Men and women - Access to employment and working conditions - Equal treatment - Derogations - Measures to promote equality of opportunity between men and women - Scope - National provision giving priority to the promotion of women over men where women have equal qualifications and are under-represented - Saving clause allowing an objective assessment of each individual case on the basis of criteria not discriminatory towards women - Whether permissible

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

Summary

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 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, 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 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.

Parties

In Case C-409/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Verwaltungsgericht Gelsenkirchen (Germany) for a preliminary ruling in the proceedings pending before that court between

Hellmut Marschall

and

Land Nordrhein-Westfalen

on the 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 (OJ 1976 L 39, p. 40),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm and M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn (Rapporteur), J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Land Nordrhein-Westfalen, represented by the Bezirksregierung Arnsberg, by Juliane Kokott, Professor at Heinrich Heine University, Düsseldorf,

- the Spanish Government, by Alberto José Navarro González, Director-General of Legal Coordination and Community Affairs, assisted by Gloria Calvo Díaz, Abogado del Estado, of the State Legal Service, acting as Agents,

- the French Government, by Catherine de Salins, Head of Subdirectorate in the Legal Directorate of the Ministry of Foreign Affairs, and Anne de Bourgoing, Chargé de Mission in the same directorate, acting as Agents,

- the Austrian Government, by Wolf Okresek, Ministerialrat in the Constitutional Service of the Federal Chancellor's Office, acting as Agent,

- the Finnish Government, by Tuula Pynnä, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

- the Swedish Government, by Lotty Nordling, Under-Secretary for Legal Affairs at the Department of Foreign Trade of the Ministry of Foreign Affairs, acting as Agent,

- the United Kingdom Government, by Lindsey Nicoll, of the Treasury Solicitor's Department, acting as Agent, and by Eleanor Sharpston, Barrister,

- the Norwegian Government, by Beate B. Ekeberg, Head of Service acting for the Minister for Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by Jürgen Grunwald, Legal Adviser, and Marie Wolfcarius, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Land Nordrhein-Westfalen, represented by Juliane Kokott; of the Netherlands Government, represented by Hans van den Oosterkamp, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent; of the Finnish Government, represented by Holger Rotkirch, Head of the...