Eckhard Kalanke v Freie Hansestadt Bremen.

• Jurisdiction: European Union
• Celex Number: 61993CJ0450
• ECLI: ECLI:EU:C:1995:322
• Docket Number: C-450/93
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 17 October 1995

Avis juridique important

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61993J0450

Judgment of the Court of 17 October 1995. - Eckhard Kalanke v Freie Hansestadt Bremen. - Reference for a preliminary ruling: Bundesarbeitsgericht - Germany. - Equal treaetment of men and women - Directive 76/207/EEC - Article 2 (4) - Promotion - Equally qualified candidates of different sexes - Priority given to women. - Case C-450/93.

European Court reports 1995 Page I-03051

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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Social policy ° Men and women workers ° Access to employment and working conditions ° Equal treatment ° Derogations ° Measures to promote equality of opportunity between men and women ° Scope ° National provision automatically favouring equally-qualified women competing with men for promotion in cases where women are under-represented ° Not permissible

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

Summary

Article 2(1) and (4) of Council 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 precludes national rules which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are under-represented, under-representation being deemed to exist when women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group or in the function levels provided for in the organization chart.

Article 2(4) of that directive, which must be interpreted strictly and which provides that the directive is to be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women' s opportunities, is specifically and exclusively designed to allow measures which, although apparently giving rise to discrimination on grounds of sex, are in fact intended to eliminate or reduce actual instances of inequality between men and women which may exist in the reality of social life. It thus permits national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. A national rule which guarantees women absolute and unconditional priority for appointment or promotion is not a measure of that kind, since it goes beyond promoting equal opportunities and substitutes for it the result ° equality of representation ° which is only to be arrived at by providing such equality.

Parties

In Case C-450/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesarbeitsgericht for a preliminary ruling in the proceedings pending before that court between

Eckhard Kalanke

and

Freie Hansestadt Bremen,

supported by

Heike Glissmann,

intervener,

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.N. Kakouris, D.A.O. Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, P.J.G. Kapteyn (Rapporteur), C. Gulmann and J.L. Murray, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Eckhard Kalanke, by Ruediger Haubrock, Rechtsanwalt, Bremen,

° Freie Hansestadt Bremen, by Hartmuth Sager, Rechtsanwalt, Hamburg,

° Heike Glissmann, by Klaus Richter, Rechtsanwalt, Bremen,

° the United Kingdom, by S. Lucinda Hudson, Assistant Treasury Solicitor, acting as Agent, and Eleanor Sharpston, Barrister, and

° the Commission of the European Communities, by...