1 BY ORDER OF 6 DECEMBER 1982 , WHICH WAS
RECEIVED AT THE COURT ON 24 JANUARY 1983 , THE ARBEITSGERICHT ( LABOUR
COURT ) HAMM REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO
ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE INTERPRETATION OF
COUNCIL DIRECTIVE NO 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 (
OFFICIAL JOURNAL 1976 , L 39 , P . 40 ).
2 THOSE QUESTIONS WERE
RAISED IN THE COURSE OF PROCEEDINGS BETWEEN TWO QUALIFIED SOCIAL WORKERS ,
SABINE VON COLSON AND ELISABETH KAMANN , AND THE LAND NORDRHEIN-WESTFALEN
. IT APPEARS FROM THE GROUNDS OF THE ORDER FOR REFERENCE THAT WERL PRISON
, WHICH CATERS EXCLUSIVELY FOR MALE PRISONERS AND WHICH IS ADMINISTERED BY
THE LAND NORDRHEIN-WESTFALEN , REFUSED TO ENGAGE THE PLAINTIFFS IN THE
MAIN PROCEEDINGS FOR REASONS RELATING TO THEIR SEX . THE OFFICIALS
RESPONSIBLE FOR RECRUITMENT JUSTIFIED THEIR REFUSAL TO ENGAGE THE
PLAINTIFFS BY CITING THE PROBLEMS AND RISKS CONNECTED WITH THE
APPOINTEMENT OF FEMALE CANDIDATES AND FOR THOSE REASONS APPOINTED INSTEAD
MALE CANDIDATES WHO WERE HOWEVER LESS WELL-QUALIFIED .
3 THE
ARBEITSGERICHT HAMM HELD THAT THERE HAD BEEN DISCRIMINATION AND TOOK THE
VIEW THAT UNDER GERMAN LAW THE ONLY SANCTION FOR DISCRIMINATION IN
RECRUITMENT IS COMPENSATION FOR ' ' VERTRAUENSSCHADEN ' ' , NAMELY THE
LOSS INCURRED BY CANDIDATES WHO ARE VICTIMS OF DISCRIMINATION AS A RESULT
OF THEIR BELIEF THAT THEIR WOULD BE NO DISCRIMINATION IN THE ESTABLISHMENT
OF THE EMPLOYMENT RELATIONSHIP . SUCH COMPENSATION IS PROVIDED FOR UNDER
PARAGRAPH 611A ( 2 ) OF THE BURGERLICHES GESETZBUCH .
4 UNDER THAT
PROVISION , IN THE EVENT OF DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT
, THE EMPLOYER IS LIABLE FOR ' ' DAMAGES IN RESPECT OF THE LOSS INCURRED
BY THE WORKER AS A RESULT OF HIS RELIANCE ON THE EXPECTATION THAT THE
ESTABLISHMENT OF THE EMPLOYMENT RELATIONSHIP WOULD NOT BE PRECLUDED BY
SUCH A BREACH ( OF THE PRINCIPLE OF EQUAL TREATMENT ) ' ' . THAT PROVISION
PURPORTS TO IMPLEMENT COUNCIL DIRECTIVE NO 76/207 .
5 CONSEQUENTLY THE
ARBEITSGERICHT FOUND THAT , UNDER GERMAN LAW , IT COULD ORDER THE
REIMBURSEMENT ONLY OF THE TRAVEL EXPENSES INCURRED BY THE PLAINTIFF VON
COLSON IN PURSUING HER APPLICATION FOR THE POST ( DM 7.20 ) AND THAT IT
COULD NOT ALLOW THE PLAINTIFFS ' OTHER CLAIMS .
6 HOWEVER , IN
ORDER TO DETERMINE THE RULES OF COMMUNITY LAW APPLICABLE IN THE EVENT OF
DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT , THE ARBEITSGERICHT
REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE :
' ' 1 .
DOES COUNCIL DIRECTIVE NO 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 IMPLY THAT DISCRIMINATION ON GROUNDS OF SEX IN RELATION
TO ACCESS TO EMPLOYMENT ( FAILURE TO CONCLUDE A CONTRACT OF EMPLOYMENT ON
ACCOUNT OF THE CANDIDATE ' S SEX ; PREFERENCE GIVEN TO ANOTHER CANDIDATE
ON ACCOUNT OF HIS SEX ) MUST BE SANCTIONED BY REQUIRING THE EMPLOYER IN
QUESTION TO CONCLUDE A CONTRACT OF EMPLOYMENT WITH THE CANDIDATE WHO WAS
DISCRIMINATED AGAINST?
2.IF QUESTION 1 IS ANSWERED IN THE
AFFIRMATIVE , IN PRINCIPLE :
( A ) IS THE EMPLOYER REQUIRED TO
CONCLUDE A CONTRACT OF EMPLOYMENT ONLY IF , IN ADDITION TO THE FINDING
THAT HE MADE A SUBJECTIVE DECISION ON THE BASIS OF CRITERIA RELATING TO
SEX , IT CAN BE ESTABLISHED THAT THE CANDIDATE DISCRIMINATED AGAINST IS
OBJECTIVELY - ACCORDING TO ACCEPTABLE SELECTION CRITERIA - BETTER
QUALIFIED FOR THE POST THAN THE CANDIDATE WITH WHOM A CONTRACT OF
EMPLOYMENT WAS CONCLUDED?
( B)OR , IS THE EMPLOYER ALSO REQUIRED
TO ENGAGE THE CANDIDATE DISCRIMINATED AGAINST IF , ALTHOUGH IT CAN BE
ESTABLISHED THAT THE EMPLOYER MADE A SUBJECTIVE DECISION ON THE BASIS OF
CRITERIA RELATING TO SEX , THE CANDIDATE DISCRIMINATED AGAINST AND THE
SUCCESSFUL CANDIDATE ARE OBJECTIVELY EQUALLY WELL QUALIFIED?
(
C)FINALLY , DOES THE CANDIDATE DISCRIMINATED AGAINST HAVE THE RIGHT TO BE
ENGAGED EVEN IF OBJECTIVELY HE IS LESS WELL QUALIFIED THAN THE SUCCESSFUL
CANDIDATE , BUT IT IS ESTABLISHED THAT FROM THE OUTSET THE EMPLOYER , ON
ACCOUNT OF THE SEX OF THE CANDIDATE DISCRIMINATED AGAINST , DISREGARDED
THAT CANDIDATE IN MAKING HIS DECISION ON THE BASIS OF ACCEPTABLE CRITERIA?
' ' 3.IF THE ESSENTIAL ISSUE IS THE OBJECTIVE ASSESSMENT OF THE
CANDIDATE ' S QUALIFICATIONS WITHIN THE MEANING OF QUESTIONS 2 ( A ), ( B
) AND ( C ):
IS THAT ISSUE TO BE DECIDED WHOLLY BY THE COURT AND WHAT
CRITERIA AND PROCEDURAL RULES RELATING TO EVIDENCE AND BURDEN OF PROOF ARE
APPLICABLE IN THAT REGARD?
' ' 4.IF QUESTION 1 IS ANSWERED IN THE
AFFIRMATIVE , IN PRINCIPLE :
WHERE THERE ARE MORE THAN TWO CANDIDATES
FOR A POST AND FROM THE OUTSET MORE THAN ONE PERSON IS ON THE GROUND OF
SEX DISREGARDED FOR THE PURPOSES OF THE DECISION MADE ON THE BASIS OF
ACCEPTABLE CRITERIA , IS EACH OF THOSE PERSONS ENTITLED TO BE OFFERED A
CONTRACT OF EMPLOYMENT?
IS THE COURT IN SUCH A CASE OBLIGED TO
MAKE ITS OWN CHOICE BETWEEN THE CANDIDATES DISCRIMINATED AGAINST?
IF THE QUESTION CONTAINED IN THE FIRST PARAGRAPH IS ANSWERED IN
THE NEGATIVE , WHAT OTHER SANCTION OF SUBSTANTIVE LAW IS AVAILABLE?
' ' 5.IF QUESTION 1 IS ANSWERED IN THE NEGATIVE , IN PRINCIPLE :
UNDER THE PROVISIONS OF DIRECTIVE NO 76/207/EEC WHAT SANCTION APPLIES
WHERE THERE IS AN ESTABLISHED CASE OF DISCRIMINATION IN RELATION TO ACCESS
TO EMPLOYMENT?
IN THAT REGARD MUST A DISTINCTION BE DRAWN BETWEEN
THE SITUATIONS DESCRIBED IN QUESTION 2 ( A ), ( B ) AND ( C)?
' '
6.DOES DIRECTIVE NO 76/207/EEC AS INTERPRETED BY THE COURT OF JUSTICE IN
ITS ANSWERS TO THE QUESTIONS SET OUT ABOVE CONSTITUTE DIRECTLY APPLICABLE
LAW IN THE FEDERAL REPUBLIC OF GERMANY?
' '
7 THOSE QUESTIONS ARE
INTENDED PRIMARILY TO ESTABLISH WHETHER DIRECTIVE NO 76/207 REQUIRES
MEMBER STATES TO LAY DOWN LEGAL CONSEQUENCES OR SPECIFIC SANCTIONS IN THE
EVENT OF DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT ( QUESTIONS 1 TO 5
) AND WHETHER INDIVIDUALS MAY , WHERE APPROPRIATE , RELY ON THE PROVISIONS
OF THE DIRECTIVE BEFORE THE NATIONAL COURTS WHERE THE DIRECTIVE HAS NOT
BEEN TRANSPOSED INTO THE NATIONAL LEGAL ORDER WITHIN THE PERIODS
PRESCRIBED ( QUESTION 6 ).
( A ) QUESTION 1
8 IN ITS FIRST
QUESTION THE ARBEITSGERICHT ASKS ESSENTIALLY WHETHER DIRECTIVE NO 76/207
REQUIRES DISCRIMINATION ON GROUNDS OF SEX IN THE MATTER OF ACCESS TO
EMPLOYMENT TO BE PENALIZED BY AN OBLIGATION , IMPOSED ON AN EMPLOYER WHO
IS GUILTY OF DISCRIMINATION TO CONCLUDE A CONTRACT OF EMPLOYMENT WITH THE
CANDIDATE WHO WAS THE VICTIM OF DISCRIMINATION .
9 ACCORDING TO THE
ARBEITSGERICHT , IT IS CLEAR FROM THE RECITALS IN THE PREAMBLE TO AND FROM
THE ACTUAL PROVISIONS OF THE DIRECTIVE THAT THE DIRECTIVE REQUIRES MEMBER
STATES TO ADOPT LEGAL PROVISIONS WHICH PROVIDE EFFECTIVE SANCTIONS . IN
ITS VIEW ONLY COMPENSATION IN KIND , ENTAILING THE APPOINTMENT OF THE
PERSONS WHO WERE THE VICTIMS OF DISCRIMINATION , IS EFFECTIVE .
10
ACCORDING TO THE PLAINTIFFS IN THE MAIN ACTION , BY RESTRICTING THE RIGHT
TO COMPENSATION SOLELY TO ' ' VERTRAUENSSCHADEN ' ' , PARAGRAPH 611A ( 2 )
OF THE BURGERLICHES GESETZBUCH EXCLUDED THE POSSIBILITIES OF COMPENSATION
AFFORDED BY THE GENERAL RULES OF LAW . DIRECTIVE NO 76/207 REQUIRES MEMBER
STATES TO INTRODUCE APPROPRIATE MEASURES WITH A VIEW TO AVOIDING
DISCRIMINATION IN THE FUTURE . IT SHOULD , THEREFORE , BE ACCEPTED THAT
PARAGRAPH 611A ( 2 ) MUST BE LEFT OUT OF ACCOUNT . THE RESULT OF THAT
WOULD BE THAT THE EMPLOYER WOULD BE REQUIRED TO CONCLUDE A CONTRACT OF
EMPLOYMENT WITH THE CANDIDATE DISCRIMINATED AGAINST .
11 THE
GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY IS AWARE OF THE NEED FOR AN
EFFECTIVE TRANSPOSITION OF THE DIRECTIVE BUT STRESSES THE FACT THAT ,
UNDER THE THIRD PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY , EACH MEMBER
STATE HAS A MARGIN OF DISCRETION AS REGARDS THE LEGAL CONSEQUENCES WHICH
MUST RESULT FROM A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT . THE GERMAN
GOVERNMENT SUBMITS , MOREOVER , THAT IT IS POSSIBLE FOR THE GERMAN COURTS
TO WORK OUT , ON THE BASIS OF PRIVATE NATIONAL LAW AND IN CONFORMITY WITH
THE SUBSTANCE OF THE DIRECTIVE , ADEQUATE SOLUTIONS WHICH SATISFY BOTH THE
PRINCIPLE OF EQUAL TREATMENT AND THE INTERESTS OF ALL THE PARTIES .
FINALLY AN APPRECIABLE LEGAL CONSEQUENCE IS IN ITS VIEW SUFFICIENT TO
ENSURE COMPLIANCE WITH THE PRINCIPLE OF EQUAL TREATMENT AND THAT
CONSEQUENCE SHOULD FOLLOW ONLY IF THE VICTIM OF DISCRIMINATION WAS BETTER
QUALIFIED FOR THE POST THAN THE OTHER CANDIDATES ; IT SHOULD NOT APPLY
WHERE THE CANDIDATES ' QUALIFICATIONS WERE EQUAL .
12 THE DANISH
GOVERNMENT CONSIDERS THAT THE DIRECTIVE DELIBERATELY LEFT TO MEMBER STATES
THE CHOICE OF SANCTIONS , IN ACCORDANCE WITH THEIR NATIONAL CIRCUMSTANCES
AND LEGAL SYSTEMS . MEMBER STATES SHOULD PENALIZE BREACHES OF THE
PRINCIPLE OF EQUAL TREATMENT IN THE SAME WAY AS THEY PENALIZE SIMILAR
BREACHES OF NATIONAL RULES IN RELATED AREAS NOT GOVERNED BY COMMUNITY LAW
.
13 THE UNITED KINGDOM IS ALSO OF THE OPINION THAT IT IS FOR
MEMBER STATES TO CHOOSE THE MEASURES WHICH THEY CONSIDER APPROPRIATE TO
ENSURE THE FULFILMENT OF THEIR OBLIGATIONS UNDER THE DIRECTIVE . THE
DIRECTIVE GIVES NO INDICATION AS TO THE MEASURES WHICH MEMBER STATES
SHOULD ADOPT AND THE QUESTIONS REFERRED TO THE COURT THEMSELVES CLEARLY
ILLUSTRATE THE DIFFICULTIES ENCOUNTERED IN LAYING DOWN APPROPRIATE
MEASURES .
14 THE COMMISSION CONSIDERS THAT ALTHOUGH THE DIRECTIVE
IS INTENDED TO LEAVE TO MEMBER STATES THE CHOICE AND THE DETERMINATION OF
THE SANCTIONS , THE TRANSPOSITION OF THE DIRECTIVE MUST NEVERTHELESS
PRODUCE EFFECTIVE RESULTS . THE PRINCIPLE OF THE EFFECTIVE TRANSPOSITION
OF THE DIRECTIVE REQUIRES THAT THE SANCTIONS MUST BE OF SUCH A NATURE AS
TO CONSTITUTE APPROPRIATE COMPENSATION FOR THE CANDIDATE DISCRIMINATED
AGAINST AND FOR THE EMPLOYER A MEANS OF PRESSURE WHICH IT WOULD BE UNWISE
TO DISREGARD AND WHICH WOULD PROMPT HIM TO RESPECT THE PRINCIPLE OF EQUAL
TREATMENT . A NATIONAL MEASURE WHICH PROVIDES FOR COMPENSATION ONLY FOR
LOSSES ACTUALLY INCURRED THROUGH RELIANCE ON A EXPECTATION ( ' '
VERTRAUENSSCHADEN ' ' ) IS NOT SUFFICIENT TO ENSURE COMPLIANCE WITH THAT
PRINCIPLE .
15 ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 189 : '
' A DIRECTIVE SHALL BE BINDING , AS TO THE RESULT TO BE ACHIEVED , UPON
EACH MEMBER STATE TO WHICH IT IS ADDRESSED , BUT SHALL LEAVE TO THE
NATIONAL AUTHORITIES THE CHOICE OF FORM AND METHODS ' ' . ALTHOUGH THAT
PROVISION LEAVES MEMBER STATES 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 , IN THEIR NATIONAL LEGAL SYSTEMS , ALL THE MEASURES
NECESSARY TO ENSURE THAT THE DIRECTIVE IS FULLY EFFECTIVE , IN ACCORDANCE
WITH THE OBJECTIVE WHICH IT PURSUES .
16 IT IS THEREFORE NECESSARY
TO EXAMINE DIRECTIVE NO 76/207 IN ORDER TO DETERMINE WHETHER IT REQUIRES
MEMBER STATES TO PROVIDE FOR SPECIFIC LEGAL CONSEQUENCES OR SANCTIONS IN
RESPECT OF A BREACH OF THE PRINCIPLE OF EQUAL TREATMENT REGARDING ACCESS
TO EMPLOYMENT .
17 THE OBJECT OF THAT DIRECTIVE IS TO IMPLEMENT IN
THE MEMBER STATES THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN , IN
PARTICULAR BY GIVING MALE AND FEMALE REAL EQUALITY OF OPPORTUNITY AS
REGARDS ACCESS TO EMPLOYMENT . WITH THAT END IN VIEW , ARTICLE 2 DEFINES
THE PRINCIPLE OF EQUAL TREATMENT AND ITS LIMITS , WHILE ARTICLE 3 ( 1 )
SETS OUT THE SCOPE OF THE PRINCIPLE SPECIFICALLY AS REGARDS ACCESS TO
EMPLOYMENT . ARTICLE 3 ( 2 ) ( A ) PROVIDES THAT MEMBER STATES ARE TO TAKE
THE MEASURES NECESSARY TO ENSURE THAT ANY LAWS , REGULATIONS AND
ADMINISTRATIVE PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT ARE
ABOLISHED .
18 ARTICLE 6 REQUIRES MEMBER STATES TO INTRODUCE INTO
THEIR NATIONAL LEGAL SYSTEMS SUCH MEASURES AS ARE NECESSARY TO ENABLE ALL
PERSONS WHO CONSIDER THEMSELVES WRONGED BY DISCRIMINATION ' ' TO PURSUE
THEIR CLAIMS BY JUDICIAL PROCESS ' ' . IT FOLLOWS FROM THE PROVISION THAT
MEMBER STATES ARE REQUIRED TO ADOPT MEASURES WHICH ARE SUFFICIENTLY
EFFECTIVE TO ACHIEVE THE OBJECTIVE OF THE DIRECTIVE AND TO ENSURE THAT
THOSE MEASURES MAY IN FACT BE RELIED ON BEFORE THE NATIONAL COURTS BY THE
PERSONS CONCERNED . SUCH MEASURES MAY INCLUDE , FOR EXAMPLE , PROVISIONS
REQUIRING THE EMPLOYER TO OFFER A POST TO THE CANDIDATE DISCRIMINATED
AGAINST OR GIVING THE CANDIDATE ADEQUATE FINANCIAL COMPENSATION , BACKED
UP WHERE NECESSARY BY A SYSTEM OF FINES . HOWEVER THE DIRECTIVE DOES NOT
PRESCRIBE A SPECIFIC SANCTION ; IT LEAVES MEMBER STATES FREE TO CHOOSE
BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE
.
19 THE REPLY TO THE FIRST QUESTION SHOULD THEREFORE BE THAT
DIRECTIVE NO 76/207 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 UPON THE EMPLOYER WHO IS THE AUTHOR OF THE
DISCRIMINATION TO CONCLUDE A CONTRACT OF EMPLOYMENT WITH THE CANDIDATE
DISCRIMINATED AGAINST . ( B ) QUESTIONS 2 , 3 AND 4
20 IT IS NOT
NECESSARY TO ANSWER THE SECOND , THIRD AND FOURTH QUESTIONS SINCE THEY ARE
PUT ONLY ON THE SUPPOSITION THAT AN EMPLOYER IS REQUIRED TO OFFER A POST
TO THE CANDIDATE DISCRIMINATED AGAINST .
( C ) QUESTIONS 5 AND 61
21 IN ITS FIFTH QUESTION THE ARBEITSGERICHT ESSENTIALLY ASKS WHETHER
IT IS POSSIBLE TO INFER FROM THE DIRECTIVE ANY SANCTION IN THE EVENT OF
DISCRIMINATION OTHER THAN THE RIGHT TO THE CONCLUSION OF A CONTRACT OF
EMPLOYMENT . QUESTION 6 ASKS WHETHER THE DIRECTIVE , AS PROPERLY
INTERPRETED , MAY BE RELIED ON BEFORE NATIONAL COURTS BY PERSONS WHO HAVE
SUFFERED INJURY .
22 IT IS IMPOSSIBLE TO ESTABLISH REAL EQUALITY OF
OPPORTUNITY WITHOUT AN APPROPRIATE SYSTEM OF SANCTIONS . THAT FOLLOWS NOT
ONLY FROM THE ACTUAL PURPOSE OF THE DIRECTIVE BUT MORE SPECIFICALLY FROM
ARTICLE 6 THEREOF WHICH , BY GRANTING APPLICANTS FOR A POST WHO HAVE BEEN
DISCRIMINATED AGAINST RECOURSE TO THE COURTS , ACKNOWLEDGES THAT THOSE
CANDIDATES HAVE RIGHTS OF WHICH THEY MAY AVAIL THEMSELVES BEFORE THE
COURTS .
23 ALTHOUGH , AS HAS BEEN STATED IN THE REPLY TO QUESTION
1 , FULL IMPLEMENTATION OF THE DIRECTIVE DOES NOT REQUIRE ANY SPECIFIC
FORM OF SANCTION FOR UNLAWFUL DISCRIMINATION , IT DOES ENTAIL THAT THAT
SANCTION BE SUCH AS TO GUARANTEE REAL AND EFFECTIVE JUDICIAL PROTECTION .
MOREOVER IT MUST ALSO HAVE A REAL DETERRENT EFFECT ON THE EMPLOYER . IT
FOLLOWS THAT WHERE A MEMBER STATE CHOOSES TO PENALIZE THE BREACH OF THE
PROHIBITION OF DISCRIMINATION BY THE AWARD OF COMPENSATION , THAT
COMPENSATION MUST IN ANY EVENT BE ADEQUATE IN RELATION TO THE DAMAGE
SUSTAINED .
24 IN CONSEQUENCE IT APPEARS THAT NATIONAL PROVISIONS
LIMITING THE RIGHT TO COMPENSATION OF PERSONS WHO HAVE BEEN DISCRIMINATED
AGAINST AS REGARDS ACCESS TO EMPLOYMENT TO A PURELY NOMINAL AMOUNT , SUCH
AS , FOR EXAMPLE , THE REIMBURSEMENT OF EXPENSES INCURRED BY THEM IN
SUBMITTING THEIR APPLICATION , WOULD NOT SATISFY THE REQUIREMENTS OF AN
EFFECTIVE TRANSPOSITION OF THE DIRECTIVE .
25 THE NATURE OF THE
SANCTIONS PROVIDED FOR IN THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF
DISCRIMINATION REGARDING ACCESS TO EMPLOYMENT AND IN PARTICULAR THE
QUESTION WHETHER THE RULE IN PARAGRAPH 611A ( 2 ) OF THE BURGERLICHES
GESETZBUCH EXCLUDES THE POSSIBILITY OF COMPENSATION ON THE BASIS OF THE
GENERAL RULES OF LAW WERE THE SUBJECT OF LENGTHY DISCUSSION BEFORE THE
COURT . THE GERMAN GOVERNMENT MAINTAINED IN THE ORAL PROCEDURE THAT THAT
PROVISION DID NOT NECESSARILY EXCLUDE THE APPLICATION OF THE GENERAL RULES
OF LAW REGARDING COMPENSATION . IT IS FOR THE NATIONAL COURT ALONE TO RULE
ON THAT QUESTION CONCERNING THE INTERPRETATION OF ITS NATIONAL LAW
.
26 HOWEVER , 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 THE
NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL LAW
SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT DIRECTIVE NO 76/207 ,
NATIONAL COURTS ARE REQUIRED TO INTERPRET THEIR 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 .
27 ON THE
OTHER HAND , AS THE ABOVE CONSIDERATIONS SHOW , THE DIRECTIVE DOES NOT
INCLUDE ANY UNCONDITIONAL AND SUFFICIENTLY PRECISE OBLIGATION AS REGARDS
SANCTIONS FOR DISCRIMINATION WHICH , IN THE ABSENCE OF IMPLEMENTING
MEASURES ADOPTED IN GOOD TIME MAY BE RELIED ON BY INDIVIDUALS IN ORDER TO
OBTAIN SPECIFIC COMPENSATION UNDER THE DIRECTIVE , WHERE THAT IS NOT
PROVIDED FOR OR PERMITTED UNDER NATIONAL LAW .
28 IT SHOULD ,
HOWEVER , BE POINTED OUT TO THE NATIONAL COURT THAT ALTHOUGH DIRECTIVE NO
75/207/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 STATES 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 CONNECTION 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 .
COSTS
29 THE COSTS INCURRED BY THE
GOVERNMENTS OF DENMARK AND THE FEDERAL REPUBLIC OF GERMANY , BY THE UNITED
KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE
SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE
PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE
CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE
NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT
.
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO
THE QUESTIONS REFERRED TO IT BY THE ARBEITSGERICHT HAMM BY ORDER OF 6
DECEMBER 1982 , HEREBY RULES :
1 . 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 .
2 . 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 .
3 . 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 CONNECTION 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 .
