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.
;” the Bremen Law on Equal Treatment for Men and Women in the Public Service) (Bremisches Gesetzblatt, p. 433) provides: “Appointment, assignment to an official post and promotion “(1) In the case of an appointment (including establishment as a civil servant or judge) which is not made for training purposes, women who have the same qualifications as men applying for the same post are to be given priority in sectors where they are under-represented.
(2) In the case of an assignment to a position in a higher pay, remuneration and salary bracket, women who have the same qualifications as men applying for the same post are to be given priority if they are under-represented.
Specific experience and capabilities, such as those acquired as a result of family work, social commitment or unpaid activity, are part of the qualifications within the meaning of sub-paragraphs (1) and (2) if they are of use in performing the duties of the position in question.
(5) There is under-representation if women do not make up at least half of the staff in the individual pay, remuneration and salary brackets in the relevant personnel group within a department.
This also applies to the function levels provided for in the organisation chart.” 4 It appears from the order for reference that, at the final stage of recruitment to a post of section manager in the Bremen parks department, two candidates, both in B.A.T.
The staff committee then stated that the arbitration had failed and appealed to *330 the conciliation board which, in a decision binding on the employer, considered that the two candidates were equally qualified and that priority should therefore be given, in accordance with the L.G.G., to the woman.
It points out that, if the conciliation board was wrong in applying that Law, its decision would be unlawful because it gave an advantage, solely on the ground of sex, to an equally qualified female candidate.
Considering itself bound also by that court's finding that women are under-represented in the parks department, it holds that the conciliation board was obliged, under paragraph 4(2) of the L.G.G., to refuse to agree to the plaintiff's appointment to the vacant post.
11 Considering, however, that doubts remain in that regard, the Bundesarbeitsgericht has stayed the proceedings and sought a preliminary ruling from the court on the following questions: “(1) Must article 2(4) of Council Directive (76/207/E.E.C.)
precludes national rules such as those in the present case 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 organisation chart.
): “shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities …” 18 That provision is specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact *332 intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life: see Commission of the European Communities v. French Republic (Case 312/86) [1988] E.C.R.
19 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.
of 13 December 1984 on the promotion of positive action for women: “existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides of industry and other bodies concerned, to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures; …” 21 Nevertheless, as a derogation from an individual right laid down in Directive (76/207/E.E.C.