Facts: the Minister of Agriculture of Netherlands enacted a program governing access to the Ministry's partially subsidized nursery scheme. The Minister adopted Circular Number P 93-7841 to encourage the presence of women within the ministry, which provided that nursery places were available only to female employees of the Ministry of Agriculture. The applicant was an employee of the Ministry. His wife worked elsewhere, they were expecting a child and they requested a nursery place for their child. The Minister rejected the applicant's request.
Complaint: the applicant claimed that the refusal was a discrimination based on sex and that the circular was in violation of the Directive guaranteeing equal treatment.
Holding: the ECJ held that the plan aimed to achieve substantive
equality by reserving spaces in subsidized nursery facilities. Therefore it
was consistent with Community law, specifically with Article 2(4) of the
Directive on Equal Treatment
Reasoning: the Directive did not necessarily prevent the Minister
from enforcing the Circular. The validity of the program depended on the
results of a fact-finding investigation. It resulted from such an
investigation that in reserving places in the nursery exclusively for the
children of female employees, the Minister created a difference of treatment
on the grounds of gender, violating Article 2(1). However, even if the
Circular's violated with Article 2(1), the Circular could still be validly
enforced under Article 2(4) because the employment situation in the Ministry
was characterized by a significant under-representation of women and the
insufficiency of suitable nursery facilities was more likely to induce
female employees to give up their jobs.
