Preliminary rulings – Reference to the Court – Obligation to refer (Art. 267(3), TFEU) 1 Article 4(1) of Directive 97/80 on the burden of proof in cases of discrimination based on sex must be interpreted as meaning that it does not entitle an applicant for vocational training, who believes that his application was not accepted because of an infringement of the principle of equal treatment, to information held by the course provider on the qualifications of the other applicants for the course in question, in order that he may establish ‘facts from which it may be presumed that there has been direct or indirect discrimination’ in accordance with that provision. Nevertheless, it cannot be ruled out that a refusal of disclosure by a defendant, in the context of establishing such facts, could risk compromising the achievement of the objective pursued by that directive and thus depriving, in particular, Article 4(1) thereof of its effectiveness. It is for the national court to ascertain whether that is the case in the main proceedings. (see paras 38-39, operative part 1) 2 Article 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 and Article 1(3) of Directive 2002/73, amending Directive 76/207, must be interpreted as meaning that they do not entitle an applicant for vocational training to information held by the course provider on the qualifications of the other applicants for the course in question, either because he believes that he has been denied access to vocational training on the basis of the same criteria as the other candidates and discriminated against on grounds of sex, referred to in Article 4 of Directive 76/207, or because that applicant complains that he was discriminated against on the grounds of sex, referred to in Article 1(3) of Directive 2002/73, with regard to access to that vocational training. (see para. 48, operative part 2) 3 When an applicant for vocational training can rely on Directive 97/80 on the burden of proof in cases of discrimination based on sex in order to obtain access to information held by the course provider on the qualifications of the other applicants for the course in question, that entitlement to access can be affected by rules of Union law relating to confidentiality. Thus, in assessing whether a refusal of disclosure by a defendant, in the context of establishing facts which permit a presumption that there has been discrimination, could risk compromising the achievement of the objective pursued by Directive 97/80 and thus depriving Article 4(1) thereof in particular of its effectiveness, national courts or other competent bodies must take into account the rules governing confidentiality which follow from measures of Union law, such as Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). The protection of personal data is also provided for in Article 8 of the Charter of Fundamental Rights of the European Union. (see paras 54-56, operative part 3) 4 The obligation laid down in the third paragraph of Article 267 TFEU does not differ according to whether a Member State has an adversarial or an inquisitorial legal system. Article 267 TFEU confers on national courts the power and, in certain circumstances, an obligation, to make a reference to the Court once the national court considers, either of its own motion or at the request of the parties, that the substance of the dispute involves a question which falls within the scope of the first paragraph of that article. It follows that the national courts have the most extensive power to make a reference to the Court if they consider that a case pending before them raises issues involving an interpretation or assessment of the validity of provisions of Union law requiring a decision by them. Moreover, the system of references for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether a reference is appropriate and necessary. Thus, not only is it for the national court to assess whether an interpretation of Union law is necessary to enable it to resolve the dispute before it, having regard to the procedural mechanism laid down in Article 267 TFEU, but it is also for that court to decide the manner in which those questions are to be worded. Although that court is at liberty to request the parties to the dispute before it to suggest wording suitable for the questions to be referred, the fact remains that it is finally for the court alone to decide both the form and the content of those questions. (see paras 61, 63-66, operative part 4) JUDGMENT OF THE COURT (Second Chamber) 21 July 2011 (*) (Directives 76/207/EEC, 97/80/EC and 2002/73/EC – Access to vocational training – Equal treatment for men and women – Rejection of candidature – Access of an applicant for vocational training to information on the qualifications of the other applicants) In Case C‑104/10, REFERENCE for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 29 January 2010, received by the Court on 24 February 2010, in the proceedings Patrick Kelly v National University of Ireland (University College, Dublin), THE COURT (Second Chamber), composed of J.N. Cunha Rodrigues, President of the Chamber, A. Arabadjiev, A. Rosas (Rapporteur), U. Lõhmus and P. Lindh, Judges, Advocate General: P. Mengozzi, Registrar: L. Hewlett, Principal Administrator, having regard to the written procedure and further to the hearing on 13 January 2011, after considering the observations submitted on behalf of: – Mr Kelly, in person, – the National University of Ireland (University College, Dublin), by M. Bolger SC, instructed by E. O’Sullivan, Solicitor, – the German Government, by J. Möller, acting as Agent, – the European Commission, by M. van Beek and N. Yerrell, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following Judgment 1 This reference for a preliminary ruling concerns the interpretation of European Union law and, in particular, of Article 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), Article 4(1) of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6) and Article 1(3) of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207 (OJ 2002 L 269, p. 15). 2 The reference has been made in the course of legal proceedings brought by Mr Kelly against the National University of Ireland (University College Dublin) (‘UCD’), following the latter’s refusal to disclose unredacted documents relating to the selection procedure for a vocational training course. Legal context European Union legislation Directive 76/207 3 Directive 76/207, applicable at the time of the facts which gave rise to the complaint of discrimination on grounds of sex, that is to say, during March and April 2002, provided in Article 4 as follows: ‘Application of the principle of equal treatment with regard to access to all types and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining, means that Member States shall take all necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) without prejudice to the freedom granted in certain Member States to certain private training establishments, vocational guidance, vocational training, advanced vocational training and retraining shall be accessible on the basis of the same criteria and at the same levels without any discrimination on grounds of sex.’ 4 Article 6 of that directive provided: ‘Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.’ Directive 2002/73