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Positive Action Before the European Court of Justice: CASE C-450/93 Kalanke v Freie Hansestadt Bremen
Ursula A O'Hare*
Jean Monnet Lecturer in European Law & PolicyNewcastle Law School
Copyright © 1996 Ursula A O'Hare.
First Published in Web Journal of Current Legal Issues in association with Blackstone
Press Ltd.
* My thanks to I. Dawson and B. Fitzpatrick for their comments on an earlier draft.
Summary
Contents
Introduction
The European Court of Justice (the Court) sitting in plenary session has recently ruled that a 'tie-break' positive action (1) programme, which gave priority to a woman candidate for an employment position over an equally qualified male candidate, in an employment sector where women are under-represented, was contrary to the Equal Treatment Directive. This judgment raises difficult questions about competing visions of equality. Although space precludes setting out the theoretical framework within which the decision may be analysed, this case note is intended to point to some of the more salient difficulties raised by the Court's decision.The armoury of anti-discrimination law normally comprises a triad of measures to promote equality: a prohibition on direct discrimination on the grounds of sex; a prohibition on unlawful indirect discrimination, and finally, 'positive action' measures. Positive action schemes are generally treated in law as an exception to the fundamental principle of equality, and as such they are typically temporary in nature, becoming inoperative when the goal they seek to achieve has been realised (generally, positive action programmes are aimed at addressing the issue of under-representation of minority groups in the labour market or in education).(2)
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The Legal Framework of Positive Action under Community Law
Positive action measures are expressly provided for in Community law in the Equal Treatment Directive and have recently been endorsed in the Social Policy Agreement. Such measures are also envisaged in the 'soft law' of the Community. Clearly then, positive action is seen as a legitimate policy objective under Community law. The following provisions are material:
(i) Article 2(1) of Directive 76/207 provides that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status."(ii) Article 2(4) of the Equal Treatment Directive, however, provides that "measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities..." in access to employment, promotion, vocational training and working conditions are exempt from Article 2(1).
(iii) Article 6(3) of the Social Policy Agreement affirms that the principle of equal pay for equal work does "not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers."
The Council Recommendation on the Promotion of Positive Action for Women of 1984 recognises that "existing legal provisions on equal treatment which are designed to afford right to individuals, are inadequate for the elimination of all existing inequalities" (Preamble), and therefore advises Member States to adopt positive action policies "designed to eliminate existing inequalities affecting women in working life and to promote a better balance between the sexes in employment" (Paragraph 1).
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The Facts
In a decision of the relevant Conciliation Board, Eckhard Kalanke and Ms Glißmann were found by the relevant Conciliation Board to be equally well qualified for the promotion for which they were applying. This finding then triggered the obligations of the Landesgleichstellungsgesetz of 20 November on Equal Treatment for Men and Women in the Public Service which provides that priority should be given to a woman in a 'tie-break' situation. The Bremen legislation is framed in the following terms:
"(1) In the case of an appointment...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. This also applies in the case of assignment to a different official post and promotion."
Paragraph (4) is interesting. It explains that the assessment of qualifications will not focus on formal qualifications; women's non-employment based experience will therefore be of relevance.
"(4) Qualifications are to be evaluated exclusively in accordance with the requirements of the occupation, post to be filled or career bracket. Specific experience and capabilities, such as those acquired as a result of family work, social commitments or unpaid activity, are part of the qualifications within the meaning of subparagraphs (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."
On an appeal by Kalanke to first, the Labour Court, then the Regional Labour Court and finally the Bundesarbeitsgericht it was held that the two candidates being equally qualified for the post and women being under-represented in the Parks Department; therefore, the Conciliation Board was legally bound to give effect to paragraph 4 and refuse to appoint Kalanke to the post. The Bundesarbeitsgericht expressly distinguished between a strict quota system which reserves a particular good to one group regardless of qualification and a system which took effect only when both candidates are equally qualified. In Bremen law, it is only in the latter system that women enjoy any priority in the appointment process. In the view of the national court, such a system is compatible with national law. However, the national court sought a ruling from the ECJ on the compatibility of the Bremen Land law with Article 2(4) and 2(1) of the Equal Treatment Directive on the following two questions:
"1. Must Article 2(4) of Council Directive 76/207...be interpreted as also covering statutory provisions under which, when a position in a higher pay bracket is being assigned, women with the same qualifications as men applying for the same position are to be given priority if women are under- represented, there being under-representation if women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group within a department, which also applies to the function levels provided for in the organisation chart?2. If Question 1 is answered in the negative:
Must Article 2(1) of Council Directive 76/207...be interpreted, having regard to the principle of proportionality, as meaning that it is not permissible to apply statutory provisions under which, when a position in a higher pay bracket is being assigned, women with the same qualifications as men applying for the same position are to be give priority if women are under- represented, there being deemed to be under-representation if women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group within a department, which also applies to the function levels provided for in the organisation chart?"
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Interventions and Judgment
A. The Interventions
Interventions were made by the United Kingdom government and the Commission. The UK government, intervening, argued in support of Kalanke:
(i) that the Bremen legislation was concerned with social engineering and not equal treatment;(ii) that unequal representation is the result of a cocktail of factors and therefore, quota systems are arbitrary because they are based on the false premise that under-representation equates with discriminatory treatment. According to the United Kingdom government, Article 2(4) would only permit action which aims to provide equality of opportunity. This would mean that positive action measures may apply up to the point of appointment, at which stage the principle of formal equality must apply.
The Commission intervening in support of the Bremen Land argued:
(i) that the Bremen system is limited in its effect as it does not proscribe the application of strict quotas and therefore does not offend the principle of proportionality;(ii) that there is a distinction to be drawn between two forms of positive action, strict quota systems and 'tie-break';
(iii) that Article 1(1) of the Equal Treatment Directive requires Member States to achieve actual equality, and therefore,
(iv) where two candidates are equally qualified there is no reason why the discretion as to which to appoint should not be exercised to give effect to a positive action scheme.
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B. The Advocate- General's Opinion
Advocate-General Tesauro initially rephrases the questions from the national court to concern the interpretation of Article 2(4) of the Equal Treatment Directive in relation to a system of quotas in favour of women where women are under- represented in the workplace. It is interesting that the Advocate-General classifies tie- break schemes as a quota system without first considering any distinction between strict quotas and tie-break, although this is remedied later in the opinion. The central question for the Advocate-General is "whether the individual right not to be discriminated against on the grounds of sex", which the Court has affirmed as a fundamental principle of Community law must give way to "the rights of the disadvantaged group in order to compensate for the discrimination suffered by that group in the past" (para 7).Since the Court has rare opportunity to consider the permissible scope of 'positive action' measures within the Equal Treatment Directive, the Advocate-General takes some time to set out his understanding of what that term may encompass before attempting to answer that question. Although he recognises that positive action may take a number of forms, generically, he defines positive action as an equal opportunities measure which commonly involves the use of 'preferential treatment' for the disadvantaged group. Firstly, he notes that positive action may encompass measures designed to remove disadvantage and the causes of under-representation by such means as training targeted at the relevant group. Secondly, positive action may include measures specifically adopted for women which aim to facilitate their employment such as child-care facilities and the arrangement of working hours. In both of these schemes the aim is to provide equal opportunities which, he believes, in the long-term result in an increase in women's representation in the labour market.
The third form of positive action envisaged by the Advocate-General is that which is remedial and compensatory in nature and which involves the use of quotas and goals. Drawing on the jurisprudence of the US Supreme Court,(3) he draws a distinction between quotas which "reserve a number of posts for the most disadvantaged categories with a view to rebalancing their representation" and goals which "give higher points to members of the category in question but without compromising every candidate's entitlement to compete for all available posts" (Para 10). The Advocate- General further refines what he understands by 'quotas' by noting a distinction between strict quota systems (i.e. rigidly setting a number of posts which must be filled regardless of the merit of the candidates) and flexible systems which become operative only where both candidates are equally well qualified for the post.
Having surveyed this range of positive action measures, the Advocate- General takes the position that "any specific action in favour of a minority...conflicts with the principle of equality in the formal sense"' (para 11) and that a quota system, in particular, most affects the principle of equality (the Advocate-General at this point makes no reference to a distinction between strict and flexible quotas). The question then is whether the Directive can be interpreted to permit a departure, "in clearly defined circumstances", from reliance on the principle of formal equality "in order to achieve an objective corresponding to a social choice, which, in turn, is calculated to cancel out the inequalities caused by past prejudice" (para 11).
The Advocate-General opines that the objective of the Directive is to ensure "effective equal treatment" which requires that 'equal opportunities' are made available to both sexes by the removal of existing inequalities where those inequalities impede access to equal opportunities. He therefore concludes that the Directive aims to ensure "equality with respect to starting points" rather than equality with respect to the "points of arrival". The Advocate-General recognises the limitations to this approach. Although he accepts that the realisation of substantive equality must be the ultimate objective of equal opportunities measures, and acknowledges that equality of starting points will not of itself guarantee the attainment of substantive equality (because structural and personal factors may impede the realisation of this goal), he considers that the Directive and Article 2(4) in particular, can not bear an interpretation which would legitimate an 'equal results' approach.
The Advocate-General draws support for this interpretation of the Directive from the judgment in Commission v France ([1988] ECR 6315), in which the Court interpreted Article 2(4) of the Directive to encompass measures which whilst discriminatory in appearance, seek to remove existing barriers to equal opportunities for women.(4) The Advocate-General considers that this judgment makes clear that whilst the objective of Article 2(4) is indeed the attainment of substantive equality, the route to substantive equality is circumscribed to those measures which only go so far as to eliminate the inequalities which prevent women from competing on a level playing field with men. This way, the conditions whereupon like may be treated alike are created at which point the principle of formal equality may prevail.
The Advocate-General finds further support for this vision of equality in Article 2(3) of the Directive. Article 2(3) authorises differential treatment for women on the grounds of pregnancy and childbirth and as such is a derogation from the principle of formal equality. In this context, the differences between the sexes legitimates a departure from formal equality; legitimate because here, recognising and accommodating difference seeks to ensure that both sexes have the same opportunities to compete on equal terms for the same posts.
Community 'soft law' is also relied upon by the Advocate-General to support his interpretation of Article 2(4). He argues that no different conclusion can be reached having regard to the Recommendation on Positive Action which he considers is defined in terms of "encouragement, certainly not of mechanical preference" (para 20). He argues that the Recommendation envisages positive action measures which (i) seek to remove existing obstacles to the 'achievement of equal opportunities', and (ii) which are temporary in nature, discontinuing when those obstacles have been removed. (Para 20). In respect of Article 6(3) of the Social Policy Agreement, the Advocate-General concludes that:
"once again, what is being contemplated is the elimination of the unfavourable consequences for women of their specific condition; the objective is still that of attaining an actual situation of equal opportunities for men and women" (para 21).
In conclusion then the Advocate-General considers that Article 2(4) must be construed to apply only to measures which:
"enable existing inequalities affecting women to be eliminated, but certainly not through pure and simple reverse discrimination, that is to say, through measures not in fact designed to remove the obstacles preventing women from pursuing the same results on equal terms, but to confer the results on them directly or, in any event, to grant them priority in attaining those results simply because they are women" (para 22).
Such measures, in his view, are "as unlawful today for the purposes of promotion as they were in the past" (para 22) as they do not aim to eliminate a situation of disadvantage.
The Advocate-General argues that quota systems fail to conform with this view of positive action for two reasons. Firstly, the application of 'quotas' can not resolve those problems pertinent to the difficulties of playing a dual role. Instead, he argues measures to tackle issues such as child-care and the arrangement of working hours are what is required.(5) The second reason focuses on the effects of a legacy of historic discrimination. As a means of compensating for past discrimination it appears that that legacy does not of itself justify a departure from the fundamental principle of equality. The Advocate-General notes that this legacy, combined with cultural factors, "continues to marginalise women on the employment markets." In his view, even if one accepts that under-representation reflects inequality, any measure which simply seeks to correct a numerical imbalance in the workforce ignores the root causes of that inequality. That condition can not be overcome by any means other than action to ensure equalisation of starting points. The equal achievement theory of equality should not be invoked to influence a final decision in the appointment process, because as equality of opportunity has been achieved between the two candidates, the principle of formal equality must then prevail.
Turning finally to the particular Bremen scheme at issue, the Advocate-General finds that it offends the principle of non-discrimination enshrined in Article 2(1) of the Directive and is not saved by the exception to that provision contained in Article 2(4). In response to the second question put by the national court on the proportionality of the measure, the Advocate-General notes that this conclusion does not conflict with the discretion left to Member States in respect to measures they may adopt to guarantee equal opportunities for women. Applying a two-fold test the Advocate- General, citing Habermann [1994] ECR I 1657 notes firstly, that the exercise of that discretion must fall within the confines of the Directive itself (see also Johnston v Chief Constable of the RUC [1986] ECR 1651 at para 38). Secondly, as a derogation from the fundamental principle of equality, the exercise of that discretion must conform with the principle of proportionality. Tesauro argues that the Bremen scheme fails to satisfy this test on both grounds. Firstly, the aim of the Directive is the achievement of equal opportunities and "not guaranteeing women the result where conditions are equal" (para 25). The Bremen scheme, however, "aims to achieve equality as regards the result or, better, fair job distribution simply in numerical terms" (para 13) which does not fall within the scope of the Directive. Secondly, although the national programme is temporary (i.e. it should only apply up to the point where women make up 50% of employees in all levels of public service sector employment) it is unclear exactly when the programme will desist (Tesauro expresses anxiety as to the time-scales involved which he suspects will be considerable and doubt as to whether it will be discontinued when 50:50 ratios are reached) and it is unclear whether if the scheme would be reintroduced if the composition of the workforce were to fall at any time below a ratio of 50:50 in the future. Finally, he argues that although the obstacles which the Bremen scheme seeks to eliminate are "manifestly identified with under- representation" in his view, under-representation "is not necessarily attributable to a consummate determination to marginalize women." Therefore, preferential treatment in the form of a positive action scheme which "mechanically confined to the under- represented group and based solely on that ground" is inherently arbitrary (para 24).
In conclusion, the Advocate-General seems to understand that the view he has taken may be a contentious one in that it may conflict with provisions not only in German law, but in the law of other Member States and with the views of the European Parliament. However, he binds himself firmly to the fundamental principle of equality under Community law and urges the Court to avoid the temptation to 'salve some consciences' by upholding numerical equality.
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C. The Judgment
The Court does not expressly answer the second question of the national court on the proportionality of the national measures but joins the two questions. The Court's judgment was as follows:
(i) Relying on Article 2(1) of the Directive, the Court held that "a national rule that, where men and women who are candidates for the same promotion are equally qualified, women are automatically to be given priority in sectors where they are under-represented, involves discrimination on grounds of sex" (para 16). Under-representation is "deemed to exist where women do not make up at least half of the staff in the relevant personnel group" (para 24).(ii) Drawing on its earlier judgment in the case of Commission v France, [1988] ECR 6315, paragraph 15, and having noted that Article 2(4) is "specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life", the Court affirmed that measures are permitted which give advantage to women "with a view to improving their ability to compete on the labour market and to purse a career on an equal footing with men" (para 19).
(iii) The Court held that the Bremen positive action system is not permissible under Article 2(4) of the Directive. Construing Article 2(4) as a derogation from the individual right to equality (citing Johnston v Chief Constable of the RUC), the Court concluded that "national rules which guarantee women absolute and unconditional priority for appointment or promotion go beyond promoting equal opportunities and overstep the limits of the exception in Article 2(4) of the Directive" Article 2(1) and 2(4) precludes the application of a positive action measure which gives priority to a woman shortlisted for promotion in a 'tie-break' situation, where women are under- represented i.e. where they do not "make up at least half of the staff in the individual pay brackets in the relevant personnel group..." (para 24).
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Comment
This is very much a minimalist judgment from the Court and consequently, many questions remain unanswered by this ruling. Although the lack of reasoning by the Court may indicate a deeply divided bench, and highlight the difficulties associated with collegiate judicial decision-making within the Community, nonetheless, such a sparse judgment is most regrettable given the importance of the issues raised before the Court (The issues here were not just important at a theoretical level in terms of the development of the principle of equality at Community level, but also at a practical level in that the issues before the Court could have significant impact upon the laws of other Member States). It may be argued that the interpretation given to the relevant legal provisions reveals a narrow vision of the principle of equality. Further, several problems may be identified with this decision associated with the absence of reasoning and the consequent lack of clarity.Whilst the reasoning of the Advocate-General is fuller than that of the Court, it is nonetheless limited. He notes that the position he reaches in his Opinion is not supported by measures adopted in other Member States of the Union and non-Union states (para 26) yet he makes no attempt to survey those measures with a view to informing his judgment. Rather, he relies heavily on the United States jurisprudence. Although this is undoubtedly where the jurisprudence is at its most developed, in terms of embracing the issue at a European level, it is submitted that it would have been more helpful had the Advocate-General examined the constitutional and legislative position of positive action in the Member States where positive action forms part of their equality strategy. For example, he does not comment of the German constitutional position and neither does the Court. It will be recalled that the Bundesarbeitsgericht was of the view that the Bremen law was compatible with the German constitution, yet there is no analysis of the issue by the Court.(6) Two further criticisms of the insufficiency of the reasoning of the Court may be advanced. Firstly, the Court does not explain its reasons for coming to the view that a 'tie-break' situation violates Article 2(1) of the Directive. Secondly, other than a reference to Commission v France, no further reasoning is proffered for the conclusion the Court reached in respect of Article 2(4).
On the question of why a 'tie-break' positive action scheme offends the principle of equality and which can not be saved by Article 2(4), a number of alternative arguments to those put by the Advocate-General are not canvassed in his Opinion and are ignored by the Court. For example, it will be recalled that the Advocate-General's analysis proceeds on the basis that the premise for this form of positive action is compensation for past discrimination. Arguments based around the social utility of such measures are also relevant but are not addressed (see for example, Kennedy). It is now commonly accepted that the acheivement of de facto equality is a legitimate social objective. That leads to the question what, if anything, is discriminatory, where all else is equal, about utilising objective criteria in order to achieve that de facto equality; sex here being used as a functional means of distinguishing the candidates. (At the point of the exercise of discretion, it can be argued that the exercise of management prerogative may give effect to assumptions about one group which work to their disadvantage and therefore, does not automatically proceed on the basis of the 'merit' principle.) Finally, strict quotas are, for many, unacceptable because they are deemed to offend the merit principle. Tie-break positive action schemes, on the other hand, do not. However, there is no consideration of this issue by either the Court or the Advocate-General. These arguments should at least be addressed by the Court in the context of Article 2(1) and 2(4) and the failure to do so renders the position taken here less convincing.
Overall, this lack of reasoning results in a lack of clarity which leaves many questions unanswered. For example, it is left uncertain whether the prohibition on 'tie-breaks' only applies to situations of promotion or extends more generally to access to training and hiring. Secondly, it will be recalled that the Advocate-General took the view that strict numerical equality is not supported by the terms of the Directive and offends the principle of proportionality. The problem with the Bremen scheme appears to lie in its insistence on 50:50 representation; the insistence on automatic priority to women thus rendering it too blunt an instrument. Would a scheme which adopted a varying figure reflective of women's participation in the relevant labour pool also be incompatible with Community law? Similarly, where substantive equality remains an unrealised goal, neither the Advocate-General not the Court specify at what point other measures may become acceptable to achieve this goal. Would, for example, a non-statutory positive action scheme implemented in response to the failure of a package of equal opportunity measures be acceptable? When sustained equality auditing of the workplace demonstrate that there remains unaccountable under- representation of one group, would the introduction of tie-break then be acceptable or must it never be contemplated? Again, the Advocate-General does not believe that under-representation reveals a "consummate determination to marginalise women" (para 24). He does, however, note that this under-representation is indicative of inequality. In his view, because this under-representation may not be due to an intention to discriminate, to give preferential treatment is arbitrary. What is unclear is why the lack of intention to marginalize undermines the need to rectify a situation of inequality. The failure to embrace these issues leaves considerable scope for uncertainty which further cases may (or may not) clarify.
It may be argued that this decision reveals a narrow vision of equality. If, as the Advocate-General contends, the objective of the directive is ultimately substantive equality, then the insistence that the legislative provisions can only bear an interpretation which permits this objective to be achieved by means of procedural equality may be unduly narrow. Although Article 2(1) is undoubtedly an anti- discrimination measure and Article 2(4) can be read narrowly to give effect to this interpretation, a more expansive interpretation of that provision may also be possible. If Article 2(4) is read in light of the Recommendation (Grimaldi v Fonds de Maladies Professionnelles [1989] ECR 4407) then it may be possible to give a broader interpretation to that provision than has been followed here. Whilst the Recommendation is phrased in terms of "promoting the achievement of equal opportunities in practice", paragraph 1(a) and (b) give guidance to the Member States on appropriate action and are worth noting. Paragraph 1(a) explains that positive action measures should aim to:
"eliminate or counteract the prejudicial effect on women in employment or seeking employment which arise from existing attitudes..." (emphasis added)
Paragraph 1(b) provides that positive action should:
"encourage the participation of women in various occupations in those sectors of working life where they are at present under-represented, particularly at higher levels of responsibility..." (emphasis added).
It may be argued that the fair representation of women in employment, and particularly, the presence of women in senior positions could go some way towards challenging those existing attitudes which bar women's integration in the labour market which, in turn, might encourage the appointment of more women to senior positions. The adherence by the Court and the Advocate-General to a formal vision of equality fails to recognise that the achievement of 'material equality' may ultimately require more than merely ensuring access to a 'level playing field.'
Increasingly, women do have access to the same educational opportunities and training and are entering the labour market well qualified. However, women continue to fail to achieve upper management positions ('the glass ceiling'). A number of reasons may be proffered for this failure which the Court neglects to consider; the employment culture traditionally reflects the male career-model of full-time and continuous employment with which many women are unable to comply; traditional assumptions about the role of women often work to thwart women's advancement and the absence of women from senior posts both confirms a stereotype and becomes a self-fulfilling prophecy in itself. Women remain segregated in the labour market and continue to earn proportionally less than men, notwithstanding the existence of equality laws which should have the effect of levelling the playing field (see Fredman 1992). The exclusion of women from senior management fails to harness the full talents of society. Furthermore, without role models in key areas, younger women are in fact disadvantaged as compared with their male counter-parts and it becomes more difficult to break out of a cyclical pattern of disadvantage (for a discussion of this issue see Delegado 1991). For these reasons a more expansive interpretation of the principle of equal treatment could go some way to addressing these issues.
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Conclusion
The Advocate-General concludes his Opinion by noting that what is needed is:
"a substantial change in the economic, social and cultural model which is at the root of the inequalities." (para 28)
The Advocate-General is right to argue that measures to promote a reconciliation between family life and working life are essential, but they are essential not only for women, but for both sexes; to argue otherwise is to entrench the assumption that women should have primary responsibility for child-care. Moreover, such measures may not in themselves ensure equal participation in all levels of the labour market (of course, there is no guarantee that the use of tie-breaks will meet that goal). The Advocate-General argues that the creation of a level playing field will ultimately result in the achievement of substantive equality. This insistence, however, fails to recognise the complex and problematic factors which affect working-life.
The Court has missed an opportunity to further de facto equality and has handed down a judgment which must, at least in the short term, surely frustrate the progress of proactive equality measures across the Union. Given that the judgment may undermine existing legislation in some Member States, too many questions are left unanswered. The insistence here that the permissible range of positive action programmes are limited to those schemes which, whilst discriminatory in appearance, are intended to improve women's "ability to compete on the labour market and pursue a career on an equal footing with men" (para 19) would seem, at present, to leave the way open at least for 'outreach' programmes such as training provision for women to encourage them into certain sectors of the labour market where they have hitherto been under-represented. However, the judgment has stirred up considerable controversy and lead Social Affairs Commissioner Flynn to call for an amendment to the Equal Treatment Directive which would provide that only rigid quota systems are unlawful under Community law. He has called upon the Commission to prepare a draft amendment and a communication on the judgment. The future scope of positive action under Community law therefore remains in some doubt.
The desirability of re-opening the Directive is questionable because of anxiety that some Member States might use such an opportunity to undermine the existing terms of the Directive. Therefore, it is arguable that it is best at this time is to leave the issue for the Court to deal with as cases arise. Fortunately, the Court has already been given the opportunity to re-examine the positive action debate in the Marschall case, a 177 reference from the Verwaltungsgericht Gelsenkirchen seeking a ruling on whether the Nordrhein-Westfalen 'Frauenquote' is compatible with the Equal Treatment Directive (Marschall v Land Nordrhein- Westfalen, Case C-490/95, lodged with the Court 29 December 1995). This legislation is similar to that of the Bremen law at issue in Kalanke except that the Nordrhein-Westfalen law contains an express condition that the appointment or promotion of a woman over an equally qualified male competitor does not lead to unbearable individual hardship for the male candidate. This means that, unlike the Bremen scheme in which automatic priority is given to equally qualified women, the relevant appointment authority may exercise a discretion over the appointment process. The decision is therefore eagerly awaited to clarify at least some of the outstanding issues in Kalanke.
Bibliography
Delegado, R (1991) 'Affirmative Action as a Majoritarian Device' 89 Michigan Law Review 1222.
Fredman, S (1992) 'European Community Discrimination Law: A Critique' 21 Industrial Law Journal 119.
Fullinwider, R (1980) The Reverse Discrimination Controversy (Totowa, New Jersey: Rowan & Littlefield)
Kennedy, R. 'Persuasion and Distrust: A Comment on the Affirmative Action Debate' 99 Harvard Law Review 1327.
McCrudden, C (1986) 'Rethinking Positive Action' 15 Industrial Law Journal 219.
Shaw, J (1992) 'Positive Action for Women in Germany', in Hepple, B & Szyszczak, E (eds) Discrimination: The Limits of Law (London: Mansell).
Footnotes
(1) The terminology around positive action is fraught with difficulties, there being no consensus on the appropriate terminology. 'Reverse discrimination' however, is commonly reserved to refer to the practice whereby a particular allocation of a social good is reserved for members of a 'minority' group where the minority candidate is less well qualified than the non-minority candidate (strict quotas). 'Positive action' or 'affirmative action' may refer to a wide spectrum of activity. For a discussion of the range of positive action measures, see McCrudden 1986 and for an analysis of the competing theoretical arguments surrounding these schemes, see Fullinwider 1980. Back to text
(2) For example, Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination and Article 4(1) of the International Convention on the Elimination of All Forms of Discrimination Against Women both endorse the use of positive action as a temporary measure to promote de facto equality. Back to text
(3) Regents of the University of California v Bakke 483 US 265 1978; United Steelworkers of America v Webster 433 US 193 1979 and City of Richmond v Croson 488 US 469 1989. Back to text
(4) In this case the French government sought, inter alia, to retain special measures for women in collective agreements. These measures included extended maternity leave, reduction in working hours, time off to look after sick children, extra days holiday per year per child, pension bonuses on the birth of a second child, allowances to women for child care costs. The Court took the view that there was no evidence that the retention of general rights for women correpsonds with the aim of Article 2(4) by eliminating existing inequalities. Back to text
(5) In this context, the Advocate-General criticises the 'excessive severity' of the Court's judgment in Commission v France (para. 18). Back to text
(6) For a discussion of the development of positive action in Germany and an analysis of the principle of equal treatment in the German constitution, see Shaw 1992 at p 386. Back to text