The purpose of this study is to investigate legislation and leading cases concerning positive discrimination in the European Union, with a particular focus on the recent debate about the most radical positive action measure: the implementation of women’s quotas by supranational legislation. This study seeks to answer the question if such a radical derogation from the equal treatment principle can be tolerated, keeping in mind the fundamental character of this principle in European law. The concept of substantive equality will be analysed and set against the ECJ case law under review. It will be criticised that the ECJ focused once more on a formalist approach and allows for positive action measures only to a very limited extent. If the European Union would impose women’s quotas for board members via supranational legislation, would this still be considered as a measure of positive discrimination or would it rather be a form of negative discrimination against men?

Textprobe: Kapitel 2.4, One Step at a Time: Marshall (1997): The next case involving positive action measures that was decided by the Court was in 1997, the case of Hellmut Marshall against the German Land North Rhine- Westfalia. It concerned a national legislation that would give preference to female candidates where there are fewer women than men at the level of the relevant post in a sector of the public service and both female and male candidates for the post are equally qualified in terms of their suitability, competence and professional performance. While the issue at stake was similar to that in Kalanke, one important difference in the national legislation led to a completely different judgment: the so-called saving clause that was lacking in the Bremen Equality Law in Kalanke. Even though the national rule provided that priority should be given to female applicants, the rule contained an unless- clause” requiring that all candidates will be subject to an objective assessment which will take account of all relevant criteria specific to the candidates.In other words, this clause implied the condition that specific circumstances of male candidates have to be taken into account and could lead to the appointment of a male candidate, even though priority should be given to female candidates, as long as the assessment is not discriminatory against female candidates. It was exactly this clause that differentiated the ruling in Marshall from that in Kalanke. The Court held that in the light of this saving clause, the national positive action measure is not precluded by Article2 (1) and (4) of Directive 76/207 because it does not grant women automatic and unconditional priority. In his opinion, AG Jacobs had opted for a more formalist approach similar to that taken by the Court in Kalanke. He emphasized the neutrality principle by stating that Directive 76/207 requires that all discrimination on the ground of sex has to be abolished and inequalities of treatment cannot be justified on the basis that the provisions at issue are favourable to women. Moreover, he endorsed the opinion of AG Tesauro, claiming that equal treatment is a fundamental right and preferential treatment of one group, in this case women implies discriminatory treatment of the other group, in this case men. In his view, although the national rule at issue did not grant automatic priority to women it however provides that a woman is given preference because she is a female, except in special circumstances. For this reason, the national rule is clearly prima facie contrary to the principle of equal treatment laid down by the Directive.” In his opinion, the flexibility of the quota at issue does not change the fact that as a matter of principle, there is no equal opportunity for men and women in an individual case if, where all else is equal, one is appointed or promoted in preference to the other solely by virtue of his or her sex. In this case, flexibility referred to the opportunity of male candidates to rebut the preference”. He followed the opinion of AG Tesauro in Kalanke and concluded that the national rule is precluded by Article 2 (1) and (4) of the Directive, since it was a measure aiming at equality of result, going beyond equality of opportunities. According to both Advocate Generals, when candidates are equally qualified, equality of opportunities is already existent, since otherwise women would not have achieved equal qualifications than their fellow male candidates. If, at the stage of the actual job selection, women now would gain automatic preference because they are female, this would constitute an unfair advantage and would deprive men of their right to equal treatment. The Court did not follow the formalist approach of AG Jacobs but took one step forward towards a more substantive approach: the ECJ recognized that due to societal stereotypes, women who are equally qualified as men do not necessarily have equal opportunities in appointment. The reconciliation between work and family life is often still a women’s task, due to the social stigma that is still evident in today’s society. Women are socially supposed to be more devoted to family and care than men, which induces that male candidates tend to be promoted in preference to female candidates. The court explicitly realized that the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances. By declaring a national rule on positive action to be compatible with the fundamental principle of equal treatment, the Court allowed for an infringement of formal equality (the formal equality of men) to achieve substantial equality of women, as long as preference is not given automatically and unconditionally. However, the ECJ explicitly recalled its negative approach towards positive action measures taken in Kalanke to confirm the principle of strict interpretation. In paragraph 32 of the Marshall judgment, the Court repeated that positive action measures must be interpreted as derogation from the individual right to equal treatment. From this point of view, the Marshall judgment was arguably only a small step forward towards a substantive equality approach, rather than a fundamental change in the case law. Nevertheless, the Court realized the difficulties women have to face in employment matters and allowed for a broader scope of positive action measures including flexible quotas. In fact, in Marshall the Court supported a preferential treatment scheme similar to that it had previously rejected in Kalanke. In 1995, the Court distinguished between equality of opportunities and equality of results, the latter being prohibited by the individual right to equal treatment. The major change that was brought about in Marshall was that the Court actually allowed for measures aiming at equality of results- as long as male and female applicants are equally qualified and the measure in question entails a saving clause providing that female applicants are not given automatic and unconditional preference. The Court failed, however, to address the broader problems underlying positive action schemes. It cannot be deduced from the judgment what other forms of positive action measures may be compatible with the individual right to equal treatment, neither were the concepts of equality of opportunity and equality of result further addressed. Therefore the scope of quotas to enhance equality between men and women remained rather unclear. It was only a matter of time until the issue of positive action returned to the Court’s agenda.

• European Law

• Labour Law

• Equality Law

• Women’s Quotas

• Positive Action

Katharina Radloff, geboren 1987, entschied sich nach ihrem Bachelor Studium der European Studies und der internationalen Rechtswissenschaft in den Niederlanden und der Schweiz für ein Masterstudium (LLM) in European Laws an der Maastricht University, welches sie 2011 mit summa cum laude Auszeichnung beendete. Ihr besonderes Interesse galt dabei der Beziehung von nationalem zu Europäischem Recht, vor allem den Bereichen Arbeitsrecht und Gender Studies. Die anhaltende, europaweite Diskussion über Quoten für mehr Frauen in Führungspositionen gab den Anstoß zu dieser Studie, die im Juni 2011 fertig gestellt wurde. Seit September 2011 arbeitet Katharina Radloff in Brüssel und Berlin im Bereich der Public Affairs und der Interessensvertretung.