ERA – Academy of European Law Seminar
17 October 2011
Trier
Dr Panos Kapotas
General Overview
• Part A: Definitions / Theoretical Background /
Types of Positive Action
• Part B: Positive Action in EU Law
Normative framework
ECJ case-law
• Part C: Critical Reflections
POSITIVE ACTION IN EU LAW:
KEY POINTS
• Permissible (under certain conditions) – not compulsory (no
positive obligation)
• Employment Law as the normative framework par excellence
• Gender as the principal dimension, but permissible on other
grounds as well
• Inequalities as a necessary condition to trigger positive
measures (disadvantage and / or under-representation)
• Quotas (“strict” positive measures) as our principal focus
Working Definition
 Positive action is an umbrella term that accounts for a wide range of
measures aimed at redressing past or present discrimination.
 It denotes the…
“deliberate use of gender-conscious criteria for the specific purpose of benefiting
a group that has previously been disadvantaged or excluded from important areas
of the public sphere on the grounds of gender”
 Key definitional elements:
 Some form of preferential treatment
 …allocated to members of under-represented / disadvantaged (under-privileged) group(s) –
group approach
 Conceptual (and normative) link to discrimination  group disadvantage / underrepresentation (or exclusion) stems from discrimination (past or present)
Types of Positive Action (I)
Types of positive measures in employment (De Schutter, Positive Action:
Cases, Materials and Text on National, Supranational and International NonDiscrimination Law, 2007)
• “Monitoring the composition of the workforce in order to identify instances of
underrepresentation and, possibly, to encourage the adoption of action plans and the
setting of targets”
• “Redefining the standard criterion on the basis of which employment or promotion
are allocated (in general, merit)”
• “Outreach measures, consisting in general measures targeting underrepresented
groups, such as the provision of training aimed at members of the underrepresented
groups or job announcements encouraging members of such groups to apply”
• “Outreach measures, consisting in individual measures such as the guarantee to
members of underrepresented groups that they will be interviewed if they possess
the relevant qualifications”
• “Preferential treatment of equally qualified members of the underrepresented group,
with or without exemption clause (also referred to as ‘flexible quotas’)”
• Strict quotas, linked or not to objective factors beyond the representation of the
target group in the general active population”
Types of Positive Action (II)
“Soft” measures:
• Aim at identifying groups that are under-represented or
disadvantaged and at improving the chances of their members to
compete in the labour market.
• Designed to operate on either an abstract-general level (monitoring
mechanisms and inclusive definitions of merit) or on a concreteindividual level (active encouragement of members of
disadvantaged or under-represented groups to apply for jobs;
targeted training opportunities).
“Strict” measures:
• Aim at removing existing inequalities and reducing visible underrepresentation of particular groups in the employment field by
favouring individual members of these groups.
• Use quotas designed to achieve results in the short term and can be
further subdivided into flexible (tie-break) and non-flexible.
Theoretical Background: Conceptions of
Equality and Positive Action
Conceptions of equality (classical conceptual framework)  approach to
positive action
 Formal equality – “treating likes alike”
 no to any form of positive action / preferential treatment
 Equal Opportunities – “levelling the playing field”
 yes only to measures designed to “level the playing field” (e.g.
“soft” forms of positive action)
 Substantive equality – de facto equality / outcomes matter
 yes to positive action either conditionally (primacy of individual
merit) or unconditionally (equality or results / outcomes)
NB: One of the key questions in the positive action discourse is whether there
has been a paradigm shift in EU law and in the ECJ case-law from formal to
substantive equality.
EU Normative Framework:
Gender Equality [I]
Primary Law:
• Article 3 TEU: “The EU shall combat social exclusion and
discrimination, and shall promote social justice and protection
of equality between women and men…”
• Article 8 TFEU: “In all its activities, the Union shall aim to
eliminate inequalities, and to promote equality, between men
and women”
• Article 157 (4) TFEU (positive action as a means to achieve full
equality in practice between men and women)
• Article 23 EU Charter of Fundamental Rights (right to gender
equality; positive action not prevented)
EU Normative Framework:
Equality and Positive Action [II]
Secondary Law:
• Article 3 Recast Directive 2006/54/EC (men and women)
• Article 7 Directive 2000/43/EC (race and ethnic origin)
• Article 5 Directive 2000/78/EC (religion, beliefs, age, disability
and sexual orientation)
NB: First explicit reference to positive action  original ETD
[Article 2 (4) Directive 76/207]
EU Normative Framework:
Positive Action
• Article 157 (4) TFEU (ex Article 141.4 EC): ‘With a view to ensuring
full equality in practice between men and women in working life,
the principle of equal treatment shall not prevent any Member State
from maintaining or adopting measures providing for specific
advantages in order to make it easier for the under-represented sex
to pursue a vocational activity or to prevent or compensate for
disadvantages in professional careers.’
• Article 3 Directive 2006/54/EC: ‘Member States may maintain or
adopt measures within the meaning of Article 141.4 of the Treaty
[now Art. 157.4 TFEU] with a view to ensuring full equality in
practice between men and women in working life.’
• Article 23 EU Charter of Fundamental Rights: ‘Equality between
women and men must be ensured in all areas, including
employment, work and pay. The principle of equality shall not
prevent the maintenance or adoption of measures providing for
specific advantages in favour of the under-represented sex.’
ECJ Positive Action Case-Law [I]
Commission v. France (1988)  French legislation implementing ETD
permitted collective agreements to include provisions “granting special rights
to women”. ECJ found the law incompatible with the Directive due to its
generality and the absence of an appropriate mechanism to review the special
rights periodically.
Para 14: “*s+ome of the special rights preserved relate to the protection of women in
their capacity as older workers or parents - categories to which both men and
women may equally belong”.
Kalanke (1995)  German regional law with a tie-break clause in favour of
equally qualified female candidates in sectors where women were underrepresented. ECJ found that the Directive aims at ensuring equality of
opportunities rather than equality of results and automatic preference to the
female candidate will amount to unjustifiable reverse discrimination.
Para 16: “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”.
ECJ Positive Action Case-Law [II]
Marschall (1997)  German regional law provided for preferential
treatment to equally qualified female candidates in the higher echelons of
a career bracket where women were under-represented, “unless reasons
specific to an individual [male] candidate tilt the balance in his favour”. ECJ
found that the scheme was compatible with EU Law because the “saving
clause” ensured that the selection process permitted for an ad hoc
consideration of the candidates’ individual circumstances.
Badeck (1999)  German public service rules gave priority to women in
promotions, access to training and recruitment. Such priority, however,
was neither automatic nor unconditional: it was only allowed in sectors of
the public service where women were under-represented, when the
female candidate was equally qualified to her male counterpart and only if
no reasons “of greater legal weight” that might tilt the balance in favour of
the male candidate were put forward. ECJ found that the scheme was
compatible with Art. 141 (4) EC (now Art. 157 TFEU).
ECJ Positive Action Case-Law [III]:
Current position
The Badeck test encapsulates the current ECJ position. National
quota systems are permissible if they:
a) Operate as a tie-breaker between equally qualified
candidates
b) Contain a proviso (saving clause) that will allow for an ad hoc
suspension of the quota’s application, if there are reasons
specific to the candidate from the “dominant group” that tilt
the balance in his favour
c) Contain a “sunset clause” (temporally limited application)
ECJ Positive Action Case-Law [IV]:
Limits of the Badeck test
Abrahamsson (2000)  Swedish regulation for appointments to
teaching posts in higher education institutions provided for
preference to sufficiently qualified candidates of the underrepresented sex, even when less qualified, under the proviso
that the difference in qualifications “is not so great that
application of the rule would be contrary to the requirement of
objectivity in the making of appointments”.
Para 55: “*I+t cannot be inferred from [Article 141 (4) EC] that it
allows a selection method of the kind at issue in the main
proceedings which appears, on any view, to be disproportionate to
the aim pursued”.
ECJ Positive Action Case-Law [V]: Beyond
employment
Griesmar (2001)  French Civil and Military Retirement Pensions Code provided
that female civil servants with children were entitled to a service credit added to
their pension for each of their children, biological or adopted. ECJ found that the
legitimacy of the scheme depends on whether the system is designed to offset
occupational disadvantages that stem from childbirth, which is a uniquely female
condition, or occupational disadvantages related to the upbringing of children,
which is not.
Lommers (2002)  Dutch public sector scheme whereby a limited number of
subsidised nursery places were reserved for female employees; male employees
could, as a matter of exception, take advantage of the scheme in “emergency”
situations. ECJ held that the difference in treatment on grounds of gender was
legitimate under the ETD, insofar as it satisfied the standard criteria of legality.
Briheche (2004)  French law exempted certain categories of women, including
“widows who have not remarried”, from the maximum age limit of 45 years for
obtaining access to public sector employment.
Para 27: “*The scheme in question+ automatically and unconditionally gives priority to the
candidatures of certain categories of women [...] excluding widowers who have not remarried
who are in the same situation”.
Critical Reflections
• Paradigm shift in EU Law and ECJ case-law from formal to
substantive equality?
• Can female candidates ever be given preference over more
qualified male candidates?
• Under-representation v. disadvantage?
• Group approach v. individual beneficiaries?
• Positive action v. reasonable accommodation?
Thank You!
Danke!
Dr Panos Kapotas
P.Kapotas@lse.ac.uk