Women on Boards?
Gender Quotas and Positive Action under EU Equality Law
©2011
Masterarbeit
68 Seiten
Zusammenfassung
Inhaltsangabe:Introduction:
Even though European equality law has had a considerable impact on the law of the Member States concerning womens rights to employment, it is still often the case that women experience a glass ceiling, which hinders their access to leadership positions in private companies. As identified by the UN Report on Women, women are on most boards of large companies, but their number still remains considerably low when compared to men. Although the Report acknowledges that in general opportunities of women with regard to employment have increased, the representation of women in leading positions is still too low. This is especially notable in the largest corporations, which remain male- dominated. Of the 500 largest corporations in the world, only 13 have a female chief executive officer. In the European Union, women hold only 11 percent of top company positions and the average proportion of women serving as chairman of the board of top companies was only 3 per cent in 2009. Among the European Union Member States, the highest percentage of women in boards can be found in Norway, which as the first country in the world introduced a women s quota of 40 percent for board members in 2004 by law. When quotas were proposed in 2002, the proportion of women in boards was only 6.8 percent, whereas it is now 34 percent. The success of the Norwegian example led to a political debate about female representation in leading positions throughout the Union. In September 2010, the Spanish government introduced a gender quota of 40 per cent for both, men and women to be achieved by 2015. France introduced a womens quota for corporate boards in 2011 and other governments such as those of the Netherlands and Italy are positive about introducing similar quotas via legislation.
The reasons for the glass ceiling women still experience are manifold and involve old stereotypes, which are deeply rooted in society. It is this invisible barrier that justifies positive action measures in the first place: to remove deeply rooted social practices that interfere with the process of substantial equality in society in order to create conditions that give individuals equal access to employment. However, it would be too simplistic to argue that in equality law it is all about treating people equally. Rather, it is best resumed in the Aristotelian maxim: equality is about treating equal cases equally and unequal cases unequally. In the case of gender […]
Even though European equality law has had a considerable impact on the law of the Member States concerning womens rights to employment, it is still often the case that women experience a glass ceiling, which hinders their access to leadership positions in private companies. As identified by the UN Report on Women, women are on most boards of large companies, but their number still remains considerably low when compared to men. Although the Report acknowledges that in general opportunities of women with regard to employment have increased, the representation of women in leading positions is still too low. This is especially notable in the largest corporations, which remain male- dominated. Of the 500 largest corporations in the world, only 13 have a female chief executive officer. In the European Union, women hold only 11 percent of top company positions and the average proportion of women serving as chairman of the board of top companies was only 3 per cent in 2009. Among the European Union Member States, the highest percentage of women in boards can be found in Norway, which as the first country in the world introduced a women s quota of 40 percent for board members in 2004 by law. When quotas were proposed in 2002, the proportion of women in boards was only 6.8 percent, whereas it is now 34 percent. The success of the Norwegian example led to a political debate about female representation in leading positions throughout the Union. In September 2010, the Spanish government introduced a gender quota of 40 per cent for both, men and women to be achieved by 2015. France introduced a womens quota for corporate boards in 2011 and other governments such as those of the Netherlands and Italy are positive about introducing similar quotas via legislation.
The reasons for the glass ceiling women still experience are manifold and involve old stereotypes, which are deeply rooted in society. It is this invisible barrier that justifies positive action measures in the first place: to remove deeply rooted social practices that interfere with the process of substantial equality in society in order to create conditions that give individuals equal access to employment. However, it would be too simplistic to argue that in equality law it is all about treating people equally. Rather, it is best resumed in the Aristotelian maxim: equality is about treating equal cases equally and unequal cases unequally. In the case of gender […]
Leseprobe
Inhaltsverzeichnis
Katharina Maria Radloff
Women on Boards?
Gender Quotas and Positive Action under EU Equality Law
ISBN: 978-3-8428-2132-3
Herstellung: Diplomica® Verlag GmbH, Hamburg, 2011
Zugl. Universiteit Maastricht, Maastricht, Niederlande, MA-Thesis / Master, 2011
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3
Abstract
The purpose of this thesis 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 thesis 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?
4
WOMEN ON BOARDS?
Gender Quotas and Positive Action under EU Equality Law
By
Katharina Maria Radloff
TABLE OF CONTENTS
1 Introduction
5
1.1.
Problem
Statement
8
1.2.
Method
8
2 Equality and Positive Action in the European Union:
10
2.1. Equal Treatment as a Fundamental Right
10
2.2.
Positive Action in the European Union
14
2.3.
The Principle of Strict Interpretation- Kalanke
15
2.4.
One Step at a Time- Marshall
18
2.5.
Towards Substantive Equality? Badeck
2.6.
Equal Qualifications as a Condition for Equal Treatment -
Abrahamsson
25
2.7. The Requirement of Proportionality- Lommers
29
2.8. Extending the Scope for Lawful Positive Action- Briheche
31
2.9. Chapter
Findings
33
3 Comparative
Study
35
3.1. The overall Trend in Europe
35
3.2. Norway
40
3.3. France
44
3.4. Germany
45
3.5. The Compatibility of the Norwegian and French Quotas with EU
law
48
4 Time for a Change?
52
5 Conclusion
54
6
List
of
References 57
7
Annex
64
5
"The EU is planning to introduce quotas forcing companies to fill at least fifth of their
top jobs with women if the private sector does not increase female representation in the
boardroom over the next year"
The Telegraph, 15.07.2010
1. Introduction
Even though European equality law has had a considerable impact on the law of the
Member States concerning women's rights to employment, it is still often the case
that women experience a "glass ceiling", which hinders their access to leadership
positions in private companies. As identified by the UN Report on Women, women
are on most boards of large companies, but their number still remains considerably
low when compared to men. Although the Report acknowledges that in general
opportunities of women with regard to employment have increased, the
representation of women in leading positions is still too low. This "is especially
notable in the largest corporations, which remain male- dominated. Of the 500
largest corporations in the world, only 13 have a female chief executive officer".
1
In the European Union, women hold only 11 percent of top company positions and
the average proportion of women serving as chairman of the board of top
companies was only 3 per cent in 2009.
2
Among the European Union Member
States, the highest percentage of women in boards can be found in Norway, which
as the first country in the world introduced a women' s quota of 40 percent for
board members in 2004 by law.
3
When quotas were proposed in 2002, the
proportion of women in boards was only 6.8 percent, whereas it is now 34 percent.
4
The success of the Norwegian example led to a political debate about female
representation in leading positions throughout the Union. In September 2010, the
Spanish government introduced a gender quota of 40 per cent for both, men and
women to be achieved by 2015. France introduced a women's quota for corporate
boards in 2011 and other governments such as those of the Netherlands and Italy
are positive about introducing similar quotas via legislation.
5
1
United Nations Report (2010): The World's Women 2010. Trends and Statistics.
Department of Economic and Social Affairs, p. x.
2
ibid., p. 125.
3
A. Storvik & Teigen, M. (June 2010)., p. 3.
4
Women on Boards: Why not? (n.d.) Womens Forum for the Economy and Society., pp.1-11.
5
A. Storvik & Teigen, M. (June 2010)., p. 14.
6
The reasons for the glass ceiling women still experience are manifold and involve
old stereotypes, which are deeply rooted in society. It is this invisible barrier that
justifies positive action measures in the first place: to remove deeply rooted social
practices that interfere with the process of substantial equality in society in order to
create conditions that give individuals equal access to employment. However, it
would be too simplistic to argue that in equality law it is all about treating people
equally. Rather, it is best resumed in the Aristotelian maxim: equality is about
treating equal cases equally and unequal cases unequally. In the case of gender
equality, due to the invisible barrier women still face when compared to men in
employment matters they are one group facing disadvantages in this regard. In
order to overcome the disadvantages positive action measures may be justified in
order to achieve substantive and not only formal equality between the genders. The
European law on equality between men and women is nevertheless well developed
and complex. As having said, the equal treatment in employment is a fundamental
right, which is secured through the Charter of Fundamental Rights of the European
Union. Positive action measures aiming at achieving substantive equality between
men and women are therefore highly controversial since they always imply the
discriminatory treatment of the more advantageous group- in this case, men. The
aim of this thesis is to examine the development of the European legislation and
case law on gender equality with regard to employment and to analyse the
fundamental character of the equal treatment principle in order to critically assess
whether a supranational positive action measure would constitute a justifiable
derogation from the fundamental equal treatment principle.
Before examining and analysing European Union legislation and case law on
gender equality in employment it is important to define the relevant concepts.
Gender equality has been interpreted by the ECJ as prohibiting discrimination on
grounds of gender reassignment.
6
In its traditional understanding equality means to
refrain from discriminatory behaviour, while equality in its modern, substantive
sense requires an examination of social reality in order to counteract against past
discriminatory behaviour. Therefore, the ECJ recognizes that despite the dynamic
nature of the Union legislation that allowed for a development of equal treatment
from a functionalist economic concept to a more social, human rights- related
6
Craig, P. & De Burca. G. (2008) EU Law: Texts, Cases and Materials. 4th Edition: Oxford
University Press, p. 875.
7
concept
7
, there are still gender gaps in employment matters in particular persistent
problems of reduced participation of women in the workforce.
For this reason the European Union legislation allows for positive action measures
to be taken in order to combat these gender gaps and ensure full equality between
women and men. Art. 3 of Directive 2006/54 allows for Member States to
"maintain or adopt measures within the meaning of Art. 141 (4) of the Treaty with a
view to ensuring full equality in practice between men and women in working life."
Thus, in the context of this Directive, Member States may adopt measures to treat
one sex differently than the other- if this is done in order to promote equality, the
differential treatment is compatible with the principle of equality. In a study of the
European Commission on International perspectives on positive action measures of
2009, positive action is defined as
"consisting of proportionate measures undertaken with the purpose of achieving full
and effective equality in practice for members of groups that are socially or
economically disadvantaged, or otherwise face the consequences of past or present
discrimination or disadvantage".
8
In other words, the concept of positive action embraces all measures which aim to
counter the effects of past discrimination, to eliminate existing discrimination and
to promote equality of opportunity between women and men, particularly in
relation to types or levels of jobs where members of one sex are significantly under-
represented.
It must be furthermore said that the proposed European legislation to impose a
women's quota for boardrooms is so far only an idea, announced by Viviane
Reding, the EU's fundamental rights Commissioner and Vice- president of the
Commission. So far, the gender quota serves as an ultimo in order to encourage
companies to increase the representation of women in leading positions. Only if this
will not be the case by the end of 2011, it should be considered whether a proposal
would be issued to impose a gender quota by Union legislation. In this regard, this
7
ECJ, 8 April 1976, Case 43/75, Defrenne v Sabena II, (1976) RCR455, para.8-11.
8
International Perspectives on Positive Action Measures: A Comparative Analysis in the
European Union, Canada, The United States and South Africa (2009)., European
Commission: Directorate-General for Employment, Social Affairs and Equal Opportunities.,
p. 6.
8
thesis can only deal with the question if the implementation of such a quota by
supranational legislation would be a justifiable derogation from the equal treatment
principle rather than to analyse the concrete effects of such a quota. It is moreover
doubtable whether the Member States would support such a proposal. For this
reason the author does not claim to provide definitive answers. This study intends
to identify the state of EU law concerning positive action by providing a
comprehensive analysis of the case law. The bulk of the study than elaborates on
positive action models of three different Member States to explain whether a
common European standard would be desirable, feasible and realizable.
1.1 Problem Statement
The aim of the present thesis will be to examine legislation and cases regarding
gender equality in the European Union, with special focus on positive action
measures concerning female representation in boardrooms. The main questions this
thesis seeks to answer are
a) To what extent are positive action measures allowed in European Labour Law?
Are there any limitations with regard to positive action measures on a national/
supranational level?
b) Would the announced EU legislation to impose women's quotas by law be a
justifiable derogation from the principle of equal treatment?
c) How can the EU find a balance to allow for positive action measures without
radically departing from its fundamental equal treatment principle?
1.2 Method
The analyses in this thesis and the conclusions drawn upon will be mainly based
upon the examination of the European Union's legal framework and the
development of its legislation and case law during the past decades concerning
gender discrimination and positive action measures. Despite the fact that European
equality law has had a strong impact on the national legal systems of the Member
States, important differences in the national systems remain when it comes to the
acceptance of positive action measures.
9
The first part of the thesis will give an insight about the law of the Union
concerning equal treatment of men and women and how the law has developed over
time. The second part will then identify important case law in order to show the
state of the law and the approach taken by the ECJ when ruling on positive action
measures. In order to illustrate the impact of the EU on national gender equality
laws and to present the difficulties of implementing a supranational legislation on
women's quotas throughout the Union, the third part of this thesis will include a
comparative study mapping briefly the diffusion of gender quotas in Europe, as
well as present statistical data to show female representation in higher management
positions in different EU Member States. It will be elaborated how the quota system
for women on boards works in Norway and how other Member States such as
France and Germany reacted and drew inspirations from Norway to develop their
own national positive action measures to raise female representation in boards. The
quota systems of Norway and France will be compared with the case law presented
before to analyse whether these national systems are in line with the EU's
fundamental equal treatment principle. Finally, in the fourth part it will be
examined whether a common European framework on quota's for women on
boards will be possible and necessary, or whether this topic will better be regulated
by the Member States themselves. Finally, a conclusion will be given summarising
the arguments made and answering the research questions.
10
2. Equality and Positive Action in the European Union
"More countries have understood that women's equality is a prerequisite for
development"
Kofi Annan, 2000.
9
2.1 Equal Treatment as a Fundamental Right
When the Treaty of Rome was first signed the only relevant provision concerning
equal treatment was Article 119
10
on equal pay for equal work. This provision had
not yet a social aim but fitted well into the functionalist approach taken by the
drafters of the Treaty having an essential economic objective to secure free trade
between the Member States. While originally intended to serve purely economic
functions such as to prevent social dumping
11
, it soon developed beyond these
economic considerations and now includes a social objective of the Union aiming at
eliminating social inequalities between men and women in employment as such.
The Council Resolution concerning a Social Action programme of 1974 already
stated that equality between men and women in employment should be obtained
throughout the Union by improving not only the economic conditions but also the
social circumstances.
12
The Social Action programme was followed by three
important Directives that were later amended by the recast Directive
13
: Directive
75/117
14
prohibiting all discrimination on the grounds of sex in relation to pay and
requiring Member States to change national legislations in order to comply with the
9
Kofi Annan, Secretary- General of the United Nations to the General Assembly special
session "Women 2000: Gender Equality, Development and Peace for the Twenty-first
Century" on 5 June 2000. Retrieved on January 12, 2011 from
http://www.un.org/News/Press/docs/2000/20000605.sgsm7430.doc.html
10
Now Art. 157 TFEU
11
Compare Barnard, C. (1996)., The Economic Objectives of Article 19.In Hervey, T. &
O'Keeffe eds., Sex Equality in the European Union., p. 321.
12
EC Council Resolution of 21 January 1974 on a Social Action programme, (1974), O.J. C.
13/1
13
Directive 2006 /54/EC of the European Parliament and the Council of 5 July 2006 on the
implementation of the principle of equal opportunities and equal treatment of men and
women in matters of employment and occupation (recast), OJ L 204.
14
Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of
the Member States relating to the application of the principle of equal pay for men and
women, OJ L 45.
11
provisions laid down in the Directive. The second Directive, Directive 76/207
15
on
equal treatment regarding access to employment entails provisions eliminating
existing inequalities that affect women's opportunities in the areas of access to
employment, vocational training, career advancement and working conditions.
Lastly, the third Directive, Directive 79/7
16
aimed at eliminating inequalities
between men and women concerning social security schemes.
While these Directives prohibit both indirect and direct discrimination aiming at
achieving formal equality, Art. 2(4) of Directive 76/207 expressly provides for the
possibility to take positive action measures in order to achieve substantive equality,
meaning equality between men and women in practice.
17
The change in scope of the equal treatment principle was especially brought about
due to the evolutionary decisions of the European court of Justice in 1976. The
Court decided in Defrenne v Sabena II that Art. 119
18
"forms part of the social objectives of the Community, which is not merely an
economic Union, but is at the same time intended, by common action, to ensure
social progress and seek the constant improvement of the living and working
conditions of their peoples."
19
Moreover, the Court held that the principle enshrined in Art. 119 EEC was directly
effective and could therefore be enforced by individuals before national courts.
20
In
this case the Court for the first time realized that women often do not have equal
opportunities when compared to men, even if they have equal qualifications.
15
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 L 39.
16
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of
the principle of equal treatment for men and women in matters of social security [Official
Journal L 6, 10.01.1979].
17
Art. 2 (4) of Directive 76/207 reads as follows: `This Directive shall be without prejudice
to measures to promote equal opportunity for men and women, in particular by removing
existing inequalities which affect women's opportunities in the areas referred to in Article 1
(1).'
18
Now Art. 157 TFEU
19
Case 43/75 Defrenne vs Sabena II (1976) ECR 455, para. 10.
20
Ibid., para. 39 reads as follows: ,,The prohibition on discrimination between men and women
applies not only to the action of public authorities, but also extends to all agreements which are
intended to regulate paid labour collectively, as well as to contracts between individuals."
12
The Court ruled in Defrenne III and repeated in subsequent decisions
21
that
"respect for fundamental personal human rights is one of the general principles of
Community Law, the observance of which it has a duty to ensure. The elimination
of discrimination based on sex forms part of those fundamental rights".
22
The approach towards substantive equality was reflected in the ECJ's decision in
Marshall v Land Nordrhein- Westfalen
23
. It concerned a German regional law that
allowed for an automatic priority given to women if they were fewer women than
men in one career bracket, provided that qualifications were equal. The ECJ upheld
the regional law stating in its reasoning that women experience disadvantages on
the labour market as opposed to men due to persistent stereotypes. The court held
that the mere fact that a male candidate and a female candidate are equally qualified
does not mean that they have the same chances.
24
The ECJ however emphasized the `saving clause' that allows for a breach of this
priority rule because of reasons specific to an individual male candidate. According
to the court, a national rule which contains a saving clause does not exceed the
limits of Article 2 (4) of Directive 76/207 if it provides for male candidates who are
equally as qualified as the female candidates a guarantee that the candidatures will
be the subject of an objective assessment which will take account of all criteria
specific to the individual candidates. If one or more of those criteria tilts the
balance in favour of the male candidate, the accorded priority will not be given to
the female candidate.
25
The Treaty of Amsterdam, which was signed by the Member States in 1997 and
came into force on May 1
st
, 1999 finally codified the rulings of the ECJ by
introducing the general equality principle between men and women as a
fundamental Community principle into the Treaty. Art. 2 TEU now establishes the
equality between women and men as one of the Union's fundamental values, and
Art. 3 (3) TEU gives the Union the task of integrating equality between men and
women into all its activities. Moreover, the Treaty of Amsterdam introduced a new
21
Case 149/77 Defrenne v Sabena (1978) ECR 1365, Case C- 13/94 P v. S and Cornwall County
Council (1996) ECR I- 2143, Case C- 50/96 Deutsche Telekom v Schröder (2000) ECR I- 743
22
Case 149/77 Defrenne v Sabena (1978), n.19 above, para. 26- 27.
23
C- 409/95, Hellmut Marshall v Land Nordrhein- Westfalen (1997), ECR I- 6363
24
Ibid., para. 30
25
Ibid., para. 33.
13
provision, Art. 13, which serves as a legal basis to take action against any form of
discrimination. Using the new powers under this provision the Union adopted an
anti- discrimination package including a general framework Directive for equal
treatment in employment and occupation
26
and a Directive implementing the equal
treatment principle between persons irrespective of racial or ethnic origin.
27
In
addition, the Union adopted a Social Action programme to combat discrimination
from 2001 2006.
28
Another important substantive change brought about by the
Treaty of Amsterdam was the amendment of Art. 141 EC (now 157 TFEU) on
equal pay. The definition of equal pay for equal work was extended to include
`work of equal value', and Art. 141 (4) was amended to include a provision
allowing for positive action measures taken by Member States to achieve "full
equality in practice", thereby codifying the ruling in Marshall.
In 2006, the Recast Directive
29
was adopted, which has replaced previously existing
directives. It now governs equal treatment in access to employment and promotion,
vocational training, working conditions, pay, and occupational security schemes. It
makes reference to the positive action provision of Art. 141 (1) EC in Title I,
30
but
does not contain any important substantive changes. The main point of this
Directive is that it prohibits any direct or indirect discrimination on the ground of
sex.
31
The change in scope of the equal treatment principle from a functionalist, economic
one towards a more social, human rights approach is also evident in the now
binding Charter of fundamental rights. Art. 23 of the Charter provide that equality
between men and women has to be ensured in all areas, including employment,
work and pay. The same Article moreover expressly states that the principle of
equality shall not prevent positive action measures "providing for specific
advantages in favour of the underrepresented sex". The Treaty of Lisbon reinforces
26
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation, (2000) OJ L. 303/16.
27
Council Directive 2000/43 of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, (2000) OJ L 180/22.
28
Council decision 2000/750 of 27 November 2000 establishing a Community Action programme to
combat discrimination (2001- 2006), (2000), OJ L 303/23.
29
Directive 2006/54 of the European Parliament and the Council of 5 July 2006 on the
implementation of the principle of equal opportunities and equal treatment of men and women in
matters of employment and occupation (2006), OJ L294/23.
30
Ibid., Art. 3
31
Ibid., Art. 14.
14
the principle of equality between women and men, which is now included in the
values and objectives of the Union
32
and establishes that the Union shall eliminate
inequality between men and women in all its activities.
33
To conclude, gender equality is now an integral part of the Union legal order. The
development from a purely economic provision into a fundamental principle of the
Union is in itself an achievement and has helped to improve women's opportunities
on the labour market throughout the Union, at least formally. It must however be
said that the focus of the Union's legislation made little contribution to achieving
substantive equality between men and women in practice. As can be seen from the
case law that will be analysed below the ECJ's view on positive action measures is
restrictive, inconsistent and in part contradictory.
2.2 Positive Action in the European Union
The fundamental character of the equal treatment principle within the European
legal order does not leave too much scope for broad interpretations. The early case
law of the ECJ concerning derogations from the equality principle reflect this
formalist approach. The court clarified in Commission v France
34
that the provision
of Art. 2 (4) should be interpreted narrowly. Nevertheless, the court explicitly
stated that the provision 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.
This argument of narrow interpretation seems to be convincing on first sight,
because positive action in favour of women does also imply less favourable
treatment of men in the same situation. However it is questionable if this reasoning
takes account of the actual situation of women in practice and disregards some of
the disadvantages women face in the labour market. Positive Action measures
providing special rights for women therefore require close and careful examination,
since
32
Arts. 2 and 3(3) TEU
33
Art. 8 TFEU (ex Art. 3 (2) TEC)
34
Case 312/86 Commission v French Republic (1988), ECR 6315
15
"any measure giving advantages to a group defined according to gender runs the
risk of over- and under- inclusiveness and may well perpetuate damaging
stereotypes".
35
Clarification of the state of the law concerning positive action in employment
depends on an analysis of the major judgments of the ECJ, which interpreted Art. 2
(4) of Directive 76/207 and, although rather perfunctory, its relationship with Art.
141 (4) EC. It is necessary to explain the line of reasoning the ECJ took when
solving these past cases, since they point to how the Court is likely to approach
future challenges to recent positive action initiatives, such as the proposed women's
quota for boardroom members.
2.3 The Principle of Strict Interpretation: Kalanke (1995)
In 1995, the ECJ issued a very controversial ruling concerning the scope of positive
action measures in the case of Kalanke. This was the first decision in which the ECJ
had to decide whether a positive action programme in favour of women is
compatible with the equal treatment principle. The case concerned a German
regional law (Landesgleichstellungsgesetz BremLGG) that provided for a soft
women's quota, meaning that if two candidates (one male, one female) apply for
the same job and possess the same qualifications, priority may be given to the
female candidate if women were underrepresented (comprise less than 50% of the
relevant workforce). Mr. Kalanke, who had applied for the job but was not
appointed because a female candidate had been given preference, challenged the
compatibility of the German Law with the European equal treatment principle on
the basis of Art. 2 (1) and 2 (4) of Directive 76/207.
In his Opinion, Advocate General Tesauro ought to find an answer to the dilemma
of positive action measures, starting with the question whether a system of quotas
in favour of women embodies sex discrimination contrary to Community law or
whether it constitutes permitted positive action inasmuch as is designed to promote
effective equal opportunities in the world of work.
36
35
Fredman, S. (1991)., p. 129.
36
Case C- 450/93 Kalanke v Bremen. Opinion of Advocate General Tesauro, delivered on 6 April
1995. European Court Reports 1995, Page I- 03051.
16
He interpreted the Bremen law as reverse discrimination against men, because by
giving women who are equally qualified when compared to male applicants
automatic priority, the national legislation aims to achieve equality as regards the
result or, better, fair job distribution simply in numerical terms between men and
women.
37
Accordingly, he argues that the result- based approach taken by the
Bremen law cannot be tolerated since it constitutes sex discrimination that is
prohibited in any form, independent from whether women or men experience
discrimination. In AG Tesauro's opinion, positive action measures that aiming at
achieving equal results are prohibited per se, because discrimination cannot be
removed by using discriminatory measures. He argues that inequalities may not be
eliminated 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.
38
The ECJ upheld the strict approach of AG Tesauro. The court held that Art. 2 (4)
constitutes a derogation from the equal treatment principle, which constitutes an
individual right, and must therefore be interpreted strictly
39
. The German Law was
held to be in breach with the equal treatment principle because a measure granting
automatic priority to women falls outside the exception in Art. 2 (4) of Directive
76/207
40
that provides only for measures aiming at equality of opportunity. The
decisive factor that made the Court's reasoning so controversial at that time was the
restrictive negative approach taken by the Court- the view that positive action
measures constitute an exception from the equal treatment principle rather than a
component of it. It seemed as though the Court was limiting the concept of positive
action to a large extent, allowing only for minimum measures to be taken to favour
women in employment matters.
It was held that equality of opportunity does not equal equality of result: Measures
aiming at enhancing the opportunities of women in employment are tolerated, but it
would go too far to allow for measures aiming at equality of result, meaning to give
women automatic and unconditional priority in the job selection process. In short,
37
Ibid., para 13.
38
Ibid., para. 22.
39
Case C- 450/93 Kalanke v Freie Handelsstadt Bremen (1995) ECR I- 3051, para. 21.
40
Ibid., para. 22.
Details
- Seiten
- Erscheinungsform
- Originalausgabe
- Jahr
- 2011
- ISBN (eBook)
- 9783842821323
- DOI
- 10.3239/9783842821323
- Dateigröße
- 946 KB
- Sprache
- Englisch
- Institution / Hochschule
- Universiteit Maastricht – European Law School
- Erscheinungsdatum
- 2011 (Oktober)
- Note
- 1,0
- Schlagworte
- gender quota equality positive discrimination european union
