Softening the approach to quotas: Positive action after Marschall

Abstract

Background

Formal equality between men and women is a long-established principle of Community sex discrimination law. Article 119 on equal pay was included in the original EEC Treaty and, during the 1970s, more specific directives were adopted on equal pay and equal treatment (Directive 75/117/EEC OJ 1975 L 45/19, Directive 76/207/EEC OJ 1976 L 39/40 and Directive 79/7/EEC OJ 1979 L 6/24). However, recognition of the limits of the law in achieving real equality for women has led to various programmes of positive action and discrimination. Certain programmes are permitted by Article 2(4) of the Equal Treatment Directive. This provides that the directive shall be ‘without prejudice to measures which promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities’. The scope of this provision has long been the subject of debate. Some say it allows only for positive action - such as encouragement to apply for positions where women are under-represented and vocational training (see, for example, the British Sex Discrimination Act 1975, ss. 47 and 48), or, more substantively, reorganizing working life and greater provision for child care. Others say it goes further and includes positive discrimination, in particular through the imposition of quotas or goals. The scope of Article 2(4) was considered by the Court in two important German cases. Case C-450/93 Kalanke v. Freie Hansestadt Bremen [1995] ECR I-3051; [1996] All ER(EC) 66 (noted by inter alia Szyszczak. 1996; Prechal, 1996; Moore, 1996; Fenwick, 1996) and Case C-409/95 Hellmut Marschall v. Land Nordrhein-Westfalen [1997] All ER(EC) 865.