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Brussels, 11 November 1997
Positive Action for Women: Statement by Commissioner Flynn on the Marschall Case
The European Court of Justice today delivered its judgment in case C 409/95 (Marschall/Land Nordrhein-Westfalen). The Court has said that a national law which gives priority to women in promotions in the public sector in cases where there are male and female candidates who are equally qualified for the post in question, does not conflict with Community law provided that certain conditions are satisfied and the promotion of a male candidate is not excluded from the outset. Today's ruling expands upon the Kalanke judgment of October 1995 which found a similar but automatic provision in the Land of Bremen to be illegal. Commenting on the Marschall case, Padraig Flynn, European Commissioner with responsibility for Employment and Social Affairs, said he "was delighted with the ruling. The Court has recognised that certain deep-rooted prejudices and stereotypes as to the role and capacities of women in working life still persist. The Court has concluded from this that priority given to equally qualified women - which is designed to restore the balance - is not contrary to Community law provided that an objective assessment of each individual candidate, irrespective of the sex of the candidate in question, is assured. The view taken by the Commission after Kalanke has been vindicated by this ruling. The vast majority of approaches to positive action, which permit a degree of flexibility in their application and which stop short of rigid automatic quotas, are not called into question. The new Amsterdam Treaty Article 119 (4) will, on coming into force, strengthen this situation."
The Kalanke judgment gave rise to fears that some features of equal opportunities legislation and practice in the Member States, which were designed to improve the position of women in work, could be called into question. Commissioner Flynn immediately responded to quell those fears and consequently, the Commission adopted in March 1996, a Communication setting out its view that the Kalanke judgment had limited implications in that it related only to those features of the Bremen law which automatically conferred on women an absolute or unconditional right to appointment over men in sectors where they were under represented. The Commission pointed out that this still left Member States and employers free to use a whole range of positive action measures, including more flexible quota arrangements, to further their equal opportunities objectives.
In line with that interpretation of the limited implications of the judgement, the Commission proposed an amendment to Directive 76/207 which would clarify that the kind of positive action measures unaffected by Kalanke were in line with Community law.
At the same time, the Commission proposed to the Inter Governmental Conference that Article 119 of the Treaty be amended to allow Member States to operate positive action measures. Article 119(4) (previously Article 6(3) of the Social Protocol) and now new Article 141 of the Amsterdam Treaty, finalised in June of this year, accordingly allows a Member State, with a view to ensuring full equality in practice, to maintain or adopt "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". The aim of this provision is to ensure that equality of treatment does not only mean creating equal opportunities for individuals of different sex but may also encompass action to reduce structural differences in the position of men and women generally. It stems from the premise that disadvantaged groups may require specific help in order to compete at all levels of the labour market.
While the Council of Ministers and the European Parliament discussed the Commission's proposal for an amendment to Directive 76/207 in 1996/1997, they postponed any decision pending finalisation of the new Treaty and of the Marschall Judgment which is now to hand. It remains to be seen now whether or not the Council and the European Parliament feel it necessary to proceed with the Commission's amendment after today's ruling.