Positive action is a measure that brings advantages to specific groups of people, such as women, who are traditionally discriminated against, intending to create a more egalitarian society.
It is a strategy used to guarantee equal opportunities using measures that help counteract and sometimes correct widespread discrimination in society.
Equality between women and men is one of the objectives of the European Union. This fundamental principle has been consolidated by legislation and thanks to jurisprudence that has contributed to its correct interpretation and application in the EU.
This historical case law played an important role in promoting equality between men and women in the EU. It helped to clarify that a national rule that requires that the promotion of female candidates be given priority in cases where there were fewer women than men in a specific sector (positive discrimination) was not excluded by Community law, on condition that the advantage was not automatic and that male applicants were guaranteed consideration and were not excluded a priori from the application.
The Verwaltungsgericht Gelsenkirchen (Germany) asked the European Court of Justice (ECJ) in a reference for a preliminary ruling about the interpretation of Article 2(1) and (4) of 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, to judge in a proceeding pending between Hellmut Marschalland Land Nordrhein-Westfalen, where Marschall denounced that even meeting the exact requirements as a female candidate to be promoted in his job as a teacher qualified for teaching in a first-grade secondary school.
The Bezirksregierung (District Authority) Arnsberg did not grant him that position because they wanted to appoint a female candidate for that position.
That decision was taken following the national legislation (Law on Civil Servants of the Land), where one of its provisions provided that “Where, in the sector of the authority responsible for promotion, there are fewer women than men in the particular higher grade post in the career bracket, women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless reasons specific to an individual [male] candidate tilt the balance in his favour.”
The national court Verwaltungsgericht Gelsenkirchen (Germany) considered that to resolve that controversy, it was necessary to check the compatibility of that provision with paragraphs 1 and 4 of Article 2 of the mentioned Directive.
The ECJ, in answer to the question, referred to it by the Verwaltungsgericht Gelsenkirchen held that the rule in question was compatible with EU law and that positive action was also lawful. It ruled that “a national convention which, in a case 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 position are equally qualified in terms of their suitability, competence and professional performance, requires that priority be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour is not precluded by Article 2(1) and (4) of 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, as long as:
– in each case, the rule 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 candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate, and
– such criteria are not such as to discriminate against the female candidates”.
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