Community law

1. Positive Action measures for gender equalityDG ‘Employment, Social Affairs& Equal Opportunities’Equality, Action against Discrimination: Legal QuestionsPetra SchottJune 2008Petra.Schott@ec.europa.eu

2. Community law • Gender equality is a task and an aim of European Community, thus obliging EC institutions to actively promote it, Art 2 and 3(2) EC. Gender equality demands a pro-active attitude, not a mere prohibition of discrimination. It is thus a positive obligation to promote gender equality in order to not only achieve formal but substantive gender equality • Positive action in Community law: Directive 76/207/EEC, Art 2(4): “...remove existing inequalities which affect women’s opportunities in access to employment and working conditions”. Article 141 (4) EC Treaty, introduced by Amsterdam Treaty 1997: “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 underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. “

3. What does this mean? Positive action measures which work in favour of one sex require that: • - a situation in an employment context must be concerned (not access to cinema or opera tickets, for instance) • -women (or men) must be underrepresented in a specific career • -the measure taken will help to remedy the situation (specific advantage or compensation for disadvantage, not, for example: a right to earlier retirement) • -the measure is reconciled as far as possible with the principle of equal treatment between women and men (age limit to French public service for widowers but not for widows is not conform)

4. Definition of the ECJ Positive action measures • ‘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. It authorises national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men.’

5. Categories of positive action measures • Measures aiming at improving the training and qualifications of women (for instance the allocation of training places to women) • Measures which aim at enabling women to better reconcile their role as parent and their professional activity (such as the possibility to benefit in first place or exclusively from nursery places offered by the employer). 3. Measures having a direct impact on a specific post giving preference to women in selection processes or setting targets or quotas to be achieved.

6. ECJ Case law I Case 450/93, Kalanke [1995] ECR I-3051 : If - in a situation where equally qualified men and women are candidates for the same promotion procedure, in sectors where there are fewer women than men at the level of the relevant post - women are automatically given priority, this practice involves discrimination on grounds of sex against men. Heavily critisized: One of the conditions is the need to demonstrate equivalent qualifications of male and female candidates before positive action can start. Of course, it can be very easy to circumvent the application of positive action by simply denying equal qualifications

7. ECJ Case law II Case C-409/95 Marschall [1997] ECR I-6363: A measure which is intended to give priority in promotion to women in sectors of the public service where they are under-represented must be regarded as compatible with Community law if: - it does not automatically and unconditionally give priority to women when women and men are equally qualified, and - the candidatures are subject of an objective assessment which takes account of the specific personal situations of all candidates.

8. ECJ Case Law III Case C-158/97 Badeck and Others [2000] ECR I-1875: A measure which is intended to give priority in promotion to women (Frauenförderplan) in sectors of the public service where they are under-represented must be regarded as compatible with Community law if they fulfil the above mentioned criteria . It is also in line with Community law to request that in advisory boards, boards of directors and supervisory boards and other collective bodies, at least half the members should be women.

9. ECJ Case law IV Case C-407/98, Judgment of 06/07/2000, Abrahamsson and Anderson [2000] ECR I-5539: A selection process could include criteria giving preference to women, provided such criteria were ‘transparent and amenable to review in order to obviate any arbitrary assessment of the qualifications of candidates’ (a Swedish provision gave automatic preference to women candidates atUniversities provided they were sufficiently qualified, subject only to the proviso that the difference between the merits of the candidates of each sex was not so great as to result in a breach of the requirement of objectivity in making appointments; it was considered discriminatory) Full text of all judgments: http://curia.europa.eu/fr/content/juris/index.htm

10. Conclusion • Women can only be appointed to specific posts via positive action if men’s application have been objectively considered and they are not better qualified, no automatic priority • Quota can be installed were no specific posts are included (Advisory Boards etc, training) • Other advantages/compensation for disadvantages can be installed, if men are not totally excluded (Kindergarten only for female employees, if men have a right to, in cases of urgency). Thank you for your attention!