Dilemma as EU studies sex equality judgement

Date: 26/10/1995

By Michael Mann

GERMANY could face acute embarrassment if last week's landmark judgement in the European Court of Justice persuades the Commission to change its laws on equal treatment in the workplace.

Commission officials stress that they have not yet worked out the full ramifications of last week's Kalanke judgement, but admit that one option is to amend existing Union rules to make explicit what form positive discrimination may take in the future.

This would allow member states and regional authorities who wish to continue positive action in favour of women to do so, including several of the Länder in Germany, one of the EU's leading lights in the area of equal opportunities.

But such an amendment would only be possible under Article 235 of the Treaty of Rome, say officials. This is the same legal basis under which the Commission has been trying unsuccessfully to introduce a number of projects to improve equal opportunities and help Europe's poor and elderly.

Ironically, it is the German government which has blocked those Commission's proposals. Bonn fears a domestic court challenge if it allows any legislation through under Article 235. Its anxiety is a throwback from the German constitutional court's ruling on the legality of the Maastricht Treaty, which set down limits beyond which EU legislation cannot go.

Germany is determined to avoid an embarrassing legal challenge if anything goes through under this article, which is there to permit legislation on an ad hoc basis where the area to be covered does not fall under a specific treaty article.

Yet this may provide the only opportunity to secure legislation on an issue about which several Länder feel very strongly.

The case which sparked the controversy involved a German horticulturist Eckhard Kalanke, who claimed he was unfairly deprived of a job in Bremen's parks department. Bremen, in accordance with German law, granted a senior post to Kalanke's rival because she was a woman. German law authorises such discrimination against men to promote sex equality in the workplace.

But the Court said reverse discrimination of this kind was unfair and went against the very principle it sought to establish, that of equal opportunity.

In the immediate aftermath of last week's judgement, German Labour Minister Norbert Blüm and Women's Affairs Minister Claudia Nolte claimed that there would be no need to alter EU rules.

However, the debate widened this week when the German cabinet asked Nolte and Justice Minister Sabine Leutheusser-Schnarrenberger to investigate whether the ruling infringed the principle of subsidiarity.

Uncertainty in Germany about the implications of the case are reflected in the Commission, which is still awaiting a full report from its legal service on the ramifications for EU regulations and current practice in the member states.

In the light of that report, the Commission may opt for legislative amendments or an official communication to explain the consequences of the Court's judgement to member states.

Some officials suggest that the Kalanke case may not have opened the huge can of worms that was originally feared. They suggest that the positive discrimination scheme deemed illegal in Bremen was far more specific than comparable arrangements elsewhere.

As a result, other systems may not necessarily be directly affected by the judgement.

Once the legal dust has settled, Social Affairs Commissioner Pádraig Flynn will present his conclusions to a Commission sub-group on equality on 20 November, which is likely to comprise Commission President Jacques Santer and Commissioners Monika Wulf-Mathies, Ritt Bjerregaard, Anita Gradin and Erkki Liikanen.