Flynn aides hit back at ruling on equality

Date: 22/05/1997

By Simon Coss

FURIOUS Commission officials say that member states and the European Parliament only have themselves to blame for the latest legal set-back for positive discrimination initiatives.

The claim comes after Francis Jacobs, an advocate-general at the European Court of Justice, delivered his opinion on a second test case concerning the EU's sex equality laws last week.

The case was brought by Hellmut Marschall, a German teacher who had been told he would not be promoted because the post he wanted had been reserved for an equally well-qualified female candidate.

Jacobs' opinion echoed the Court's ruling in a previous case that giving women unconditional preference for job promotion was illegal under EU law.

Although the opinions of advocates-general are not binding on the full Court, it is rare for the Luxembourg-based judges to go against their advice.

In a controversial decision on the 1995 Kalanke case, ECJ judges ruled that German gardener Eckhardt Kalanke had been unfairly deprived of a job by Bremen's state law on positive discrimination. This prompted fears in the Commission's Directorate-General for social affairs (DGV) that the judges' decision would bring Union equal opportunities policies grinding to a halt.

But after going through the text of the judgement with a fine-tooth comb, the institution's lawyers managed to argue that Kalanke only applied to “rigid” and inflexible discrimination schemes such as that operated in Bremen.

In order to prevent similarly awkward judgements in future, Social Affairs Commissioner Pádraig Flynn put forward a proposal last March designed to clarify the 1976 EU directive on equal treatment between men and women which was at the centre of the dispute.

Flynn argued that the law should be amended specifically to permit any positive action initiatives which did not involve rigid quotas.

But his proposals were torpedoed both by EU governments in the Council of Ministers, who argued there was no need for any changes, and by members of the European Parliament, who said he was not going far enough.

Social affairs experts in the Commission claim Jacobs' opinion on the Marschall case might well have been different if the two institutions had listened to Flynn. “We were surprised and disappointed at the advocate-general's opinion. We would have argued differently and had the Council followed the Commission's proposal to clarify the equal treatment directive we may well not have had this recommendation,” said one official.

But whatever the Commission thinks, national governments do not appear to be considering changing their stance over positive action rules. “We will not be calling for changes in the directive and the majority of other countries also oppose any amendments,” said a Dutch official.

Many national experts argue that the whole equal treatment and positive discrimination issue could well be clarified by the Intergovernmental Conference, which is due to conclude at June's summit of EU leaders in Amsterdam.

It is thought that one way forward could be to update the section of the Maastricht Treaty's social chapter which deals with equal pay and states: “This article shall not prevent any member state from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers.”

Following the new UK government's announcement that it is to end its opt-out from the social chapter, the text is due to be incorporated into mainstream EU law as soon as the updated treaty which emerges from the IGC is ratified by national governments.