Positive discrimination case to clarify EU laws

Date: 09/01/1997

By Mark Turner

THE future of positive discrimination is hanging in the balance as politicians await the outcome of a key European Court of Justice ruling due this year.

The case concerns German civil servant Hellmut Marschall, who took the state of North Rhine-Westphalia to court for alleged sexual discrimination when he did not receive a promotion he felt he deserved.

He argued that a state civil service law, which suggested that where two applicants were equally qualified for a job the woman should be chosen, had led to unfair discrimination against him on the grounds of sex.

The state's administrative court referred the case to the ECJ in December 1995 and written procedures began in the spring of 1996.

No date has yet been set for a hearing, but court officials say this should happen “fairly soon”.

The Court's verdict on the Marschall case could have a profound impact on EU equal treatment laws, currently in a state of flux following an equally crucial ruling last year.

In the now notorious Kalanke case, the ECJ ruled that German horticulturist Eckhard Kalanke was unfairly deprived of a job by Bremen's state law on positive discrimination.

At first sight, that spelt doom for the Union's equal opportunities policy, enshrined in a directive, which supported positive action in favour of women.

But on closer inspection, Commission lawyers felt that since Bremen's positive action system was very rigid automatically requiring the woman to be promoted if there were two equally suitable candidates for the same job the judgement did not forbid more flexible approaches.

As a consequence, Social Affairs Commissioner Pádraig Flynn argued that the directive was to a large extent unaffected by Kalanke.

Since that interpretation will only be confirmed (or rejected) once the result of the Marschall case is known, the ECJ's judgement will, if anything, be even more important.

Flynn began moves to reform the equal opportunities directive in light of the Kalanke judgement last year, but his efforts came to nought as social affairs ministers put his proposals on ice in December.

They argued that until the legal status of positive action was clarified, and until the Intergovernmental Conference had decided whether to enshrine equality for all in the treaty, there was no point in pressing ahead with the reforms.

Until the Court delivers its verdict on the Marschall case, the Commission can do little but twiddle its thumbs nervously.

“If the judgement goes against us, we will be in a very difficult situation,” said one official.