Abstract
This chapter reviews the European framework on positive action in order to uncover (1) whether the implementation of positive action is optional or mandatory, (2) which conditions must be fulfilled, and (3) which type(s) of measures can be adopted for equality and anti-discrimination purposes. This chapter first focuses on the Council of Europe. The analysis of the case law of the EctHR suggests a mixed approach towards the permissibility of this human rights instrument. A closer look at the work of the European Committee of Social Rights and the Advisory Committee on the Framework Convention for the Protection of National Minorities shows that these bodies appear to require the adoption of positive action under certain circumstances. The proportionality requirement is also considered and it is argued that it seems likely that the relevant supervisory bodies would accept strong measures providing preferential treatment in certain situations. Second, this chapter analyses the European Union framework. Given the sole focus on gender equality in employment until 1997, the most significant legislation and case law on gender-based positive action in employment is presented. The Court of Justice considers gender preferences as a derogation of the equal treatment principle and the focus appears to be on the pursuit of equality of opportunities rather than results. Furthermore, this chapter discusses the provisions on positive action based on racial and ethnic origin and other discrimination grounds and reflects on the possibilities presented by future case law for the CJEU to adopt a less restrictive approach.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See Chap. 7 on the international framework on positive action.
- 2.
- 3.
The author uses the notion largely, because the CoE framework on positive action is also determined by the work of the Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) and the European Committee of Social Rights (ECSR). While the former is an independent expert committee that delivers opinions in the framework of its country-specific monitoring, the latter monitors States’ compliance through national reports and a collective complaints procedure that is open to social partners and non-governmental organisations. States must respect the decisions and conclusions of the ECSR insofar as they relate to binding legal provisions. In this sense, the ECSR exercises a quasi-judicial function.
- 4.
Revised European Social Charter (3 May 1996). Framework Convention for the Protection of National Minorities (1 February 1995) (FCNM). European Social Charter (18 October 1961) (ESC). European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) (ECHR).
- 5.
As will be explained in Sect. 8.2.2, the case law of the CJEU on positive action based on gender in employment must be analysed in order to understand the EU framework on positive action. Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (29 June 2000) (RED). Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (27 November 2000) (EED) will also be touched upon.
- 6.
- 7.
- 8.
- 9.
- 10.
European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 7: National legislation to combat racism and racial discrimination (13 December 2002), para. 5.
- 11.
The importance of awareness-raising among and active participation of all stakeholders was stressed in Chap. 6 (Sects. 6.3.2 and 6.5). Positive action for Roma will be considered in Chaps. 9–11. See, for example: ECRI, Third Report on Slovenia (30 June 2006), para. 34. ECRI, Third Report on Poland (17 December 2004), para. 119. ECRI, Third Report on Spain (24 June 2005), para. 107.
- 12.
The ECHR covers the discrimination grounds covers “sex, race, colour, language, religion or other opinion, national or social origin, association with a national minority, birth or other status”. ECHR, art. 14. Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 2000) (Protocol 12 ECHR), art. 1. Protocol 12 entered into force on 1 April 2005. As of 9 May 2019, 20 States have ratified and 18 other States have signed but not ratified Protocol 12 ECHR. For an up-to-date overview of ratifications and signatures, see: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/177/signatures?p_auth=0EanQoP4 (Accessed 9 May 2019). Gerapetritis (2016), pp. 167–170. De Schutter (2007), p. 793. De Vos (2007a), p. 5.
- 13.
- 14.
De Schutter (2011), pp. 6 and 48.
- 15.
See Chap. 2 (Sect. 2.1.3) on the distinction between formal and substantive equality. See also Chap. 6 (Sect. 6.1.4) on the limits of the formal equality approach. See, for instance: EctHR, Thlimmenos v. Greece, Judgment (6 April 2000, GC), para. 44. Gerapetritis (2016), p. 167. De Vos (2007a), p. 50.
- 16.
- 17.
De Schutter (2007), p. 793.
- 18.
This case was discussed in Chap. 2 (Sect. 2.1.1) on equality and anti-discrimination, where it was explained that distinctions may not be made arbitrarily. EctHR, Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (Belgian Linguistics case), Judgment (23 July 1968), para. 10 (“certain legal inequalities tend only to correct factual inequalities”).
- 19.
Harris et al. (2009), p. 611.
- 20.
- 21.
EctHR, Thlimmenos v. Greece, Judgment (6 April 2000, GC), para. 44.
- 22.
The case concerned the quasi-automatic placement of Roma children in segregated schools on the basis of psychological tests that were not adapted to people of Roma origin while no safeguards were in place to take the special needs of the children as members of a disadvantaged group into account. The legislation therefore was found to have a disproportionate effect on Roma children. The EctHR ruled there was a violation of art. 14 ECHR in conjunction with art. 2 Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (20 March 1952) (right to education) because there was no objective and reasonable justification for the different treatment. EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007), para. 175. D.H. and Others was previously discussed in Chap. 1 on the particular vulnerability of Roma in Europe (Sect. 1.2.1), Chap. 2 on the notions equality and anti-discrimination (Sect. 2.1), pluralism (Sect. 2.3.3) and the right to education (Sect. 2.7.2), Chap. 4 on supporting indirect discrimination claims in legal proceedings as one of the main benefits of ethnic data collection (Sect. 4.1.5), and Chap. 5 on the importance of international and European monitoring and litigation as a data source on Roma (Sect. 5.2.4). See, similarly: EctHR, Stec v. the United Kingdom, Judgment (12 April 2006, GC), para. 51. See also on differences in the percentage of survivor’s pensions between widows and widowers: EctHR, Zeman v. Austria, Judgment (29 June 2006), para. 32.
- 23.
- 24.
EctHR, Chapman v. the United Kingdom, Judgment (18 January 2001, GC), paras. 93, 94, 98 and 116. Akandji-Kombé (2007), p. 58. Chapman was previously discussed in Chap. 2 when introducing the notions minority rights protection (Sect. 2.4.2), privacy (Sect. 2.5.2), and the right to housing (Sect. 2.7.3.3).
- 25.
The case concerned measures enforcing planning measures on Roma concerning the occupation of their own land in their caravans. The EctHR ruled there was no violation of art. 14 ECHR in conjunction with art. 8 ECHR (right to respect for private and family life and home) because the preservation of the environment is a legitimate aim, because no planning permissions was occupied for the caravans put on the land and because art. 8 ECHR does not give a right to be provided with a home.
- 26.
- 27.
EctHR, Connors v. the United Kingdom, Judgment (27 May 2004), para. 84.
- 28.
EctHR, Connors v. the United Kingdom, Judgment (27 May 2004), para. 84. See also: EctHR, Chapman v. the United Kingdom, Judgment (18 January 2001, GC), para. 96. EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007), para. 181. ENAR (2008), pp. 5 and 6.
- 29.
The EctHR found a violation of art. 14 ECHR in conjunction with art. 2 of Protocol 1 ECHR (right to education). Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS 9. EctHR, Horváth and Kiss v. Hungary, Judgment (29 January 2013), paras. 127 to 129.
- 30.
Interights (2011), p. 94.
- 31.
- 32.
This was a deliberate choice of the drafters. The Explanatory Report states that the prime objective of the general right to non-discrimination in art. 1 “is to embody a negative obligation for the Parties: the obligation not to discriminate against individuals”. See: Explanatory Report of Protocol 12 to the European Convention on Human Rights (4 November 2000) (Explanatory Report Protocol 12 ECHR), para. 24.
- 33.
Protocol 12 ECHR, third preamble.
- 34.
- 35.
- 36.
Explanatory Report Protocol 12 ECHR, para. 16.
- 37.
This is the indirect horizontal effect of the negative obligation not to discriminate imposed on public authorities. Explanatory Report Protocol 12 ECHR, paras. 24 and 26.
- 38.
For example, access to medical care or access to water and electricity. Gerapetritis (2016), p. 180.
- 39.
De Vos (2007a), p. 53.
- 40.
Article 14 ECHR can only be relied on in conjunction with other substantive rights in the ECHR. Harris et al. (2009), p. 611.
- 41.
See similarly: Gerapetritis (2016), pp. 169 and 170. Gerapetritis refers to the judgment of the EctHR in the case X and Y v. Netherlands, where it states that article 8 ECHR not merely compels the State to abstain from arbitrarily interfering with the private life of individuals but that might include positive obligations inherent in an effective respect for private and family life. Such “obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”. EctHR, X and Y v. the Netherlands, Judgment (26 March 1985), paras. 23 and next.
- 42.
De Schutter (2007, p. 794) refers to individual opinions of Court members.
- 43.
See: EctHR, Kjartan Ásmundsson v. Iceland, Judgment (12 October 2004), para. 43. The case concerned the overall discontinuance of the invalidity pension of a disability pensioner after 20 years after a change in legislation. De Schutter (2007), p. 794.
- 44.
Positive action within the ECHR made up the focus of Sect. 8.1.1.
- 45.
Art. E Revised ESC stipulates that “(t)he enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status”. Like art. 14 ECHR, art. E Revised ESC can only be invoked in combination with substantive provisions. De Schutter (2007), pp. 797 and 798. Art. E prohibits direct and indirect discrimination so as to ensure real and effective equality. See: De Vos (2007a), p. 53.
- 46.
- 47.
This implies the pursuit of a legitimate aim and a reasonable relationship of proportionality between the means employed and the aim sought to be realised. ECSR, European Roma Rights Centre (ERRC) v. France, Decision (19 October 2009), para. 82. Proportionality will be considered in Sect. 8.1.3.
- 48.
See, for example: ECSR, ERRC v. France, Decision (19 October 2009), para. 81. ECSR, International Association Autism-Europe (IAAE) v. France, Decision (4 November 2003), para. 52. De Schutter (2007), p. 798.
- 49.
ECSR, ERRC v. France, Decision (19 October 2009), para. 83. ECSR, IAAE v. France, Decision (4 November 2003), para. 52. De Vos (2007a), p. 53.
- 50.
See, for example: ECSR, Centre on Housing Rights and Evictions v. Italy, Decision (25 June 2010), paras. 34 and 35. ECSR, ERRC v. France, Decision (19 October 2009), paras. 82 to 84. ECSR, ERRC v. Bulgaria, Decision (3 December 2008), para. 44. ECSR, ERRC v. Bulgaria, Decision (18 October 2006), para. 40. Suggested further reading: De Schutter (2011), pp. 46–50. This was highlighted previously in Chap. 2 on the rights to housing (Sect. 2.7.3) and health (Sect. 2.7.5).
- 51.
De Schutter (2011), p. 6.
- 52.
ECSR, ERRC v. Bulgaria, Decision (3 December 2008), para. 49.
- 53.
Id. at par. 50.
- 54.
ECSR, ERRC v. France, Decision (19 October 2009), paras. 84 and 85.
- 55.
Id. at par. 84.
- 56.
- 57.
- 58.
See, for example: ACFC, First Opinion on Azerbaijan (22 May 2003), para. 28.
- 59.
- 60.
- 61.
Henrard (2007), p. 53.
- 62.
- 63.
See, for example: ACFC, First Opinion on Croatia (6 April 2001), para. 26. ACFC, First Opinion on Serbia and Montenegro (27 November 2003), para. 38. The need for adequate and long-term funding will be highlighted in Chap. 9 (Sect. 9.2.5) when discussing the challenges that limit positive action for Roma in Europe.
- 64.
Such confusion and lack of awareness was highlighted throughout Chap. 6.
- 65.
- 66.
See Chap. 6 (Sect. 6.3.2) on awareness-raising among all relevant stakeholders as one of the prerequisites of positive action. This will be discussed further in Chap. 9 (Sect. 9.2.1) on the challenges that limit positive action for Roma in Europe. See also Chap. 12 (Sect. 12.2.1) on the need for awareness-raising on ethnic data collection and positive action as one of the key elements identified throughout this book.
- 67.
- 68.
See: De Schutter (2007), p. 800.
- 69.
- 70.
- 71.
- 72.
See also: De Schutter (2007), p. 793.
- 73.
See Sect. 8.1.1 on positive action within the framework of the ECHR.
- 74.
- 75.
Henrard (2007), p. 48.
- 76.
EctHR, Stec v. the United Kingdom, Judgment (12 April 2006, GC), paras. 51 and 61. This was confirmed in EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007), para. 196. See also: EctHR, Belgian Linguistics case), Judgment (23 July 1968), para. 34.
- 77.
EctHR, Stec v. the United Kingdom, Judgment (12 April 2006, GC), para. 51. Gerapetritis (2016, p. 168) states that the EctHR gives States a wider margin of appreciation when the nature of the issues is “closely linked to the interest of the State and the exercise of political powers by the constitutional organs”. See, for example: EctHR, Sommerfeld v. Germany, Judgment (8 July 2003, GC), paras. 63 and 92.
- 78.
- 79.
See, for example, the case D.H. and Others v. Czech Republic, where the EctHR stated that minorities have special needs and that States have an obligation to protect their security, identity and lifestyle to safeguard the interests of the minorities themselves and to preserve a cultural diversity of value to the whole community. For such reason, States must give special consideration to the needs and different lifestyle in regulations and when taking decisions in particular cases. EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007), para. 181. De Schutter (2007), pp. 795 and 796. De Schutter (2011), p. 20. See, similarly: De Vos (2007a), pp. 51 and 53. Tsatsa-Nikolovska (2006), p. 31.
- 80.
EctHR, D.H. and Others v. the Czech Republic, Judgment (13 November 2007), para. 196. As explained in para. 176, however, there can be no objective justification of differences based exclusively or to a decisive extent on a person’s ethnic origin, because the contemporary democratic society is “built on the principles of pluralism and respect for different cultures”. The notion pluralism was analysed in Chap. 2 (Sect. 2.3.3). This judgment was also mentioned in Sect. 8.1.1 on the apparent permissive approach of the EctHR towards the adoption of positive action measures.
- 81.
- 82.
For an overview of positive action within the ESCR framework, see Sect. 8.1.2.
- 83.
- 84.
Explanatory Report to the FCNM (1 February 1995), par. 39. The temporary nature distinguishes positive action (art. 4.2. FCNM) from specific minority measures promoting minority culture and identity and preventing forced assimilation (art. 5 FCNM). The latter can also have a more permanent or institutionalised nature, because they do not focus exclusively on redressing historical disadvantages. See, for example: ACFC, First Opinion on Bulgaria (27 May 2004), para. 45. De Schutter (2011), p. 58. Henrard (2007), p. 52.
- 85.
Henrard (2007), pp. 52 and 53.
- 86.
Id. at p. 53.
- 87.
- 88.
See Sect. 8.1.3 on proportionality as a limit to positive action in Europe.
- 89.
- 90.
- 91.
- 92.
- 93.
See the introduction to Sect. 8.1 on the CoE framework on positive action.
- 94.
Resolution of the European Parliament on Non-Discrimination and Equal Opportunities for All—A Framework Strategy (14 June 2006), recital K and general consideration 8. Commission Green Paper, Equality and non-discrimination in an enlarged European Union (28 May 2004), p. 7. The five main aims of positive action were identified in Chap. 6 (Sect. 6.4).
- 95.
- 96.
The European Commission mentions non-discrimination mainstreaming, data collection, awareness-raising and training activities, and promoting the benefits of diversity at the workplace as other stronger policy tools that are to be developed in addition to a sound legislative basis. Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), pp. 7 and 8.
- 97.
The UN treaty-monitoring bodies were considered in Chap. 7 on the international framework on positive action.
- 98.
The Treaty of Amsterdam was adopted on 10 November 1997 and entered into force on 1 May 1999. Treaty establishing the European Community (Nice Consolidated version) (21 February 2001) (TEC). Treaty on the Functioning of the European Union (Consolidated version) (TFEU). European Commission (2009), p. 22. De Schutter (2007), p. 801.
- 99.
EU Treaties, the starting point of all EU action and law, are primary law. Regulations, Directives, Decisions, Recommendations and Opinions are secondary law, because they come from the Treaties’ principles and objectives. Not all secondary law instruments are legally binding. Recommendations, for instance, allow the EU institutions to express their views and to suggest a certain course of action, but fall short of having binding force. Therefore, they are referred to as soft law. For more information on the different types of EU law, see: https://ec.europa.eu/info/law/law-making-process/types-eu-law_en (Accessed 28 April 2019).
- 100.
Gerapetritis (2016), p. 117.
- 101.
Council Directive 76/207/EEC on Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion, and Working Conditions (9 February 1976) (Original Gender Equal Treatment Directive). The Directive was amended throughout the years by Directive 2002/73/EC of the European Parliament and of the Council amending Council Directive 76/207/EEC 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 (23 September 2002) (entry into force: 23 September 2002) and by Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Gender Recast Directive) (5 July 2006) (entry into force: 15 August 2006) in order to reconcile its provisions with art. 141.4 TEC. De Schutter (2007), pp. 820 and 821. De Vos (2007a), p. 18. The remedial aim of positive action was discussed in Chap. 6 (Sect. 6.4.1).
- 102.
Gerapetritis (2016), p. 117. When discussion positive action for Roma, it will be suggested in Chap. 9 (Sect. 9.2.2.2) that other population groups, including racial and ethnic minorities, would also benefit from such a positive duty to promote equal opportunities in order to achieve substantive equality.
- 103.
Council Recommendation 84/635/EEC on the promotion of positive action for women (13 December 1984), third recital.
- 104.
- 105.
Council Recommendation 84/635/EEC on the promotion of positive action for women (13 December 1984), arts. 4 and 5. The importance of awareness-raising in relation to positive action was highlighted in Chap. 6 (Sects. 6.3.2 and 6.5) and it will be stressed again in Chap. 9 (Sect. 9.2.1) on positive action for Roma in Europe. See also Chap. 12 (Sect. 12.2.1), where awareness-raising is identified as one of the key elements of this book.
- 106.
Council Recommendation 84/635/EEC on the promotion of positive action for women (13 December 1984), art. 9. This was previously underlined in Chap. 6 (Sect. 6.3.4) on the importance of ethnic data to implement, monitor and evaluate positive action. Specifically in relation to positive action for Roma, the importance of ethnically disaggregated data will be discussed in Chap. 9 (Sect. 9.2.3.2).
- 107.
Council Recommendation 96/694 on the balanced participation of women and men in the decision-making process (2 December 1996), art. 1.
- 108.
Council Recommendation 96/694 on the balanced participation of women and men in the decision-making process (2 December 1996), art. 3(a). Chap. 6 expanded on the link between positive action and ethnic data collection (Sect. 6.3.4) and clarified that specific data needs depend on the type and aim of positive action (Sect. 6.3.4.2). See also Chap. 4 (Sect. 4.1.4) on the implementation, monitoring and evaluation of policies as one of the main benefits of ethnic data collection.
- 109.
See, for example: Court of Justice of the European Union (CJEU), Oumar Dabo Abdoulaye and others v. Régie Nationale des Usines Renault SA, Judgment (16 September 1999), para. 19. Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex (15 December 1997), art. 4 and recital 18. Suggested further reading: Gerapetritis (2016), pp. 210 and 211.
- 110.
RED, art. 8. EED, art. 10. The distinction between direct and indirect discrimination and the link with statistics was explained in Chap. 2 (Sect. 2.1.2). Support of indirect discrimination claims in legal proceedings was identified as one of the benefits of ethnic data collection in Chap. 4 (Sect. 4.1.5). See also Chap. 5 (Sect. 5.2.4) on the significance of international and European monitoring and litigation as a data source on Roma in Europe.
- 111.
Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services (13 December 2004).
- 112.
- 113.
TFEU, art. 157.1.
- 114.
The wording of art. 157.4 TFEU is more general than the one used art. 2.4 Original Gender Equal Treatment Directive. Moreover, ‘under-represented sex”’ implies that women as well as men can benefit from positive action if they are under-represented within a particular working environment. Art. 2.4. Original Gender Treatment Directive was modified to ensure uniformity with the TFEU (former TEC). Gerapetritis (2016), p. 119.
- 115.
Gender Recast Directive, art. 3. References to positive action are made in recitals 20 to 22.
- 116.
Gender Recast Directive, art. 20. Ramos Martín (2013), p. 21.
- 117.
Compare this to the Original Gender Equal Treatment Directive, where the wording “equal opportunities” was used. Ramos Martín (2013), p. 29. De Vos (2007a), p. 22. Henrard (2007), p. 31. The distinction between formal and substantive equality on the one hand, and equality of opportunity and equality of results on the other hand, was explained in Chap. 6 (Sect. 6.1.4). See also Chap. 2 (Sect. 2.1.3) on the notion equality. For further insight in the relevance of these distinctions for the different types of positive action measures, see Chap. 6 (Sects. 6.2.3 and 6.2.4).
- 118.
- 119.
See, for example: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), par. 31. CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), para. 55. De Vos (2007a), pp. 23 and 24. The CJEU case law on positive action will be analysed in Sect. 8.2.2.
- 120.
The Advocates Generals advocate for a broader discretion for States in the adoption of positive action under art. 157 TFEU, which the CJEU has refused to do so far. See, for example: CJEU, Georg Badeck and Others, Opinion of Advocate General Saggio (10 June 1999), para. 26. CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Opinion Advocate General Maduro (29 June 2004), para. 48. De Schutter (2007), p. 807. De Vos (2007a), pp. 22 and 23. Bell (2007), p. 6. Waddington and Bell (2001), p. 601.
- 121.
Charter of Fundamental Rights of the European Union (7 December 2000).
- 122.
Ramos Martín (2013, pp. 20 and 29) argues that article 23 CFEU further strengthens the notion of substantive equality in the EU.
- 123.
- 124.
- 125.
- 126.
CJEU, Commission v. France, Judgment (25 October 1988). Chap. 6 expanded on the difference between formal and substantive equality (Sect. 6.1.4) and the controversy as to whether positive action constitutes a derogation or an aspect of equality (Sect. 6.1.5). The notions formal and substantive equality were first introduced in Chap. 2 (Sect. 2.1.3) when discussing the notion equality.
- 127.
Gerapetritis (2016), p. 122.
- 128.
- 129.
- 130.
- 131.
- 132.
- 133.
- 134.
See, similarly: De Vos (2007a), p. 24.
- 135.
De Vos (2007a), p. 24.
- 136.
- 137.
- 138.
Measures merely aiming at compensating for inequalities are not covered by art. 2.4 Original Gender Equal Treatment Directive. In Lommers, the CJEU added in para. 41 that such measures “might nevertheless also help to perpetuate a traditional division of roles between men and women”. CJEU, H. Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, Judgment (19 March 2002), para. 32. See also: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 22. In Marschall, the CJEU stated that “the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances”. CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), para. 26. In Commission v. France, the CJEU stated that art. 2.4 Original Equal Treatment Directive only permits measures “intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life”. Commission v. France, Judgment (25 October 1988), para. 15. De Vos (2007b), pp. 7 and 8. Fredman (2002), p. 151.
- 139.
- 140.
European Commission (2009), p. 22.
- 141.
Mulder (1999), p. 69.
- 142.
Kostadinova (2006), p. 5.
- 143.
Art. 3.3 Treaty on European Union (Consolidated version) stipulates that the Union “shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child”. Art. 8 TFEU states that “(i)n all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women”. Ramos Martín (2013), p. 30.
- 144.
- 145.
- 146.
CJEU, Eckhard Kalanke v. Freie Hansestadt Bremen, Judgment (17 October 1995).
- 147.
According to the regional law, there was under-representation if less than half of the staff in a specific job class were women.
- 148.
Advocate General Tesauro states in its Opinion in Kalanke that “in taking the group as such into consideration, positive action moreover marks a transition from the individual vision to the collective vision of equality”. See: CJEU, Eckhard Kalanke v. Freie Hansestadt Bremen, Opinion of Advocate General Tesauro (6 April 1995), par. 8. Eckhard Kalanke v. Freie Hansestadt Bremen, Judgment (17 October 1995), paras. 18 and 21. Fredman (2002), pp. 136–138. The group-focus was identified as descriptive element of positive action in Chap. 6 (Sect. 6.1.2.1). The Original Gender Equal Treatment Directive was discussed in Sect. 8.2.1 on EU instruments on gender-based positive action.
- 149.
- 150.
CJEU, Eckhard Kalanke v. Freie Hansestadt Bremen, Judgment (17 October 1995), para. 19.
- 151.
CJEU, Eckhard Kalanke v. Freie Hansestadt Bremen, Judgment (17 October 1995), paras. 16 and 22 to 24. This was confirmed in later case law. See, for example: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 27. Fredman (2002), pp. 136–143.
- 152.
Kalanke was criticised for lacking solid legal clarity on how the opportunities of members of the under-represented sex could be promoted if they could not even be given preference in situations where there are two equally qualified candidates of different sex. De Schutter (2007), p. 805. De Vos (2007a), p. 20. Suggested further reading on Kalanke: Veldman (1999), pp. 281–283. Zuleeg (1998/9), pp. 319–328. Brems (1996), pp. 172–179. Fredman (1996), pp. 575–600. Moore (1996), pp. 156–161. Prechal (1996), pp. 1245–1259. Senden (1996), pp. 146–164.
- 153.
The CJEU characterises quota as representation equality. The European Commission recommended amending the Original Gender Equal Treatment Directive to clarify that preferences would still be possible provided that the particular circumstances of each individual case are assessed. See: Commission Communication, The interpretation of the judgment of the Court of Justice on 17 October 1995 in Case C-450/93, Kalanke v. Freie Hansestadt Bremen (27 March 1996), pp. 1, 3, 6 and 8 to 10. Strict quota were defined in Chap. 6 (Sect. 6.2.4.2) on strong types of positive action.
- 154.
- 155.
This debate eventually resulted in the amendment of art. 157 TFEU (art. 119 TEC at the time). Veldman (1999), p. 291.
- 156.
CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997).
- 157.
The CJEU states that “it appears that, even where male and female candidates are equally qualified, male candidates tend to be promoted in preference to female candidates particularly because of prejudices and stereotypes concerning the role and capacities of women in working life and the fear, for example, that women will interrupt careers more frequently, that owing to household and family duties they will be less flexible in their working hours, or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding”. CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), para. 29. Van Gerven (2005), pp. 180 and 181. De Schutter (2007), p. 811.
- 158.
CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), para. 30.
- 159.
- 160.
- 161.
- 162.
CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), paras. 24, 33 and 35. This was confirmed in later case law. See, for example: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 23. CJEU, Georg Badeck and Others, Judgment (28 March 2000), paras. 23, 37 and 38.
- 163.
CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), paras. 32 and 33.
- 164.
Henrard (2007), p. 30.
- 165.
CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), paras. 33 and 35.
- 166.
Advocate-General Jacobs states in his Opinion in Marschall that the saving clause in the German legislation “appears to envisage that precisely those criteria may none the less be used where it is invoked, with the result that the post will be offered to the male candidate on the basis of criteria which it is accepted are discriminatory” and therefore should be considered unlawful. The CJEU did not follow this point of view. CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), para. 4. CJEU, Hellmut Marschall v. Land Nordrhein-Westfalen, Opinion of Advocate General Jacobs (15 May 1997), paras. 7 and 37. Gerapetritis (2016), pp. 125 and 126. Ramos Martín (2013), p. 23. Suggested further reading: Charpertier (1998), pp. 167–195.
- 167.
- 168.
Veldman (1999), pp. 287 and 288.
- 169.
- 170.
- 171.
- 172.
De Vos (2007a), p. 20.
- 173.
Henrard (2007), p. 30.
- 174.
- 175.
It concerned the Hessen Act on Women’s Equality. CJEU, Georg Badeck and Others, Judgment (28 March 2000), para. 55. Suggested further reading on Badeck: Küchhold (2001), pp. 116–120. Berthou (2000), pp. 901–908. The Original Gender Equal Treatment Directive was discussed in Sect. 8.2.1 when reviewing the EU instruments dealing with gender-based positive action.
- 176.
- 177.
CJEU, Georg Badeck and Others, Judgment (28 March 2000), para. 53.
- 178.
Id. at para. 54.
- 179.
Henrard (2007), p. 30.
- 180.
- 181.
CJEU, Georg Badeck and Others, Judgment (28 March 2000), para. 51.
- 182.
Because men can still get training in the private sector or take up the places reserved for women if there are not enough female applicants, the right of individuals to be treated on the basis of their personal situation is not to be sacrificed in the name of automatic and absolute preferences given to members of a group on the basis of their membership of that group. The Advocate-General focused on the need for proportionality in Badeck. De Schutter (2007), p. 820.
- 183.
Therefore, an actual fact was used as the quantitative criterion for giving preference to women. CJEU, Georg Badeck and Others, Judgment (28 March 2000), paras. 12, 39 and 42 to 44.
- 184.
CJEU, Georg Badeck and Others, Judgment (28 March 2000), para. 42. De Schutter (2007), p. 814.
- 185.
De Schutter (2007), p. 777.
- 186.
These instrument were discussed in Sect. 8.2.1 on gender-based positive action in EU law.
- 187.
- 188.
CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), para. 62.
- 189.
The contested legislation concerned the introduction of positive action measures to fill the position of professors and research assistants in academia. CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), paras. 25, 49 and 53.
- 190.
Gerapetritis (2016, p. 230) cites criteria such as seniority, age, date of last promotion, family status or income of the partner.
- 191.
CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), paras. 25, 49, 50 and 53.
- 192.
It concerned art. 141.4 TEC and art. 2.4 Original Gender Equal Treatment Directive. Henrard (2007), pp. 29 and 30.
- 193.
Gerapetritis (2016), p. 126.
- 194.
CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), para. 48. This was confirmed in later case law. See: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 25.
- 195.
CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), para. 55. De Vos (2007b), p. 8. Fredman (2002), pp. 136–143. The lack of clarify of the proportionality principle will be addressed further in Sect. 8.2.2.5. The difference between formal and substantive equality was first mentioned in Chap. 2 (Sect. 2.1.3) and further explained in Chap. 6 (Sects. 6.1.4, 6.2.3 and 6.2.4).
- 196.
See: CJEU, Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), paras. 4 and 7. De Vos (2007a), p. 18.
- 197.
Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004).
- 198.
CJEU, Julia Schnorbus v Land Hessen, Judgment (7 December 2000).
- 199.
CJEU, Julia Schnorbus v Land Hessen, Judgment (7 December 2000), paras. 38, 39 and 44.
- 200.
Henrard (2007), p. 30.
- 201.
The delay men suffer on account of the compulsory military or civilian services referred to is at least equal to that period. CJEU, Julia Schnorbus v Land Hessen, Judgment (7 December 2000), paras. 44 to 47.
- 202.
Equinet (2014), p. 21.
- 203.
Henrard (2007), p. 30.
- 204.
CJEU, Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie and Ministre de la Fonction publique, de la Réforme de l’Etat et de la Décentralisation, Judgment (29 November 2001).
- 205.
CJEU, Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie and Ministre de la Fonction publique, de la Réforme de l’Etat et de la Décentralisation, Judgment (29 November 2001), paras. 41, 46, 50, 52 and 77. De Vos (2007a), p. 19.
- 206.
Id.
- 207.
CJEU, Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie and Ministre de la Fonction publique, de la Réforme de l’Etat et de la Décentralisation, Judgment (29 November 2001), paras. 39, 40, 46, 56-58, 65, 67 and 68. Equinet (2014), p. 22.
- 208.
CJEU, H. Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, Judgment (19 March 2002), para. 39. This was confirmed in later case law. See, for example: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 24.
- 209.
Gerapetritis (2016), p. 127.
- 210.
CJEU, H. Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, Judgment (19 March 2002), paras. 43 to 48 and 50.
- 211.
See, for example: CJEU, Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA, Judgment (30 September 2010). CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 32. Ramos Martín (2013), p. 26.
- 212.
Ramos Martín (2013), p. 26.
- 213.
See, for example: CJEU, Eckhard Kalanke v. Freie Hansestadt Bremen, Judgment (17 October 1995), paras. 21 and 22. Gerapetritis (2016), p. 250. Ramos Martín (2013), p. 29. De Vos (2007a), pp. 5 and 24. This was mentioned briefly in the introduction to the analysis of the CJEU’s case law on gender-based positive action in Sect. 8.2.2.1. See also the discussion in Chap. 6 (Sect. 6.1.4) as to whether positive action is an aspect or a derogation of equality.
- 214.
- 215.
Bell (2007), p. 6.
- 216.
De Schutter (2007), pp. 818 and 819.
- 217.
Id. at p. 819.
- 218.
- 219.
De Schutter (2007), p. 819.
- 220.
Ramos Martín (2013), p. 16. For Harbo (2010, pp. 158 and 159), the essence of the proportionality principle “is that it makes it possible to combine a liberal rights-based constitutional rationality with a strong commitment to a welfare state”. The CJEU case law on positive action was analysed in Sects. 8.2.2.2–8.2.2.4. See also Chap. 6 on positive action as an aspect or a derogation of equality (Sect. 6.1.5), on soft types of positive action (Sect. 6.2.3), and on the need for an analytical, legal and regulatory framework for positive action (Sect. 6.3.1).
- 221.
Legal certainty is also a general principle of EU law. Harbo (2010), pp. 158, 158, 160, 162 and 184.
- 222.
Henrard (2007), p. 29.
- 223.
- 224.
- 225.
Men can get training in the private sector or take up the places reserved for women if there are not enough applicants from women. De Schutter (2007), p. 820.
- 226.
- 227.
- 228.
- 229.
- 230.
De Vos (2007a), p. 24.
- 231.
- 232.
De Vos (2007a), p. 24.
- 233.
- 234.
ENAR (2008), p. 7.
- 235.
See, for example: CJEU, H. Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, Judgment (19 March 2002), para. 39. CJEU, Commission v. France, Judgment (25 October 1988), para. 15. CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), para. 24. Gerapetritis (2016), p. 250. Harbo (2010), p. 161. De Vos (2007a), pp. 5 and 20. Henrard (2007), p. 29.
- 236.
Gerapetritis (2016), pp. 41 and 42.
- 237.
Harbo (2010), p. 165.
- 238.
Id. at p. 161.
- 239.
- 240.
ENAR (2007), p. 10.
- 241.
Harbo (2010), p. 161.
- 242.
ENAR (2007), p. 10.
- 243.
ENAR (2008), p. 7.
- 244.
See also: Gerapetritis (2016), pp. 62, 63 and 232.
- 245.
Gerapetritis (2016), p. 63.
- 246.
Gerapetritis (2016), pp. 230 and 250.
- 247.
Gerapetritis (2016), p. 232. Equinet (2014), p. 26. Ramos Martín (2013), p. 17. The temporary nature of positive action as a normative element thereof was stressed in Chap. 6 (Sect. 6.1.2.3). Chap. 7 also emphasised that the UN bodies prohibit the maintenance of permanent, separate standards (Sect. 7.3.3). See also Sect. 8.1.3 on the limits to positive action at CoE level.
- 248.
- 249.
- 250.
- 251.
- 252.
- 253.
See similarly: De Vos (2007a), p. 25.
- 254.
Sect. 8.2.4 on the opportunities of future CJEU case law on positive action.
- 255.
Art. 19.1 TFEU covers “sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
- 256.
Because the EED does not cover the discrimination ground racial or ethnic origin, it will only be marginally touched upon in this chapter. Farkas (2011), p. 42.
- 257.
Art. 5 RED can be directly enforced before national courts and the CJEU. Art. 3.1 RED states that the “Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; (e) social protection, including social security and healthcare; (f) social advantages; (g) education; (h) access to and supply of goods and services which are available to the public, including housing.”
- 258.
RED, recital 17.
- 259.
- 260.
According to Boccadoro (2009, p. 30), many authorities regretted the choice for optional positive action upon adoption of the RED. ENAR (2008), p. 6. De Vos (2007a), p. 28. Like positive action, ethnic data collection is also optional in the RED. This was explained in Chap. 3 (Sect. 3.1.1) on the lack of an explicit legal obligation to collect such data.
- 261.
Commission Communication, Report on the implementation of the EU Framework for National Roma Integration Strategies (2 April 2014), p. 9. Chopin et al. (2014), p. 33. Ahmed (2011), p. 71. Ringelheim (2008/9), pp. 52 and 53. Positive action within the framework of ICERD was discussed in Chap. 7 (Sect. 7.2.1).
- 262.
De Vos (2007a), p. 38.
- 263.
The European Commission (2009, p. 31) cites Bulgaria (race, ethnicity and Roma in education, healthcare, housing and employment), Croatia (ethnicity in the judiciary and State administration), the Former Yugoslav Republic of Macedonia (Republic of North Macedonia since February 2019; ethnicity including Roma in employment and education), Hungary (ethnic origin/social status in education), Poland (ethnic origin in education, employment, healthcare, living conditions), Slovenia (ethnicity including Roma in political representation, education), UK (race in education, training and welfare, under-representation in employment, membership among under-represented racial groups). In some countries, such as France, anti-discrimination legislation does include a provision on positive action and the introduction of such measures that are overtly based on racial or ethnic origin would be unlawful.
- 264.
European Commission (2009), pp. 56 and 58.
- 265.
- 266.
ENAR (2007), p. 23.
- 267.
Id. at p. 23.
- 268.
- 269.
- 270.
- 271.
- 272.
- 273.
Equinet (2013), p. 18.
- 274.
See, for example: Caruso (2003), p. 332.
- 275.
- 276.
Gerapetritis (2016), pp. 204 and 205.
- 277.
- 278.
The only small difference is found in art. 157.4 TFEU that includes the wording “specific advantages” for the under-represented sex. The RED and the EED use the wording “special measures”.
- 279.
Equinet (2014), p. 24.
- 280.
See, for example: Schiek (2002), p. 299.
- 281.
Commission Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (21 April 2004), pp. 15, 22 and 23. In its proposal for the EED, the European Commission stated that “as positive measures are a derogation from the principle of equality, they should be interpreted strictly, in the light of the current case-law on sex discrimination”. See: Commission Proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation (25 November 1999), p. 11.
- 282.
Interights (2011), p. 96.
- 283.
De Vos (2007a), p. 31.
- 284.
RED, retical 12 and art. 3.1.
- 285.
De Schutter (2007), p. 821.
- 286.
De Vos (2007a), p. 31.
- 287.
- 288.
European Commission (2009), p. 23.
- 289.
This would mean that the CJEU could step away from establishing limits that apply in all circumstances and in all Member States. European Commission (2009), pp. 23, 24, 26 and 32.
- 290.
- 291.
- 292.
Bell (2007), p. 6.
- 293.
While such measures have yet to be considered before the CJEU, art. 7.2 EED appears to leave the door open for such preferential treatment to safeguard or promote the integration of people with disabilities into the working environment. See also the use of quota to increase the proportion of Catholics in the police service in Northern Ireland, for which a specific exception was granted in art. 15 EED. European Commission (2009), pp. 24 and 25. De Vos (2007a), pp. 31, 32, 46 and 47. Waddington and Bell (2001), p. 603.
- 294.
- 295.
This was discussed in Sect. 8.2.2.5 on the evaluation of the proportionality principle and other notions used by the CJEU in its case law on gender-based positive action.
- 296.
- 297.
See Chap. 7 on the international framework on positive action.
- 298.
This chapter also included some references to the country monitoring of the ACFC and the quasi-judicial functions of the ECSR through the collective complaints procedure, it mainly focused on the case law of the EctHR and the CJEU.
- 299.
Regrettable, art. 23 CFEU disregards positive action based on other discrimination grounds than gender.
- 300.
The UN framework on positive action was analysed in Chap. 7.
- 301.
- 302.
- 303.
- 304.
The ACFC requires differences in treatment promoting substantive equality to be adequate to achieve such a legitimate goal and so they may not extend in time or in scope beyond what is necessary.
- 305.
- 306.
References
Legal Instruments
Council of Europe
European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) ETS 5
European Social Charter (18 October 1961) ETS No. 35
Framework Convention for the Protection of National Minorities (1 February 1995) ETS 157
Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (20 March 1952) ETS 9
Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 2000) ETS 177
Revised European Social Charter (3 May 1996) ETS 163
European Union
Charter of Fundamental Rights of the European Union (7 December 2000) OJ 2000/C 364/01
Council Directive 76/207/EEC on Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion, and Working Conditions (9 February 1976) OJ 1976/L 39/40
Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex (15 December 1997) OJ 1998/L 14/6
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (29 June 2000) OJ 2000/L 180/22
Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (27 November 2000) OJ 2000/L 303/16
Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services (13 December 2004) OJ 2004/L 373/37
Directive 2002/73/EC of the European Parliament and of the Council amending Council Directive 76/207/EEC 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 (23 September 2002) OJ 2002/L 269/15
Directive 2006/54/EC of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Gender Recast Directive) (5 July 2006) OJ 2006/L 204/23
Treaty establishing the European Community (Nice Consolidated version) (21 February 2001) OJ 2002/C 325/33
Treaty on European Union (Consolidated version) OJ 2002/C 325/5
Treaty on the Functioning of the European Union (Consolidated version) OJ 2012/C 326/47
Non-Legally Binding Instruments
Council of Europe
Explanatory Report of Protocol 12 to the European Convention on Human Rights (4 November 2000) H(2000)11 prov
Explanatory Report to the Framework Convention for the Protection of National Minorities (1 February 1995) ETS 157
European Union
Commission Communication, Non-discrimination and equal opportunities for all – A framework strategy (1 June 2005) COM(2005) 224 final
Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008) COM(2008) 420 final
Commission Communication, Report on the implementation of the EU Framework for National Roma Integration Strategies (2 April 2014) COM(2014) 209 final
Commission Communication, The interpretation of the judgment of the Court of Justice on 17 October 1995 in Case C-450/93, Kalanke v. Freie Hansestadt Bremen (27 March 1996) COM(96) 88 final
Commission Green Paper, Equality and non-discrimination in an enlarged European Union (28 May 2004) COM(2004) 379 final
Commission Proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation (25 November 1999) COM(1999) 565 final
Commission Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (21 April 2004) COM(2004) 279 final
Council Recommendation 84/635/EEC on the promotion of positive action for women (13 December 1984) OJ 1984/L 331/34
Council Recommendation 96/694 on the balanced participation of women and men in the decision-making process (2 December 1996) OJ 1996/L 319/11
Resolution of the European Parliament on Non-Discrimination and Equal Opportunities for All – A Framework Strategy (14 June 2006) 2005/2191(INI)
Case Law
European Court of Human Rights
Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium (Belgian Linguistics case), Judgment (23 July 1968), Application Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64
Chapman v. the United Kingdom, Judgment (18 January 2001, GC), Application No. 27238/95
Connors v. the United Kingdom, Judgment (27 May 2004), Application No. 66746/01
D.H. and Others v. the Czech Republic, Judgment (13 November 2007), Application No. 57325/00
Horváth and Kiss v. Hungary, Judgment (29 January 2013), Application No. 11146/11
Kjartan Ásmundsson v. Iceland, Judgment (12 October 2004), Application No. 60669/00
Sommerfeld v. Germany, Judgment (8 July 2003, GC), Application No. 31871/96
Stec v. the United Kingdom, Judgment (12 April 2006, GC), Application No. 57325/00
Thlimmenos v. Greece, Judgment (6 April 2000, GC), Application No. 34369/97
X and Y v. the Netherlands, Judgment (26 March 1985), Application No. 8978/80
Zeman v. Austria, Judgment (29 June 2006), Application No. 23960/02
European Committee of Social Rights
Centre on Housing Rights and Evictions v. Italy, Decision (25 June 2010), Collective Complaint No. 58/2009
European Roma Rights Centre v. Bulgaria, Decision (18 October 2006), Collective Complaint no. 31/2005
European Roma Rights Centre v. Bulgaria, Decision (3 December 2008), Collective Complaint No. 47/2007
European Roma Rights Centre v. France, Decision (19 October 2009), Collective Complaint No. 51/2008
International Association Autism-Europe v. France, Decision (4 November 2003), Collective Complaint No. 13/2002
Court of Justice of the European Union
Commission v. France, Judgment (25 October 1988), Case C-312/86
Eckhard Kalanke v. Freie Hansestadt Bremen, Judgment (17 October 1995), Case C-450/93
Eckhard Kalanke v. Freie Hansestadt Bremen, Opinion of Advocate General Tesauro (6 April 1995), Case C-450/93
Georg Badeck and Others, Judgment (28 March 2000), Case C-158/97
Georg Badeck and Others, Opinion of Advocate General Saggio (10 June 1999), Case C-158/97
Hellmut Marschall v. Land Nordrhein-Westfalen, Judgment (11 November 1997), Case C-409/95
Hellmut Marschall v. Land Nordrhein-Westfalen, Opinion of Advocate General Jacobs (15 May 1997), Case C-409/95
H. Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, Judgment (19 March 2002), Case C-476/99
Julia Schnorbus v Land Hessen, Judgment (7 December 2000), Case C-79/99
Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie and Ministre de la Fonction publique, de la Réforme de l’Etat et de la Décentralisation, Judgment (29 November 2001), Case C-366/99
Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, Judgment (6 July 2000), Case C-407/98
Oumar Dabo Abdoulaye and others v. Régie Nationale des Usines Renault SA, Judgment (16 September 1999), Case C-218/98
Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA, Judgment (30 September 2010), Case C-104/09
Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Judgment (30 September 2004), Case C-319/03
Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Opinion Advocate General Maduro (29 June 2004), Case C-319/03
Country Monitoring
Advisory Committee on the Framework Convention for the Protection of National Minorities
First Opinion on Austria (16 May 2002) ACFC/INF/OP/I(2002)009
First Opinion on Azerbaijan (22 May 2003) ACFC/OP/I(2004)001
First Opinion on Bulgaria (27 May 2004) ACFC/OP/I(2006)001
First Opinion on Croatia (6 April 2001) ACFC/INF/OP/I(2002)003
First Opinion on the Czech Republic (6 April 2001) ACFC/INF/OP/I(2002)2
First Opinion on Germany (1 March 2002) ACFC/INF/OP/I(2002)00
First Opinion on Hungary (22 September 2000) ACFC/INF/OP/I(2001)004
First Opinion on Ireland (22 May 2003) ACFC/INF/OP/I(2004)003
First Opinion on Serbia and Montenegro (27 November 2003) ACFC/INF/OP/I(2004)002
First Opinion on Ukraine (1 March 2002) ACFC/OP/I(2002)010
Second Opinion on Slovakia (26 May 2005) ACFC/OP/II(2005)004
European Commission Against Racism and Intolerance
Third Report on Poland (17 December 2004) CRI(2005)25
Third Report on Slovenia (30 June 2006) CRI(2007)5
Third Report on Spain (24 June 2005) CRI(2006)4
General Comments and Recommendations
European Commission Against Racism and Intolerance
General Policy Recommendation No. 7: National legislation to combat racism and racial discrimination (13 December 2002) CRI(2003)8
Literature
Ahmed T (2011) The impact of EU law on minority rights. Hart, Oxford
Akandji-Kombé J-F (2007) Positive obligations under the European Convention on Human Rights. Available via Council of Europe. https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168007ff4d. Accessed 24 Jan 2019
Barnard C, Hervey T (1998) Softening the approach to quotas: positive action after Marschall. J Soc Welf Family Law 20:333–352
Bell M (2007) Positive action – introducing the concept. In: European Commission (ed) Putting Equality into Practice: What role for positive action?. Office for Official Publications of the European Communities, Luxembourg, pp 5–6
Berthou K (2000) Sur les discriminations positives, CJCEU 28 mars 2000, Badeck. Droit Soc 9/10:901–908
Boccadoro N (2009) Housing rights and racial discrimination. Eur Anti-Discrim Law Rev 9:21–32
Brems E (1996) Case C-450/93, Kalanke v. Freie Hansestadt Bremen, October 17, 1995. Columbia J Eur Law 2:172–179
Brems E (1998) Case C-409/95, Hellmut Marschall v. Land Nordrhein-Westfalen. Columbia J Eur Law 4:668–674
Cabral P (1998) A step closer to substantive equality. Eur Law Rev 23:481–487
Caruso D (2003) Limits of the classic method: positive action in the European Union after the new equality directives. Harv Int Law J 44:331–386
Charpertier L (1998) The European Court of Justice and the rhetoric of affirmative action. Eur Law J 4(2):167–195
Chopin I, Farkas L, Germaine C (2014) Ethnic origin and disability data collection in Europe: measuring inequality – combating discrimination. Open Society Foundations, Brussels
De Schutter O (2007) Positive action. In: Schiek D, Waddington L, Bell M (eds) Cases, materials and text on national, supranational and international non-discrimination law. Hart, Oxford, pp 757–869
De Schutter O (2010) Recognition of the rights of minorities and the EU’s equal opportunities agenda. Eur Anti-Discrim Law Rev 11:23–34
De Schutter O (2011) The prohibition of discrimination under European human rights law: relevance for the EU non-discrimination directives – An Update. Office for Official Publications of the European Communities, Luxembourg
De Vos M (2007a) Beyond Formal Equality - Positive Action under Directives 2000/43/EC and 2000/78/EC. Office for Official Publications of the European Communities, Luxembourg
De Vos M (2007b) The European Community’s discrimination law provisions and practice on positive action. In: European Commission (ed) Putting equality into practice: what role for positive action?. Office for Official Publications of the European Communities, Luxembourg, pp 7–9
European Commission (2009) International perspectives on positive action measures - A comparative analysis in the European Union, Canada, the United States and South Africa. Office for Official Publications of the European Communities, Luxembourg
European Network Against Racism (2007) Understanding positive action: from theory to practice. Available via European Network Against Racism. cms.horus.be/files/99935/MediaArchive/pdf/Seminar%20Report_EN_final.pdf. Accessed 23 Jan 2019
European Network Against Racism (2008) Fact sheet 35: Positive action. Available via European Network Against Racism. cms.horus.be/files/99935/MediaArchive/pdf/FS35%20-%20Positive%20action.pdf. Accessed 23 Jan 2019
European Network of Equality Bodies (2013) Report on the implementation of the race and general framework directives. Available via Equinet Europe. www.equineteurope.org/IMG//pdf/equinet_equality_law_in_practice_2013_report_final_covers.pdf. Accessed 24 Jan 2019
European Network of Equality Bodies (2014) Positive Action Measures. The Experience of Equality Bodies. Available via Equinet Europe. www.equineteurope.org/Positive-Action-Measures. Accessed 23 Jan 2019
European Union Agency for Fundamental Rights and Council of Europe (2011) Handbook on European Non-discrimination Law. Publications Office of the European Union, Luxembourg
Farkas L (2011) How to present a discrimination claim - handbook on seeking remedies under the EU Non-discrimination Directives. Publications Office of the European Union, Luxembourg
Fredman S (1996) Reversing discrimination. Law Quart Rev 113:575–600
Fredman S (2002) Discrimination law. Oxford University Press, Oxford
Gerapetritis G (2016) Affirmative action policies and judicial review worldwide. Springer, Cham
Gill T (2010) Positive Action in EU Law. Available via ERA. www.era-comm.eu/oldoku/SNLLaw/04_Positive_action/2010_11_Gill_EN.pdf. Accessed 24 Jan 2019
Harbo T-I (2010) The function of the proportionality principle in EU law. Eur Law J 16(2):158–185
Harris DJ, O’Boyle M, Warbrick C (2009) Law of the European Convention on Human Rights. Oxford University Press, Oxford
Henrard K (2007) Equal rights versus special rights? - Minority protection and the prohibition of discrimination. European Commission, Brussels
Hollo L (2006) Equality for Roma in Europe – A Roadmap for Action. Available via Open Society Foundations. https://www.opensocietyfoundations.org/sites/default/files/equality_2006.pdf. Accessed 27 July 2018
Holtmaat R, Tobler C (2005) CEDAW and the European Union’s policy in the field of combating gender discrimination. Maastricht J Eur Comp Law 12:399–425
Interights (2011) Non-discrimination in international law – a handbook for practitioners. Interights, London
Kostadinova G (2006) Substantive Equality, Positive Action and Roma Rights in the European Union. Available via Minority Rights Group International. minorityrights.org/publications/substantive-equality-positive-action-and-roma-rights-in-the-european-union-september-2006/. Accessed 24 Jan 2019
Küchhold K (2001) The third German reference on positive action. Ind Law J 30(1):116–120
Lynch K (2007) The scope of positive action and the need for equality of conditions. In: European Commission (ed) Putting equality into practice: what role for positive action?. Office for Official Publications of the European Communities, Luxembourg, pp 17–18
McCrudden C, Prechal S (2009) The concepts of equality and non-discrimination in Europe: a practical approach. Available via European Commission. ec.europa.eu/social/BlobServlet?docId=4553&langId=en. Accessed 23 Jan 2019
McInerney S (2000) Equal treatment between persons irrespective of racial or ethnic origin: a comment. Eur Law Rev 25:317–232
Moore S (1996) Nothing positive from the Court of Justice. Eur Law Rev 21(2):156–161
More G (1999) Case C-409/95, Hellmut Marschall v. Land Nordrhein- Westfalen, [1997] ECR I-6363. Common Mark Law Rev 36:443–452
Mulder L (1999) How positive can equality be? In: Loenen T, Rodriguez PR (eds) Non-discrimination law: comparative perspectives. Martinus Nijhoff, The Hague, pp 65–75
O’Cinneide C (2012) Positive action. Available via ERA. www.era-comm.eu/oldoku/SNLLaw/04_Positive_action/2012_Cinneide_EN.pdf. Accessed 19 Jan 2019
Prechal S (1996) Case C-450/93, Kalanke v. Freie Hansestadt Bremen, [1995] ECR I-3051. Common Mark Law Rev 33:1245–1259
Ramos Martín NE (2013) Positive Action in EU Gender Equality Law. Available via University of Amsterdam. archive.uva-aias.net/uploaded_files/publications/WP139-RamosMartin-1.pdf. Accessed 19 Jan 2019
Ringelheim J (2008/9) Collecting racial or ethnic data for anti-discrimination policies: A U.S.-Europe comparison. Rutgers Race Law Rev 10:39–141
Schiek D (2002) A new framework on equal treatment of persons in EC law? Eur Law J 8(2):290–314
Senden L (1996) Case C-450/93, Kalanke v. Freie Hansestadt Bremen, [1995] ECR I-3051. Maastricht J Eur Comp Law 3:146–164
Shaw J (2004) Mainstreaming equality in European Union law and policymaking. Available via European Network Against Racism. cms.horus.be/files/99935/MediaArchive/pdf/mainstreaming_04_en.pdf. Accessed 19 Jan 2019
Szyszczak E (2006) Positive action as a tool in promoting access to employment available via European Roma Rights Centre. www.errc.org/article/positive-action-as-a-tool-in-promoting-access-to-employment/2539. Accessed 19 Jan 2019
Tsatsa-Nikolovska L (2006) Protection against discrimination under the European Convention on Human Rights. In: Council of Europe (ed) Non-discrimination: a human right: seminar to mark the entry into force of Protocol No. 12. Council of Europe, Strasbourg, pp 23–34
Van Gerven W (2005) The European Union - a polity of states and peoples. Stanford University Press, Stanford
Veldman A (1998) The lawfulness of women’s priority rules in the EC labour market. Case C-409/95, Hellmut Marschall v. Land Nordrhein-Westfalen, [1997] ECR I-6363. Maastricht J Eur Comp Law 5:403–414
Veldman A (1999) Preferential treatment in European community law: current legal developments and the impact of national practices. In: Loenen T, Rodriguez PR (eds) Non-discrimination law: Comparative perspectives. Martinus Nijhoff, The Hague, pp 279–291
Waddington L, Bell M (2001) More equal than others: distinguishing European Union Equality Directives. Common Mark Law Rev 38:587–611
Zuleeg M (1998/9) Gender equality and affirmative action under the law of the EU. Columbia J Eur Law 5:319–328
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Van Caeneghem, J. (2019). European Framework on Positive Action. In: Legal Aspects of Ethnic Data Collection and Positive Action. Springer, Cham. https://doi.org/10.1007/978-3-030-23668-7_8
Download citation
DOI: https://doi.org/10.1007/978-3-030-23668-7_8
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-23667-0
Online ISBN: 978-3-030-23668-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)