Ius Commune Casebooks for the common law of Europe

Cases, Materials and Text on National, Supranational and International Law

General editor: Prof Walter van Gerven

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Non-Discrimination

Chapter 7. Positive Action

Background

7.1. Introduction

7.2. The Definition of Positive Action

7.UN.1. International Convention on the Elimination of All Forms of Discrimination against Women
7.CoE.2. Framework Convention for the Protection of National Minorities

7.3. A Typology of Positive Action and Other Measures

7.3.1. Typology

7.3.2. Measures Not (Necessarily) Implying Preferential Treatment

7.3.2.A. Monitoring

7.NL.3. Dutch law on the Promotion of Labour Participation of Ethnic Minorities
7.NIR.4. Fair Employment and Treatment (Northern Ireland) Order 1998
7.DE.5. Hesse Women Equality Act in the public administration

7.3.2.B. Redefining Merit

7.DE.6. Hesse Women Equality Act in the public administration

7.3.2.C. OutreachingG

7.DE.7. Hesse Women Equality Act in the public administration
7.GB.8. The Employment Equality (Sexual Orientation) Regulations 2003
7.DE.9. Hesse Women Equality Act in the public administration

7.3.3. Positive Action Measures Implying Preferential Treatment

7.3.3.A. Preferential Treatment of Equally Qualified Members of The Underrepresented Group

7.DE.10. Bremen Act on Equal Treatment for Men and Women in the Public Service
7.DE.11. German Law on Civil Servants of the Land

7.3.3.B. Strict Quotas

7.SE.12. Swedish Equality Act 1991:433
7.SE.13. Swedish Regulation concerning certain professors’ and research assistants’ posts created with a view to promoting equality 1995:936
7.DE.14. Hesse Women Equality Act in the public administration
7.NIR.15. Police (Northern Ireland) Act 2000

7.3.4. Positive Action Requiring Preference — Aims and Scrutiny

7.4. Positive Action under International Law

7.4.1. United Nations Human Rights Instruments

7.UN.16. International Convention for the Elimination of All Forms of Racial Discrimination
7.UN.17. International Convention for the Elimination of All Forms of Discrimination against Women
7.UN.18. CEDAW Committee, General recommendation No 23: Political and public life
7.UN.19. Committee on the Elimination of Discrimination against Women, General recommendation No 25
7.UN.20. Human Rights Committee, Communication n°198/1985, Stalla Costa v Uruguay. reinstatement in the Uruguayan public service of unfairly dismissed civil servant
7.UN.21. Human Rights Committee, Communication n°943/2000, Guido Jacobs v Belgium. compatibility with art 25(c) and art 26 CCPR of a quota in favour of under-represented sex in the Belgian public service
7.UN.22. UN Committee on Economic, Social and Cultural Rights, General Comment No 5: the rights of persons with disabilities

7.4.2. Council of Europe Human Rights Instruments

7.4.2.A. The European Convention on Human Rights

7.CoE.23. European Convention on Human Rights, The Explanatory Report to Protocol 12

7.4.2.B. The European Social Charter

7.4.2.C. The Framework Convention on The Protection of National Minorities

7.CoE.24. Advisory Committee of the Framework Convention on the Protection of National Minorities, Opinion on Ireland, 22 May 2003

7.5. Positive Action under European Union Law

7.5.1. Council Directive 76/207/EEC and The Kalanke Ruling (1995)

7.EC.25. Council Directive 76/207/EEC of 9 February 1976 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
7.EC.26. Recommendation 84/635/EEC on the promotion of positive action for women
7.EC.27. ECJ, 17 October 1995, C-450/93, Eckhard Kalanke v Freie Hansestadt Bremen. admissibility of an absolute preference in favour of the member of the under-represented sex (“flexible quota”) under the Gender Employment Directive

7.5.2. Post-Kalanke

7.5.2.A. Constitutionalising Positive Action by Changing Article 141 EC (IGC AMSTERDAM)

7.EC.28. ECJ, 30 September 2004, Case C-319/03, Serge Briheche v Ministère de l’intérieur, de la sécurité intérieure et des libertés locales. compatibility with article 3(1) and article 2(4) of the Gender Equality Directive

7.5.2.B. The Marschall Line of Case-Law (1997–2002)

7.EC.29. ECJ, 11 November 1997, C-409/95, Hellmuth Marschall v Land Nordrhein-Westfalen. whether preferential rule with a “savings clause” is compatible with the gender employment directive
7.EC.30. ECJ, 28 March 2000, C-158/97, Badeck and others. compatibility with the gender employment directive of provisions imposing the adoption of advancement plans and other measures in favour of women
7.EC.31. ECJ, 6 July 2000, Case C-407/98, Katarina Abrahamsson, Leif Anderson and Elisabet Fogelqvist. compatibility with the gender employment directive of a rule providing for the automatic recruitment of a sufficiently qualified member of the under-represented sex, unless this would give rise to a breach of the requirement of objectivity in making appointments

7.5.2.C. Adapting Directive 76/207/EEC to Article 141(4) EC

7.5.3. The Future of Positive Action under European Union Law

7.EC.32. Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [Employment Equality Directive]

7.6. Positive Action Before The National Courts

7.6.1. The Admissibility of Positive Action Measures

7.BE.33. Court of Arbitration, 27 January 1994, Case 9/94, A Asztalos v Office national des pensions. compatibility with the constitutional requirements of equality and non-discrimination of a difference of treatment on grounds of sex in the allocation of benefits to the elderly
7.FR.34. Constitutional Council, 16 March 2006, Decision n 2006-533 DC. compatibility with the constitution of the law on equality of wages between women and men
7.SK.35. Constitutional Court of the Slovak Republic, 18 October 2005. compatibility of the positive action provision of the anti-discrimination act with the constitutional principles of the rule of law and of equality
7.NL.36. Equal Treatment Commission, Opinion 1996-97. compatibility with national legislation implementing the gender employment directive of a scheme aimed at improving the representation of women in the police force
7.DE.37. Federal Labour Court, 21 January 2003, 9 AZR 307/02. compatibility of “flexible quotas”, comprising a “savings clause”, with the German Grundgesetz and with European community law
7.NL.38. Equal Treatment Commission, Opinion 1999-32. compatibility with the general equal treatment act of preferential recruitment of applicants of immigrant origin
7.NIR.39. High Court of Justice in Northern Ireland, Queen’s Bench Division (Judicial Review), 23 July 2002. in the matter of an application by Mark Parsons for judicial review. compatibility of the recruitment system of the police in northern Ireland with article 14 ECHR

7.6.2. The Positive Obligation to Adopt a Positive Action Measure

7.IR.40. Equality Tribunal, 29 August 2003, Gillen v Department of Health and Children (Represented by the Chief State Solicitor). the refusal to adopt a positive action policy (on the grounds of age) as a form of discrimination

7.6.3. Phasing Out Positive Action

7.GB.41. House of Lords, 5 May 2005, Regina v Secretary of State for Work and Pensions (Appellant) ex parte Hooper and others (FC) (Respondents). obligation to put an end to widow’s benefits not recognised to widowers, in response to the gradual historic trend towards greater economic activity by women

7.7. Positive Action Policies and The Protection of Private Life in the Processing of Personal Data

7.UN.42. Medis Projects (Measurement of Discriminations), Comparative Study on the collection of data to measure the extent and impact of discrimination within the United States, Canada, Australia, Great-Britain and the Netherlands
7.CoE.43. Advisory Committee on the Framework Convention on the Protection of National Minorities, Opinion on Germany, 1 March 2002
7.EC.44. European Parliament, European Parliament resolution on non-discrimination and equal opportunities for all – a framework strategy
7.EC.45. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [Personal Data Directive]
7.NIR.46. C McCrudden, Consociationalism, Equality and Minorities in the Northern Ireland Bill of Rights Debate: The Role of the OCSE High Commissioner on National Minorities
7.CoE.47. AW Heringa, G Malinverni and J Marko, Comments by Council of Europe experts on certain aspects of a future Bill of Rights for Northern Ireland
7.NIR.48. Northern Ireland Human Rights Commission, Progressing a Bill of Rights for Northern Ireland: An Update

7.8. Comparative Analysis

Cover of the Ius Commune Casebook on Non-Discrimination Law

Cover of the Ius Commune Casebook on Non-Discrimination Law

Cover of the Ius Commune Casebook on Non-Discrimination Law

Cover of the Ius Commune Casebook on Non-Discrimination Law

Cover of the Ius Commune Casebook on Non-Discrimination Law

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Cover of the Ius Commune Casebook on Contract Law (2)

This Project		Casebooks	Work in progress		Previous editions
Calendar	Publisher	Consumer Law	Civil Procedure	Legal History	Tort Law (Scope)
Concept and Aims	Research Approach	Contract Law (1)	Conflict of Laws	Property Law
Contact	Steering Committee	Non-Discrimination	Constitutional Law	Tort Law (2)
Development	Task Forces	Tort Law (1)	Contract Law (2)
Further Reading		Unjustified Enrichment	Judicial Review
Management and Coordination			Labour Law
People A-Z			Law and Art

© 1994-2010: Ius Commune Casebook Project. Most recent page update: 08 January 2010. Comments are most welcome at: ln.ytisrevinuthcirtsaam@tuohsord.irtimid.