6. The Kalanke decision and affirmative action


The only case on affirmative action so far decided by the European Court of Justice is a recent one (1), dating to April 1995 (2). The decision concerns a request for a preliminary ruling by a German Court, the Bundesarbeitsgericht. The national court asked for an interpretation of article 2 (1) and 2 (4) of Directive 76/207/EEC on equal treatment between men and women for working access and conditions - which, as we have seen, concern the general principle of equal treatment and the admissible exceptions to it - in order to evaluate the compatibility with Community law of a statute enacted by a German Land that provides for affirmative action plans, and established their legal requirements (3). Article 4 of this statute provides that in the case of promotion to a higher job, if women are underrepresented, which means that they constitute less than half of the work force, and if they have qualifications equal to these of men competing for the same position, they must be given priority for promotion. The case concerned the selection process for promotion to a higher position in the city administration of Bremen, for which a man and a woman had applied. After a lengthy selection process it was decided that both candidates were equally qualified, and since women were underrepresented in that job category, the female candidate was chosen. The male candidate thereafter took action against this decision to the Arbeitsgericht of Bremen, stating that the provision of the act was contrary to the equality principle enshrined both in the Bremen constitution and in the German Basic Law. The labour court rejected his claim, and the same ruling was given on appeal by the Landesarbeitsgericht. The controversy finally came before the highest German labour court, the Bundesarbeitsgericht, which suspended the case and submitted a preliminary question to the European Court of Justice.

Detailed analysis is required of the reasoning of the Court and the opinion of Advocate General Tesauro, since they highlight important elements in the determination of the standards of affirmative actions which seem to point to a restrictive trend in the admissibility of such actions. The Advocate General started by distinguishing between formal and substantive equality, and placed affirmative actions in the latter category, since they grant preferential treatment to a specific group, in this case women, in order to provide equal chances for all groups (4). He then deemed the use of affirmative actions to imply a shift from an individual conception of rights to a collective one, and this clashes with the principle of formal equality: "La verité est que toute action spécifique en faveur d'une catégorie minoritaire ou, en tout cas, vulnérable, s'oppose au principe de l'égalité au sens formel".

He considered article 2 (4) of the directive to be the basis for some limited classes of affirmative actions, as an exception to the general principle of equal treatment. Being an exception to a general principle, it must be interpreted strictly, and in this respect the Advocate General pointed to the fact that the expression "equal opportunities" cannot comprise actions that aim to achieve equal results. After analysing the German statute, he concluded that forcing an employer to promote a female employee because of female under-representation constitutes a rule which aims at equality of results, i.e. promotion, and not of opportunities, as it should do(5). Besides, the fixing of quotas, even if flexible and temporary, is too intrusive a means if compared against the scope of the Community provision, and it therefore infringes another fundamental principle of Community law, that of proportionality (6).

In a rather concise judgement, the Court endorsed the Advocate General's reasoning, and briefly recalled that since it is an exception to a general principle that creates legal rights, the rule concerning the admissibility of affirmative actions must be interpreted strictly, and this implies that the term "equal opportunities" cannot be twisted so as to impose equal results (7). The syllabus of the decision adheres strictly to the facts of the case, but it seems clear that the reasoning behind it is applicable to a much wider class of affirmative actions.

The most striking feature of this decision is its heavy emphasis on formal arguments: the conclusive reason for considering the affirmative action to the contrary to Community standards is the strict interpretation of article 2(4), and the consequent restriction of the meaning of the expression "equal opportunities". Even Advocate General Tesauro, although he recognised that his position went against a consolidated trend, and that the problem of affirmative action involves complex social and political issues, finally based his position on strict interpretation (8). This approach brings to mind the course followed by the Court in dealing with the problem of horizontal effects of unimplemented directives, when it decided a very important and controversial issue, relying only on literal interpretation of a Community rule, in spite of many other relevant substantive aspects (9).


(1) There is one precedent of the ECJ which, although it does not deal explicitly with affirmative action, has some bearing on this subject, and has also been recalled by Advocate General Tesauro in his conclusions in the case Kalanke: in Commission v. France, C-312/86 [1988] ECR 6315, the Court has ruled that art. 2 (3) of directive 76/207/EEC (concerning the lawful exceptions to the principle of equality) cannot justify national legal measures which confer to women special rights because of their special duties in the family, since these tasks do not relate to biological diversity, like pregnancy, but only to social models, and they are therefore discriminatory.
(2) Kalanke v. Freie Hansestadt Bremen, C-450/93, ECR [1995] I-3051. On affirmative action for women in the German system s. B. Graefrath, Wie gerecht ist die Frauenquote? Eine praktisch-philosophische Untersuchung, (Wuerzburg, 1992); U. Maidowski, Umgekehrte Diskriminierung: Quotenregelungen zur Frauenfoerderung im oeffentlichen Dienst und in den politischen Parteien, (Berlin, 1989).
(3) Gesetz zur Gleichstellung von Frau und Mann im oeffentilchen Dienst des Landes Bremen, 20 November 1990; s. D. Schick, K. Buhr, H. Dieball, U. Fritsche, S. Klein-Schonnefeld, M. Mahlzahn, S. Wankel, Frauengleichstellungsgesetze des Bundes und der Laender - Kommentar fuer die Praxis, (Koeln, 1996).
(4) For an analysis of the distinction between formal and substantial equality, particularly in the Italian legal system, s. L. Gianformaggio, "Eguaglianza formale e sostanziale: il grande equivoco", (1996) Foro it., 1961-1976; s. more generally P. Westen, Speaking of Equality: An Analysis of the Rhetorical Force of 'Equality' in Moral and Legal Discourse, (Princeton, N.J., 1990).
(5) The Advocate General reasons that by definition equal chances were present in the case, since both applicants were equally qualified.
(6) Conclusions of the Advocate General §§ 24 and 25.
(7) "l'article 2, paragraphe 4, en tant que dérogation à un droit individuel consacré par la directive, est d'interprétation stricte" (par. 21); "Or, une réglementation national qui garantit la priorité absolue et inconditionnelle aux femmes lors d'une nomination ou promotion va au-délà d'une promotion de l'égalité des chances et dépasse les limites de l'exception prevue à l'article 2, paragraphe 4, de la directive" (par. 22).
(8) "Nous n'ignorons pas que les considérations exposées jusqu'à present et la conclusion à laquelle nous sommes pervenu ne cadrent pas avec les prises de positions de nombreuses instances (...). Nous n'ignorons pas, non plus, qu'une position différente de celle que nous avons estimée juste trouverait appui (...) dans certaines mesures prises par certains Etats membres et non membres de la Communauté" (par. 26); "une mesure telle que celle qui nous occupe est (...) susceptible d'etre poursuivie sur la base de l'article 2, paragraphe 4 de la directive, attendu que cet objective reste, tout de meme, de réealiser l'égalité des chances entre hommes et femmes, et non de garantir le résultat à ces derniéres, à égalité de conditions" (par. 25).
(9) S. Faccini Dori v. Recreb, C-91/92 [1994] ECR 3325: the Court argued that since articles 189 provides that directives can only have effect on member States, and not on individuals, until they are duly implemented, they do not create horizontal effects, i.e. it is not possible for an unimplemented directive to entitle someone with a legal right that can be imposed on another private individual. Note that, contrary to the letter of the same article 189, the Court recognizes that directives may have vertical effect, i.e. they bind all actors with even slight links with public organs. Advocate General Lenz, on the contrary, argued in favour of the admissibility of horizontal effects, both on literal and substantive arguments.