7. Affirmative action and the principle of equality


In the light of the importance of the decision, which will probably cause much debate, and stimulate litigation concerning national affirmative action programmes, it would probably have been better to take a more comprehensive approach: a technique that is certainly not unknown to the Court. The Kalanke decision has been severely criticized by several scholars both because of the poverty of its motivation, and for the harsh consequences that it may entail in the future for programmes that seemed not only admissible but even mandated by other Community measures, like for example recommendation 84/635. (1)

Classifying affirmative actions according to their characteristics may simplify the task of verifying their compatibility with the principle of equality and the protection of other fundamental rights. Some scholars have proposed a distinction between direct affirmative actions and indirect affirmative actions, making reference to the concepts of direct and indirect discrimination developed by the European Court of Justice (2). The former type requires structural changes, and is not aimed at individual situations, but rather at reforming mechanisms and practices that hinder women's opportunities, like modifying working hours in order to make them better suited to family demands, or enhancing the education and training levels of female students and workers. This kind of action seems less problematic from a theoretical point of view, since it does not imply individual reverse discrimination, but it simply provides legal instruments that level the playing field between male and female citizens (or, generally, between minorities and the majority). In fact, this is the kind of action that Advocate General Tesauro has in mind when he speaks of actions that provide equality of chances, as opposed to (unlawful) equality of results (3).

By contrast, indirect affirmative actions concern individual cases where women are unable to achieve certain outcomes because they belong to a discriminated group; this is the case of the affirmative action plan devised by the German statute on equality between men and women in the public sector. This kind of action is much more effective, since it directly addresses specific inequalities, thereby restoring the balance; on the other hand, it raises difficult theoretical problems: in order to redress past discrimination, it permits discrimination against another male individual, whose individual rights are thereby infringed. This issue gives rise to a whole series of dichotomies which point in opposite directions: substantive equality as opposed to formal equality; individual rights as opposed to rights of the group; equality of chances as opposed to equality of results, and so on.

The question is not whether these measures are effective in achieving the result of real equality; it is a much more fundamental one: is there any legal basis for discriminating against someone because someone else has been discriminated against before? After all, Western legal civilization abhors the Macchiavelli's political motto that the end justifies the means. There are other elements that make it very difficult to tackle this problem using legal instruments. Western legal culture is deeply rooted in individual rights: centuries of evolution culminating in the French Revolution have firmly established a legal paradigm in which rights attach naturally to an individual; their content may change according to whether they correspond to legal relations with public powers or to private individuals or entities (and this is the reason for the civil law distinction between public law and private law (droit public-droit privé), which, incidentally, is foreign to the original content of the common law as a law common to all subjects (4) .

The idea of rights attaching to a group that can override individual fundamental rights is essentially foreign to law, since its sphere belongs more to politics. True, law cannot be, and has never been, foreign to considerations of fairness and justice, especially since the idea of the welfare state has taken hold in the twentieth century, stimulating state intervention in the most disparate aspects of citizens' lives; but Western culture has traditionally kept the two spheres strictly separated: politics is competent to take decisions on what is considered fair and just for a certain society in a certain age; the role of law is to ensure that these choices are taken and applied in a correct way (5). In short, politics is substance, law is form. Of course, this is not watertight. But it is true that if law is used openly to achieve purposes of distributive justice, it becomes the target of criticism of bias and partiality (6). The legacy of Western legal civilization is that law is different from politics, morality and religion; it can never survive without links with these, but equally it cannot survive unless it develops its own object, concepts, techniques and rules (7). How much this ideal of neutrality is a reality, and how much it is a wishful thinking nurtured by jurists in order to preserve their privileged position, is a hotly debated question (8).

Still, if we leave aside the huge problem of the neutrality of law, we perceive that what is needed to handle the affirmative actions issue, as a general problem of protecting minorities, are new concepts and categories. There is apparently a widespread belief that real equality requires not only the elimination of formal barriers, but also intervention in order to ensure that equal results can be effectively achieved. Nevertheless there is some embarrassment when it comes to providing a theoretical framework: at the end of the day, awareness that this result can be achieved only by infringing individual rights (in the case of indirect affirmative actions) undermines the validity of the mechanism. It seems that what is needed are new categories of rights and entitlements capable of giving more accurate definition to the relationship between the individual and the group, in order to eliminate the elements of arbitrariness in the choice on which of them should prevail. The current evolution of Western societies shows an increasing diversity within populations: differences of economic and social condition, of culture, race; at the same time, in spite of the severe economic crises suffered by most welfare states, there is a growing tendency of the state to intervene in all aspects of social life in order to implement its objectives. There is, I think, nothing revolutionary in the assertion that the legal framework that was consolidated two hundred years ago is an instrument which should be updated in order to regulate changed conditions. It is much more difficult to determine the direction in which new developments should move. Emphasis on individual rights as the bulwark of citizenship is probably the greatest achievement of Western legal civilization, as many examples of tyrannies in our history prove, and this precious heritage must be protected against any attack. But it is clear that lawyers can no longer ignore the fact that individuals live and act in groups, and that modern societies increasingly require new means in order to co-ordinate all these interests, which may coincide, but more often clash. This is an enormous challenge for legal science, but past experience shows that law, under strong and sometimes violent pressure, can be an amazingly flexible instrument, one capable of keeping pace with change.

As a possible example, a first step in the new direction might be to recognize openly that, since we admit that substantive equality cannot be achieved without taking into account the existence of groups in which individuals act, it does not make sense to conceive affirmative actions as a limited exception to a constitutional right to formal equality (9). In the Community context this would probably mean that directive 76/207 on equality of the men and women in work should be modified in order to discipline affirmative actions autonomously, and not as an exception to the general equality rule, to be interpreted strictly and restrictively (as is currently done under art. 2(4)) (10).


(1) S. e.g. E. Vogel-Polsky, "The Conception and Instrumentalisation of Legislation on Equal Opportunities for Men and Women: Programmed not to Succeed", (1996) Transfer 349 ff., especially pp. 369-379; M.V. Ballestrero, "Azioni positive. Punto e a capo", (1996) 10 Lavoro e diritto 117-138, notes that the result of banning affirmative actions is accomplished by emphasising that women deserve a much better situation; Advocate General Tesauro emphatically states that "nous sommes convaincu que la femme ne mérite pas d'atteindre une simple égalitè numérique, égalité donc formelle (...). Ce qui est nécessaire, en définitive, c'est surtout une mutation de fond du modèle économique, social et culturel qui est à l'origine de la disparité, mutation qui ne se réalise certainment pas par les chiffres ni par des joutes intellectuelles désormais dépassées" (par. 28). It may well be that those considerations are meant for the best of women, but it is still true that wishful tinking does not change reality ...
(2) L. Charpentier, "L'arret "Kalanke", expression du discours dualiste de l'égalité", EUI Working Paper RSC No. 96/18, Florence, 1996 (forthcoming also in Rev. trim. dr. eur., 1996), pp. 17-26.
(3) "Les disparités de fait dont les femmes font l'objet peuvent aussi résulter, par example, de conditions et de modalités d'organisation et de répartition du travail qui provoquent des effets différentes pour les salariés selon le sexe et qui portent préjudice aux femmes dans le domaine de la formation professionelle et de la promotion professionelle ou de l'avancement. Dans cette perspective, l'action positive doit plutot pour etre efficace, agir sur l'orientation scolaire et professionelle de manière de favoriser l'insertion des femmes dans le secteur dans lesquels elles sont sous-rerpesentés" (note 14, par. 15).
(4) S. U. Mattei, Il modello di common law, (Torino, 1996), ch. 8.
(5) S. A. Gambaro, "Il successo del giurista", (1983) Foro it., V, 85.
(6) S. U. Mattei, "Ai confini della terra promessa. Immigrazione, povertà, razzismo ed i limiti del diritto", (1992) Foro it., V, 458; id., "Etnocentrismo, neutralità e discriminazione. Tensioni nel diritto occidentale", (1994) Giur. It., 11, IV, 3-10.
(7) On the characteristics of Western legal civilization s. H.J. Berman, Law and Revolution - The Formation of the Western Legal Tradition, (Cambridge, Mass., 1983).
(8) Monateri, "Risultati e regole. (Un'analisi giuridica dell'analisi economica del diritto)", (1996) 13 Riv. Crit. dir. priv. 605 ff.
(9) S. S. Fredman, "European Community Discrimination Law: A Critique", (1992) 21 Industrial L. J. pp.119-134.
(10) S. L. Charpentier, "L'arret "Kalanke", Expression du discours dualiste de l'égalité", cit. note 12, at 28: "En effet, il est inconcevable de maintenir plus longtemps un système schizophrénique qui affirme d'une part l'égalité de traitement entre travailleurs masculin et féminin, et qui, dans le meme temps, autorise qu'on lui oppose les mesures qui visent, justement, à lui donner son effectivité". S. also E. Vogel-Polsky, "The Conception and Instrumentalisation of Legislation on Equal Opportunities for Men and Women: Programmed not to Succeed", cit. note 60, pp. 353-360. The author proposes to update the Treaty on European Union with regard to the basic rights of women during the intergovernmental conference which is currently taking place, by adding a new article: "The Union recognises the basic right to equal status of women and men in every sphere of life in society. The public authorities of the Union have the obligation to adopt special measures aimed at accelerating de facto equality in favour of women and in particular to take the necessary measures to achieve equal participation of women and men in the poplitical, administrative and judicial institutions of the Union".