Copyright (c) 1998 The American Society of International Law
The American Journal International Law

April, 1998

92 A.J.I.L. 296

INTERNATIONAL DECISION: Marschall v. Land Nordrhein-Westfalen

Case No. C-409/95.
Court of Justice of the European Communities, November 11, 1997.

Julie A. Mertus and Edited by Bernard H. Oxman
Emory University School of Law

 [*296] This case presented the European Court of Justice (ECJ) with the opportunity to clarify whether a narrowly tailored positive action program 1 for women is permissible under the European Community Directive (Equal Treatment Directive or Directive) 2 calling for equal treatment of men and women with respect to employment and promotion. Doubt as to the validity of positive action measures had grown since the 1995 ECJ ruling in Kalanke 3 struck down a "tie break" positive action scheme giving automatic priority to a female candidate for a position over an equally qualified male competitor in an employment sector where women were underrepresented. The question presented in the present case was whether a similar scheme would be permissible if it also contained a "savings clause" that would not require positive action for the female candidate "if reasons specific to the male candidate tilt the balance in his favor." The vast majority of laws in Europe pertaining to positive action require such an assessment of the male candidate's credentials. In a decision that may spur the creation of additional positive  [*297] action programs for women, the ECJ announced, on November 11, 1997, a test that would permit such measures under limited conditions. Under European Community law, positive action measures have long been offered as part of a triad of measures to promote equality in the labor market: prohibitions on unlawful direct discrimination; prohibitions on unlawful indirect discrimination (including neutral measures that have the purpose or effect of perpetuating discrimination); and positive action measures that are temporary in nature and designed to become inoperative when a particular goal is achieved. Positive action measures for women are expressly provided for in European Community law in Article 2(4) of the Equal Treatment Directive. Article 6(3) of the Social Policy Agreement affirms that its provisions do not "prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue vocational activity or to prevent or compensate for disadvantages in their professional careers." 5 Positive action measures are also viewed as "soft law" of the Community and, thus, a legitimate policy objective of member states.  Several international human rights instruments endorse the use of positive action to promote de facto equality. 6 For example, the International Convention on the Elimination of All Forms of Racial Discrimination 7 and the Convention on the Elimination of All Forms of Discrimination against Women 8 envision the creation of temporary positive action programs. The Human Rights Committee has specifically recognized that "the principle of equality sometimes requires [states] to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination." 9


Governments throughout the European Community have implemented various positive action schemes for women. Debate over the legality of these measures has most often centered on interpretation of two provisions of the Equal Treatment Directive. The main antidiscrimination provision, Article 2(1), provides that "principles of equal treatment shall mean that there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly by reference in particular to marital or family status." A subsequent provision, however, provides in Article 2(4) that "measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities" in access to employment, promotion, vocational training and working conditions, are exempt from Article 2(1). Reading Article 2(4) to permit positive action programs for women, the Commission of the European Community (Commission), in its Council Recommendation of December 13, 1984, 10 advised member states to adopt positive action policies "designed to eliminate existing inequalities  [*298] affecting women in working life and to promote a better balance between the sexes in employment." 11 In the 1995 Kalanke decision, the ECJ was asked to consider a German attempt to implement positive action measures. In that case, a German landscaper working for the Bremen Parks Department was passed over for promotion in favor of a female colleague. Both candidates were found to be qualified for the position, but priority was given to the female candidate under a Bremen law which required that, in such "tie break" situations, priority must be given to the woman for positions where women do not make up at least half of the staff at that level. The ECJ struck down the law, holding that national regulations guaranteeing automatic promotion of women who hold qualifications equal to their male counterparts exceed the requirements of the Equal Treatment Directive and constitute impermissible discrimination.


The European Commission attempted to minimize the import of the Court's ruling in Kalanke, arguing that it should be read narrowly. The official position of the Commission was that "quota systems which fall short of the degree of rigidity and automaticity provided for by the Bremen law have not been touched by the Court's judgment." 12

In the present case, Hellmut Marschall, a schoolteacher in Land Nordrhein-Westfalen (North Rhine-Westphalia), was denied promotion in favor of a woman. He was told that under the applicable regulation the female candidate must be promoted because the candidates were equally qualified and, at the time when the post was advertised, there were fewer women than men in the career bracket. The applicable law in Land Nordrhein-Westfalen provided: Where, in the sector of the authority responsible for promotion, there are fewer women than men in the particular higher grade post in the career bracket, women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless reasons specific to an individual [male] candidate tilt the balance in his favour. 13


According to Land Nordrhein-Westfalen, inclusion of the last clause -- known as a "savings clause" (Offnungsklausel) -- was enough to distinguish it from Kalanke. The rule of priority for certain employment decisions was chosen to advance a legitimate purpose under Community law, namely, counteracting the inequality affecting female candidates as compared with male candidates applying for the same post: where qualifications are equal, employers tend to promote men rather than women because they apply traditional promotion criteria which in practice put women at a disadvantage, such as age, seniority, and the fact that a male candidate is a head of household and sole breadwinner. 14


By attaching a "savings clause" to the rule, the legislature had deliberately chosen "a legally imprecise expression in order to ensure sufficient flexibility and, in particular, to allow the administration latitude to take into account any reasons which may be specific to individual candidates. Consequently," according to Land Nordrhein-Westfalen, "notwithstanding the rule of priority, the administration can always give preference to a male candidate on the basis of promotion criteria, traditional or otherwise." 15


In its review of the law, the Verwaltungsgericht (administrative court) was unimpressed by the "savings clause." Relying on Kalanke, it found that the provision constituted  [*299]  impermissible discrimination under Article 2(1) of the Equal Treatment Directive. The court also doubted whether the measure was permitted under Article 2(4) of the Directive, asserting that the positive measure does not improve women's ability to compete in the labor market on equal footing with men, but rather prescribes a result. Concluding that Article 2(4) may permit measures for promoting only equality of opportunity, not equality of results, it stayed the proceedings and referred the case to the ECJ.


In their interventions before the Court, France and the United Kingdom agreed with the Verwaltungsgericht that the provision in question goes further than promoting equality of opportunity and aims at creating equality of results and that, thus, the reasoning in Kalanke controls. In their view, the "savings clause" adds little to change the equation, because it "applies only exceptionally and therefore has no impact in a 'normal' case where there are no reasons specific to the male candidate which are such as to outweigh the general requirement to appoint the female candidate." 16 Moreover, the general and imprecise wording of the "savings clause" runs contrary to the principle of legal certainty and should not be upheld.


Land Nordrhein-Westfalen, the Commission, and the Austrian, Finnish, Spanish, Swedish and Norwegian Governments argued that a national rule such as the provision in question falls squarely within the scope of Article 2(4) of the Directive and is a permissible measure for promoting equality of opportunity between men and women. They agreed that the law does not guarantee absolute and unconditional priority for women and that, thus, Kalanke cannot be said to be controlling. Finland, Norway and Sweden maintained that positive action measures promote access by women to posts of responsibility and, as a result, help to restore balance to labor markets that are "still broadly partitioned on the basis of gender in that they concentrate female labour in lower positions in the occupational hierarchy." 17 Finland added that "past experience shows in particular that action limited to providing occupational training and guidance for women or to influencing the sharing of occupational and family responsibilities is not sufficient to put an end to this partitioning of labour markets." 18


The ECJ agreed that the "savings clause" sufficiently distinguishes the provision at issue from that in Kalanke. In considering whether a national rule containing a "savings clause" is designed to promote equality of opportunity between men and women within the meaning of Article 2(4) of the Directive, it noted with approval the observation of the Council in its Recommendation on the Promotion of Positive Action for Women that existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides of industry and other bodies concerned, to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures. 19


It appeared to the Court 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 their careers more frequently." 20 For these reasons, "the mere fact that a male and a female candidate are equally qualified does not mean that they have the same chances." 21 The ECJ concluded  [*300]  that a national rule such as that at issue in Marschall may be necessary to promote equality of opportunity.


Having determined that the provision in question may promote equality of opportunity under Article 2(4), the ECJ proceeded to examine its validity under the general antidiscrimination provisions of Article 2(1). As stated in Kalanke, positive action measures will not pass muster under this article if they accord absolute and unconditional priority to women. A different scenario, however, is presented by measures that include a "savings clause," which allows for consideration of the individual merits of the male candidate. Offering little reasoning to support its holding apart from the submissions of the intervenors, the Court concluded that a positive action measure containing a "savings clause" will not run afoul of the general antidiscrimination provision as long as two requirements are satisfied. The first is that in each individual case, the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate. 22


According to the second requirement, "such criteria are not such as to discriminate against the female candidates." 23   By announcing this test, the ECJ attempted to remedy the uncertainty caused by Kalanke and to leave some room for positive action programs for women. Each prong of the test, however, leaves hard questions unanswered. The first prong relies on the notion of a "savings clause." This essentially means that positive action will not be appropriate when the male candidate is more qualified than the female candidate. Because most European positive action measures can be said to satisfy this requirement, the first prong of the Marschall test may have little restrictive impact. Employers need only emphasize that the female candidate was not "automatically" promoted and that the male candidate was not more qualified. Factual disputes will still arise over the application of this subjective assessment, but the ECJ offered no precise guidance as to how to resolve them.


It is the second prong of the Marschall test that has the broadest ramifications. Any criteria for evaluation of candidates that discriminate against women are forbidden. This apparently includes criteria that appear neutral on their face but are discriminatory in practice (arguably, such as length of service). If read broadly, the second prong should allay some of the concerns of the Scandinavian intervenors that structural and systemic problems deter the progress of women in the labor market. Future disputes will likely center on the meaning of the second prong. Just as Marschall was needed to clarify what constitutes "equality of opportunity," so another decision will be required to provide guidelines on nondiscriminatory employment criteria.


The divergent views put forward by the governments in Marschall demonstrate that the member states are far from agreement on discrimination and equality issues and, in particular, on the permissible use of positive action. The central contribution of Marschall is that the ruling makes clear that positive action measures for women are acceptable in limited circumstances, and thus the door for such measures remains open.