The Kalanke Case (C-450/93)

Equal Treatment and Positive Actions

Judgement of the Court 17 October 1995,

Eckhard Kalanke v.

Freie Hansestadt Bremen

The Issue Referred to the ECJ

The issue was referred to the Court by the Bundesarbeitsgericht (Federal Labour Court) under art. 177 EEC Treaty. It concerned the interpretation of Article 2(1) and (4) of 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.

Facts (I)The issue was raised in the proceedings between Mr. Kalanke and the city of Bremen.

Indeed, the city of Bremen published a vacancy notice for a post as Section Manager in the Bremen Parks Department, and when the recruitment reached the final stage, only two candidates were shortlisted:

Mr. Kalanke, holder of a diploma in horticulture and landscape gardening, working as a horticultural employee in the Parks Department and acting as permanent assistant to the Section Manager; andMs. Glißmann, holder of a diploma in landscape gardening and also working as a horticultural employee in the Parks Department.

Facts (II)Even if the departmental management of the Parks Department suggested Mr. Kalanke’s promotion, the Staff Committee refused such a possibility, and recruited Ms. Glißman. The subsequent arbitration, that resulted in a recommendation in favour of Mr. Kalanke, was seen as a failure by the Staff Committee, that asked for the issue to be referred to the Conciliation Board.

The Board concluded that, as both candidates possessed equivalent qualifications for the post, the female should be granted priority according to the provisions of the Landesgleichstellungsgesetz (paragraph 4), Bremen Law on Equal treatment for Men and Women in the Public Service (from now on referred to as LGG).

Facts (III)Paragraph 4 of the LGG provides:“(1) In the case of an appointment (including establishment as a civil servant or judge) which is not made for training purposes, women who have the same qualifications as men applying for the same post are to be given priority in sectors where they are under-represented. (2) In the case of an assignment to a position in a higher pay, remuneration and salary bracket, women who have the same qualifications as men applying for the same post are to be given priority if they are under-represented. This also applies in the case of assignment to a different official post and promotion. […](5) There is under-representation if women do not make up at least half of the staff in the individual pay, remuneration and salary brackets in the relevant personnel group within a department. This also applies to the function levels provided for in the organization chart.”

Facts (IV)Mr. Kalanke brought an action against that decision in the Arbeitsgericht Bremen (Labour Court) and subsequently in the Landesarbetisgericht (Regional Labour Court), arguing on the compatibility of the LGG with the German Basic Law and Civil Code, but in both occasions the case was dismissed.

Therefore he brought an appeal on points of law in the Bundesarbeitsgericht (Federal Labour Court), which considered appropriate to assess such relevant law in the light of the principle of equal treatment as envisaged in Community law (namely, in article 2(1) and (4) of Council Directive 76/207/EEC).

The Federal Labour Court thus stayed the proceedings and referred to the European Court of Justice two questions, concerning the interpretation of the relevant Community provisions.

Questions (I)Must Article 2(4) of 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, be interpreted as also covering statutory provisions under which, when a position is a higher pay bracket is being assigned, women with the same qualifications as men applying for the same position are to be given priority if women are under-represented, there being deemed to be under-representation if women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group within a department, which also applies to the function levels provided for in the organization chat?

Questions (II)

If Question1 is answered in the negative:

must Article 2(1) of Council Directive 76/207/EEC be interpreted, having regard to the principle of proportionality, as meaning that it is not permissible to apply statutory provisions under which, when a position in a higher pay bracket is being assigned, women with the same qualifications as men applying for the same position are to be given priority if women are under-represented, there being deemed to be under-representation if women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group within a department, which also applies to the function levels provided for in the organization chart?

Reasoning of the Court (I)

As the two questions seek to clarify the scope of the derogation from the principle of equal treatment allowed by Article 2(4) of the Directive, the Court decided to examine them together.The national court, essentially, asks whether Article 2(1) and (4) of the Directive precludes national rules such as those in the present case.

Reasoning of the Court (II)

According to the Court, a national provision that, where men and women who are candidates for the same promotion are equally qualified, women are automatically to be given priority in sectors where they are under-represented, involves discrimination on grounds of sex.

Reasoning of the Court (III)

However Article 2(4) provides that the Directive “shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities”.That provision is specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life.Consequently it permits national measures relating access to employment, including promotion, which give a specific advantage to women in order to improve their ability to compete on the labour market.

Reasoning of the Court (IV)

Nevertheless, Article 2(4) must be interpreted strictly. An absolute and unconditional priority for appointment or promotion goes beyond promoting equal opportunity, thus national rules which provide such a priority do not fall under the scope of Article 2(4).Furthermore, in the present case, the national provisions seek to achieve equal representation of men and women, whilst Article 2(4) aims to guarantee equality of opportunities, being the equal representation merely a result of such an equality.

Decision“The answer to the national court's questions must therefore be that Article 2(1) and (4) of the Directive precludes national rules such as those in the present case which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are under- represented, under-representation being deemed to exist when women do not make up at least half of the staff in the individual pay brackets, in the relevant personnel group or in the function levels provided for in the organization chart.”

Opinion of Advocate General Tesauro

In delivering this opinion (on 6 April 1995), Advocate General Tesauro took a great risk: he set out a series of conclusions that he deemed not to be consonant with the position adopted by numerous authorities which had already considered the issue. But, at the same time, he considered that he had to resist the temptation to follow the trend, and proposed that the Court should reply to the Bundesarbeitsgericht as follows:

“Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 precludes the application of

national legislation under which women are given priority in recruitment and/or in promotion provided only that they have the same qualifications as male

applicants, simply because they are under-represented in a remuneration bracket in the

relevant personnel group, that is to say, where they do not account for one half of the personnel.”

His ReasoningAdvocate General Tesauro’s opinion goes much further than the statement of the Court, and accurately explains the reasoning behind its conclusions.Mr. Tesauro believes that, although the issue is the derogation set out in Article 2(4), what is actually under discussion is the very significance of the principle of equal treatment, and the contrast between formal and substantive equality.

His Reasoning (II)First of all, he states that equality is to be obtained through the exercise of positive action, important means of achieving equal opportunities for minorities or disadvantaged groups. Problem is, there are different types of positive action, using different means to attain the equality objective, and the one that came to be prevailing, consisting in the legitimization of preferential treatment in favour of disadvantaged categories, actually is the one which most affects equality in a strict sense. However, as it is also true that Article 2(1) clearly aims at the actual promotion of such equality, in particular by the removal of existing inequalities which affect women’s opportunities, Advocate General Tesauro finds himself in a pinch, having to establish which kind of positive actions are authorized under Article 2(4) and also to define the very same concept of equal opportunities between men and women. He concludes that positive action is to be based on two premises: “1. the presence of existing obstacles which stand in the way of the achievement of equal opportunities as between men and women, 2. and the temporary nature of positive action, whose legitimacy depends on the continuance of the existing obstacles which are to be removed”.

ConclusionsThe observations submitted to the Court by Advocate General Tesauro confirm that Article 2(4) of the directive enables existing inequalities affecting women to be eliminated, but certainly not through pure and simple reverse discrimination, that is to say, through measures not designed to remove the obstacles preventing women from pursuing the same results on equal terms, but to confer the results on them directly or, in any event, to grant them priority in attaining those results simply because they are women, and thus deems Paragraph 4 of the LGG (national provision) to constitute an infringement of EC law, in that it tends to guarantee a kind of numerical, formal equality.

Reactions to the Kalanke judgment • The Kalanke Judgment was highly criticized by the

scholarship for its narrow and formalistic interpretation of the equal treatment principle, its focus on the individual, its failure both to show any sensitive towards the position of women and the absence of any attempt to weigh up any policy arguments.

• In 1996 the European Commission issued a Communication (COM (96) 88) on the interpretation of the Kalanke Judgment, pointing out that the ECJ condemned only the special feature of the Bremen law which automatically gave women the absolute and unconditional right to appointment or promotion over man.

The Commission considered that only those quota systems which were completely rigid and did not leave any possibility to take account of individual circumstances were unlawful.

The Commission also proposed an amendment to Art. 2.4 of the Directive 76/207/EEC. This new approach was taken into consideration by the ECJ in a subsequent decision: the Marschall Case.

The Evolution of the ECJ Position:

the Marschall Case (C-409/95) As Kalanke, the Marschall Case concerns the issue of

the compatibility, with Union Law, of a national provision that gave preference to the promotion of women ‘unless reasons specific to an individual candidate tilt the balance in his favour’ .

The European Court of Justice held that a national rule which contained a saving clause did not breach Art. 2.4, unlike Kalanke, because:

(1) Candidatures will be subject to a specific assessment which will take account of all criteria specific to the individual candidates and will override priority to women not automatically, but only when one or more of those criteria tilts the balance in favour of male candidates;

(2) Those criteria must not discriminate against female candidates.

The new Art. 141.4 TEC(now Art. 157.4 TFUE)

The legal framework has been modified by the Amsterdam Treaty (1997).

The new Art. 141.4 (now art. 157.4 TFUE) expressly allowed Member States to adopt or maintain positive actions measures for the underrepresented sex in respect of professional careers, providing that:

“with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantage, in order to make easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers”.

Beyond Kalanke and Marschall

In other following cases, the ECJ has appeared to allow different degrees of flexibility in the national rule, depending on the circumstances:Badeck case (C-158/97): legality of the so called “flexible result quota”: priority is given to under-represented female candidates, with equal qualifications of male candidates, where this proves necessary for complying with the binding targets in the women’ s advacement plan. Abrahamsson case (C-407/98): a swedish measure giving automatic preference to a female candidate with merely sufficient qualifications (not equal qualifications) failed to satisfy the requirements of Art. 2(4).Lommers case (C-476/99): legality of a national provision, providing subsidised nursery places only to female employees, becouse women were significantly under-represented in the Ducht Ministry of Agricolture both in terms of number and occupation in higher grades.