Positive action defines specific measures to eliminate, prevent or remedy past discrimination. It goes beyond legislation on equal treatment by promoting substantive equality (equality of outcomes), for example, by addressing structural disadvantages rather than merely aiming for equality of opportunity or prohibitions on discrimination.
In 1984, a Council Recommendation on the Promotion of Positive Action for Women proposed that Member States adopt a positive action policy ‘to eliminate existing inequalities in working life and to promote a better balance between the sexes in employment’ (84/635/EEC, ). In 1988 the Commission published Positive action: equal opportunities for women in employment, a guide.
The Commission’s Communication of 7 June 2000, Towards a Community framework strategy on gender equality (2001-2005) (COM (2000) 335 final) comments that: ‘While Member States… are pursuing gender equality policies, important discrepancies remain in implementation. This is true for legislation, institutional mechanisms, specific initiatives (e.g. for positive action) and public awareness’. Although it acknowledges the uneven implementation of positive action by Member States, the Commission seems to regard positive action as constrained by the subsidiarity principle: ‘The Community however will not aim to pursue those activities that, by reason of nature and/or extent, can be better performed at national, regional or local level.’ The Commission appears instead to favour ‘the gender mainstreaming approach, adopted in 1996 by the Commission’.
Moreover, strict application of the principle of equal treatment is a potential barrier to the adoption of positive action. This was addressed by Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for women and men as regards access to employment, vocational training and promotion, and working conditions: ‘This directive shall be without prejudice to measures to promote equal opportunity for women and men, in particular by removing existing inequalities, which affect women’s opportunities….’ However, the application of positive action by Member States and the interpretation of this provision when some of these actions were challenged led to European Court of Justice decisions that raised considerable uncertainty about the extent to which positive action can be permitted under Community law (see, for example, the contrasting decisions in Kalanke v. Freie und Hansestadt Bremen, Case C-450/93,  and Marschall v. Land Nordrhein- Westfalen, Case C-409/95, ).
The Treaty of Amsterdam attempted to provide some clarification with a new provision in Article 141(4) EC (now Article 157 TFEU): ‘… (T)he principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’.
Council Directive 2002/73/EC (OJ 2002 No. L269/15) subsequently revised the provision of Article 2(4) of the 1976 directive to read: ‘Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty (now Article 15114) TFEU) with a view to ensuring full equality in practice between women and men’ (new Article 2(8)). Similarly, provisions were enacted under the rubric ‘Positive action’ in Article 5 of Council Directive 2000/43 which implements the principle of equal treatment between persons, irrespective of racial or ethnic origin and in Article 7 of Council Directive 2000/78 which establishes a general framework for equal treatment in employment and occupation. In the latter case, specific provision is made for disabled persons.
It remains uncertain how these provisions will be applied by Member States or interpreted by the ECJ. The Commission strategy of mainstreaming gender equality may incorporate some elements of positive action.