ECJ rules that law on priority for women in promotions conforms with Community law

In November 1997, the European Court of Justice issued its judgment in the case of Hellmut Marschall v Land Northrhine-Westphalia, ruling that giving women priority in promotions in the public sector, where there are male and female candidates who are equally qualified for the post in question, does not conflict with Community law, provided that certain conditions are satisfied.

On 11 November 1997, the European Court of Justice (ECJ) issued a judgment in case of Hellmut Marschall v Land Nordrhine-Westphalia (C-409/95), according to which a national law which guarantees priority for women in promotions in the public sector in cases where there are male and female candidates who are equally qualified for the post in question does not conflict with Community law provided that certain conditions are satisfied.

Mr Marschall works as a tenured teacher in the service of the federal state (Land) of Northrhine-Westphalia. In 1994, he submitted his application for promotion to a post in the comprehensive school in Schwerte. The competent authority informed him, however, that it planned to appoint a female candidate to the post. According to a provision of the Land's law governing civil servants, "[w]here, 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." Mr Marschall then brought an action before the Administrative Court in Gelsenkirchen for an order directing the Landto promote him to the post in question.

The German court observed that the priority accorded as a matter of principle to women seemed to amount to discrimination which was not eliminated by the possibility of giving preference, exceptionally, to a male candidate. It therefore stayed proceedings and asked the ECJ to interpret the 1976 Directive 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 (76/207/EEC). That Directive does not preclude measures designed in particular to remedy actual instances of inequality which affect the chances of women.

The ECJ considered that where a promotion is involved, men tend to be chosen in preference to women where they have equal qualifications, since they benefit from deep-rooted prejudices and from stereotypes as to the role and capacities of women. Thus, for instance, the fear that women will interrupt their careers more frequently, that owing to household and family duties they will be less flexible in their working hours or that they will be absent from work more frequently because of pregnancy, childbirth and breastfeeding, leads to discrimination against them. For those reasons, the mere fact that a male and a female candidate are equally qualified does not mean that they have the same chances. Accordingly, a provision such as that enacted by the Landof Northrhine-Westphalia may help to reduce actual instances of inequality by introducing an additional criterion for promotion, namely status as a woman, and is in conformity with the Directive provided that automatic priority over men is precluded.

After recalling the social prejudices mentioned above, the Court emphasised that the criteria to be used when deciding on promotions must not be such as to discriminate against women. It also approved the flexibility afforded by the German provision, which leaves a margin of discretion to the administrative authorities. It is now for the German court to determine whether those conditions are satisfied and to decide Mr Marschall's case.

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