COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the interpretation of the judgment of the Court of Justice on 17 October 1995 in Case C-450/93, Kalanke v Freie Hansestadt Bremen
Date: 1996-03-27
Institutions: European Commission
Subjects: Germany, gender equality, judgment of the Court (EU), promotion, sexual discrimination

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  27.03.1996 
COM(96)  88  final 

COMMUNICATION  FROM  THE  COMMISSION 
TO  THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL 
on  the  interpretation  of  the judgment  of  the  Court  of  Justice  on  17  October  1995  in 
Case  C-450/93,  Kalanke v  Freie  Hansestadt  Bremen 

COMMUNICATION  FROM  THE  COMMISSION 
TO  THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL 
on  the  interpretation  of  the judgment  of  the  Court  of  Justice  on  17 October  1995  in 
Case  C-450/93,  Kalanke  v  Freie  Hansestadt  Bremen 

1. 

Introduction 

On  17  October  1995,  the  Court  of  Justice  of  the  European  Communities  delivered  its 
judgment  in  Case  C-450/93,  (Eckhard  Kalanke  v  Freie  Hansestadt  BremenV1*.  which  has 
given  rise  to a great  deal  of  controversy  throughout  Europe.  This controversy  was  caused  by 
the  uncertainty  created  by  the  judgment  with  regard  to  the  legitimacy  of  quotas  and  other 
forms  of positive action aimed  at increasing the numbers of women  in certain sectors or  levels 
of  employment. 

The  Kalanke  judgment  is  of  great  significance  because  it  comes  at  a  time  when  it  is 
increasingly  recognized that the anti-discrimination laws which were adopted twenty years ago 
are  not  now  sufficient  to  achieve  equality  for  women  as  regards  their  access  to  employment 
and  promotion.  Despite  some  real  progress  made  during  the past  decade  in this field,  the  rate 
of  unemployment  amongst  women  is  higher  than  amongst  men  in  most  parts  of  the 
Community.  Women  still  account  for  the  majority  of  the  long-term  unemployed,  they  often 
have  low-skilled,  poorly  paid  and  insecure jobs  and  there  are  still  gaps  in  pay  between  men 
and  women.  There are also still  not enough  women  to whom  decision-making  posts and  a  full 
share  in  political  and  economic  life  are  open 

Equal  treatment  between  men and women  at work  constitutes a fundamental  right, as has been 
acknowledged  by  the  Court  of  Justice  in  its  judgment  of  15  June  1978  in  Case  149/77, 
Def renne  III(2).  In  particular,  as  regards  the  existence  of  a  general  principle  prohibiting 
discrimination  based  on  sex  in  respect  of  employment  and  working  conditions,  the  Court 
stated  the  case  that  the  elimination  of  such  discrimination  formed  part  of  the  fundamental 
rights  which  constitute  one of  the  principles  of Community  law  and  that  the Court  had  a duty 
to  ensure  its observance  The principle  that  fundamental  rights  should  be  respected  has  since 
been  enshrined  in  the  Treaty  on  European  Union  (Article  F(2)). 

The  Commission  considers  that,  at  a time  when  equality  of  opportunity  for  women  has  been 
recognized  at  the  highest  level  (Essen,  Cannes  and  Madrid  European  Councils)  to  be  a  task 
of  paramount  importance  -  together  with  the  fight  against  unemployment  -  it  is  crucial  to 
reaffirm  the  need  to  use,  where  appropriate,  "positive  action"  measures  to  promote  equal 
opportunities  for  women  and  men,  in  particular  by  removing  existing  factors  of  inequality 
which  affect  women's  opportunities  in  the  employment  area. 

(1) 
(2) 

[1995]  ECR 1-3051 
[1978]  ECR  1365. 

There  is  no  official  definition  of  "positive  action"  at  Community  level.  There  is,  however, 
widespread  agreement  across  the  Community  that the  concept  of  positive  action  embraces  all 
measures  which  aim  to  counter  the  effects  of  past  discrimination,  to  eliminate  existing 
discrimination  and  to promote  equality  of  opportunity  between  women  and  men,  particularly 
in  relation  to  types  or  levels  of  jobs  where  members  of  one  sex  are  significant!} 
under-represented.  It  is  increasingly  recognized  to  be  not  only  a  question  of  equity  but  also 
of  efficiency  in  the  management  of  human  resources. 

Positive action can take different  forms:  a first model  consists of measures intended to remedy 
the  disadvantageous  situations  which  are  characteristic  of  women's  presence  in  the  labour 
market.  The  objective  is to  eliminate  the  causes  underlying  the  lesser  employment  or  career 
opportunities  still  affecting  women's  work  by  intervening,  in  particular,  at  the  level  of 
professional  orientation  and  vocational  training  A  second  model  of  positive  action  can  be 
traced  in  actions  favouring  the  attainment  of  a  certain  balance  between  family  and  work 
responsibilities  and  a  more  efficient  distribution  of  these  responsibilities  between  the  two 
sexes.  In this case, priority  is given  to measures  concerning the organization  of working time, 
the  development  of  childcare  infrastructure,  and  the  reintegration  of  workers  in  the  labour 
market  after  a  career-break. 

A  third  model  is  based  on  the  idea  that  positive  action  should  aim  to  make  up  for  past 
discrimination.  As  a  consequence,  preferential  treatment  is  prescribed  in  favour  of  certain 
categories  of  persons.  This  may  take  the  form  of  quota  systems  or  targets.  Quotas  may  be 
more  or  less  rigid.  Rigid  quotas  are deemed  to be  those  determining  a certain  threshold  to  be 
reached  without  taking  into  account  the  qualifications  and  merits  of  persons  concerned,  or 
those  fixing  minimum  requirements  to  be  fulfilled  without  any  possibility  of  having  regard 
to  the  particular  circumstances  of  a  case.  Less  rigid  or  flexible  quotas  are,  on  the  contrary, 
those  establishing  preferential 
treatment  in  favour  of  a  certain  category  provided  that 
qualifications  are  of  equal  value  in  relation  to  the  job  to  be  done  and  that  exceptional 
circumstances  may  be  taken  into  account 

2.  The  Community's  approach  to  "positive  action" 

The  Commission  has  always  adopted  a  very  favourable  attitude  towards  positive  action.  In 
1984, it  put forward  a proposal  for  a recommendation  on the promotion  of  positive  action(3), 
which  was  adopted  by  the  Council 

The  recommendation  invites  Member  States  to  adopt  a  positive  action  policy  designed  to 
eliminate  existing  inequalities  affecting  women  in  working  life  and  to  promote  a  better 
balance  between  the  sexes  in  employment  in  order  to  eliminate  or  counteract  the  prejudicial 
effects  on  women  in  employment  or  seeking  employment  which  arise from  existing  attitudes, 
behaviour  and  structures based  on the idea of a traditional  division  of roles in society  between 
men  and  women.  Member  States  are  also  invited  to  encourage  the  participation  of  women  in 
various  occupations 
they  are  at  present 
levels  of 
under-represented,  particularly 
responsibility  in order  to achieve  better  use of all  human  resources.  The recommendation  also 
advises that  Member  States should  take steps to ensure that positive action  includes, inter  alia. 

in  the  sectors  of  the  future,  and  at  higher 

those  sectors  of  working 

life  where 

in 

(,)  Council  Recommendation  84/635/EEC  of  13  December  1984  on  the  promotion  of 

positive  action  for  women  (OJ  No  L  331,  19.12.1984,  p.  34). 

as  far  as  possible,  actions  encouraging  women  candidates  as  well  as  the  recruitment  and 
promotion  of  women  in  sectors  and  professions  and  at  levels  where  they  are  under-
represented,  particularly  as regards positions  of  responsibility. 

It  is  also  important  to  recall  that  in  the  Third  Medium-Term  Action  Programme  on 
Equal  Opportunities  (1991-1995),  which  has been  approved  by  the  Council  Resolution  of 
21  May  1991<4),  the  Commission  underlined  the  need  for  positive  action  and  organized  a 
number of programmes  specifically  aimed  at promoting women's integration  into the labour 
market  and  the improvement  in the quality  of their  work.  In the Fourth  Action  Programme 
(1996-2000)  approved  by  Council  Decision  95/593/EC(5),  sex  desegregation  of  the  labour 
market  is one of the objectives  to be  pursued,  inter  alia, through  positive  action. 

Within  the  Commission  itself,  a  second  positive  action  programme  for  female  staff 
(1992-1996),  has  been  adopted,  in  order  to  redress  the  balance  as  regards  the  number  of 
women in the categories and positions where they are under-represented  and to promote their 
career development  and to provide flanking  measures making it possible for  civil  servants to 
reconcile professional  and family  commitments.  Several  operations are envisaged  as part of 
a  coherent  strategy  to eliminate  de facto  inequalities.  In  particular,  services  are  encouraged 
to  give  priority  to  women  candidates  in  the  event  of  equal  qualifications  and  merits  for 
recruitment,  promotion  and  appointment  to  managerial  posts,  as  long  as  women  are 
under-represented 
in  a  given  grade  or  category.  To  this  end,  targets  are  set  and 
implementation  plans  are established  covering  a qualitative  and  quantitative  analysis  of  the 
evolving situation, a set of consistent  measures designed to achieve a better balance between 
male and female  staff  and  periodical  evaluations. 

3.  The facts  of  Kalanke 

In the Kalanke case, the issue was whether a German  law on positive action was compatible 
with  Directive  76/207/EEC(6)  or  whether  it  exceeded  the  exception  for  positive  action  laid 
down in Article 2(4) thereof*7'. The law of the Land of Bremen on equal opportunities in the 
public  sector  provides  that,  as  regards  both  recruitment  and  promotion  in  sectors  where 
women  are under-represented,  namely  if  they  do not  represent  50% of the personnel  in the 
different  grades of the category concerned, a woman having the same qualifications  as a male 
applicant  must be given  preference  over him. 

Mr Kalanke, having failed  to gain a particular  promotion  as a result  of this rule, challenged 
its validity  before the German courts. The national  court found  that the promotion was legal 
under  German  law  including  constitutional  law,  but  the  question  of  its  conformity  with 
Directive  76/207/EEC  was referred  to the Court  of Justice. 

(4) 

(5) 

(6) 

(?) 

OJ  NoC  142, 31.5.1991, p. 1. 
OJ  No L 335, 30.12.1995, p. 37. 
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  (OJ No L  39,  14.2.1976, p. 40). 
Article 2(4)  reads as  follows: 
"This 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  in the areas referred  to in  Article  1(1)." 

The relevant  provisions  of the Bremen  Law on  Equal  Treatment  for  Men and Women  in the 
Public  Service read  as  follows: 

"Appointment,  assignment  to an  official  post  and  promotion. 

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 

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" 

4.  The judgment 

In its judgment,  the Court  of Justice points out that: 

the  purpose  of  the  Directive  is,  as  stated  in  Article  1(1)  to  put  into  effect  in  the 
Member  States the principle of equal treatment for men and women as regards, inter alia. 
access to  employment  including  promotion.  This  principle  of  equal  treatment  implies, 
according to Article 2(1), that  "there shall be no discrimination  whatsoever  on grounds 
of  sex either  directly  or  indirectly"; 

a  national  rule  whereby,  when  women  and  men  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. 

However, the Court  considers that  it  is important  to examine whether  such  a national  rule is 
allowed  by  Article  2(4) of the  Directive  In this respect,  the Court  states that this provision. 

is 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; 

permits national measures relating to access to employment, including promotion, which 
give  a specific  advantage to women with  a view  to improving  their  ability  to  compete 
in the labour  market  and to pursue  a career  on an equal  footing  with men; 

as a derogation  from  an individual right laid down in the Directive, must be interpreted 
strictly. 

Finally,  the Court makes it clear that: 

national  rules  which  guarantee  women  absolute,  and  ujiconujjiona!  priority  for 
appointment  or  promotion  go  beyond  promoting  equal  opportunities  and  overstep  the 
limits of the exception  in  Article  2(4) of the  Directive. 

The  Court  concludes  that  the  answer  to  be  given  to  the  national  court's  question  is  that 
Article  2(1)  and  (4)  of  Directive  76/207/EEC  precludes  national  rules  such  as  those  in  the 
case  discussed  which,  where  candidates  of  different  sexes  shortlisted  for  promotion  are 
equally  qualified,  automatically  give  priority 
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. 

in  sectors  where 

to  women 

5.  Questions  raised  by  the  judgment 

the 

should  be  given 

interpretation  which 

It  appears  that  the  Court's  negative  attitude  towards  the  legality  of  the  Bremen  law  is  based 
exclusively  on 
to  Article  2(4)  of 
Directive  76/207/EEC.  It  is  clear  from  the judgment  that  this  provision  does  not  cover  the 
type  of  quota  system  under  which  women  are  given  automatic  preference  over  men  in  the 
assignment  of  posts  or  promotion  However,  a  number  of  questions  may  still  be  asked 
concerning  Article  2(4) 
Is this  a provision  limited  to  safeguarding  positive  actions  in  favour 
of  women  at  work  only  as regards  measures such  as special  assistance  for  vocational  training, 
leave  for  family  reasons,  etc,  or  does  it  also  allow  positive  discrimination  in  the  field  of 
recruitment/promotion  by  giving  preference  to  women  under  certain  conditions?  In  the  latter 
case,  should  a  distinction  be  made  between  positive  actions  which 
take  account  of 
considerations  of  necessity/proportionality  and  those  which  do  not? 

5a.  The  US  Supreme  Court  approach  to  "affirmative  action" 

In  this  context,  it  is  interesting  to  recall  the  case-law  of  the  Supreme  Court  of  the 
United  States  on  "affirmative  action"  which  demonstrates  that  the  issues  involved  are 
extremely  complex  The  term  "affirmative  action"  is used  either  to  refer  to  action  to  identify 
and  replace discrimination  in employment  or to measures  aimed  at increasing the  participation 
in  the  workforce  of  protected  groups,  i.e.  minorities  and  women.  There  is  a  difference 
between  the  public  standard  (under  the  Equal  Protection  Clause  of the  US  Constitution)  and 
the  private  standard  (under  title  VII  of  the  Civil  Rights  Act  1964). 

Affirmative  action  imposed  by  law  or  administrative  action  must  be  assessed  according  to  a 
"strict  scrutiny"  standard,  which  requires the existence  of  a  "compelling  government  interest" 
and  action  "narrowly  tailored"  to  serve  that  interest,  i.e.  a  requirement  of  proportionality.  In 
the  private  sector,  the  Supreme  Court  approach  to  voluntary  affirmative  action  by  employers 
is  more  flexible  than  the  strict  scrutiny  standard  since  it  concentrates  only  on  the  basic 
elements  of  the  "narrow! y-tailored"  test. 

The  only  gender  case, Johnson(X), concerns voluntary  affirmative  action  by private  employers. 
In  this  case,  an  affirmative  action  plan  was  applied  in  order  to increase  the  representation  of 
women  in  a job  category  historically  occupied  by  men.  A  woman  applicant  was  selected  for 
the  position  over  a  male  colleague,  despite  the  fact  that  her  test  score  was  marginally  lower 
than  the  man's. 

H> 

Johnson  v  Transportation  Agency,  480  US  616  (1987). 

6 

This  action  was  found  to be  consistent  with  the  prohibition  of  discrimination  in  employment 
imposed  under  title  VII  of  the  Civil  Rights  Act  1964  on  the  grounds,  inter  alia,  that 
consideration  of  the  sex  of  the  applicant  was  justified  by  the  existence  of  a  manifest 
imbalance  which  reflected  under-representation  of  women  in  "traditionally  segregated 
job  categories". 

The  Supreme  Court  has  not  decided  any  gender  case  concerning  the  public  sector.  However, 
it  is  interesting  to  recall  the  recent  Adarand(9) case which  concerned  positive  measures  aimed 
at  improving  racial  balance  in  the  domain  of  public  procurement. 
In  this  case,  the 
Supreme  Court  for  the  first  time  applied  strict  judicial  scrutiny  to  affirmative  action 
programmes  adopted  by  the  federal  government.  Although  the  particular  measure  under 
examination  was  deemed  not  to  be  sufficiently  "narrowly  tailored"  to  meet  the  required  aim, 
it is important  to  note that  seven  out  of  the  nine  members  of  the  Supreme  Court  specifically 
reaffirmed,  as  a  matter  of  principle,  the  legitimacy  of  results-oriented  preferential  treatment 
of  disadvantaged  groups,  subject  always  of  course  to  the  strict  scrutiny  requirements. 

5b.  International  Human  Rights  Law 

Discrimination  based  on sex  is also prohibited  by international  law. However,  the  international 
instruments  of  the  United  Nations  and  of  the  Council  of  Europe  tend  to  recognize  the 
legitimacy  of  certain  "special  measures"  designed  to  establish  de  facto  equality  in  favour  of 
certain  disadvantaged  groups.  The  United  Nations  Convention  of  18  December  1979  on  the 
elimination  of  all  forms  of  discrimination  against  women  recognizes  in  Article  4  that,  even 
if  women  are  given  de jure  equality,  this  does  not  automatically  guarantee  that  they  will  in 
reality  be  treated  equally.  To  accelerate  women's  de  facto  equality  in  society  and  in  the 
workplace,  States  are  permitted  to  use  special  remedial  measures  for  as  long  as  inequalities 
continue  to  exist. 

In  1988, the  United  Nations  Committee  on  the Elimination  of Discrimination  against  women 
adopted  its general  recommendation  No  5 whereby  the  Committee  recommended  that  States 
make  more  use  of  temporary  special  measures  such  as  positive  action,  preferential  treatment 
or  quota  systems  to  advance  women's  integration  into  education,  the  economy,  politics  and 
employment.  These  special  measures  should  be  used  simply  to  speed  up  the  achievement  of 
de  facto  equality  for  women  and  should  not  create  separate  standards  for  women  and  men. 
The  appropriateness  of  such  measures  should  be evaluated  with  regard  to the actual  existence 
of  discriminatory  practices. 

Consequently,  once the  objectives  of  equality  of  opportunity  and  treatment  are  reached,  those 
measures  are  no  longer  needed  and  should  be  discontinued 

ILO Convention  No  111 of  4 June  1958  concerning  discrimination  in  respect  of  employment 
and  occupation  refers  to both  equality  of opportunity  and  treatment  by  stating in  Article  2 that 
each  member  for  which  this  Convention  is  in  force  undertakes  to  declare  and  pursue  a 
national  policy  designed  to  promote,  by  methods  appropriate  to  national  conditions  and 
practice,  equality  of opportunity  and  treatment  in respect  of employment  and  occupation,  with 
a  view  to  eliminating  any  discrimination  in  respect  thereof. 

(K>) 

•\darand  Constructors  Inc  v  Pena,  Secretary  of  Transportation.  o3  USLW  -l^'lj  {I9--5) 

Article  5 of the  ILO Convention  is of particular  importance  in the  present  case as it  states the 
following: 

"1  Special  measures  of  protection  or  assistance  provided  for  in  other  Conventions  or 
Recommendations  adopted  by  the  International  Labour  Conference  shall  not  be  deemed 
to  be  discrimination. 

2 

Any  Member  may,  after  consultation  with  representative  employers'  and  workers' 
organizations,  where  such  exist,  determine  that  other  special  measures  designed  to  meet 
the  particular  requirements  of  persons  who,  for  reasons  such  as  sex,  age,  disablement, 
family  responsibilities  or  social  or  cultural  status,  are  generally  recognized  to  require 
special  protection  or  assistance  shall  not  be  deemed  to  be  discrimination." 

The  principle  of  equality  of  opportunity  and  treatment  for  all  workers  is also enshrined  in  the 
declaration  on  equality  of  opportunity  and  treatment  for  women  workers  adopted  by  the  ILO 
on  25  June  1975  Article  1 precludes  all  forms  of  discrimination  on  grounds  of  sex  which 
deny  or  restrict  such  equality  and  also  provides  that  positive  special  treatment  during  a 
transitional  period  which  aims  at  effective  equality  between  the  sexes  shall  not  be  regarded 
as  discriminatory 

Part  II  of  the  additional  protocol  to  the  European  Social  Charter  of  5  May  1988  provides,  in 
Article  1, that the contracting  parties undertake to recognize the right to equal  opportunity  and 
treatment  in the field  of employment  without  any  discrimination  based  on  sex,  and to take  the 
appropriate  measures  in  order  to  ensure  or  encourage  its  implementation  in  various  sectors, 
including  those  of  professional  career  and  promotion.  This  provision  is  specifically  stated  not 
to  impede  the  adoption  of  specific  measures  intended  to  remedy  de  facto  inequalities. 

The  discussion  is  still  going  on  in  the  international  human  rights  law  context  as  to  whether, 
and  to  what  extent,  rules  giving  women  automatic  priority  as  regards  appointment  or 
promotion  are  permitted  or  not.  At  the  same  time  it  is  clear  that  international  human  rights 
law  does  not  rule  out  -  and  may  in  some  instances  even  require  -  distinctions  between  men 
and  women  with  the  objective  oï  accelerating  women's  de  facto  equality  in  society  Such 
distinctions,  on  the  other  hand,  should  be  based  on  objective  and  reasonable  criteria  and 
should  not  be  aimed  at  maintaining  on  a  permanent  basis  unequal  or  separate  standards. 

6.  How  to  interpret  Kalanke 

As  fias  already  been  mentioned  above,  there  are  various  types  of  positive  action.  One  of 
then  may  take  the  form  of  quota  systems  or  targets,  as  in  the  case  examined  by  the 
Court  of  Justice.  The  Court  had  to  decide  whether  it  was  lawful,  by  applying  such  a  system, 
to give  women  preference  over  male candidates  in  the  event  of  a promotion  in  sectors  where 
they  were  under-represented,  provided  that  their  qualifications  were  the  same 

The  Court's  answer  to  that  question  could  be  interpreted  in  two  ways: 

either  the  Court  dismissed  the  possibility  of  justifying  any  quota  system,  even  one 
containing  a safeguard  clause  which  allows the  particular  circumstances  of  a case  to  be 
taken  into  account, 

or  I he  Court  restricted  itself  to  the  "rigid"  quotas  provided  for  in  the  Bremen  law  and 
applied  to  Mr  Kalanke,  that  is  in  an  automatic  manner. 

The  Commission  considers  that  the  Court  has  only  condemned  the  automatic  quota  system 
of  the  Land  of  Bremen  This  interpretation  is based  upon  the  wording  of  the judgment  itself 
whereby  the  Court  makes  it  clear  that  national  rules  which  guarantee  women  absolute  and 
unconditional  priority  for  appointment  or promotion  overstep the limits  of the positive  action 
exception  laid  down  in  Article  2(4)  of  Directive  76/207/EEC  (see  paragraph  22  of 
the judgment). 

It  is  true  that,  in  paragraph  23,  the  Court  refers  to  the  problem  of  "substituting  for  equality 
of  opportunity 
the  result  which  is  only  to  be  arrived  at  by  providing  such  equality  of 
opportunity"  However,  this  paragraph  is  clearly  added  as  a  rider  to  the  main  idea  of  the 
Court,  contained  in  paragraph  22,  that  it  is  the  "absolute  and  unconditional"  nature  of  the 
preference  given  to women  which  makes  the  Bremen  system  unlawful.  The  Court's  remarks 
in paragraph  23 are clearly  based  on the assumption  that it is discussing  a rigid,  unconditional 
quota  system.  Moreover,  this  paragraph  appears  to  be  aimed  mainly  at  criticising  the 
over-ambitious  elements  of the particular  scheme which  was at issue in Kalanke. i.e.  the aim 
of  achieving  a  50/50  distribution  of  men  and  women  "in  all  grades  and  levels".  Finally,  it 
is  clear  that  the  Court  was  only  called  upon  to  pronounce  upon  systems  having  the 
characteristics  of  the  Bremen  system,  and  the  operative  part  of  the  judgment  is  naturally 
limited to pronouncing upon  the legality  of such  systems.  It  is also to be noted that the  Court 
clearly  recognized the need for  measures going beyond the classic rules against  discrimination 
if  equality  was  to  be  achieved  in  practice  (paragraph  20). 

The  Commission  therefore  takes  the  view  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  and  are,  in  consequence,  to  be  regarded  as  lawful. 

In  this  context,  the  Commission  considers  that  the  following  positive  action  measures  are 
examples  of  the  types  of  action  which  remain  untouched  by  the  Kalanke judgment  subject 
of  course,  to  the  choice  which  Member  States  may  make  as  to  the  measures  to  be  adopted 
by  them: 

quotas  linked  to the  qualifications  required  for  the job,  as  long  as they  allow  account  to 
be  taken  of  particular  circumstances  which  might,  in  a  given  case, justify  an  exception 
to  the  principle  of  giving  preference  to  the  under-represented  sex; 

plans for promoting women, prescribing the proportions and the time-limits within which 
the number  of women  should  be increased  but without  imposing  an automatic  preference 
rule  when  individual  decisions  on  recruitment  and  promotion  are  taken; 

an  obligation  oJlprinciple  for  an  employer  to  recruit  or  promote  by  preference  a  person 
belonging  to the under-represented  sex, in  such  a case, no individual  right  to be  preferred 
is  conferred  on  any  person, 

reductions  of  social  security  contributions  which  are  granted  to  firms  when  they  recruit 
women  who  return  to  the  labour  market,  to  perform  tasks  in  sectors  where  women  are 
under-represented; 

State  subventions  gianted  to  employers  who  recruit  women  in  sectors  where  ihey  are 
under-represented; 

other  positive  action  measures  focusing  on  training,  professional  orientation,  the 
reorganization  of working  time, child-care  and  so on. 

In respect  of the positive action programme implemented by the Commission  in favour  of its 
female  staff,  it should be noted that this is not prejudiced  by the Kalanke judgment as it does 
not  provide  for  women  to  be  given  automatic  preference  (this  is  rather  a  principle  to  be 
observed  in the case of equal  qualifications). 

Conclusions 

The  Commission  considers  that  the  Court  has  only  condemned  the  special  feature  of  the 
Bremen law which consists in the automaticity of the measure, giving women an absolute and 
unconditional  right  to  appointment  or  promotion.  Therefore,  the  Commission  takes  the 
position that the only type of quota system which is unlawful  is one which is completely rigid 
and  does  not  leave  any  possibility  of  taking  account  of  individual  circumstances.  Member 
States  and  employers  are  thus  free  to  have  recourse  to  all  other  forms  of  positive  action, 
including  flexible  quotas 

The  Commission  is  anxious  that  the  controversy  to  which  the  Kalanke  case  has given  rise 
should be ended  definitively.  Therefore,  notwithstanding the limited nature of the impact of 
this judgment  as properly  construed,  the Commission  believes that  it would be helpful  if the 
wording  of  Article  2(4)  of  Directive  76/207/EEC  were  amended  so  that  the  text  of  the 
provision  would  specifically  permit  the  kinds  of  positive  action  which  remain  untouched 
by  Kalanke.  Such  an  interpretative  amendment  would  make  it  clear  that  positive  action 
measures  short  of  rigid  quotas  are  permitted  by  Community  law  and  would  ensure that  the 
text  of  the  Directive  more  clearly  reflects  the  true  legal  position  as  it  results  from  the 
judgment  of the Court. 

The Commission  is therefore  putting  forward  a proposal  for  the amendment  of Article 2(4) 
of Directive 76/207/EEC  which would  specify  that the measures envisaged by this provision 
include actions favouring  the recruitment or promotion of one sex in circumstances where the 
latter is under-represented,  on condition that the employer always has the possibility of taking 
account  of the  particular  circumstances  of a given  case. 

If^fHUIfS^f * -*£. "m? 

ISSN 0254-1475 

COM(96) 88  final 

DOCUMENTS 

EN 

04  06 

Catalogue number  : CB-CO-96-159-EN-C 

ISBN 92-78-02535-6 

Office  for  Official  Publications  of the European  Communities 

L-2985  Luxembourg 

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