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EC law allows limited tie-break

This report relates to 1 case(s)

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    Marschall v Land Nordrhein-Westfalen [1998] IRLR 39 ECJ (2 other reports)

    • Discrimination: Positive discrimination may be permissible under EC law

      Date:
      15 December 1998

      In Marschall v Land Nordrhein-Westfalen, the European Court of Justice rules that national laws giving equally qualified women priority over men for promotion in sectors where they are underrepresented may, in certain circumstances, be permissible under the EC Equal Treatment Directive.

    • Limited positive discrimination allowed

      Date:
      1 January 1998

      In Marschall v Land Nordrhein-Westfalen (11 November 1997) EOR77A, the European Court of Justice holds that it is not contrary to the EC Equal Treatment Directive for equally-qualified women to be given preference for promotion where there are fewer women than men in the relevant post, so long as male candidates are guaranteed that women are not to be given priority if reasons specific to an individual man tilt the balance in his favour.

In Marschall v Land Nordrhein-Westfalen the European Court of Justice rules that positive discrimination in favour of women is not contrary to EC law where an equally qualified woman is preferred for a post in a grade where women are underrepresented, so long as male candidates are guaranteed that the priority given to female candidates will be overridden where the selection criteria tilt the balance in the man's favour.

The German public service regulations governing promotion at issue in Marschall provide that where "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."

The ECJ said that the saving clause distinguished these rules from the legislation at issue in the Kalanke case (see EOR65A), where the Court held that positive discrimination in favour of women was discrimination against men prohibited by EC law.