EC law allows limited tie-break
This report relates to 1 case(s)
Marschall v Land Nordrhein-Westfalen  IRLR 39 ECJ (2 other reports)
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.