Abrahamsson and Anderson v Fogelqvist [2000] C-407/98

In brief

A Swedish regulation permitted the appointment of a candidate from the under-represented sex even where their qualifications were inferior, provided the difference was not so great as to breach objectivity. The ECJ held the regulation disproportionate. Positive action cannot justify selecting a candidate solely because of their sex where the effect is to disadvantage better-qualified candidates of the other sex.

Key provisions

• para-53 — Positive action cannot override objective suitability: Automatic preference for the under-represented sex is disproportionate where the effect is to prefer a less-qualified candidate. The principle of proportionality limits positive action at the point where it substitutes characteristic for merit.

When relevant

Claimant held an established role under the same positive-action provision, Respondent's measure excludes the claimant on characteristic alone without individual assessment