Kalanke v Freie Hansestadt Bremen [1995] C-450/93

In brief

The Bremen Land government operated a rule that where male and female candidates for a post were equally qualified, women were to be given automatic priority in sectors where they were under-represented. The ECJ held that national rules which guarantee women absolute and unconditional priority for appointment or promotion go beyond the positive action permitted by the Equal Treatment Directive. Positive action may remove specific disadvantages but may not substitute for equal treatment a system of preference.

Key provisions

• para-22 — Absolute and unconditional priority is disproportionate: A rule that gives women automatic priority over equally-qualified men in appointment or promotion, in sectors where women are under-represented, goes beyond promoting equal opportunity and substitutes equality of result. This falls outside the positive action permitted by Article 2(4) of the Equal Treatment Directive.

When relevant

Respondent invokes s.158 or s.159 EA 2010 as a complete defence to a discrimination claim, Respondent's measure operates as an absolute rule with no individual assessment, The claimant was previously included under the same provision and is now excluded