Marschall v Land Nordrhein-Westfalen [1997] C-409/95

In brief

A North Rhine-Westphalia rule gave women priority over equally-qualified men in promotion where women were under-represented, but contained a 'saving clause' allowing consideration of reasons specific to an individual male candidate that would tilt the balance in his favour. The ECJ held this was compatible with the Equal Treatment Directive. The saving clause — ensuring individual assessment — was the distinguishing feature from Kalanke.

Key provisions

• para-33 — Saving clauses render positive-action rules compatible with equal treatment : A positive-action rule is permitted where it (a) does not give automatic priority, (b) includes a saving clause allowing individual consideration of candidates with the non-preferred characteristic, and (c) the criteria for such consideration are not themselves discriminatory.

When relevant

Respondent relies on s.158 or s.159 without any individual assessment or exception mechanism, Claimant is seeking to argue that blanket exclusion is disproportionate