Georg Badeck and Others, interveners: Hessische Ministerprasident and Landesanwalt beim Staatsgerichtshof des Landes Hessen: ECJ 28 Mar 2000

Steps taken which amounted to positive discrimination by a national body need not always amount to unlawful discrimination. The steps should be taken to correct a present imbalance, and should not give automatic and unconditional priority where the applicants had equal qualifications, and where all the personal characteristics of the applicants were recognised and allowed for.
Europa Social policy – Men and women – Access to employment and working conditions – Equal treatment – Derogations – Measures to promote equality of opportunity between men and women – National provisions laying down measures for the promotion of women in sectors of the public service – Permissible – Criterion – Article 2(1) and (4) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions does not preclude a national rule which – in sectors of the public service where women are under-represented, gives priority, where male and female candidates have equal qualifications, to female candidates where that proves necessary for ensuring compliance with the objectives of the women’s advancement plan, if no reasons of greater legal weight are opposed, provided that that rule guarantees that candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates, – prescribes that the binding targets of the women’s advancement plan for temporary posts in the academic service and for academic assistants must provide for a minimum percentage of women which is at least equal to the percentage of women among graduates, holders of higher degrees and students in each discipline, – in so far as its objective is to eliminate under-representation of women, in trained occupations in which women are under-represented and for which the State does not have a monopoly of training, allocates at least half the training places to women, unless despite appropriate measures for drawing the attention of women to the training places available there are not enough applications from women, – where male and female candidates have equal qualifications, guarantees that qualified women who satisfy all the conditions required or laid down are called to interview, in sectors in which they are under-represented, – relating to the composition of employees’ representative bodies and administrative and supervisory bodies, recommends that the legislative provisions adopted for its implementation take into account the objective that at least half the members of those bodies must be women.
Times 31-Mar-2000, C-158/97, [2000] EUECJ C-158/97
Council Directive 76/207/EEC

Updated: 24 August 2021; Ref: scu.162106