CASE OF AFFIRMATIVE ACTION

Affirmative action was an influence of second feminism movement on policy agencies. In this way, the case analysed introduces the affirmative action from the one of main doctrine of European Union Court of Justice.

 

The University of Göteborg announced a vacancy for the chair Professor of Hydrospheric Sciences. The vacancy notice indicated that the appointment to that post should contribute to promotion of equality of the sexes in professional life. Our candidates are one man Mr Ander and three women: Ms Dest, Ms Fogel and Ms Abra.

The appointments committee of the Faculty of Sciences, voted twice: 1) on the first occasion in relation to the candidates' scientific qualifications. 2) On the second vote , taking account both of scientific  merits and Swedish regulation on Positive Discrimination. According to the first qualification, Mr Ander took the first place. But respect of second vote, Ms Dest is the winner, and the difference between Mr Ander (second place) and Ms Fogel (third position) was huge.

Suddenly, Ms Dest withdrew her application, the Rector of the University decided to refer the matter back to the selection board for it to decide on the remaining applications in the light of equality between men and women. But the selection board stated that it could not re-examine the case having regard to those factors since the question of equality had already been taken into account in its first decision. Consequently, the Rector of the Uninersity of Göteborg decided to appoint Ms Fogel to the professional chair. In his decision, the Rector referred to Swedish Regulation and to the University’s plan for equality between men and women.  Mr Ander and Ms Abra appealed the decision to the Över of Högs.

The Över of Högs stayed proceedings pending a preliminary ruling from the European Court of Justice. The main question was whether, in carrying out an assessment in accordance with Swedish Regulation on positive discrimination, Ms Fogel's membership of the under-represented sex could outweigh Mr Ander's advantage. And whether, in addition, the application of  Swedish Regulation was in conformity with Community law and, in particular. ARTICLE 2 point 4 of the Directive 76/207 that provides: this Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities…

Four questions were sent by the Över of Högs: 1) Do Articles 2(1) and 2(4) of Council Directive 76/207/EEC of 9 February 1976 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 preclude national legislation under which an applicant of the under-represented sex possessing sufficient qualifications for a public post is to be selected in priority over an applicant of the opposite sex who would otherwise have been selected ("positive special treatment") if there is a need for an applicant of the under-represented sex to be selected and under which positive special treatment is not to be applied only where the difference between the applicants' qualifications is so great that such treatment would be contrary to the requirement of objectivity in the making of appointments? 2) If the answer to Question 1 is in the affirmative, is positive special treatment impermissible in such a case even where application of the national legislation is restricted to appointments to either a number of posts limited in advance (as under Swedish Regulation 1995:936) or posts created as part of a special programme adopted by an individual university under which positive special treatment may be applied? 3) If the answer to Question 2 means that treatment like positive special treatment is in some respect unlawful, can the rule, based on Swedish administrative practice that an applicant belonging to the under-represented sex must be given priority over a fellow applicant of the opposite sex, provided that the applicants can be regarded as equal or nearly equal in terms of merit, be regarded as being in some respect contrary to Directive 76/207/EEC? 4) Does it make any difference in determining the questions set out above whether the legislation concerns lower-grade recruitment posts in an authority's sphere of activity or the highest posts in that sphere?

Swedish legislation  established that under which a candidate for a public post who belongs to the under-represented sex and possesses sufficient qualifications for that post must be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed, where this is necessary to secure the appointment of a candidate of the under-represented sex and the difference between the respective merits of the candidates is not so great as to give rise to a breach of the requirement of objectivity in making appointments.  There would be priority in promotion to women in sectors of the public service where they are under-represented must be regarded as compatible with Community law where it does not automatically and unconditionally give priority to women when women and men are equally qualified, and where the candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates  (ECJ Case 158/97) According to ART 2 (4) of Directive 76/207 does not preclude a rule of national case-law under which a candidate belonging to the under-represented sex may be granted preference over a competitor of the opposite sex, provided that the candidates possess equivalent or substantially equivalent merits, where the candidatures are subjected to an objective assessment which takes account of the specific personal situations of all the candidates.

European Court ruled that “positive and negative criteria of selection must be neutral about sex”. In this way, the activity of public administration would be organized through the purpose of these criteria is to achieve substantive equality and not formal. Then, the application of the criteria must be transparent and must be able to be controlled in order to obviate any arbitrary assessment of the qualifications of the candidates.

Respect of second question, ECJ ruled that ARTS 2(1) and (4) of the Directive and EC also preclude national legislation of that kind where it applies only to procedures for filling a predetermined number of posts or to posts created as part of a specific programme of a particular higher educational institution allowing the application of positive discrimination measures.

The answer to the third question could be explained in this way, ARTS 2 (1) and (4) of the 76/207 does not preclude a rule of national case-law under which a candidate belonging to the under-represented sex may be granted preference over a competitor of the opposite sex, provided that the candidates possess equivalent or substantially equivalent merits, where the candidatures are subjected to an objective assessment which takes account of the specific personal situations of all the candidates

The last question (number four) the question whether national rules providing for positive discrimination in the making of appointments in higher education are lawful cannot depend on the level of the post to be filled.