Positive action

There are certain situations when preferential treatment is given to persons with particular characteristics who are in a disadvantaged position. This is usually done to correct inequality existing in practice. Preferential treatment in these situations will not be considered to be discriminatory.
Case summary

Case C-409/95 Marschall


European Court of Justice
11 November 1997

Facts
Mr. Marschall was working in a school and applied for a promotion. However, a female candidate was selected for that position because she was as qualified as Mr. Marschall and the law on civil servants provided that if there are fewer women than men in the sector,  “women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless reasons specific to an individual malecandidate tilt the balance in his favour”. Mr. Marschall complained about the decision in court. 

Question referred to the CJEU by the national court
Does the above mentioned regulation giving priority for promotion to women in certain situations violate the principle of equal treatment? 

Court’s ruling
The Court emphasized that the principle of equal treatment means that 'there shall be no discrimination whatsoever on grounds of sex either directly or indirectly also as regards the promotion in work place. If further recalled its previous case law where a similar law automatically giving preference to women in promotion was found to be discriminatory. However, it also noted that the particular case differs from the previously mentioned as in this case the national law provided a clause allowing to tilt the balance in the male candidate’s favour if there reasons specific to this individual male candidate. Therefore the Court ruled that the law in question as far as it provides that each case is evaluated separately and the male participants are evaluated carefully is compatible with the principle of equal treatment. 

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