2 Colum. J. Eur. L. 172 (1995)
Eva Brems. Fellow of the Belgian National Foundation for Scientific Research, Institute for Human Rights, Katholieke Universiteit Leuven.
Case C-450/93, Eckhard Kalanke v. Freie Hansestadt Bremen, October 17, 1995, 1995 E.C.R. 1-3051.
Equal treatment of men and women; Directive 76/207/EEC; Article 2(4); Affirmative action
Facts and Procedure
At the final stage of recruitment to a post of Section Manager in the Bremen Parks Department, the two shortlisted candidates were Mr. Kalanke and Ms. Glimann, both horticultural employees of the Department. The management intended to promote Mr. Kalanke, but it was decided, after objections by the Staff Committee, that priority had to be given to the female candidate, Ms. Gliflmann. This was in accordance with paragraph 4 of the Bremen Law on Equal Treatment for Men and Women in the Public Service, which provides that for appointments and promotions, women who have the same qualifications as men applying for the same post are to be given priority in sectors where they are under-represented, meaning that they do not make up at least half of the staff in the individual pay, remuneration and salary brackets in the relevant personnel group within a department.
Mr. Kalanke’s action against the decision in the Bremen Labor Court and subsequent appeal in the Regional Labor Court was unsuccessful. Finally he brought an appeal in the Federal Labor Court. That Court accepted the regional court’s findings as to the equal qualifications of the two applicants and as to the under-representation of women in the Parks Department. It considered that the Bremen Law was compatible with German internal (statutory and constitutional) law, but that there were doubts with regard to its compatibility with Council Directive 76/207/EEC. On this issue a preliminary ruling was sought from the Court of Justice of the European Communities. Fellow of the Belgian National Foundation for Scientific Research, Institute for Human Rights, Katholieke Universiteit Leuven.