Gender Equality and Affirmative Action Under the Law of the European Union

5 Colum. J. Eur. L. 319 (1999)

Manfred Zuleeg. Jean Monnet Professor, Johann Wolfgang Goethe-Universitift, Frankfurt am Main. Former Judge at the Court of Justice of the European Communities.


A. The Impact of the Judgments of the European Court of Justice on German Constitutional Law

The judgments of the European Court of Justice (ECJ), in Kalanke1 and Marschall are landmarks in the development of gender equality in the European Community (EC). These two judgments, rendered in 1995 and 1997, respectively, examine affirmative action in one Member State, the Federal Republic of Germany. The rulings of the ECJ attracted considerable attention in Germany since the intensive efforts to improve the position of women there- especially in professional life-were at stake. After Kalanke, quite a few thought that affinmative action programs were no longer permitted. While some were dismayed by this prospect, others were relieved.

The controversy was particularly intense because, not long before Kalanke, the Bundesverfassungsgericht (Federal Constitutional Court) had held that the prohibition of gender discrimination laid down in Article 3 Paragraph 3 of the Grundgesetz (the German constitution), was not sufficient to promote equality of men and women. This provision prohibited anyone from being favored or disfavored based on their gender. While Article 3 Paragraph 2 of the Grundgesetz appeared to espouse the same rule as Paragraph 3 of that article, the Bundesverfassungsgericht maintained that Paragraph 2 is to be construed as a reinforcement of the non-discrimination rule in Paragraph 3. Under Article 3 Paragraph 2 of the Grundgesetz, factual disadvantages typically affecting women may be compensated by favorable schemes. Equality must be extended to the social reality. Therefore, not only discriminatory legal rules must be abolished, but the factual situation in the future must also be modified. The provision aims at a harmonization of life conditions. Women must have the same opportunities to work as men, and state measures should not function to consolidate any disadvantages women may face due to the conventional roles or stereotypes they are assigned in society. Shortly after the Bundesverfassungsgericht holding in 1992, the Grundgesetz was amended. In 1994, Article 3 Paragraph 2 was supplemented by the provision stating that the state should promote the factual reinforcement of legal equality of women and men and work towards the removal of existing disadvantages. After these events, Kalanke’s disapproval of affirmative action had an explosive impact.