The Many Meanings of Equality and Positive Action in Favour of Women under European Community Law ‐ A Conceptual Analysis

Abstract

Abstract: The principle of equality of men and women as understood by Community institutions covers four distinguishable aspects. The first is equal treatment, defined in Community texts as the absence of legal gender discrimination. This concept focuses on individual rights and does not take into account the social context in which rules function. Second, the Community seeks to realise equal opportunities, understood as factual equality of chances. Third, Community law displays a concern for factually equal outcomes. The institutions accept legally different treatment that seeks to equalise unequal living conditions and inversely admit that facially neutral rules can have discriminatory effects. Finally, various documents conceive of gender equality as equal representation of the sexes in professional and public life. In the Kalanke decision of October 1995, the Court for the first time dealt with quotas in favour of women. It held that a national provision granting female candidates an automatic preference is incompatible with the right to equal treatment. The Court failed to acknowledge the tensions that arise from the coexistence of paradigms. An awareness of the multiplicity of concepts of equality, exhibited in Community law and rooted in the common constitutional heritage of the Member States, is however a prerequisite for a more sophisticated discussion of the issue of positive action.