The significance of the Kalanke decision on future positive action programs in the European Union.

• Author: Means, Rebecca
• Position: Case Note

TABLE OF CONTENTS

I INTRODUCTION II. HISTORICAL PERSPECTIVE III. THE PRIMARY INSTITUTIONS OF THE EUROPEAN UNION

1. The European Commission

2. The Council of Me European Union

3. The European Parliament

4. The European Court of Justice

   1. Derivation of Authority

      1. The Doctrine of Direct Effect

      2. The Doctrine of Supremacy

   2. Preliminary Rulings

   3. Jurisdiction IV. EVOLUTION OF SOCIAL POLICY V. THE EUROPEAN RESPONSE VI. CONCLUSION

      1. INTRODUCTION

         On October 17, 1995. the European Court of Justice (hereinafter ECJ) held In Kalanke v. Freie Hansestadt Bremen(1) that a German state law guaranteeing women automatic priority over men in the labor market was contrary to the European Equal Treatment Directive(2) that prohibits sex-based discrimination. The ruling provoked a strong reaction throughout the European community. Several Member States and European women's organizations criticized the ruling as an impediment to women's progress toward achieving equality in the workplace.(3) To other Member States and to some members of the European legal community, however, the decision represented an accurate interpretation of current European union (hereinafter EU) law. which provides that discrimination of any kind shall not be tolerated.(4)

         Germany is not the only Member State to implement national measures promoting "positive action," a principle similar to "affirmative action," designed to eradicate inequalities imposed on citizens on the basis of race, sex, or ethnicity. Other states, such as the United Kingdom, Belgium, the Netherlands, and France have enacted similar programs that provide preferential treatment toward women.(5) In fact many Member States initiated such measures because of pressure from the European Commission (hereinafter Commission). The Commission had asserted that positive action programs not only promoted equal opportunity, but also increased public awareness and improved the range of educational and occupational opportunities available to women.(6)

         Although the Kalanke decision raises doubts about the future of such positive action programs, much of the concern appears to be unjustified. Although the ruling prohibits positive action programs that provide automatic preferences on the basis of sex measures targeting the means to the result (i.e., equal representation) rather than the result itself may still be implemented. In fact, the ECJ's decision may be more favorable toward securing equality for women than initially assumed. The ruling not only increases Member States' awareness of women's role in the workplace but also illustrates the deficiencies in the European Equal Treatment Directive. As a result, the Social Affairs Council is currently considering an amendment to the Directive to clarify some of its poorly drafted provisions.(7) A revision of the current Directive could expand the spectrum of positive action measures that may be implemented by Member States and increase the range of opportunities currently afforded European women.

      2. HISTORICAL PERSPECTIVE

         The EU, formerly known as the European Community (hereinafter EC).(8) is an institutional framework initially created to unite the nations of Europe as an economic entity. The concept of European unity originated in the post-World War Two recovery period, during which European leaders were presented with an opportunity for wide restructuring of Europe's economic and political institutions.(9) World War Two and a succession of prior wars had plagued and devastated Europe and its peoples.(10) The fear of future aggression instilled a desire for peace among the European nations and initiated a renewed commitment toward cooperation between previously adversarial nations.(11)

         Moreover, the resurgence of Germany's war industries continued to concern several nations, particularly France, whose historic relationship with Germany had been tenuous.(12) Wary of Germany's potential ability to regain a position of power among the European nations, the French government proposed the formation of a European Coal and Steel Community (hereinafter ECSC) to regulate the coal and steel industries, two essential elements of economic and military revitalization.(13)

         In 1951, the ECSC was established by the Treaty of Paris, one of the first major treaties of West European integration.(14) France, Germany, Italy, Belgium, the Netherlands, and Luxembourg signed the Treaty of Paris.(15) The treaty defined the four fundamental institutional decisionmaking bodies of the ECSC: the Council of Ministers, the High Authority, the Court of Justice, and the Parliamentary Assembly.(16)

         In 1957, the six signatories of the Treaty of Paris strengthened their relationship by ratifying the Treaty Establishing the European Economic Community (hereinafter EEC Treaty).(17) The EEC Treaty, commonly known as the Treaty of Rome, is considered the foundation of today's EU. Broader in scope than the Treaty of Paris, the EEC Treaty has been referred to as the "constitutional charter of a Community based on the rule of law."(18) A primary goal of the EEC is the establishment of a common market.(19) This objective is embodied in the treaty's preamble, which describes as the treaty's main purpose "to establish the foundations of an ever-closer union among the European peoples . . . [and] by common action [to] eliminate[] the barriers which divide Europe."(20)

         The EEC Treaty was initially signed by only the six signatories of the Treaty of Paris. These six founding members considered the EEC Treaty an instrumental step toward further economic, social, and political unification of Europe.(21) The United Kingdom (hereinafter U.K.), however, did not share these aspirations; rather, it desired a "looser economic community" and one without political or social constraints.(22) Significantly, the UAL, one of the strongest and most influential countries in Europe. was neither a member of the ECSC nor one of the original signatories of the EEC Treaty.(23) The UAL's refusal to participate in the ECSC stemmed primarily from an underlying apprehension that unification would result not only in economic free trade, but also in social and political integration among the Member States.(24) In 1962, however, cognizant of the EC's economic success and troubled by its faltering domestic economy and deteriorating political stature, the U.K. applied for membership in the Community.(25) The U.K. application was not accepted until 1973, after the resignation of French President Charles de Gaulle, who had been unwilling to compromise France's prominent position in the Community.(26) Accompanying the admission of the U.K. in 1973 were the admissions of Ireland and Denmark, two countries with strong economic and cultural ties to the U.K.(27) In 1981, Greece became the tenth Member State; Spain and Portugal Joined in 1986; and Austria, Finland, and Sweden joined the EU on January 1, 1995, increasing the membership to fifteen states.28)

         In the slow but steady progress toward complete unification, European leaders drafted a new treaty in November 1991, amending the foundational EEC Treaty.(29) The Treaty on European Union (hereinafter TEU) was signed at Maastricht, Netherlands, on February 7. 1992, and entered into force on November 1, 1993.(30) It renamed the "European Economic Community" the "European Union."(31) The TEU, commonly known as the Maastricht Treaty, notably instituted a detailed timetable toward the completion of an Economic and Monetary Union, which included the creation of a common currency. It also provided provisions for implementing a Common Foreign and Security Policy (hereinafter CFSP) and a Justice and Home Affairs policy.(32) Moreover, the Maastricht Treaty affirmed the EU commitment to integration by requiring a review of the Maastricht Treaty at the 1996 Intergovernmental Conference.(33) The Maastricht Treaty augmented but did not supersede the EEC Treaty, which remained the primary governing document of the EU.(34)

      3. THE PRIMARY INSTITUTIONS OF THE EUROPEAN UNION

         The EEC Treaty defines and empowers the four institutional decisionmaking bodies of the EU: the European Commission, the Council of the European Union, the European Parliament and the European Court of Justice.(35) Based on partnership and cooperation, the substantial interaction among these four primary institutions restricts the potential for domination or subordination of any one interest or Member State.(36)

1. The European Commission

   The European Commission is the heart and principal decision-making body of the EU. The Commission is empowered with initiating legislative proposals, implementing EU legislation, ensuring compliance of treaty provisions and EU policies by Member States, and managing International trade relationships.(37) The current Commission (1995-2000) comprises twenty Commissioners(38) who act in an executive capacity over their institutional counterparts.(39) Although Commissioners are appointed by their representative governments, they are obliged to act independently and only in the interests of the EU. Thus, while in theory the Commission is deemed an impartial body, it is not entirely apolitical, due to the nature of appointments.(40) In fact, Commissioners often compete for portfolios pertaining to domestic issues of their respective nations.(41)

   In addition, the Commission is assisted by an extensive bureaucracy that is subdivided into directorates-general (hereinafter DGs). Each of the more than twenty-five DG sections is responsible for a separate policy area, such as External Relations, Agriculture, and Energy.(42) The DGs are the Community's civil service and supply Commissioners with the expertise necessary for wise decision-making in their respective policy areas.(43)

2. The Council of the European Union

   The Council of the European Union (hereinafter Council), commonly known as the Council of Ministers, consists of one representative from each Member State.(44) The Council meets at...