- Positive Action in EU Gender Equality Law: promoting more women in corporate decision making?
- Number of pages
- Amsterdam Institute for Advanced labour Studies, University of Amsterdam
- AIAS working paper
- Volume | Edition (Serie)
- Document type
- Working paper
- Faculty of Law (FdR)
- Amsterdam Institute for Advanced Labour Studies (AIAS)
Hugo Sinzheimer Instituut (HSI)
Equality is a broad and complex concept with various meanings (equal treatment, equal opportunities, formal equality, and substantive or de facto equality). Although there are strong similarities in the definition of key concepts related to equality, the EU and other international organisation have interpreted them differently. The way the concept of positive action, as an expression of the principle of de facto equality, has been understood by these institutions has led to a certain degree of uncertainty and methodological confusion. Similarly, despite the undeniable degree of harmonization that the EU legal framework on this field provides, still key notions of equality law, among them, the term positive action, are defined and applied differently in the various legal systems of the EU Member States. In the first place, this paper provides a comparative legal analysis of the concept of equality. In the second place, attention is paid to the notion of positive action in EU law and, in particular, in the case law of the Court of Justice of the EU. This paper includes an analysis of the interpretative value of that case law to provide guidance for the adoption of positive action measures and the possible clashes with the international and national contexts. Finally, attention is paid to the recent actions adopted by the European Commission to promote gender balance in decision-making positions.
In EU law, positive action is still understood as an exception rather than a concrete substantiation of equality. This approach seems to ignore the positive duty to promote equality between men and women and combat social discrimination included in the EU Treaties. An alternative line of reasoning is to consider positive action as a useful instrument to prevent social exclusion of minorities, - informed by dignity, restitution and redistribution as values linked to equality - rather than an exceptional equal opportunities policy. From this point of view, positive action is regarded as a corollary of the Member States’ obligation to promote real equality among their citizens, from an individual as well as from a collective perspective, by the way of removing the obstacles that hinder their full participation in political, economic and social life.
- October 2013
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