New doubt over Flynn’s positive action proposals

Date: 21/03/1996

SOCIAL Affairs Commissioner Pádraig Flynn has been forced to delay putting proposed changes to sex equality laws to the full Commission, amid claims that the planned amendments do not fit in with existing legislation in Austria and Sweden.

Flynn wants to allow preferential treatment in the recruitment or promotion of members of the under-represented sex, but only if candidates have “equal qualifications and/or merits” with applicants of the dominant sex.

The proposed reforms were originally due to be considered by the Commission yesterday (20 March), but the discussion was postponed because of concern over the possible impact of the proposed changes on several member states.

Current Swedish legislation requires only that a member of the under-represented sex should have qualifications which are “sufficient for the job” to be given preferential treatment, even if candidates of the other sex have better qualifications.

In Austria's public sector, positive action in favour of women is allowed if they do not hold at least 40&percent; of a given grade, as long as female candidates have qualifications “almost equal” to their male counterparts.

This problem has forced the Commission to consult its legal service and the authorities in both Sweden and Austria to find out how strictly the new wording would have to be interpreted.

Similar problems may also arise in the Netherlands and Finland, both of which operate positive action programmes.

The Commission may have little option but to consider a slightly different formulation of the revisions to the directive - the legal basis of EU equality policy. In the hope that final legal problems can be sorted out, the Commission has tentatively pencilled in the adoption of its communication and draft amendments to the directive for next week.

The proposed changes come in the wake of last October's Kalanke judgement in the European Court of Justice, which found that the positive discrimination system operating in Bremen was illegal.

All along, Flynn has stressed that Kalanke only banned rigid quota systems and not other positive action programmes in favour of women.

Besides concerns from Austria and Sweden, questions have also been raised by advisors to Trade Commissioner Sir Leon Brittan and Internal Market Commissioner Mario Monti.

The amendments are by no means guaranteed an easy passage even if they pass through the Commission, as they must be adopted by member states unanimously under the disputed Article 235 of the treaty, which allows action in areas not covered by specific sections of the EU treaties.