* Sean Pager, LL.M, European University Institute, 2002; J.D., University of California at Berkeley, 1998, A.B., Harvard College, 1989. The idea for this article came from Robert Post and Catherine Kratz, both of whom contributed invaluable encouragement and advice through successive drafts; without their assistance, this article could not have been realized in its present form. Helpful comments were also offered by Grainne de Burca and Wojciech Sadurski. Last but not least, I owe eternal gratitude and a gourmet dinner to my wife, Sheryl Groden, for her love and support during the years this was written.
1 Case 450/93, Kalanke v. Frei Hansestadt Bremen, 1995 E.C.R. I-3051, [1996] 1 C.M.L.R. 175 (1995). Note: this article will follow the European convention of pin citing ECJ opinions by paragraph number, when available.
2 See Linda Senden, Positive Action in the EU Put to the Test: A Negative Score?, 3 Maastr. J. Eur. Comp. L. 146 (1996) (commenting on the unusually controversial nature of the judgment). For a sampling of commentary, see Sarah Moore, Nothing Positive from the Court of Justice, 21 Eur. L. Rev. 156 (1996); Louis Charpentier, L’Arrêt Kalanke: Expression du Discours Dualiste de l’Egalité, 32 Revue Trimestr. Droit Eur. 281 (1996); Dagmar Schiek, Positive Action in Community Law, 25 Indus. L.J. 239 (1996); Tita Loenen & Albertine Veldman, Preferential Treatment in the Labour Market After Kalanke: Some Comparative Perspectives, 12 Int’l J. Comp. Lab. L & Indus. Rel. 43 (1996); Marie-Thérése Lanquetin, De l’Egalité des Chances: A Propos de l’Arrêt Kalanke, 1996 Droit Soc. 494; Helen Fenwick, Perpetuating Inequality in the Name of Equal Treatment, 18 J. Soc. Welfare & Fam. L. 263 (1996); Sacha Prechal, Case Law: Kalanke, 33 Common Mkt. L. Rev. 1245 (1996); Eva Brems, Case Law: Kalanke, 2 Colum. J. Eur. L. 172, 75–76 (1995/96); Anne Peters, The Many Meanings of Equality and Positive Action in Favour of Women Under European Community Law—A Conceptual Analysis, 2 Eur. L. J. 177 (1996).
3 See, e.g., Senden, supra note 2, at 146; Sionaidh Douglas-Scot, Ruling Out Affirmative Action, 21 Eur. L. Rev. 1586 (1995). Positive action is the European term for affirmative action; in the European context, such efforts are generally focused on gender rather than race.
4 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
5 See, e.g., David Savage, High Court Deals Severe Blow to Federal Affirmative Action, L.A. Times, June 13, 1995, at A1; Death by Judges? Affirmative Action, The Economist, June 17, 1995, at A28.
6 Opponents of affirmative action notched recent victories in two voter initiatives, Proposition 209 in California and I–200 in Washington, both of which repealed preference programs statewide. See Affirmative Action Suffers Setback, S.F. Chron., Nov. 4, 1998, at A2 (discussing both ballot repeals). Yet, abolitionists failed in similar efforts in Houston and in the U.S. Congress. See DeWayne Wickman, Affirmative Action Supporters Must Seize the Initiative, Gannett News Services, Nov. 6, 1997 (describing Houston vote rejecting repeal); House GOP Leaders Pull Support for Bill Ending Affirmative Action, Dallas Morning News, July 13, 1996, at 7A.
7 Although a federal appellate court in the Fifth Circuit issued a broad ruling holding preferences in public education unconstitutional, the Supreme Court declined to hear the case, limiting its precedential effects to that circuit. See Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996). Courts in the Sixth and Ninth Circuits have since reached contrary results, creating a split in circuit law. See Smith v. Univ. of Wash., 233 F.3d 1188, 1200 (9th Cir. 2000); Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000). The Supreme Court itself has always been careful to leave a narrow window open for affirmative action in its previous rulings. Even in Adarand, the Court goes out of its way to “dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’” 515 U.S. at 237.
8 The European Commission (the main administrative body of the European Community (E.C. or Community)) suggested amending the E.C. directive that Kalanke had construed in order to “clarify” the continued permissibility of positive action. See Commission Proposal for a Council Directive Amending Directive 76/207/EEC, 1996 O.J. (C 179) 8.
9 The Treaty of Amsterdam amended the original Community treaties and the Treaty on European Union. Treaty of Amsterdam, Oct. 1997, O.J. (C 340) 1 (1997) [hereinafter Treaty of Amsterdam]. The latter (also known as the Maastricht Treaty) was itself a fundamental revision of Community law in 1992, which established the European Union (E.U.) as a new umbrella organization of which the E.C. constitutes the principal component. Treaty on European Union, Feb. 7, 1992, [1992] 1 C.M.L.R. 719 [hereinafter TEU]. The basic, quasi-constitutional framework for Community law remains the EC Treaty (formerly known as the EEC Treaty or Treaty of Rome), as amended by these subsequent treaties. Treaty Establishing The European Community, Nov. 10, 1997, O.J. (C 340) 3 (1997) [hereinafter EC Treaty]. The Treaty of Amsterdam amendments to the EC Treaty inserted a provision, Article 141(4), which recognizes the legality of positive action for women as a matter of treaty law. For further discussion of Article 141(4) and the Amsterdam Treaty see infra notes 195–198 and accompanying text.
10 See Gillian More, Case Law: Marschall, 36 Common Mkt. L. Rev. 443, 451 (1999) (noting that “various external pressures had been brought to bear on the Court as a result of the Kalanke judgment” and that “[t]he Court does not operate in a policy vacuum”).
11 Case 409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997).
12 See Gillian More, The Principle of Equal Treatment: From Market Unifier to Fundamental Right, in The Evolution of E.U. Law 535, 535–48 (P. Craig & G. de Burca eds., 1999) (describing ECJ’s development of its equality jurisprudence from narrow instrumental origins to become an autonomous principle of individual rights).
13 See infra notes 112–114 and accompanying text.
14 See Grainne de Burca, The Principle of Subsidiarity and the Court of Justice as an Institutional Actor, 36 J. of Common Mkt. Stud. 217, 218 (1998) (arguing that the ECJ’s policy role merits closer scrutiny); Claire Kilpatrick, Community or Communities of Courts in European Integration? Sex Equality Dialogues Between UK Courts and the ECJ, 4 Eur. L.J. 121, 145–47 (1998) (arguing that the role of the national courts in the development of gender equality remains inadequately theorized). For examples of scholarship applying an institutional analysis to Community rights protection, see generally Tamara Hervey, Sex Equality in Social Protection: New Institutionalist Perspectives on Allocation of Competence, 4 Eur. L.J. 196 (1998); Joseph Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Rights Within the Legal Order of the European Communities, 61 Wash. L. Rev. 1103 (1986).
15 Kalanke not only challenged the gender preference in principle, but also claimed that, in any case, he was a more deserving candidate. He justified this latter claim, in part, on “social grounds,” arguing that as the sole breadwinner in his family, he deserved preference over Ms. Glissman who had no such responsibilities. See BAG, 2 NZA 77 (1994); Prechal, supra note 2, at 1245–1246.
16 See BAG, 2 NZA 77 (1994); Prechal, supra note 2, at 1245–1246.
17 Article 234 referrals operate in a manner roughly analogous (albeit inversely) to the certification procedures in many U.S. states by which federal courts may seek guidance as to novel questions of state law. Although the judgments that the ECJ issues in response to Article 234 referrals in theory only address questions of law in the abstract, it should be noted that the ECJ receives complete case records from the referring national court. The European Court often shapes its legal opinion in light of the facts before it—at times seeming to encroach on the national court’s prerogative to “decide” the final outcome. See Jeffrey Cohen, The European Preliminary Reference and U.S. Supreme Court Review of State Court Judgments: A Study in Comparative Judicial Federalism, 44 Am. J. Com. L. 421, 428–30 (1996); Jens Rinze, The Role of the European Court of Justice as a Federal Constitutional Court, 1993 Pub. L. 426, 440–41.
18 Opinion of Advocate General Tesauro, Case 450/93, Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3051, [1995] 1. C.M.L.R. 175 (1995) . Modeled on the French judicial system, advocate generals (AG) serve a special function within the ECJ judiciary. The AG assembles the relevant legal precedents and provides a comprehensive exploration of the issues raised by the case via a preliminary opinion on which the judges may—or may not—rely in reaching the judgment of the Court.
19 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at paras. 2, 6 (quoting Article 2(1) of the Council Directive 76/207/EEC, On the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions, 1976 O.J. (L 39/40) 2 [hereinafter Equal Treatment Directive or Directive]).
Directives are a form of secondary (i.e. non-treaty) legislation which have binding force on the E.C. Member States, obligating them to fulfill certain legislative objectives while leaving it to their discretion as to the means of implementation. See EC Treaty, supra note 9, art. 249 (formerly art. 189); Hervey, supra note 14, at 213. Although Directives must be “transposed” into national law to be fully effective vis-à-vis the public, the Court has held that certain provisions of directives may have “direct effect,” allowing individuals to rely on them in an action against the state. See Case 152/84, Marshall v. Southampton & S.-W. Hampshire Area Health Auth., 1986 E.C.R. 723, para. 48. As its title indicates, the Equal Treatment Directive mandates that Member States implement laws ensuring equal treatment between men and women in all aspects of employment. The central provision of the Directive is contained in Article 2. It sets forth a general rule of gender-blindness in Article 2(1). Articles 2(2–4) then carve out various exceptions: Article 2(2) permits certain gender-specific jobs (BFOQs in Title VII parlance); Article 2(3) allows special measures to protect women’s biological conditions, e.g. maternity leave; and Article 2(4) allows measures to equalize opportunities, i.e. positive action. The full text of Article 2 reads:
1. For the purpose of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
2. This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.
3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
4. This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1(1) [employment].
Equal Treatment Directive, supra note 19, at art. 2.
20 See Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 10.
21 Id. at paras. 2, 6–7 (quoting Article 2(4) of the Equal Treatment Directive).
22 Case 312/86, Commission v. France, 1998 E.C.R. 6315, [1989] 1 C.M.L.R. 408 (1988).
23 Article 2(3) permits certain “provisions concerning the protection of women” to be gender-specific in form. Equal Treatment Directive, supra note 17, at art. 2(3).
24 Commission v. France, 1988 E.C.R. 6315, at para. 15. Having laid out this interpretive formula for Article 2(4), the Court then merely noted that “nothing in the papers of this case, however, makes it possible to conclude that a generalized preservation of special rights for women [specified by French law] may correspond to the situation envisaged by that provision.” Id.
25 See id. at paras. 16–17.
26 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 15. By contrast, Tesauro opined that pursuing a policy of formal equality of treatment without regard for unequal opportunities “would . . . be the negation of equality.” Id. at para. 17.
27 See id at para. 13. Tesauro used slightly different terminology: contrasting “starting points” with “points of arrival.” He wrote that “giving equal opportunities can only mean putting people in position to attain equal results and hence restoring conditions of equality as between members of the two sexes as regards starting points.” See id.
28 Tesauro repeated his conviction that the Bremen law is not designed to remove any obstacle to gender equality no less than four times in as many paragraphs. See id. at paras. 21, 22, 24.
29 Tesauro described these as “the general situation of disadvantage caused by past discrimination and the existing difficulties concerned with playing a dual role.” Id. at para 18. “Dual role” here referred to the conflicting obligations of working women torn between their family lives and career. As for the nature of “past discrimination,” the Advocate General elaborated on this in the following paragraph. Id. at para. 19. He referred to “different (historical) social and cultural conditions (for instance, the disparity in education and vocational training).” Id. at para 19. Senden, among others, argued that Tesauro’s views amount to a denial of workplace discrimination. See Senden, supra note 2, at 160.
30 See Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 9.
31 See id. at paras. 9, 19.
32 See id. at paras. 18, 28.
33 Tesauro further confused the normative with the actual when he suggested that public employment represents a “sector in which equal treatment of the two sexes is by definition—or at least, ought to be—effectively guaranteed.” Id. at para. 24.
34 Id. at para 13. The Advocate General did acknowledge in a footnote the possibility that “the method employed to assess candidates’ merits [might] indirectly discriminat[e] against women.” Id. at para. 14 n.12. But he considered the anti-discrimination protections of Article 2(1) sufficient to safeguard against such a possibility. See id. at para. 6. By contrast, Advocate General Jacobs, writing in the later Marschall case, acknowledged that “the fact that two candidates have equivalent qualifications does not necessarily mean that they previously had equal opportunities, since one of the two might quite simply have acquired equivalent qualifications in the face of more difficult circumstances . . . .” Opinion of Advocate General Jacobs, Case 409/95, Marschall v. Land Nordrhein Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997), para. 30. He went on to add that “where a man and woman are equally qualified for promotion, the woman will frequently be younger or have shorter service. It may be thought that in such circumstances the woman would thereby have shown herself more capable than her competitor and be the natural choice.” Id. In fact, in such a scenario, the man would typically prevail based on seniority. See Case 109/88, Handels- og KontorfunktionWrernes Forbund I Danmark v Dansk Arbejdsgiverforening, ex parte Danfoss A/S, 1989 E.C.R. 3199, [1991] 1 C.M.L.R. 8 (1989), para. 24 (noting that linking length of service to pay disadvantages “in so far as women have entered the labour market more recently than men or more frequently suffer an interruption of their career.”). But see Case 184/89, Nimz v. Freie und Hansestadt Hamburg, 1991 E.C.R. I-297, [1992] 3 C.M.L.R. 699 (1991) (requiring that seniority preferences be based on an objective correlation between time served and job performance).
35 See, e.g., Schiek, supra note 2, at 240 (noting Kalanke was given priority because his salary supported a dependent and because he had seniority); Prechal, supra note 2, at 1246 (priority given to Kalanke as breadwinner); Senden, supra note 2, at 161 (same).
36 Sandra Fredman, Affirmative Action and the European Court of Justice: A Critical Analysis, in Social Law and Policy in an Evolving European Union 171, 189–90 (Jo Shaw ed., 2000); Charpentier, supra note 2, at 298–99; Fenwick, supra note 2, at 267. Examples of such structural changes could include enactment of more family-friendly policies that allow part-time work, flexible hours, and/or family leave. In addition, merely having women on employment selection committees may help to re-orient hiring practices toward gender-neutral criteria.
37 See Kalanke, 1995 E.C.R. I-3051, at para. 14 (emphasis added). Strangely, although this observation was quoted in the Kalanke judgment, it did not appear in Tesauro’s opinion.
38 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 28.
39 Id. at para. 24. The link between gender imbalance and bias has also been identified by many commentators. See, e.g., Charpentier, supra note 2, at 12; Loenen & Veldman, supra note 2, at 48.
40 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 24.
41 See Ursula O’Hare, Positive Action Before the European Court of Justice: Case C-450/93 Kalanke v. Freie Hansestadt Bremen, Web J. of Current Legal Issues (1996), at http:// www.ncl.ac.uk/~nlawwww/1996/issue2/ohare2.html (commenting that it is unclear why lack of intent undermines need to rectify inequality).
42 See, e.g., Case 127/92, Enderby v. Frenchay Health Auth., 1993 E.C.R. I-5535, [1994] 1 C.M.L.R. 8 (1993) (finding indirect discrimination based on disparate impact adversely affecting women). The U.S. analogue of indirect discrimination is disparate impact theory under Title VII.
43 See Council Recommendation 84/635/EEC, 1984 O.J. (L 331) (calling for positive action to go beyond anti-discrimination law in eliminating gender bias in employment due to “existing attitudes, behaviour and structures”). U.S. courts also endorse a proactive rationale for affirmative action. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (1986) (O’Connor, J., concurring) (in order to encourage voluntary remediation, proof of actual discrimination is not required to justify affirmative action).
44 See Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 24.
45 See id.
46 Id. at para. 23. Taken as a general proposition about derogations, this statement merely followed earlier precedents. What was noteworthy, however, was its implied premise that Article 2(4) was a derogation when in fact Tesauro stated at the outset of his opinion that Article 2(4) was “not [a] genuine derogation[].” Cf. id. at para. 17. Earlier precedents had also supported a more liberal reading of Article 2(4). See infra notes 104–109 and accompanying text.
47 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 24.
48 Id. Wearing both belt and suspenders, Tesauro added the additional objection that the Bremen scheme is “disproportionate in relation to the aim pursued.” Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 25. However, the ensuing clause of Tesauro’s sentence made it clear that his real objection was to the “aim” of the statute. See id.
49 Several commentators have suggested that the judgment’s opaque style reflected internal disagreement among the presiding judges. See, e.g., Moore, supra note 2, at 161; Senden, supra note 2, at 151.
50 See Peters, supra note 2, at 191.
51 See Kalanke, 1995 E.C.R. I-3051, at para. 21.
52 See Peters, supra note 2, at 191.
53 See Kalanke, 1995 E.C.R. I-3051, at para. 22.
54 Id. at para. 23.
55Id. at para. 24.
56 See BAG 14 NZA 751 (1996); Prechal, supra note 2, at 1249.
57 Kalanke, 1995 E.C.R. I-3051, at paras. 22, 23.
58 Compare Kalanke, 1995 E.C.R. I-3051, at paras. 22–23, with Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at paras. 22, 24–25.
59 Something of the same problem applied to Tesauro’s opinion, which provided many more reasons for rejecting the preference; some of these were clearly interrelated, but Tesauro never identified which were necessary or sufficient.
60 See O’Hare, supra note 41 (posing hypothetical preference schemes under various conditions and asking which would pass muster); Brems, supra note 2, at 175–76 (same); Senden, supra note 2, at 152–54 (same).
61 See Moore, supra note 2, at 158 (“there are grounds on which it might be argued that the [Bremen law] is not absolute and unconditional”); Brems, supra note 2, at 175 (same); see also Senden, supra note 2, at 152–53 (speculating as to meaning of “unconditional,” and querying whether “unconditional” and “absolute” represent distinct tests that must be either separately or cumulatively satisfied).
62 Kalanke, 1995 E.C.R. I-3051, at para. 24 (emphasis added).
63 The German court, in referring the case to the ECJ, made it clear that a degree of inherent flexibility must be read into all such laws by virtue of the German constitution and that, in appropriate cases, exceptions must be made. The ECJ acknowledges this implied flexibility in paragraph nine of its opinion, but it seems to have counted for naught in the final analysis. Upon remand, the German court again called attention to this inherent flexibility, chiding the ECJ for paying insufficient attention to this facet of German law, but ultimately, it concluded that the scope of this leeway might fall short of the flexibility which European law demanded, and thus accepted the ECJ judgment as precluding the operation of the statute on that basis. See BAG 14 NZA 751 (1996); Prechal, supra note 2, at 1256–57; see also Senden, supra note 2, at 153 (“[o]ne cannot conclude whether the Court deemed this facet [flexibility] irrelevant or whether it did not take [implied flexibility] into consideration because it was not explicitly introduced in the preliminary questions”).
64 See Kalanke, 1995 E.C.R. I-3051, at para. 23. Some read this language as potentially banning positive action altogether. See, e.g., Sionaidh Douglas-Scott, Ruling Out Affirmative Action, 145 New L.J. 1586 (1995). One could equally read the objection as one of degree, invalidating only those laws which “seek[] to achieve equal representation in all grades and levels within a department.” Kalanke, 1995 E.C.R. I-3051, at para. 23 (emphasis added).
65 See Marschall, 1997 E.C.R. I-6363.
66 See id. at paras. 8–12.
67 Id. at paras. 13, 24.
68 Opinion of Advocate General Jacobs, 1997 E.C.R. I-6363, at para. 28.
69 Id.
70 Id. at para. 30.
71 Id. at para. 34.
72 Id. at para. 58.
73 Opinion of Advocate General Jacobs, 1997 E.C.R. I-6363, at para. 29.
74 Marschall, 1997 E.C.R. I-6363, at para. 30.
75 Id. at para. 31 (emphasis added).
76 As one commentator noted, “the acceptance that preferential treatment may legitimately function as a compensatory mechanism to ‘counteract’ such discrimination is a conspicuous shift away from the Court’s formalistic reading of ‘promoting equal opportunity’ in Kalanke.” More, supra note 10, at 450.
77 Marschall, 1997 E.C.R. I-6363, at para. 5.
78 Id. at para. 35. This last condition presumably responds to the concern raised by the Advocate General that allowing open-ended criteria to be taken into account at this stage could reintroduce the very same discriminatory attitudes that the preference was ostensibly designed to overcome. See Opinion of Advocate General Jacobs, 1997 E.C.R. I-6363, at para. 36. The Advocate General noted pointedly that the drafters of the Bremen preference law had declined to include such a savings clause because of just such a danger. Id. at para. 36 n.39. Yet, again the ECJ fails to provide any guidance as to what these criteria might be. “In effect, the Court requires that an individual appraisal of the candidates should be fully informed by the structural factors which militate against women’s promotion. A tall order . . . .” More, supra note 10, at 451.
79 At best, the savings clause merely introduces additional tie-breaking criteria, the priority accorded female candidates being premised on the candidates being equal in other respects. In any case, the recourse to the savings clause determines whether the preference should be disapplied in exceptional cases, a secondary decision made after one resolves whether it should be imposed in the first instance. See Fredman, supra note 36, at 179 (questioning whether the saving clause made any logical difference).
80 Looking at the criteria of individuals to determine if an employment process discriminates against women as a group is just as fallacious as the Advocate Generals’ assumption that equal qualifications implies equality of opportunity. In both cases, the position of individuals is evaluated without its necessary context.
81 Marschall, 1997 E.C.R. I-6363, at para. 32.
82 Case 158/97, Badeck v. Hessischer Ministerprasident, 2000 E.C.R. I-1875, [2001] 2 C.M.L.R. 6 (2000), para. 38.
83 Case C-407/98, Abrahamsson v. Fogelqvist, 2000 E.C.R. I-5539, paras. 52–53. Abrahamsson differed from the previous three cases in that the preference applied even though the female candidate had slightly inferior qualifications; this seems to have been an additional factor motivating the judgment. Having rejected the preference under the Equal Treatment Directive, the ECJ then considered whether the provision might be justified under Article 141(4) of the E.C. Treaty, the positive action provision inserted by the Amsterdam Treaty in response to Kalanke. Here, the Court held in conclusory fashion that the preference was “[o]n any view . . . disproportionate to the aim pursued.” Id. at para. 55.
84 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265(1978). I am grateful to Martin Shapiro for this insight.
85 Id. at 306–11, 315–19. Powell’s individualized approach was endorsed obliquely in Johnson v. Santa Clara City Transport. Dep’t, 480 U.S. 616, 638 (1987), where the Court cited the non-automatic, individualized nature of the Santa Clara preference scheme as a factor justifying its validity under federal employment law. Cf. More, supra note 10, at 450 (portraying savings clause in Marschall as vehicle by which “a vision of balancing one individual’s right against another is maintained” as an “acceptable compromise” between treating candidates as individuals and remaining mindful of group needs).
86 See Bakke, 438 U.S. at 378 (Brennan, White, Marshall, and Blackmun, JJ., concurring in the judgment in part and dissenting in part). Charpentier makes the same point about the savings clause in Marschall. See Louis Charpentier, The European Court of Justice and the Rhetoric of Affirmative Action, 4 Eur. L. J. 167, 185 (1998) (“[savings clause] can easily be manipulated . . . in the same way the so-called ‘absolute and unconditional’ quota in Kalanke would.”).
87 The U.S. Court of Appeals for the Fifth Circuit alone has rejected Powell’s Bakke opinion as controlling authority in Hopwood v. Texas, 78 F.3d 932, 942 (5th Cir. 1996). The Ninth Circuit subsequently reaffirmed the Bakke rule, creating a split in the Federal Courts of Appeal. See Smith v. Univ. of Wash., 233 F.3d 1188, 1200 (9th Cir. 2000). A district court of the Sixth Circuit also recently rejected Hopwood in Gratz v. Bollinger, 122 F. Supp. 2d 811, 820 (E.D. Mich. 2000); that case is currently under appeal.
88 See Bakke, 438 U.S. at 311–15.
89 J.A. Croson Co. v. City of Richmond, 488 U.S. 469, 486 (1989).
90 Id. at 500–06.
91 Id. at 497 (citing Bakke, 438 U.S. at 307).
92 Croson, 488 U.S. at 510; see also id. at 505–06 (for the Court) (“The dream of a Nation of equal citizens . . . would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs”); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (“[A]s the basis for imposing discriminatory legal remedies . . . societal discrimination is insufficient and over expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.”).
93 Croson, 488 U.S. at 510.
94 Strictly speaking, the rule against societal justifications for affirmative action applies only to racial preferences. The Supreme Court upheld a gender preference justified on societal grounds in 1977. See Califano v. Webster, 430 U.S. 314, 317–18 (1977) (per curiam) (upholding a social security provision favoring women as justified by the societal disadvantage which women face in the working world). However, recent cases suggest that the Court may be tightening its standards with respect to gender classifications. Accordingly, lower courts have restricted such remedies to particular economic spheres. See Jason Skaggs, Comment, Justifying Gender-Based Affirmative Action Under United States v. Virginia’s “Exceedingly Persuasive Justification” Standard, 86 Cal. L. Rev. 1169, 1202–04 (1998).
95 See Adarand, 515 U.S. at 245 (Stevens, J. dissenting) (distinguishing between a “welcome mat” and a “No Trespassing” sign); see also Bakke, 438 U.S. at 358–59 (Brennan, White, Marshall, and Blackmun, JJ., concurring in the judgment in part and dissenting in part) (endorsing lower scrutiny for racial preferences administered through bona fide affirmative action plan).
96 See Adarand, 515 U.S. at 226 (“Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are motivated by illegitimate notions of racial inferiority or simple racial politics.”).
97 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 9 n.10 (citing Croson, Bakke, Adarand, et. al.).
98 See Erika Szyszczak, Positive Action After Kalanke, 59 Mod. L. Rev. 876, 881 (1996) (commenting on Tesauro’s unorthodox citation to American precedent).
99 To the extent that Croson, in particular, influenced the Kalanke judgment, the ECJ may also have mistaken the second order rationale of the former for first order reasoning.
100 The focus of Article 2(4) on opportunities is explicit; the provision refers to “measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities.”
101 See Case 237/85 Rummler v. Dato-Druck GmbH, 1986 E.C.R. 2101, [1987] 3 C.M.L.R. 127 (1986), para. 15 (stating that use of employment criteria such as strength should be offset, where possible, by other criteria more favorable to women). In Badeck, the ECJ goes further, approving criteria that it recognized as generally favoring women. Badeck , 2000 E.C.R. I-1875, at paras. 31–32.
102 But see Peters, supra note 2, at 188–90 (noting some support for equal representation as a legitimate goal of E.C. law).
103 See Kalanke, 1995 E.C.R. I-3051, at para. 21; Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 23 n.20 (both citing Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, 1986 E.C.R. 1651, [1986] 3 C.M.L.R. 240 (1986)). The Marschall Court, in turn, cites to Kalanke for the same proposition. See Marschall, 1997 E.C.R. I-6363, at para. 32 (citing Kalanke, 1995 E.C.R. I-3051, at para. 21–22).
104 Equal Treatment Directive, supra note 19, at art. 2(2). Specifically, Johnston considered the legitimacy of a rule banning women from police service in Northern Ireland due to alleged security concerns. Johnston, 1986 E.C.R. 1651, at para. 4.
105 The American analogue would be Title VII’s “bona fide occupational qualification” exemption, which U.S. courts have construed very narrowly. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).
106 Case 184/83, Hofmann v. Barmer Ersatzkasse, 1984 E.C.R. 3047, [1986] 1 C.M.L.R. 242 (1984).
107 See Opinion of Advocate General Darmon, Case 184/93, Hofmann v. Barmer, 1984 E.C.R. 3047, [1986] 1 C.M.L.R. 242 (1984). Hofmann was an Article 2(3) case, but Advocate General Darmon was discussing Article 2(4) here because he saw the two provisions as pursuing similar functions within the directive, with the former possibly a special case of the latter. Id. These sentiments are hardly unique to Hofmann. In Case 421/92, Habermann-Beltermann v. Arbeiterwohlfahrt, 1994 E.C.R. I-1657, [1994] 2 C.M.L.R. 681 (1994), none other than Advocate General Tesauro displayed a similar logic in refusing to construe Article 2(3) as a derogation. See Opinion of Advocate General Tesauro, Case 421/92, Habermann-Beltermann v. Arbeiterwohlfahrt, 1994 E.C.R. I-1657, [1994] 2 C.M.L.R. 681 (1994) (“Article 2(3) of the directive cannot properly be called [a] derogation[] from the principle of equality, in that [it] seek[s] rather to ensure that principle operates in substance, by permitting such inequalities as are necessary in order to achieve equality.”). Even in Kalanke, Tesauro appears to have flirted with an alternate approach in which positive action would be seen as complementing equal treatment, not a derogation from it. See Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, [2001] 2 C.M.L.R. 6 (2000), at para. 17. Even after Marschall, the same rationale was argued by Advocate General Saggio in Badeck. See Opinion of Advocate General Saggio, Case 158/97, Badeck v. Hessischer Ministerprasident, 2000 E.C.R. I-1875, at para. 26. The Court apparently declined his invitation to reconsider its stance.
108 See Pedro Cabral, A Step Closer to Substantive Equality, 23 Eur. L. Rev. 481, 486 (1998); Sophia Koukoulis-Spiliotopoulos, From Formal to Substantive Gender Equality: Are International and Community Law Converging?, 11 Rev. Eur. de Droit Public 514 (1999); Marie-Therese Lanquetin, supra note 2, at 98; Peters, supra note 2, at 190; Charpentier, supra note 2, at 4–7; Titia Loenen & Albertine Veldman, supra note 2, at 50–52 . These critiques reflect the dominant paradigm in European equality law that distinguishes between formal and substantive equality. Formal equality is equated with “procedural” equality (i.e. no distinction between genders), while “substantive equality” is conceived of as a departure from formal equality to take into consideration “the real situation of many women which may place them in a weaker position in the market.” See Helen Fenwick & Tamara Hervey, Sex Equality in the Single Market: New Directions for the European Court of Justice, 32 Common Mkt. L. Rev. 443, 445–46 (1995). Because this terminology tends to become subjective and contextual, this article refers instead to “process” versus “outcome.”
109 Peters, supra note 2, at 179–90 (describing tensions arising from a multiplicity of paradigms); see also Fenwick & Hervey, supra note 108, at 449–69 (tracing alternation between formal and substantive conceptions of equality in ECJ jurisprudence); Christa Tobler, Procreation Time: Pregnancy and Childbirth in EC Sex Equality Law, 5 Time & Society 363, 370, 379 (1996) (same).
110 Peters, supra note 2, at 192.
111 Kendall Thomas, The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in German and the U.S.A., 5 Colum. J. Eur. L. 329, 361 (1999); More, supra note 10, at 450 (ruling in Marschall shows “that the Court has moved towards a substantive meaning for equality”); Catherine Barnard & Bob Hepple, Substantive Equality, 59 Cambridge L.J. 562, 577 (2000) (“Marschall is the closest the Court has come to recognizing a substantive approach to equality”).
112 Marschall does not actually repeat the language in Kalanke referring to a “strict” interpretation, and, in fact, the rationale it follows seems anything but strict. The same can be said of Badeck, which legitimizes quotas for women in vocational training, job interviews, and administrative committees with virtually no judicial review. Yet, as noted, the Court declined Advocate General Saggio’s invitation in Badeck to reconsider its strict interpretation. Moreover, in Abrahamsson, the Court tightened its grip on preference regimes and confirmed that its tolerance for such measures remains limited. See infra note 83 and surrounding text. Although willing to bend the rules, the Court thus appears committed to the formal structure that Kalanke established.
113 Case 285/98, Kreil v. Germany, 2000 E.C.R. I-69, [2002] 1 C.M.L.R. 36 (2000), para. 20; Case C-273/97, Sirdar v. Army Board, 1999 E.C.R. I-7403, [1999] 3 C.M.L.R. 559 (1999), para 26; Case C-154/96, Wolfs v. Office Nat’l des Pensions, 1998 E.C.R. I-6173, [2000] 3 C.M.L.R. 1414 (1998), para. 24.
114 One can see the difference by contrasting the positive action cases with earlier gender decisions. For example, in Hofmann, a 1984 case, the ECJ had to decide whether extended maternity benefits (beyond six months) could be justified under Article 2(3) of the Equal Treatment Directive. The Court held that, although such benefits applied only to women and thus discriminated against men, so long as they could be shown to bear an objective relationship to the purpose of Article 2(3)—namely, the protection of women’s biological condition—the measures need not pass any test of strict necessity. Hofmann, 1984 E.C.R. 3047, at paras. 26–27. Rather, the Court held that “the Member States enjoy a reasonable margin of discretion regarding both the nature of the protective measures and the detailed arrangements for their implementation.” Id. at para. 27. In Habermann, a case heard only a year before Kalanke, the Court repeated similar language about Member State discretion over social policy and cited Hofmann for authority. Habermann, 1994 E.C.R. I-1657, at para. 22. By contrast, in Kalanke, the Court adopts a “strict” approach, and although the Court relaxes its judicial review after Kalanke, its more indulgent approach in Marschall and Badeck is not premised on Member State discretion. See Kalanke, 1995 E.C.R. I-3051, at para. 21.
115 See Takis Tridimas, Searching for the Appropriate Standard of Scrutiny, in The Principle of Proportionality in the Laws of Europe 65, 68 (E. Ellis ed., 1999).
116 Id. at 66.
117 Id.
118 Opinion of Advocate General Jacobs, 1997 E.C.R. I-6363 at para. 43; see also Prechal, supra note 2, at 1253 (strict proportionality test means the objective cannot be reached by gender-neutral means).
119 This may be seen more clearly in Badeck and Abrahamsson, where Marschall’s stipulation about taking into account “all criteria specific to the individual candidates” is rephrased as “tak[ing] into account the specific personal situations” of the candidates—a formulation more evocative of the individual hardships that this aspect of proportionality is geared towards. See Badeck, 2000 E.C.R. I-1875, at para. 23; Abrahamsson, 2000 E.C.R. I-5539, at para. 43. Cf. Johnson, 480 U.S. at 638 (non-automatic preference minimizes burden on male candidates).
120 Prechal, supra note 2, at 1253.
121 Case 318/86, In re Sex Discrimination in the Civil Service: Commission v. France, 1988 E.C.R. 3559, [1989] 3 C.M.L.R. 663 (1988), at para. 25 (rejecting justifications for gender-specific criteria for police and prison staff as insufficiently transparent); Abrahamsson, 2000 E.C.R. I-5539, at paras. 49–50; see also Case 262/88, Barber v. Guardian Royal Exchange Assurance Group, 1990 E.C.R. I-1889, [1990] 2 C.M.L.R. 513 (1990), at para. 34 (effective judicial review requires transparency to prevent discriminatory employment practices); Case 109/88, Ex parte Danfoss A/S, 1989 E.C.R. I-3199, at paras. 11–15 (1991) (same).
122 In re Sex Discrimination, 1988 E.C.R. 3559, at para. 26. Similarly, the Court’s indirect discrimination cases require employers to demonstrate “objectively justified factors which are unrelated to any discrimination based on sex” in order to withstand a prima facie showing of disparate impact. Case 170/84, Bilka-Kaufhaus GmbH v. Weber Von Hartz, 1986 E.C.R. 1607, [1986] 2 C.M.L.R. 701 (1986), para. 31; Ex parte Danfoss A/S, 1989 E.C.R. I-3199, at paras. 15–16 (lack of transparency places burden on employer to prove absence of discrimination); Fenwick & Hervey, supra note 108, at 466 (citing other cases).
123 Croson, 488 U.S. at 493; see also Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996) (describing the “skeptical, questioning, beady-eyed scrutiny that the law requires when public officials use race to allocate burdens or benefits”). To survive this “intense scrutiny . . . [government actors must] show that they are motivated by a truly powerful and worthy concern and that the racial measure that they have adopted is a plainly apt response to that concern. They must show that they had to do something and had no alternative to what they did. The concern and the response, moreover, must be substantiated and not merely asserted.” Id.
124 See Croson, 488 U.S. at 493 (“the purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of . . . suspect tool[s]”); Adarand, 515 U.S. at 233 (describing skepticism as a basic principle of strict scrutiny); see supra notes 122–124 and accompanying text.
125 See Hervey, supra note 14, at 212–14.
126 See infra note 147 and accompanying text.
127 See Case 171/88, Rinner-Kuhn v. FWW Spezialgebaudereinigung GmbH & Co. KG, 1989 E.C.R. 2743, [1993] 2 C.M.L.R. 932 (1989), paras. 12, 14–15. Advocate General Jacobs seems to have anticipated this danger when he reminded the Court that “the protection of individuals require[s] . . . that . . . legal rules should be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and enable national courts to ensure that those rights and obligations are observed.” Opinion of Advocate General Jacobs, 1997 E.C.R. I-6363, at para 35.
128 Abrahamsson, 2000 E.C.R. I-5539, at paras. 49–50; see also id. at para. 53 (criticizing one such criterion because its “scope and effect . . . cannot be precisely determined”).
129 The Abrahamsson Court cites approvingly selection criteria applied in Badeck designed to emphasize traits that “in general favour women” and thereby “reduc[e] de facto inequalities [and] compensate for disadvantages in the professional career of [women].” Id. paras. 47–48. However, the application of such criteria can only be seen as providing an alternative to preferential selection, not the foundation of it.
130 Badeck, 2000 E.C.R. I-1875, at paras. 54–55, 60–62. The Court accepted these measures as designed to put “women . . . on an equal footing with men” without predetermining outcomes in terms of employment placement; no proportionality test was required. Id. at paras. 52, 54.
131 The Court notes that “it does not appear . . . that [selection] is based on clear and unambiguous criteria such as to prevent or compensate for disadvantages in [women’s] professional career[s].” Abrahamsson , 2000 E.C.R. I-5539, at para. 50. Instead, the Court asserts that “selection . . . is ultimately based on the mere fact of belonging to the under-represented sex . . . even if the merits of the candidate so selected are inferior to those of a candidate of the opposite sex.” Id. at para. 53.
132 Badeck, 2000 E.C.R. I-1875, at paras. 41–44 and 65–66. In the latter case, the Court went against the recommendation of its Advocate General, see Opinion of Advocate General Saggio, 2000 E.C.R. I-1877, at para. 43. Moreover, the Court’s emphasis on the “non-compulsory” nature of both these quotas seemed to contradict prior case law. Cf. Case 165/82, Commission v. United Kingdom, 1983 E.C.R. 3431, [1984] 1 C.M.L.R. 44 (1983), para. 9 (rejecting justification based on the non-binding character of collective agreements containing gender quotas that discriminated against men). In United Kingdom, the Court noted that “even if they are not legally binding [such agreements] nevertheless have important de facto consequences for the employment relationships to which they refer, particularly in so far as they determinine the rights of the workers [which], in the interests of industrial harmony, undertakings [are obliged] to satisfy.” Id. at para. 11. This observation was particularly applicable to the “binding targets” in Badeck, as failure to fulfil the targets would have led to more intrusive administrative controls. See Badeck, 2000 E.C.R. I-1875, at para. 9 (in regard to para. 10(4) of the Hesse statute).
133 The Court continued to emphasize both criteria in its most recent positive action ruling. See Case 476/99 Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, 2002 E.C.R. I-2891, paras. 38, 45–47 (upholding subsidized childcare scheme restricted to female employees).
134 For example, a rule giving preference to a certain minority group may be legitimated by a history of discrimination against that group. Without such a history, the rule might itself be deemed discriminatory.
135 To be sure, imbalances per se are of limited diagnostic value. A more refined methodology would define underrepresentation by reference to the pool of qualified candidates of each gender. So-called “Croson studies” documenting such disparities constitute the most widely relied on evidence of discrimination in the U.S. to validate affirmative action. Statistically significant “underutilization” may legitimate a narrowly tailored remedial preference. See Croson, 488 U.S. at 509. In Europe, a similar approach to positive action is applied under Dutch law. See Brems, supra note 2, at 175 & n.14; Prechal, supra note 2, at 1257 n.26. The preference statute reviewed in Badeck also employed this more sophisticated definition of underrepresentation. See Badeck, 2000 E.C.R. I-1875, at para. 42.
136 See Marschall, 1997 E.C.R. I-6363, at para. 29.
137 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 24 (conceding that underrepresentation of women may be “indicative of inequality,” but “not necessarily attributable to a consummate to marginalise women”) (emphasis added).
138 See Kalanke, 1995 E.C.R. I-3051, at para. 22.
139 See Marschall, 1997 E.C.R. I-6363, at para. 35.
140 See Kalanke, 1995 E.C.R. I-3051, at para. 24; Marschall, 1997 E.C.R. I-6363, at para. 34.
141 Cf. Croson, 488 U.S. at 507 (criticizing city officials for failing to consider race-neutral alternatives to preference regime).
142 See Sandra Fredman, After Kalanke and Marschall: Affirming Affirmative Action, 1 Cambridge Y.B. of Eur. Legal Stud. 199, 212 (1998) (“[I]t is striking that a test of proportionality has been entirely absent from the decision-making of the European Court of Justice on affirmative action.”).
143 See Marschall, 1997 E.C.R. I-6363, at para. 35. One might say that the Court’s blanket endorsement of flexible preferences is itself in need of a savings clause.
144 See Badeck, 2000 E.C.R. I-1875, at para. 38.
145 Such nods toward proportionality can be discerned at several junctures. The Court noted that the quotas on employment training places only applied to state-run programs and that male candidates had recourse to the private sector. Badeck, 2000 E.C.R. I-1875, at para. 53. It emphasized that other quotas were flexibly implemented, id. at paras. 41, 51, 65, or that they were set by reference to the pool of available candidates, id. at paras. 42, 57. These observations are relevant to the third prong of proportionality—balancing burdens against benefit—but ignore the issue of whether the measures were necessary to begin with.
146 See Abrahamsson, 2000 E.C.R. I-5539, at para. 1. Lommers, the most recent positive action case, to some extent breaks from this mold in that the judgment does refer to specific findings by Dutch government linking the underrepresentation of women in the relevant ministry to a lack of affordable childcare and thus arguably makes its ruling limited to such a context. See Lommers, supra note 134, at paras. 36–38.
147 Tesauro’s citation of the U.S. case law shows that the Court was at least aware of this precedent. See Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 9 n.10.
148 See Johnston, 1986 E.C.R. 1651, at para. 39. See Fenwick, supra note 2, at 268 (arguing that Kalanke was inconsistent with Johnston in failing to defer to the national court to assess proportionality).
149 See Johnston, 1986 E.C.R. 1651, at paras. 44–45. Britain claimed that female police officers in Northern Ireland stood in danger of assassination. Yet, the British government offered scant evidence that the situation faced by policewoman differed in any material respects from their male counterparts. The suspicion arises that the only reason for excluding women was that the public would not accept female casualties—a rationale that the Court rejected as impermissible. See id.; Opinion of Advocate General Pergola, Case 273/97, Sirdar v. Army Board, 1999 E.C.R. I-7403, [1999] 3 C.M.L.R. 559 (1999), paras. 34, 43 (criticizing this stance and advocating a more skeptical approach to justifications based on national security).
150 EC Treaty, supra note 9, pmbl.
151 See Fiske v. Kansas, 274 U.S. 380, 385–86 (1927) (Supreme Court has jurisdiction to review state court fact finding on federal questions); Testa v. Katt, 330 U.S. 386, 391 (1947) (same for remedies). The Court does not review questions of state law; state courts remain the ultimate authority on that. See Meredith v. Winter Haven, 320 U.S. 228, 234 (1943). However, the ECJ respects the authority of national judiciaries on domestic law questions to at least the same degree. See, e.g., Case 136/95, Caisse Nationale d’Assurance. Vieillesse des Travailleurs Salaries v. Thibault, 1998 E.C.R. I-2011, [1998] 2 C.M.L.R. 516 (1998), para. 21. Moreover, there is no Community law equivalent to diversity jurisdiction whereby U.S. federal courts adjudicate cases under state law.
152 See Croson, 488 U.S. at 498.
153 See generally Weiler, supra note 14, at 1103–10.
154 Joseph Weiler & Ulrich Haltern, The Autonomy of the Community Legal Order: Through the Looking Glass, 37 Harv. Int’l L.J. 411, 447 (1996); David Anderson, References to the European Court 1–2 (1995).
155 See Catherine Barnard, The Changing Face of Article 177 References, 34 Common Mkt. L. Rev. 1113, 1158 (1999); More, supra note 12, at 541 (describing inexorable progress of Community gender equality law “by means of a plethora of preliminary references”). As of January 1, 2001, there had been 106 references to gender equality. Claire Kilpatrick, Gender Equality: A Fundamental Dialogue, in Labour Law in the Courts: National Judges and the European Court of Justice 31, 32 n.5 (Silvana Sciarra ed., 2001). Article 234 has been widely acknowledged as “the most fundamental element in the constitutional architecture of the European Community legal order.” J.H.H. Weiler, The European Court, National Courts and References for Preliminary Rulings—the Paradox of Success: A Revisionist View of Article 177 EEC, in Article 177 EEC: Experiences and Problems 366, 366 (H. Schemers, C. Timmerman et al. eds., 1987); Anderson, supra note 155, at 21–24.
156 See Cohen, supra note 17, at 28–30.
157 The starkly varying rates at which different national judiciaries have sent preliminary references to Strasbourg underline the discretion that national courts enjoy in this regard. See Kilpatrick, supra note 156, at 32–33 n.6. Although the making of such references may be taken to demonstrate a degree of good faith in the ECJ’s authority, some references may, in fact, reflect insubordinate motives. See id. at 47; Paul Davies, Transfers of Undertakings—Preliminary Remarks, in Labour Law in the Courts, supra note 156, at 131, 139 (describing how national courts sometimes make successive references on the same issue to urge the ECJ to reconsider its prior rulings).
158 See Thomas de la Mare, Article 177 in Social and Political Context, in The Evolution of EU Law, supra note 12, at 228. Cynical observers may dismiss this rhetorical gambit as mere window dressing, see Hjalte Rasmussen, On Law and Policy In The European Court of Justice 152–53 (1998). Yet, one would hardly expect the strategy to succeed if the rhetoric were not matched by at least some degree of substance.
159 EC Treaty supra note 9, at art. 3(b); Anderson, supra note 155, at 1–2, 24.
160 TEU supra note 9, at art. A. The Maastricht Treaty also contains numerous implicit references to subsidiarity principles. Almost every treaty chapter it adds contains language underscoring the intent of the Member States to continue to exercise primary responsibility in the new Community spheres. See George Berman, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 332, 345–47 (1994) (providing numerous examples).
161 See Case 377/98, Netherlands v. European Parliament, 2001 E.C.R. I-7079, [2001] C.M.L.R. 49 (2001), paras. 30–33 (providing cursory review of challenge on subsidiarity ground); Case 415/93, Union Royale Belge des Société de Football Assoc. v. Bosman, 1995 E.C.R. I-4921, [1996] 1 C.M.L.R. 645 (1995), para. 81 (passing acknowledgement of subsidiarity); see also de Burca, supra note 14, at 220–29 (summarizing other subsidiarity decisions).
162 See Berman, supra note 161, at 400 (generalizing about prior analysis); see also A.G. Toth, Is Subsidiarity Justiciable?, 19 Eur. L. Rev. 268, 281 (1994); Virginia Harrison, Subsidiarity in Article 3b of the E.C. Treaty—Gobbledegook or Justiciable Principle, 45 Int’l & Comp. L.Q. 431, 435 (1996).
163 See Daniel Murphy, Subsidiarity and/or Human Rights, 29 U. Rich. L. Rev. 67, 94–97 (1994) (“Clearly, the court as a Community institution is bound to . . . act in accord with the principle”); de Burca, supra note 14, at 229–32 (arguing that policy choices by ECJ constitute a “law-making function [that] play[s] a significant part . . . in developing and shaping substantive law”); Berman, supra note 161, at 400–01 (speculating on the effects of subsidiarity on ECJ’s willingness to assert E.C. jurisdiction).
164 See Theodor Schilling, A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle, 14 Y.B. Eur. L. 203, 215–16 (1994) (distinguishing between subsidiarity in the narrow sense of a legal rule and its broader political meaning as a constitutional value).
165 See W. Gary Vause, The Subsidiarity Principle in European Union Law—American Federalism Compared, 27 Case W. Res. J. Int’l L. 61, 67–68 (1995).
166 Clearly, the principles underlying this division of roles were developed prior to the adoption of subsidiarity.
167 Cf. Murphy, supra note 164, at 96 & n.112 (analyzing the Art. 234 (formerly Art. 177)) procedure in accordance with subsidiarity principle).
168 See Tridimas, supra note 116, at 78–80; de Burca, supra note 14, at 224.
169 TEU, supra note 9, at art. A.
170 Cf. Opinion of Advocate General Warner, Case 96/80, Jenkins v. Kingsgate Ltd., 1981 E.C.R. 911, 930–31, [1981] 2 C.M.L.R. 24 (1981) (comparing the wage disparities experienced by female part-time workers across several different Member States).
171 Note that the preference regimes at issue in Kalanke, Marschall, and Badeck were all instituted by German lande (i.e. at the provincial level).
172 See Malcolm Jarvis, The Application of EC Law by National Courts 437 (1998) (arguing that when the ECJ assesses proportionality in free movement cases, its rulings lack subtlety and often rest on flawed assumptions).
173 See Abrahamsson, 2000 E.C.R. I-5539, at paras. 50–53. The Swedish government adopted preference law in Abrahamsson only after it determined that progress toward equality of the sexes had been unacceptably slow and required “an extraordinary effort . . . to ensure, in the short term, a significant increase in the number of female professors.” Id. Cf. United States v. Paradise, 480 U.S. 149, 166–71 (1987) (strict quota upheld where intransigence by police department caused more flexible measures to fail).
174 Cf. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 727 (1982) (holding that nursing school for women could not be justified as compensation for past discrimination). Normally, one might expect women to be over-represented in such “female” professions, making the need for preferences moot. However, that might not be the case if gender balance were assessed at an administrative level that lumped nurses with other medical staff.
175 Cf. Case 343/92, De Weerd v. Bestuur van de Bedrijfs verening voor de Gezondheid, 1994 E.C.R. I-571, [1994] 2 C.M.L.R. 325 (1994), para. 35 (budgetary considerations cannot serve as justification for indirect discrimination); Johnston, 1986 E.C.R. 1651, at paras. 44–45 (societal disdain for female casualties cannot justify restricting women from dangerous posts).
176 See Rinner-Kuhn, 1989 E.C.R. 2743, at para. 15; Enderby, 1993 E.C.R. I-5535, at para. 25; Bilka-Kaufhaus, 1986 E.C.R. 1607, at para. 36; Kowalska v. Freie und Hansestadt Hamburg, 1990 E.C.R. I-2591, para. 15; Nimz, 1991 E.C.R. I-297, 1992, at para. 14; Hervey, supra note 13, at 212–14.
177 See Rinner-Kuhn, 1989 E.C.R. 2743, at para. 15 (justification cannot be mere generalization); Enderby, 1993 E.C.R. I-5535, at paras. 22–23; Bilka-Kaufhaus, 1986 E.C.R. 1607, at para. 36 (separate collective bargaining not justification because non-transparent); Case 109/88, Handels-og Kontorfunktionwrernes, 1989 E.C.R. 3199, at para. 20 (rejecting “quality of work” as criteria justifying disparate impact); see also Opinion of Advocate General Darmon, 1991 E.C.R. I-297, at para. 11 (“Although it is not for the Court to appraise the facts, it seems to me that there is nothing to prevent the Court from stating, if necessary, that arguments which are too general may not be regarded as objective criteria.”).
178 See Fenwick & Hervey, supra note 108, at 466–67.
179 See, e.g., Bilka-Kaufhaus, 1986 E.C.R. 1607, at para. 36 (national court alone is competent to assess facts).
180 Cf. Combined Cases 46/93 and 49/93, Brasserie du Pecheur SA v. Bundesrepublik Deutschland, 1996 E.C.R. I-1029, [1996] 1 C.M.L.R. 889 (1996), para. 58 (where the ECJ observes that while it “cannot substitute its assessment for that of the national courts, which have sole jurisdiction to find the facts in the main proceedings . . . it will be helpful to indicate a number of circumstances which the national courts might take into account.”).
181 Francis Jacobs, Recent Developments in the Principle of Proportionality in European Community Law, in The Principle of Proportionality in the Laws of Europe, supra note 115, at 1, 19. Compare Case 368/95, Vereinigte Familiapress Zeitungsverlags-und Vertriebs GmbH v. Heinrich Bauer Verlag, 1997 E.C.R. I-3689, [1997] 3 C.M.L.R. 1329, in which the court offered more than five paragraphs of guidance to the national court on how to apply proportionality in the context at issue.
182 See supra note 114 and accompanying text. The ECJ continues to respect a broad margin of discretion for Member States over social policy in its indirect discrimination cases. See, e.g., Case167/97, Regina v. Sec’y of State for Employment, ex parte Seymour-Smith, 1999 E.C.R. I-623, para. 74.
183 See, e.g., Case 137/94, Secretary of State for Social Security v. Thomas, 1993 E.C.R. I-1247, [1993] 3 C.M.L.R. 880 (1993), para. 8 (“[I]n view of the fundamental importance of the principle of equal treatment . . . the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1)(a) of Directive 79/7 must be interpreted strictly”).
184 Johnston, 1986 E.C.R. 1651, at para. 9.
185 Opinion of Advocate General Tesauro, 1995 E.C.R. I-3051, at para. 28.
186 Id. at para. 9; see also id. at para. 27 (referring to the “fundamental inviolable objective of equality . . . a fundamental principle”).
187 See, e.g., Case 67/74, Bonsignore v. Oberstadtdirektor der Stadt Koln, 1975 E.C.R. 297, [1975] 1 C.M.L.R. 472 (1975), para. 6 (“departures from the rules concerning the free movement of persons constitute exceptions which must be strictly construed”); Case 41/74, Van Duyn v. Home Office, 1974 E.C.R. 1337, [1975] 1 C.M.L.R. 1 (1974), para. 18 (“derogati[on] from the fundamental principle of freedom of movement for workers, must be interpreted strictly”); Case 152/73, Opinion of Advocate General Mayras, Sotgiu v. Deutsche Bundepost, 1974 E.C.R. 153, 169 (freedom of movement requires strict interpretation as fundamental liberty guaranteed by the E.C. Treaty).
188 See Case 176/97, Seymour-Smith v. Sec’y of State for Employment, 1999 E.C.R. I-623, [1999] 2 C.M.L.R. 273 (1999), para. 75 (Member State discretion bounded by fundamental right to equality).
189 Article 3(2) of the Grundgesetz states both that “men and women have equal rights,” and that “[t]he state fosters the actual achievement of equal entitlement between women and men and strives to eliminate existing disadvantage.” 7 Constitutions of the Countries of the World 106, apps. ix, xiii (Albert Blawstein & Gisbert Flanz eds., 2000). The relationship between these two sentences of Article 3(2) thus resembles that between Articles 2(1) and 2(4) of the Equal Treatment Directive. The German proceedings in Kalanke that preceded the reference to the ECJ upheld the Bremen preference as a legitimate means to promote equal opportunity for women. See BAG 2 NZA 77 (1994); Prechal, supra note 2, at 1246.
190 See Manfred Zuleeg, Gender Equality and Affirmative Action Under the Law of the European Union, 5 Colum J. Eur. L. 319, 319–20 (1999); Ninon Colneric, Making Equality Law More Effective: Some Lessons from the German Experience, 3 Cardozo Women’s L.J. 229, 236–37 (1996) (same).
191 Prechal, supra note 2, at 1259. Note that the conflict here presents the inverse of the situation in the Solange and “Banana” cases in which the ECJ and Bundesverfassungsgericht also clashed. In those cases, the German court sought to ensure that the fundamental rights of their citizenry would be protected against the effects of European law in a manner equivalent to the protection afforded under the German constitution. See Bruno de Witte, Direct Effect, Supremacy, and the Nature of the Legal Order, in The Evolution of E.U. Law, supra note 12, at 203. Yet, in contrast to this essentially defensive conception of EC fundamental rights, Kalanke, and more recently Abrahamsson, present cases of a European right intervening where the national equivalent would not intervene, to invalidate a subnationalrather than a national norm.
192 See, e.g. Senden, supra note 2, at 162 (noting that the German government questioned the ECJ’s jurisdiction over positive action cases in light of subsidiarity principles); Schiek, supra note 2, at 43 (ECJ ignored subsidiarity issue).
193 See Charpentier, supra note 86, at 193 (arguing that savings clause in Marschall returns margin of discretion to Member States sub rosa).
194 The ECJ embarked on its fundamental rights jurisprudence largely as a defensive reaction to the threat that national judiciaries would apply their own constitutional review of Community law, undermining the supremacy of the latter. See Davies, supra note 158, at 133; de Witte, supra note 192, at 202–03. Yet, by extending such fundamental rights review to national legislation that implements a European directive, as in the positive action cases, the Court has gained a powerful tool to extend its reach into domestic law—raising the spectre of new fundamental rights conflicts. See Joseph Weiler, Fundamental Rights and Fundamental Boundaries, in The European Union and Human Rights 67 (N.A. Neuwahl & A. Rosas eds., 1995) (describing the added tension engendered by these “more direct” assaults on the constitutional autonomy of Member States).
195 Supporters of a robust European fundamental rights jurisprudence argue that the principle supports broader recognition of rights at the European level as the foundation of a “Citizen’s Europe.” See Philip Alston & J.H.H. Weiler, An ‘Ever Closer Union’ in Need of a Human Rights Policy, in The EU and Human Rights 27 (Philip Alston ed., 1999); Denis Edwards, Fearing Federalism’s Failure: Subsidiarity in the European Union, 44 Am. J. Comp. L. 537, 562–63 (1996). But see Weiler, supra note 195, at 66–74 (offering a more nuanced view of judicial subsidiarity). Opponents favor a pluralist approach, keeping most rights at the national level, where they can be implemented according to the salient political and cultural traditions of each Member State. See Leonard Besselink, Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union, 35 Common Mkt. L. Rev. 629, 674–78 (1998).
196 See Eva Brems, supra note 2, at 79 ; Weiler, supra note 195, at 73.
197 See Besselink, supra note 196, at 665–78 (discussing various models designed to mediate conflicts between divergent levels of rights protection).
198 Cf. Weiler, supra note 195, at 71 (advocating a cooperative approach to fundamental rights for the ECJ and its national counterparts); Robert Post, Justice Brennan and Federalism, 7 Const. Comment. 227, 235–38 (1990) (exploring a similar vision for U.S. federalism).
199 See Treaty of Amsterdam, supra note 9, at art. 141(4) (formerly article 119(4)). The full text of Article 141(4) reads:
With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or compensate for disadvantages in professional careers.
See id.
200 Article 141(4) first appeared in draft form prior to the Marschall judgment, when the impact of Kalanke appeared to leave positive action in doubt.
201 See Abrahamsson, 2000 E.C.R. I-5539, at para. 55 (holding in conclusory fashion that Sweden’s preference was disproportionate under Article 141(4)—a conclusion it had already reached under Article 2(4)).
202 See Treaty of Amsterdam supra note 9, at art. 2(7).
203 Council Directive 2000/43/EC, Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, 2000 O.J. (L 180/22); Council Directive 2000/78/EC, Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303/16). See generally Lisa Waddington & Mark Bell, More Equal Than Others: Distinguishing European Union Equality Directives, 38 Common Mkt. Rev. 587 (2001).
204 See Charter of Fundamental Rights of the European Union, 43 O.J. (C 364) 13, arts. 20, 23. The Charter was “solemnly proclaimed” by the European Council, Commission, and Parliament, but has not yet been made justiciable; its status is to be reconsidered in 2003.
205 See generally Ian Haney-Lopez, The Social Construction of Race: Some Observations on the Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. Rev. 1, 42–61 (1994) (describing how notions of race are highly contextualized and can only be understood by examining the specific communities in which they operate).
206 The beginning of such an effort was made by Advocate General Jacobs in Case 457/93, Kuratorium fur Dialyse und Nierentransplantation v. Lewark, 1996 E.C.R. I-243, 256, where he contrasted economic and social policy justifications offered in indirect discrimination cases, arguing that the ECJ can generalize more regarding the latter. Relevant points of comparison may be drawn from the example of U.S. judicial federalism—e.g. the prudential considerations embodied in the federal abstention and adequate state grounds doctrines. Such comparative analysis will have to await future study.