Copyright (c) 1998 The Parker School of Foreign and Comparative Law, Columbia University
Columbia Journal of European Law
MARSCHALL * CASE LAW: Case C-409/95. Hellmut Marschall v. Land Nordrhein-Westfalen (Eur. Ct. J. Nov. 11, 1997) (not yet reported).
* Authored by Eva Brems, Fellow of the Belgian National Foundation for Scientific Research, Institute for Human Rights, Katholieke Universiteit Leuven.
4 Colum. J. Eur. L. 668
Equal treatment of men and women; Directive 76/207/EEC, Article 2(4); Affirmative action
1. Facts and Procedure
When Hellmut Marschall, a tenured teacher in Nordrhein-Westfalen, Germany, applied for a higher grade post, he was informed by the District Authority that it intended to appoint a female candidate to the position. The Law on Civil Servants of Nordrhein-Westfalen provides in the second sentence of its paragraph 25(5): "Where, in the sector of the authority responsible for promotion, there are fewer women than men in the particular higher grade post in the career bracket, women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless reasons specific to an individual male candidate tilt the balance in his favour." 1 The District Authority rejected Mr. Marschall's objection to its decision on the basis that at the time the post was advertised, there were fewer women than men in the career bracket concerned, and both candidates were equally qualified according to their official performance assessments. Mr. Marschall then brought legal proceedings before an administrative tribunal. Finding that the outcome would depend on the compatibility of the above-mentioned provision with Community law, the tribunal decided to stay proceedings and to refer to the European Court of Justice for a preliminary ruling on that issue.
2. Previous Case Law on Affirmative Action: Kalanke
In strictly formal terms, affirmative action legislation such as that at issue, which gives preferential treatment to women with regard to access to employment ...
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