Concept and legal basis of the positive actions and the professional promotion of women in the jurisprudence of the CJEU

Abstract

The original EU law does not expressly recognize positive action measures, but it allows States to implement them to correct gender inequality in the social and labor sphere. The same can be said of the Directives on non-discrimination.                                                                                                  Given this premise, the role of the CJEU has been to analyze the compatibility of the positive action measures adopted by the States with Community Law.              The judgments of Kalanke, Marschall, Badeck, Abrahamsson, Briheche, Lommers, Roca Álvarez, Maïstrellis, among others, show a panorama of certain complications and, of course, of many conditions to admit the validity of the positive action of reference, because they address the matter from a pure anti-discriminatory approach.
The present work reviews successively those pronouncements of the Court of Luxembourg. From their study derives a whole series of requirements so that positive action in favor of women can be understood as legitimate: 1) Female underrepresentation in the corresponding professional field must be accredited. 2) It is not about reserving jobs, but about facilitating compatibility with family life or establishing priorities. 3) When what is at stake is the enjoyment of a benefit (such as nurseries for children or access to professional training) should not be monopolized by the State, so that they can be accessed in any case. 4) It is important to check that the special situations of male employees are allowed to be taken into account. 5) Positive action must respect proportionality. 6) In case of comparing merits, the favorable treatment should only be activated when there is substantial equality of the same.