## Facts

- A public employer in Bremen considered candidates for a Section Manager position in the Parks Department.
- The two finalists were Eckhard Kalanke (male) and Heike Glißmann (female), and the national court treated them as equally qualified.
- Women were underrepresented in the relevant personnel group as defined by Bremen’s public-service equal-treatment statute.
- A Bremen statute required that, where women were underrepresented, equally qualified women receive priority over men for appointment and promotion.
- After internal objections, the employer applied the statutory priority rule and promoted Ms. Glißmann instead of Mr. Kalanke.
- Mr. Kalanke challenged the decision as unlawful sex discrimination under the EU Equal Treatment Directive (Directive 76/207/EEC).
- Germany’s Federal Labour Court referred questions to the EU court for a preliminary ruling on the meaning of Directive 76/207, Article 2(1) and Article 2(4).

## Issues

1. Whether Directive 76/207, Article 2(1) (equal treatment) permits a national rule that automatically gives promotion priority to equally qualified women in underrepresented categories.
2. Whether such an automatic priority rule can be justified as positive action under Directive 76/207, Article 2(4).

## Decision

- The Court ruled that Directive 76/207, Article 2(1) and Article 2(4), preclude a national rule that automatically gives equally qualified women priority over men in underrepresented sectors.
- The Court treated Article 2(4) as a limited exception that must be interpreted strictly.
- The Court concluded that an absolute, unconditional preference substitutes equality of representation for equal opportunity and exceeds what Article 2(4) permits.
- The referring court was required to resolve the dispute in the main proceedings consistent with this interpretation, which entailed disregarding the automatic priority rule as applied.

## Legal Principles

- The equal-treatment rule forbids sex-based discrimination in access to employment and promotion, subject only to narrowly construed exceptions.
- Positive-action measures are permissible only insofar as they seek to remove real disadvantages and improve women’s ability to compete on equal terms.
- A rule granting women absolute and unconditional priority in tie situations constitutes prohibited discrimination against male candidates and is not saved by the positive-action provision.
- Lawful positive action under the directive must remain tied to equal opportunity and cannot automatically predetermine outcomes without individualized consideration.

## Conclusion

The Court held that EU equal-treatment law bars a promotion scheme that automatically favors equally qualified women in underrepresented categories, because the directive’s positive-action exception does not allow absolute, unconditional priority that replaces equal opportunity with mandated representation outcomes.


Kalanke v. Freie Hansestadt Bremen, Case C-450/93, 1995 E.C.R. I-3051 (C.J.E.U. 1995)