## Facts

- Hellmut Marschall, a tenured public-school teacher employed by the German State of North Rhine-Westphalia, applied in 1994 for promotion to a higher-grade teaching post.
- Education authorities informed him that a female candidate would be appointed instead.
- The authorities found the male and female candidates equally qualified and applied a state civil-service rule giving priority to women in promotions where women were underrepresented at the relevant level.
- The rule included a saving clause: a woman would not receive priority if reasons specific to an individual male candidate tipped the balance in his favor.
- Marschall challenged the decision in administrative court; the German court sought an interpretive ruling on whether the rule was compatible with the Equal Treatment Directive governing sex equality in employment and promotion.

## Issues

1. Whether EU equal-treatment law precludes a national promotion rule that gives priority to women in underrepresented sectors when candidates are equally qualified, subject to a saving clause allowing selection of a man for candidate-specific reasons.
2. What conditions must be met for such a priority rule to qualify as permissible positive action rather than unlawful sex discrimination.

## Decision

- The court held that EU law does not preclude the national rule, provided it operates as conditional preference rather than automatic priority.
- The rule is permissible only if, in each individual case, the candidates receive an objective assessment considering all criteria specific to the candidates, and the assessment can override the preference for women when reasons favor the male candidate.
- The criteria used to decide whether the saving clause applies must not be discriminatory against female candidates.
- The referring national court was left to apply this interpretation to determine whether the rule, as applied, satisfied these conditions.

## Legal Principles

- Equal-treatment rules permit positive action measures aimed at reducing real-world inequalities affecting women’s career opportunities, including measures relating to promotion.
- A tie-break preference for women in sectors where women are underrepresented may be lawful if it is rebuttable and contingent on individualized, comparative evaluation.
- Automatic and unconditional priority based solely on sex is incompatible with the principle of equal treatment.
- A saving clause must function in practice by allowing selection of an equally qualified man when objective, candidate-specific reasons justify it.
- The rebuttal criteria must be neutral and cannot replicate sex-based disadvantage through discriminatory standards.

## Conclusion

EU law allows a promotion rule that favors equally qualified women in underrepresented roles when the preference is rebuttable through a genuine, objective, case-by-case assessment using non-discriminatory criteria, preserving the possibility that an equally qualified man may be selected for candidate-specific reasons.


Marschall v. Land Nordrhein-Westfalen, Case C-409/95, 1997 E.C.R. I-6363 (E.C.J. 1997)