## Facts

- A German state (Hesse) enacted an equality statute for its public administration that included measures to reduce women’s underrepresentation in employment and training.
- Male applicants challenged provisions favoring women, arguing they conflicted with EU sex-equality rules and the public-service merit principle.
- The contested measures included: (1) priority for women in appointment/promotion where qualifications were equal and women were underrepresented; (2) binding targets for women in certain academic posts tied to women’s proportions among graduates and students; (3) reserving at least half of certain vocational training places for women, subject to sufficient female applicants after outreach; and (4) requiring interviews of qualified women and parity in interview invitations in underrepresented sectors.
- The Hessian Constitutional Court referred questions on whether these measures were compatible with the Equal Treatment Directive (Directive 76/207/EEC), especially Articles 2(1) and 2(4).

## Issues

1. Whether EU equal-treatment law permits giving priority to equally qualified women candidates in underrepresented public-service sectors under a women’s advancement plan.
2. Whether binding targets and minimum percentages for women in academic posts, linked to women’s representation among graduates and students, are permitted.
3. Whether reserving at least half of certain public vocational training places for women, subject to sufficient applications after outreach, is permitted.
4. Whether requiring interviews of qualified women and equal numbers of male and female interviewees in underrepresented sectors is permitted.

## Decision

- The court held that Articles 2(1) and 2(4) of Directive 76/207 do not preclude the challenged measures, as structured.
- Priority in appointment/promotion was permissible only as a conditional preference: it had to apply solely between equally qualified candidates, allow consideration of countervailing reasons, and ensure objective assessment of each candidate’s personal situation.
- Binding targets/minimum percentages for women in certain academic posts were permissible when set at least at the level of women’s representation among relevant graduates/students in the discipline.
- Reserving at least half of certain training places for women was permissible when aimed at eliminating underrepresentation and conditioned on sufficient female applicants following appropriate outreach.
- Interview guarantees and parity in interview invitations were permissible as procedural measures that expanded women’s opportunity to compete without dictating the final selection outcome.

## Legal Principles

- Equal-treatment rules permit positive-action measures aimed at removing existing inequalities affecting women’s opportunities, but such measures must not create automatic, unconditional preference.
- A sex-based tie-break preference is lawful only when limited to equally qualified candidates and paired with a “saving clause” allowing individualized, objective assessment and displacement of preference for stronger countervailing reasons.
- Targets and minimum percentages may be lawful planning instruments when linked to objective labor-pool indicators (e.g., representation among graduates/students) and aimed at correcting underrepresentation rather than establishing permanent quotas.
- Reserved opportunities (such as training places) may be lawful where proportionate and flexible, including conditions tied to actual applicant supply and prior outreach efforts.
- Procedural positive action (such as guaranteed interviews) may be lawful where it improves access to selection processes without predetermining appointment or promotion decisions.

## Conclusion

EU law allowed Hesse to use conditional preference rules, targets, reserved training places, and interview guarantees to remedy women’s underrepresentation in public employment and training, so long as the scheme avoided automatic outcomes and preserved individualized, objective assessment.


Re Badeck, Case C-158/97, 2000 E.C.R. I-1875 (E.C.J. 2000)