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Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist Case C-407/98
1) Reference Details
Jurisdiction: European Court of Justice (ECJ), reference for a preliminary ruling from
Sweden
Date of Decision: 6 July 2000
Link to full case:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61998J0407:EN:HTML
2) Facts
The University of Gotheburg announced a vacancy for the position of Professor of
Hydrospheric Sciences on 3 June 1996. The announcement also stated that positive
discrimination might be exercised (in accordance with Regulation 1995:936) to help aid the
promotion sex equality. In total eight candidates applied for the post, including Ms
Abrahamsson, Ms Destoni, Ms Fogelqvist and Mr Anderson.
The selection board took two votes. The first time limiting their selection criteria to
academic qualification, Mr Anderson came first with five votes and Ms Destouni second
with three. A second vote was then taken, considering both scientific merit and the
Regulation, here Ms Destouni came first with six votes and Mr Anderson second with two.
The selection board then recommended to the University that Ms Destouni to offered the
position (with Mr Anderson coming second and Ms Fogelqvist third).
Ms Destouni withdrew her application, consequently the University referred the matter
back to the selection board to decide on the matter in light of the University's drive for
equality between men and women and Regulation 1995:936. The selection board refused to
re-examine the case, as they had already considered the applications in light of the
Regulation and issues of equality. Further the board was of the view that there was a
significant difference in qualification between Mr Anderson and Ms Fogelqvist, and that
interpretation of the Regulation had not been easy.
On 18 November 1997 the University decided to appoint Ms Fogelqvist. Mr Anderson and
Ms Abrahamsson appealed to the Överklagandenämnden, a specialised appeals committee
dealing with appeals from certain decisions made by higher education authorities, against
the decision. Mr Anderson appealed on the grounds that the decision was contrary to
Article 3 of the Regulation and ECJ jurisprudence. Ms Abrahamsson, whilst recognizing the
superior qualifications of Mr Anderson, contended that her qualifications were superior to
that of Ms Fogelqvist.
The appeals committee decided that Mr Anderson and Ms Fogelqvist were the most
qualified candidates, with Mr Anderson being found upon enquiries to be clearly more
competent in the scientific field than Ms Fogelqvist.
3) Law
European Community Law
* Council Directive 76/207 - Equal Treatment Directive
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European Case Law
* C-158/97 Badeck and Others [2000] IRLR 432
4) Legal questions referred to ECJ
1. Do Articles 2(1) and 2(4) of Council Directive 76/207/EEC of 9 February
1976 on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational training and
promotion, and working conditions preclude national legislation under
which an applicant of the under-represented sex possessing sufficient
qualifications for a public post is to be selected in priority over an
applicant of the opposite sex who would otherwise have been selected
("positive special treatment") if there is a need for an applicant of the
under-represented sex to be selected and under which positive special
treatment is not to be applied only where the difference between the
applicants' qualifications is so great that such treatment would be
contrary to the requirement of objectivity in the making of appointments?
2. If the answer to Question 1 is in the affirmative, is positive special
treatment impermissible in such a case even where application of the
national legislation is restricted to appointments to either a number of
posts limited in advance (as under Regulation 1995:936) or posts created
as part of a special programme adopted by an individual university under
which positive special treatment may be applied (as under Article 15a of
Chapter 4 of Högskoleförordningen)?
3. If the answer to Question 2 means that treatment like positive special
treatment is in some respect unlawful, can the rule, based on Swedish
administrative practice and the second paragraph of Article 15 of Chapter
4 of Högskoleförordningen - approved by the Appeals Board - that an
applicant belonging to the under-represented sex must be given priority
over a fellow applicant of the opposite sex, provided that the applicants
can be regarded as equal or nearly equal in terms of merit, be regarded as
being in some respect contrary to Directive 76/207/EEC?
4. Does it make any difference in determining the questions set out above
whether the legislation concerns lower-grade recruitment posts in an
authority's sphere of activity or the highest posts in that sphere?
5) Decision
The ECJ held in respect of the questions submitted that Article 2(1) and (4) of
Council Directive 76/207/EEC of 9 February 1976 on the implementation of the
principle of equal treatment for men and women as regards access to employment,
vocational training and promotion, and working conditions and Article 141(4) EC
preclude national legislation under which a candidate for a public post who belongs
to the under-represented sex and possesses sufficient qualifications for that post
must be chosen in preference to a candidate of the opposite sex who would
otherwise have been appointed, where this is necessary to secure the appointment
of a candidate of the under-represented sex and the difference between the
respective merits of the candidates is not so great as to give rise to a breach of the
requirement of objectivity in making appointments."
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Similarly, Article 2(1) and (4) of Directive 76/207 and Article 141(4) EC also
preclude national legislation of that kind where it applies only to procedures for
filling a predetermined number of posts or to posts created as part of a specific
programme of a particular higher educational institution allowing the application of
positive discrimination measures.
Moreover, Article 2(1) and (4) of Directive 76/207 does not preclude a rule of
national case-law under which a candidate belonging to the under-represented sex
may be granted preference over a competitor of the opposite sex, provided that the
candidates possess equivalent or substantially equivalent merits, where the
candidates are subjected to an objective assessment which takes account of the
specific personal situations of all the candidates.
Finally, the question whether national rules providing for positive discrimination in
the making of appointments in higher education are lawful cannot depend on the
level of the post to be filled.