Positive action

Case 14: The facts

This case arises from French legislation under which widows who had not remarried had the right to apply for state jobs even if they were over the maximum entry age for the job. The right did not extend to widowers.

The opinion

The Advocate General, the European Court of Justice's top legal advisor, ruled that the right offended against EU equal treatment law. In his view it was discriminatory, and the government had not produced evidence to justify it.

The government had not demonstrated that women were under-represented in the posts in question; additionally, it was not clear why widows who had not remarried should be entitled to more favourable treatment than other categories of single individuals.

The Advocate General said that the purpose of compensatory positive action measures should only be to re-establish equality of opportunity by removing the effects of discrimination. Importantly, any such measures should be transitional in nature.

Although the ruling directly affects French law, it provides useful insights into the extent of measures that can be taken towards positive discrimination.

Briheche v Ministere de l'interieur de la securite interieure et des libertes locales Case C-319/03