Positive action (article 5 directive 2000/43, article 7 directive 2000/78)

• Author: Karin de Vries
• Pages: 59-61

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5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In the Netherlands, posi tive action is permitted in national law in respect of sex, racial or

ethnic origin and disability (Article 2(3) GETA; Art. 3(1)(c) DDA).

The Government defends the position that positive a ction is only possible with respect to

sex, race and disability with the reasoning that only on those grounds do groups of people

suffer from structural disadvantages in society. Structural disadvantage is defined as

‘suffering disadvantages in several social fields at the same time which are not temporary

in nature’.256

Article 2(3) of the GETA (covering race and sex) imposes the following conditions on

positive action measures and policies:

1. the initiative must be a specific measure;

2. the measure is intended to confer a preferential position on women or people

belonging to ethnic or cultural minorities;257

3. the measure is intended to remove or reduce actual inequalities;

4. there must be a proportionate relationship between the measure and the obje ctive

pursued. This last element is not required by Directive 2000/43/EC.

The Dutch definition leaves less room for positive action policies and programmes, since it

does not allow measures which aim to prevent, in addition to removing or reducing

disadvantages.258

It should be noted that the proportional ity principle is explicitly mentioned in the GETA,

which means that in every case brought before the courts or the NIHR, the following

aspects of the positive action plan must be tested:

- does the plan have a clearly described aim? (which must be legitimate in itself);

- is the plan appropriate and necessary to ach ieve this aim? (Is it potentially effective

and / or could the aim be achieved with less damaging/ discriminatory means?).

Article 3(1)(c) DDA enshrines a positive action exception to the prohibition to make a

distinction on the ground of disability under that Act. The same conditions as described

above apply here.

In practice, any contested positive action plan is tested by the NIHR, according to the

standards that are set out in the case law of the CJEU.

The general point of view is that – at least when the positions that ar e at stake are t o be

considered as employment relati onships – EU legislation and case law (most notably the

Kalanke case) prohibit a system of fixed quota s and require an individual assessment of

any job applicant’s capabilities and suitability for the job in the context of sex.259 Any policy

in which a company or organisation strives for proportional representation of various ethnic

groups in prop ortion to t heir prevalence in society is seen as direct discrimination. When

the aim of such a policy is simply achieving ‘proportionality’ o r ‘diversity’ (i.e. when the

aim is not to put people belonging to an under-represented or systematically

disadvantaged group in a better position), the specialised body will not apply the positive

256 See Tweede Kamer, 2001-2002, 28 169, no. 5, p. 17.

257 The concept of ‘ethnic or cultural minority group’ is not defined in Dutch law, but it is usually applied as

‘being of non-western origin’.

258 See Explanatory Memorandum to the EC Implementation Act, Tweede Kamer, 2002-2003, 28 770, no. 3, p.

9.

259 Case C-450/93 Kalanke v Freie Hansestadt Bremen [1995], ECR I-3051.