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

• Author: Matthias Mahlmann
• Pages: 71-73

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

a) Scope for positive action measures

In Germany, positive action is permitted in national law in respect of racial or ethnic origin,

religion or belief, disability, age or sexual orientation.

Section 5 AGG provides that unequal treatment as positive action is permissible –

notwithstanding th e justification on other grounds – if, through suitable and appropriate

measures, existing disadvantages caused by one of the covered grounds are to be

prevented or compensated.

Positive action by public authorities, including legislation, must be reconcilable with the

constitutional guarantee of equality.374 Explicit regulations make permissible positive action

promoting the equality of men and women and disabled people. 375 There is debate over

whether positive action is permissible within the scope of the guarantee of equality for

other written and unwritten grounds of discrimination (the latter cover, for example, sexual

orientation).376 This has not been auth oritatively clarified by the Federal Constitutional

Court. Positive action in the form of preferential employment is legally regulated in

accordance with the relevant CJEU case law,377 which permits such treatment in principle,

as long as the schemes allow for individual cases to be assessed. 378

The issue is highly c ontentious, especially as fa r as rigid quota syste ms are concerned. It

has been extensively discussed regarding discrimination on the ground of sex. There ha s

been no comparable debate regarding other grounds.

There are provisions on positive action, including institutional arrangements, for indigenous

minorities, the promotion of their language , the protection of their territory, etc.,

374 Article 3, 33(2) and 33(3) GG.

375 Article 3(2) sentence 2, Article 3(3) sentence 2 GG. Article 31 GG: ‘Federal law shall take precedence over

Land law.’ However, Article 142 GG states that, notwithstanding the provision of Article 31, provisions of

Land constitutions guaranteeing basic rights in conformity with Articles 1 to 18 of the Federal Constitution

remain in force. The disability law provides for the explicit admissibility of positive action, see Section 7(1)

BGG.

376 See: Nußberger, A. (2018), in: Sachs, M. (ed.), Grundgesetz: Kommentar (8th ed.), München, Beck Verlag,

Art. 3 para. 264ff.

377 See Judgment of 17 October 1995, Kalanke, C-450/93, EU:C:1995:322, https://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:61993CJ0450&from=DE; Judgment of 11 November 1997, Marschall, C-

409/95, EU:C:1997:533, https://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:61995CJ0409&from=GA; Judgment of 6 July 2000, Abrahamsson and

Anderson, C-407/98, EU:C:2000:367, https://eur-lex.europa.eu/legal-

content/EN/TXT/HTML/?isOldUri=true&uri=CELEX:61998CJ0407. Cf. Mahlmann, M. (2007), in: Rudolf, B.

and Mahlmann, M. (eds.), Gleichbehandlungsrecht: Handbuch, Baden-Baden, Nomos Verlag, § 3 para. 70.

378 Compare for such legislation e.g. Federal Civil Service Act (BBG), 5 February 2009, Section 9 (second

sentence).