적극적 조치에 관한 유럽사법재판소 판례의 최근 동향

Abstract

This Article analyzes the gender based Positive action programs in the European Union. Affirmative action is once more the subject of heated discussion in the United States. Its legitimacy and merits are currently being revisited and the participation of the Bush administration in the debate on race and equality has dramatically raised the visibility of yet other forms of affirmative action currently under scrutiny before the U.S. Supreme Court. Meanwhile its lesser-known European relative, positive action, is experiencing, without much fanfare, significant breakthrough in E.U. law. Positive action shares the logic of affirmative action. Both allow for preferential treatment of certain groups to make up for historical wrongs or tractional discrimination against them. However, in European circles positive action is perceived as much more in tune with the principle of individual equality than its American counterpart. Positive action's newfound salience in E.U. policies and governance lies in a recent and dramatic expansion of its scope. Untile the European Court of Justice could only address positive action politics concerning gender inquality. However a close analysis of the ECJ's decisions on positive action in favor of women casts serious doubt on the wisdom of extending that court's equality paradigm to matters of race, ethnicity, or religion. In this paper, the aim is limited to updating our positive action in the E.U. with an analysis of three recent ECJ's decision. Part Ⅱ examines ECJ's positive action policies and positive action case law to Marcahall. Part Ⅲ, Ⅳ and V examine three cases: Re: Badeck, Abrahamsson v. Fogelqvist and Schnorbus v. Land Hesse. Part Ⅵ examines the change of gender based positive action with New Directives including the Equal Treatment Directive, the basic legal principal at the foundation of the Court's judgments in these cases.