적극적 조치에 관한 유럽재판소의 최근 판례연구

Abstract

Over the past two decades within the EU, efforts to ensure women and men equal opportunity in the workplace have met with many obstacles and only success. These efforts began with passage of Council Directives 76/207/EEC. A gender-based Affirmative Action has been the subject of increasing debate and tension in Europe Union. The European Court of Justice(ECJ) has taken a dramatic step towards leveling the playing field for women in the workplace. This article will deal with facts and procedure, the court’s reasoning and decision, appraisal on the Kalanke decision and Marschall, In Kalanke, the only case until recently in which the Court was obliged to view the legality of a affirmative action measures for women, The Court found that the measure extended beyond the scope of those permitted under 2(4) of the Equal Treatment Directive. In Marshall, the Court upheld a flewble affirmative action measures as a permissble means of promoting equal opportunity under Article 2(4) of the Equal Treatment Directive. While the ECJ did not overrule the Kalanke decision with Marschall, it distinguished the facts in such a way that Marschall will now be the measuring stick against which all other affirmative action cases in the European Union will be measure. This will show how the ECJ has articulated a standard that benefits women far more than any guidelines established in the United States regarding gender-based affirmative action programs This article will argue that the decision reached by the ECJ in Marshall was a progressive one and that its liberal interpretation of the Equal Treatment Directive was a far more equitable solution for women than the decision reached in Kalanke. This Comment will outline the affirmative action guidelines in the European Union, specifically with reference to gender, will then analyze the differences in approach to affirmative action taken by the ECJ.