Swedish legislation which automatically favours access for women to public posts, even where their qualifications are not equal to those of the male candidates, is contrary to Community law. The Court pointed out that priority for women where their qualifications are equal - as a way of restoring balance - is not contrary to Community law provided that an objective assessment of each candidature is guaranteed.
On 3 June 1996 the University of Göteborg announced a vacancy for the chair of Professor of Hydrospheric Sciences. The vacancy notice indicated that the appointment to that post should contribute to promotion of equality of the sexes in professional life and that positive discrimination might be applied in accordance with the Swedish legislation.
The selection board responsible for nominating a candidate to the Rector of the University ranked the candidates, placing Ms Destouni first. Mr Anderson was second and Ms Fogelqvist was third. That choice took account both of the candidates' scientific merits and of the Swedish legislation on positive discrimination.
Under that legislation, appointments to posts of professor are to take account of the need to accord priority to the under-represented sex where it proves necessary to do so in order for the candidate belonging to that sex to be appointed and provided that the difference between the candidates' qualifications is not so great as to give rise to a breach of the requirement of objectivity in the making of appointments.
After Ms Destouni, whom the selection board had nominated, expressly indicating that it had not failed in its duty to be objective, withdrew her application, the Rector of the University referred the matter back to the selection board. The latter considered that the difference between the two remaining candidates was considerable.
On 18 November 1997 the Rector of the University nevertheless appointed Ms Fogelqvist.
That decision was the subject of an appeal by Mr Anderson and Ms Abrahamsson, who had not been appointed.
The Universities' Appeals Board sought a preliminary ruling from the Court of Justice as to whether the Swedish legislation conformed to Community law on equal treatment for men and women.
The Court referred first to its case-law according to which a measure intended to give priority in promotion to women in sectors of the public service where they are under-represented must be regarded as compatible with the Community law
The Court stated that the Swedish legislation enabled preference to be accorded to a candidate belonging to the under-represented sex who, although sufficiently qualified, did not possess the same qualifications as the other candidates of the opposite sex.
The Court observed that the assessment of the candidates' qualifications in the selection procedure at issue was not based on clear and certain criteria (for example, seniority, age, date of last promotion, family status or income of the partner). The risk of arbitrary assessment of candidates' qualifications was not eliminated by the application of transparent criteria.
The Swedish legislation automatically accorded priority to candidates belonging to the under-represented sex who were adequately qualified, subject only to the proviso that the difference between the merits of the candidates of each sex was not so great as to give rise to a breach of the requirement of objectivity in the making of appointments.
The Court concluded that the selection method under the Swedish legislation did not conform to Community law: the selection was ultimately based merely on the fact of belonging to the under-represented sex, and candidatures were not subjected to an objective assessment taking account of the specific personal situations of all the candidates. The selection method was also disproportionate having regard to the aim pursued.
This press release is an unofficial document for media use and does not bind the Court of Justice Available Languages: Danish, German, French, English, Finnish, Swedish
For the full text of the Judgment, please consult our Internet page www.curia.eu.int at around 3 pm today.
For further information, please contact Fionnuala Connolly, telephone: (00352) 4303 3355; fax: (00352) 4303 2731