Perhaps the most famous Positive Action measure relating to gender may be the quota regulation for women. The issue of preferring women over men provided high potential for discussion, and the European Court of Justice (ECJ) had several occasions to interpret Directives and decide in preliminary rulings in order to clarify which regulations are lawful and which are not. In its different decisions, the ECJ repeatedly listed and specified the criteria for the legality of preferring female applicants over male applicants. The ECJ differentiates between lawful measures, which promote an actual equal opportunity, and unlawful measures, which rule an absolute preference of a certain disadvantaged group. 

Generally, decision quotas and result quotas must be distinguished. Decision quotas mean that women with an equal qualification must be considered when it comes to recruitment or promotion. The focus of the quota is the moment of decision making. Result quotas, in contrast, mean the achievement of target objectives. Here, quotas are a means of allocating a specific proportion of jobs to women. 

Decision quotas:

Criteria for the permissibility of quota regulations are that:

Female applicants in public service must have equal qualification within the meaning of Art. 33 (2) German Basic Law or close to equal qualification as male applicants;

There is no absolute and unconditional preference of female applicants. Instead, there must be an objective assessment on a case-to-case basis. The type of position, goods or services, and the question whether these are accessible on the free market, must be taken into consideration in the reasoning. A categorical preference is precluded. Moreover, the Positive Action must be limited in time, so different rights are not permanently created for specific groups.

The recruitment process is transparent and verifiable and is based on objective criteria. The criteria must not be discriminatory themselves. (Beneficiary criteria are usually not problematic.)

Result quotas

Concerning the filling of vocational training positions in professions where women are underrepresented, so-called rigid result quotas are also permissible if the vocational training provider does not have a monopoly position. These are quotas which allocate a specific percentage of posts to female applicants, if there are a sufficient number of applications. In the field of universities for instance, these quotas are also permissible regarding fixed term training posts, if they correspond to the proportion of women as students, graduates or doctorates in the faculty (depending on the respective training post). 

The Federal Labour Court specified in its judgment (in German): “The circumstances of the individual case must be taken into account while also taking promotional or compensatory measures. This can be done by assessing cases of hardship.” 

Concerning invitations to job interviews, quotas are also permissible in a broad scope. This is justified by the fact that qualified women would merely be offered additional opportunities without this having any direct influence on the selection. The corresponding judgment of the European Court of Justice can be found here.

Based on this judgment, it can be summarised: rigid quota regulations and an unconditional preference are normally not permissible. However, if women are significantly underrepresented in specific professions, an exception is permissible. But even then, this absolute, rigid quota regulation must include an opening clause.