Positive Action in EU Gender Equality Law and Policy: Women in Decision Making Positions

Equality is an open and complex concept with various meanings (equal treatment, equal opportunities, formal equality, substantive equality or de facto equality). Although there are strong similarities in the definition of key concepts related to equality, the EU institutions have interpreted and applied them differently. The way the concept of positive action, as an expression of the principle of real or de facto equality, has been understood by these institutions has led to a certain degree of uncertainty and methodological confusion. Similarly, despite the undeniable degree of harmonization that the EU legal framework on this field provides, still key notions of equality law, among them, the term positive action, are defined and applied differently in the various legal systems of the EU Member States. In the first place, this paper provides a comparative legal analysis of the concept of equality and related notions. In the second place, attention is paid to the notion of positive action in EU law and, in particular, in the case law of the European Court of Justice concerning gender equality. This paper includes an analysis of the interpretative value of the EU case law to provide a wider homogeneous legal framework for the adoption of positive action measures and the possible clashes with the national context, specifically, with the domestic constitutional law of the Member States. Finally, attention will be paid to the actions adopted by the European Commission to promote gender balance in decision-making processes and positions.