Positive action in practice : some dos and don’ts in the field of EU gender equality law

Abstract

This article explores the ways in which positive action has been used and operationalised in practice. Based on recent legal and case law developments at EU level and in Member States, we examine the question of whether, and when, positive action truly promotes substantive equality in practice. By the same token, we look at the application of the notion through a critical lens and ask whether its misuse does not, at times, curb the principle of equality itself. After briefly defining the notion of positive action and offering some terminological clarifications, we briefly trace its legal development in EU law from historical landmark cases to more recent developments at the CJEU. In a third section, we explore and discuss the potentialities and pitfalls of positive action through examples from its different fields of application in a number of EU Member States. Finally, we further investigate the difficulties posed by the notion in practice through a detailed analysis of the French case law.