Report 2003 - EFTA Court

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Chapter III. Decisions of the Court: Case E-1/02 EFTA Surveillance Authority v Norway cumstances. Such an assessment, which shall not be based on criteria that discriminate against women, can then override the priority accorded to women if the assessment tilted the balance in favour of the male candidate. In assessing the qualifications of candidates, certain positive and negative criteria can be used, which, while formulated in gender neutral terms, are intended to reduce gender inequalities that occur in practice in social life. Among such criteria are capabilities and experiences acquired by carrying out family work. Negative criteria that should not detract from assessment of qualifications include part-time work, leaves and delays as a result of family work. Family status and partner’s income shall be viewed as immaterial and seniority, age and date of last promotion shall not be given undue weight. 3. The Directive is based on the recognition of the right to equal treatment as a fundamental right of the individual. In determining the scope of a derogation from an individual right, regard must be had to the principle of proportionality, which requires that derogations remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim pursued. National rules and practices derogating from the individual right can only be permissible when they show sufficient flexibility to allow a balance between the need for the promotion of the underrepresented gender and the opportunity for candidates of the opposite gender to have their situation objectively assessed. There must, as a matter of principle, be a possibility that the bestqualified candidate obtains the post. Even for training positions, the law requires a system that is not totally inflexible. An absolute rule exceeds what is acceptable under Article 2(4) of the Directive. 4. Since the entry into force of the Directive substantial changes have occurred in the legal framework of the Community, providing inter alia for increased Community competences in matters relating to gender equality. Inevitably, the interpretation of the Directive will reflect both the evolving legal and societal context in which it operates. Under the present state of the law, the criteria for assessing the qualifications of candidates are essential. In such an assessment, there appears to be scope for considering those factors that, on empirical experience, tend to place female candidates in a disadvantaged position in comparison with male candidates. Directing awareness to such factors could reduce actual instances of gender inequality. Furthermore, giving weight to the possibility that in numerous academic disciplines female life experience may be relevant to the determination of the suitability and capability for, and performance in, higher academic positions, could enhance the equality of men and women, which concern lies at the core of the Directive.
Chapter III. Decisions of the Court: Case E-1/02 EFTA Surveillance Authority v Norway JUDGMENT OF THE COURT 24 January 2003 (Failure of a Contracting Party to fulfil its obligations – Equal Rights Directive - Reservation of academic positions for women) In Case E-1/02, EFTA Surveillance Authority, represented by Dóra Sif Tynes, Officer, Legal & Executive Affairs, acting as Agent, 74 Rue de Trèves, Brussels, Belgium, v Applicant, The Kingdom of Norway, represented by Fanny Platou Amble, Advocate, Office of the Attorney General (Civil Affairs), acting as Agent, and Ingeborg Djupvik, Legal Adviser, Ministry of Foreign Affairs, acting as Co-Agent, PO Box 8012 Dep, 0030 Oslo, Norway, Defendant, APPLICATION for a declaration that, by applying its legislation so as to reserve a certain number of academic positions exclusively for women, the Kingdom of Norway has failed to fulfil its obligations under the EEA Agreement. THE COURT, composed of: Carl Baudenbacher, President (Judge-Rapporteur), Per Tresselt and Dóra Guðmundsdóttir (ad hoc), Judges, Registrar: Lucien Dedichen, having regard to the written pleadings of the parties and the written observations of the Commission of the European Communities, represented by John Forman,
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CASES 1994 - 2002 CASE PARTIES TYPE
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15 E-4/96 Fridtjof Frank Gundersen
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30 E-3/98 Herbert Rainford-Towning
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46 E-9/00 EFTA Surveillance Authori
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