Report 2003 - EFTA Court

Chapter III. Decisions of the Court: Case E-1/02 EFTA Surveillance Authority v Norway
provide a legal basis to decide the present application either directly or by
analogy.
56 The Court notes, however, that 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. Under Article 2 EC the Community shall have as its task to
promote equality between men and women. Article 3(2) EC states that the
Community shall, in carrying out the activities referred to in the first paragraph
of that provision, aim to eliminate inequalities and to promote equality between
men and women. Article 13 EC gives the Council the competence to take
appropriate action to combat discrimination based on sex. According to Article
141(4) EC, the principle of equal treatment shall, with a view to ensuring full
equality in practice between men and women in working life, not prevent
Member States from maintaining or adopting measures providing for specific
advantages in order to make it easier for the under-represented sex to pursue a
vocational activity or to prevent or compensate for disadvantages in professional
careers. Inevitably, the interpretation of the Directive will reflect both the
evolving legal and societal context in which it operates.
57 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.
58 The Defendant cannot justify the measures in question by reference to its
obligations under international law. CEDAW, which has been invoked by the
Defendant, was in force for Community Member States at the time when the
Court of Justice of the European Communities rendered the relevant judgments
concerning the Directive. Moreover, the provisions of international conventions
dealing with affirmative action measures in various circumstances are clearly
permissive rather than mandatory. Therefore they cannot be relied on for
derogations from obligations under EEA law.
59 Based on the foregoing, the Court holds that by maintaining in force a rule which
permits the reservation of a number of academic posts exclusively for members
of the under-represented gender, Norway has failed to fulfil its obligations under
Articles 7 and 70 of the EEA Agreement and Articles 2(1), 2(4) and 3(1) of
Directive 76/207/EEC of 9 February on the implementation of the principle of
equal treatment for men and women as regards access to employment, vocational
training and promotion, and working conditions as referred to in point 18 of
Annex XVIII to the EEA Agreement.