Report 2003 - EFTA Court

Chapter III. Decisions of the Court: Case E-1/02 EFTA Surveillance Authority v Norway
13. According to the Plan, the University will allocate the permanent positions
to the faculties by way of a competition, based mainly on the following four
criteria:
- Academic fields where women in permanent academic positions
are considerably underrepresented. Fields with less than 10 percent female
academics will be given priority;
- Academic fields where women in permanent academic positions
are underrepresented compared to the number of female students;
- Academic fields where there is a sufficient number of qualified
women for recruitment;
- The faculty must finance a research fellow position or a postdoctoral
position linked to the permanent position.
14. Reserving positions implies that only a defined group may apply, in this
case only women.
Pre-litigation procedure
15. On 16 August 2000, the EFTA Surveillance Authority received a
complaint alleging that, by reserving a number of academic positions at the
University of Oslo for women only, Norway was in breach of the EEA
Agreement. In the course of its examination of the complaint, the EFTA
Surveillance Authority sent a request for information to the Government of
Norway on 25 August 2000.
16. In its reply, received by the EFTA Surveillance Authority on 26 October
2000, the Government of Norway stated that Article 30(3) of the contested Act
was in compliance with the EEA Agreement, as the provision was in accordance
with the purpose of Article 2(4) of the Directive. The Government concluded
that, since the number of women recruited to academic positions had declined
during the nineties despite the existing pool of qualified female applicants, the
opportunities presented to equally qualified males and females were unequal.
Basing itself on the judgment of the Court of Justice of the European
Communities in the Marschall case, 5 the Government maintained that the
measures were permissible since the best means available to obtain equality was
to reserve certain academic positions for women.
17. On 6 June 2001, the EFTA Surveillance Authority sent a letter of formal
notice to Norway, concluding that, by maintaining a rule such as that provided
for in Article 30(3) of the contested Act, Norway has failed to fulfil its
5
Case 409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363, paragraphs 29 and
30(hereinafter “Marschall“).