Report 2003 - EFTA Court

Chapter III. Decisions of the Court: Case E-1/02 EFTA Surveillance Authority v Norway
maintained that they differed from the measures considered in Abrahamsson and
were, therefore, proportionate.
19. On 28 November 2001, the EFTA Surveillance Authority sent a Reasoned
Opinion to the Government of Norway. The EFTA Surveillance Authority
maintained its view that the measures at issue were in breach of the EEA
Agreement. The reasons given in the letter of formal notice were repeated. The
EFTA Surveillance Authority particularly stressed that a rule whereby men are
totally excluded from a selection process did not change the fact that it gave
absolute and unconditional priority to women, contrary to the relevant
jurisprudence of the Court of Justice of the European Communities concerning
Community law. With regard to the argument put forward by the Government,
whereby the provisions of the Directive must yield to Article 141(4) EC, the
EFTA Surveillance Authority referred to the ruling in Abrahamsson, in which the
Court of Justice of the European Communities held that the amendments to this
Article had no influence on the conditions to be considered in this area as laid
down in case law. As to the deletion of Article 2(4) of the Directive in the
Commission proposal, the EFTA Surveillance Authority emphasized that
positive action measures permitted under the proposed Directive cannot exceed
that permitted in Article 141(4).
20. In a reply of 27 February 2002, the Government of Norway repeated its
view that the measures taken were in compliance with the Directive. The
arguments set forth in the reply to the letter of formal notice were invoked again.
Additionally, in relation to its arguments concerning international agreements,
the Government of Norway submitted that the Directive could not be interpreted
in a manner contrary to other international obligations of the Contracting Parties.
In that context, a specific reference was made to a recommendation of 15 June
2000 by the CEDAW Committee, in which said committee called upon the
Government of Austria to introduce positive action measures to increase
women’s appointment to academic posts. Furthermore, the Government of
Norway referred to the Court of Justice of the European Communities’ judgment
in the Schnorbus case, 10 in which it upheld a discriminatory measure on the
grounds that it was based on an objective fact, i.e. the completion of compulsory
military service, a duty imposed only on men. The measure was not held to be
disproportionate as it counterbalanced the detrimental effect suffered by the
candidates in question only to some extent. The Government maintained that the
Norwegian measures were similarly based on an objective fact, i.e. the underrepresentation
of women, and did not exceed what was necessary to
counterbalance the effects of this fact, since it constituted a last attempt to
achieve a more balanced representation of women in academia.
10 Case 79/99 Schnorbus [2000] ECR I-10997, paragraphs 44-46 (hereinafter “Schnorbus”).