"Express provision is made for positive action measures to promote equal opportunities between men and women under European Community law. Until recently, however, the permissible scope of positive action under Community law was largely untested. In October 1995 the European Court of Justice ruled that a 'tie-break' positive action scheme which gives priority to a woman candidate for an employment position over an equally qualified male competitor, in an employment sector where women are underrepresented, was contrary to the terms of the Equal Treatment Directive. This article reviews the judgment and argues that given the significance of the issues before the Court, the lack of reasoning in this decision is unfortunate, as it leaves too many questions unanswered. The Court's decision has stirred up considerable controversy and prompted a further request for a preliminary ruling from the German courts on a broadly similar positive action scheme to that at issue in this case. The decision in that case may clarify some of the outstanding questions from this judgment, but until that time, it is argued that the legitimate scope of positive action under Community law remains in some doubt."

(Author's summary)

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