The purpose of this study is to investigate legislation and leading
cases concerning positive discrimination in the European Union, with a
particular focus on the recent debate about the most radical positive
action measure: the implementation of women's quotas by supranational
legislation. This study seeks to answer the question if such a radical
derogation from the equal treatment principle can be tolerated, keeping
in mind the fundamental character of this principle in European law. The
concept of substantive equality will be analysed and set against the ECJ
case law under review. It will be criticised that the ECJ focused once
more on a formalist approach and allows for positive action measures
only to a very limited extent. If the European Union would impose
women's quotas for board members via supranational legislation, would
this still be considered as a measure of positive discrimination or
would it rather be a form of negative discrimination against men?