Annual Survey of International & Comparative Law


This paper is the third in a series in which we examine the similarities and differences between the European and American approaches to the problem of positive (or affirmative) action. In the two previous papers we examined whether certain positive action plans adopted by European legislatures would be constitutional under the Equal Protection clause of the U.S. Constitution. In this paper our aim is limited to updating our analysis of positive action in the European Union with an analysis of three recent European Court of Justice ("the Court") decisions. The decisions are Re: Badeck, Abrahamsson, and Schnorbus v. Land Hesse. We shall also consider proposed changes to the Equal Treatment Directive, the basic legal principle at the foundation of the Court's judgments in these cases.