Equality is a complex concept having a variety of meanings (equal treatment, equal opportunities, formal equality, and substantive or de facto equality). Although there are strong similarities in the definitions of key concepts related to equality, the EU and other international organisations have interpreted and applied them differently. Interpretation by these institutions of the concept of positive action, as an expression of the principle of de facto equality, has led to uncertainty and methodological confusion. Similarly, despite the undeniable degree of harmonization provided by EU legislation regarding this field, key notions of equality law, among them, the term positive action, are still defined and applied differently in the various legal systems of the EU Member States. First, this paper provides a comparative legal analysis of the concept of equality. Second, it addresses the notion of positive action in EU law and, specifically, in the case law of the Court of Justice of the EU. An analysis of the interpretative value of that case law is included in order to provide guidance for the adoption of positive action measures and potential clashes with the international and national contexts. Finally, recent actions adopted by the European Commission to promote gender balance in decision-making positions are presented.

Research Group DTCENS - Carlos III University of Madrid