Marschall v Land Nordrhein Westfalen (1997) C-409/95 is a German and EU labour law case concerning positive action.
The European Court of Justice held that positive action was lawful if (1) the employer had a 'saving clause' so it could take into account objective factors specific to an individual man (2) the criteria in such a procedure did not discriminate against female candidates.
The art 2(4) derogation could be triggered where positive action aimed to counteract 'the prejudicial effects on female candidates' of stereotyped attitudes about women at work.
27 It thus authorizes national measures relating to access to employment, including promotion, which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men (Kalanke, paragraph 19).
28 As the Council stated in the third recital in the preamble to Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women (OJ 1984 L 331, p. 34), 'existing legal provisions on equal treatment, which are designed to afford rights to individuals, are inadequate for the elimination of all existing inequalities unless parallel action is taken by governments, both sides of industry and other bodies concerned, to counteract the prejudicial effects on women in employment which arise from social attitudes, behaviour and structures' (Kalanke, paragraph 20).