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Harvard Law School




The European Union's member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to "soft," non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states' positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the new directives.

Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a traditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states' most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination - a "soft" instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies.

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