Abstract

HENRIQUES, José. O princípio da igualdade de tratamento e a discriminação positiva. Tékhne [online]. 2006, n.5-6, pp.263-280. ISSN 1645-9911.

After the Treaty of Amsterdam, the Social Community Law has developed not only at the level of its Principles (Primary and Secondary Legislation) but also at the level of Community Jurisprudence. Originally with a strong economic dimension it evolved more and more into the social, among which stand both the sexual non-discrimination and the positive discrimination principles. These developments materialized within the objectives of the Treaty (Article 2 TUE - Maastricht Treaty in 1992), of the general principle of non-discrimination (Article 13 TUE), of the social policies (Article 137 TUE) and also of the principle of equal opportunities and treatment between men and women (Article 141). In full agreement with the Community Law, the purpose of positive discrimination is to balance the opportunities for men and women in the fields where the latter are in evident minority. A system of automatic quotas without considering the merits of each individual, if implemented by a country, could be therefore against the Community Law. In addition and in order to avoid a possible consequent reversed discrimination, one could think of setting a time limit to end the positive discrimination.

Keywords : Equal treatment between men and women; ban of sexual discrimination; sexual orientation; positive discrimination; quotas and reverse discrimination.

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