44 Harv. Int'l L.J. 331 (2003)
Limits of the Classic Method: Positive Action in the European Union after the New Equality Directives

handle is hein.journals/hilj44 and id is 337 raw text is: VOLUME 44, NUMBER 2, SUMMER 2003

Limits of the Classic Method:
Positive Action in the European Union After
the New Equality Directives
Daniela Caruso*
I. INTRODUCTION
Affirmative action is once more the subject of heated discussion in the
United States. Its legitimacy and merits are currently being revisited, and
the participation of the Bush administration in the debate on race and equality
has dramatically raised the visibility of yet other forms of affirmative action
currently under scrutiny before the U.S. Supreme Court.1 Meanwhile its lesser-
known European relative, positive action, is experiencing, without much fan-
fare, a significant breakthrough in E.U. law.2
* Associate Professor, Boston University School of Law. Thanks to Hugh Baxter, Kemper Donovan,
Bianca Gardella Tedeschi, Oliver Gerstenberg, Duncan Kennedy, Silvio Micali, Frances Miller, Fernanda
Nicola, Maureen O'Rourke, Sarah Robinson, Sergiu Troie, and Joseph Weiler for precious feedback on
earlier drafts, and to Carsten Kociok, Samuel Lockne'r, and Erica Smith for insightful research assistance.
Comments can be sent to danielac@bu.edu.
I. See Brief for Appellant, Gratz v. Bollinger, 2002 U.S. Briefs 516 (2002) (No. 02-516) (Lexis); Brief
for Appellees, Gratz v. Bollinger, 2002 U.S. Briefs 516 (2002) (No. 02-516) (Lexis); Brief for Appellant,
Grutter v. Bollinger, 2002 U.S. Briefs 241 (2002) (No. 02-241) (Lexis); Brief for Appellees, Grutter v.
Bollinger, 2002 U.S. Briefs 241 (2002) (No. 02-24 1) (Lexis).
2. The words European Economic Community (EEC), European Community (E.C.), and Euro-
pean Union (E.U.) do not mean the same thing. The 1957 Treaty of Rome established the EEC TREATY
ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter
EEC TREATY]. In 1992, Community law underwent radical changes due to what is popularly known as
the Treaty of Maastricht. TREATY ON EUROPEAN UNION, Feb. 2, 1992, 1992 O.J. (C 191). The Treaty of
Maastricht extensively reformed the Treaty of Rome; the European Economic Community became the
European Community to reflect an expansion of the Community's competency far beyond strictly eco-
nomic matters. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Feb. 2, 1992, 1992 O.J. (C 224).
With the Maastricht reform, the European Community became the first of three pillars of a much more
ambitious and far-reaching supranational project, the European Union. The other two pillars, in their
current version, CONSOLIDATED VERSIONS OF THE TREATY ON EUROPEAN UNION AND OF THE TREATY
ESTABLISHING THE EUROPEAN COMMUNITY, Dec. 24, 2002, 2002 O.J. (C 325) 1 [hereinafter E.U. TREATY),
consist, respectively, of [pirovisions on a common foreign and security policy, E.U. TREATY, tit. V, and
[pirovisions on police and judicial cooperation in criminal matters, E.U. TREATY, tit. VI. In both pil-
lars, E.U. action relies on intergovernmental cooperation, rather than on the binding, supranational tools
of the E.C. Treaty. This Article focuses primarily on the supranational European project contained within
the first pillar, as laid out in the E.C. Treaty. The Treaty of Amsterdam, entered into force on May 1,
1999, reorganized the E.C. Treaty, renumbering all its articles. TREATY OF AMSTERDAM AMENDING THE
TREATY ON EUROPEAN UNION, THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AND CER-
TAIN RELATED ACTS, Nov. 10, 1997, 1997 O.J. (C 340) [hereinafter E.C. TREATY). When citing to the
E.C. TREATY, this Article will cite to the provisions as organized by the Treaty of Amsterdam. However,

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