Dutch positive action measures in higher education in the light of EU law

In June 2020, the Netherlands Institute for Human Rights delivered an opinion on a positive action program run by the Eindhoven University of Technology. In this legally non-binding opinion the Institute declared the measures incompatible with the Dutch Equal Treatment Act and several EU provisions and CJEU judgments. The program reserved all vacant positions exclusively for women for a number of years. Consequently the Eindhoven University of Technology revised the program and the Netherlands Institute for Human Rights approved this revised program in March 2021 in another opinion. These opinions raise a number of interesting questions concerning EU non-discrimination law that are worth investigating further. Foremost is the question of how to interpret EU law on positive discrimination after years of silence on this issues from the CJEU.