General legal framework

• Author: Panagiota Petroglou
• Pages: 9-10

9

2General legal framework

2.1Constitution

2.1.1Constitutional ban on sex discrimination

Article 4(2) of the Greek Constitution (ΡGreek men and women have equal rights and

obligationsΣ) requires (substantive)13 sex equality in all areas; it implicitly prohibits sex

discrimination. Article 22(1)(b) of the Greek Constitution (Ρall workers, irrespective of sex

or other distinctions, have a right to equal pay for work of equal valueΣ) exceeds the scope

of Article 157 TFEU, as it covers any ground whatsoever and is not limited to sex.

2.1.2Other constitutional protection of equality between men and women

Article 116(2) of the Constitution states that, ΡPositive measures aiming at promoting

equality between men and women do not constitute discrimination on grounds of sex. The

State shall take measures to eliminate inequalities existing in practice, in particular those

detrimental to womenΣ. While Article 4(2) of the Constitution refers to ΡGreek men and

women,Σ Article 116(2) refers to Ρmen and womenΣ. Therefore, the personal scope of the

constitutional gender equality norm must be considered to also cover foreign nationals.

According to its letter and to well-established Council of State (Supreme Administrative

Court; CS) case law, the material scope of this provision includes all the areas covered by

the gender equality directives, as well as any other area whatsoever,14 even outside the

scope of EU law. Article 116(2) requires that the legislature and all other state authorities

take any positive measures which are necessary and pertinent in promoting gender

equality in all areas.15 It thus exceeds the requirements of EU law, as it explicitly makes

positive action obligatory. In accordance with the hierarchical structure of the Greek legal

order, all national provisions relating to positive action must be read and applied in the

light of this constitutional norm.16

It should be noted that Article 116(2) in its present wording, requiring positive action, was

adopted almost unanimously by the Greek Parliament in the context of the constitutional

revision of 2001, replacing the former provision of the same article, which allowed

derogations from the gender equality principle.17 This development was inspired by

Community law (Articles 2 and 3(2) EC Treaty and Declaration No. 28 annexed to the

Treaty), international human rights treaties (in particular Article 4(1) of the CEDAW), the

Constitutions of other Members States (Germany, Austria and Portugal) and Greek case

law. It was also the result of the efforts and intense lobbying of Greek womenΣs σGτs and

of prominent feminists, in particular Professor Alice Yotopoulos-Marangopoulos and Sophia

Koukoulis-Spiliotopoulos.18In fact, the Greek Parliament endorsed almost verbatim the

proposal put forward by the Greek League for WomenΣs Rights and supported by many

other NGOs.

Article 21(1) of the Constitution requires the protection of marriage, the family,

motherhood and childhood. This requirement seems to be similar to that of Article 33(1)

of the EU Charter. Greek case law relies on this provision, alone or in conjunction with

13 CS No. 1933/1998 (Plen.).

14 CS No. 3189/2003.

15 CS Nos. 2832-2833/2003, 192/2004.

16 On the hierarchical structure of the Greek legal order, see 1.1 above.

17Article 116(2) Constitution (1976), in its original version, provided that: ΡDerogations from the provision of

Article 4(2) are allowed only for sufficiently justified reasons, in cases specifically provided by statute.Σ

18 Koukoulis-Spiliotopoulos,S. (2003), ΡGreece: From formal to substantive gender equality - The leading role

of the jurisprudence and the contribution of womenΣs σGτsΣ, inEssays in honour of Alice Yotopoulos-

Marangopoulos, Volume A, Athens Nomiki Bibliothiki, Brussels Bruylant, 2003; Koukoulis-Spiliotopoulos, S.,

contribution to the Bulletin Legal Issues in Equalityof the CommissionΣs σetwork of δegal Experts on the

application of Community law on gender equality, 2/2000, Greece.