General legal framework

AuthorPanagiota Petroglou
2 General legal framework
2.1 Constitution
2.1.1 Constitutional 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 imp licitly 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 limi ted to sex.
2.1.2 Other 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 r efers to ΡGreek men and
women,Σ Article 116( 2) refers to Ρmen and womenΣ. The refore, the personal sc ope of the
constitutional gend er equality norm must be c onsidered to also cover foreign nationals.
According to its l etter and to well-established Council of State (Supreme Administrativ e
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 what soever,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, a s 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 b y 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 (A rticles 2 and 3(2) EC Treaty an d Declaration No. 28 annexed to the
Treaty), international human rights treaties (in pa rticular 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.18 In f act, 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 requir es the protection of marriage, the family,
motherhood and childhood. This requirement seems t o be similar to th at of Article 33(1)
of the EU Charter. Greek case law relies on this provi sion, alone or i n 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.
17 Article 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, in Essays in honour of Alice Yotopoulos-
Marangopoulos, Volume A, Athens Nomiki Bibliothiki, Brussels Bruylant, 2003; Koukoulis-Spiliotopoulos, S.,
contribution to the Bulletin Legal Issues in Equality of the CommissionΣs σetwork of δegal Experts on the
application of Community law on gender equality, 2/2000, Greece.

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