General legal framework

• Author: Panagiota Petroglou
• Pages: 9-10

9

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.