Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

AuthorTheodoridis, Athanasios
5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
a) Scope for positive action measures
In Greece, positive action in respect of racial or ethnic origin, religion or belief, disability,
age or sexual orientation is permitted in national law.
Article 7 of Equal Treatment Law 4443/2016 enshrines Article 5 of Directive 2000/43 and
Article 7 of Directive 2000/78. It reiterates that any measures adopted for promoting and
ensuring equal treatment are not considered to be discrimination.
Moreover, the adoption of positive measures for promoting equality is an obligation
imposed upon the state under Article 116(2) of the revised Constitution.
This provision, in conjunction with Articles 21(3) and 21(6) of the Constitution, is perceived
as guaranteeing the principle of Ρproportional equalityΣ and assisting in the Ρelimination of
existing inequalitiesΣ.
Even though the main preoccupation of the Constitution of 2001 is obviously the promotion
and protection of womenΣs rights, the wording of Article 116(2) is all-inclusive, laying down
an obligation on the state to act through positive measures for the elimination of all kinds
of ΡinequalitiesΣ, a term that undoubtedly pertains to discrimination on all grounds covered
by Directive 2000/78/EC, given that it has been transposed into the Greek legal system.
Greek case law, especially that of the Greek Council of State, accepted and established the
legitimacy of legislative or administrative positive action measures aimed at the
advancement of gender equality even before the above new provision of the Constitution.
The majority opinion of the Greek Council of State, in its judgment 1917/1998,168 explicitly
recognised that there may be cases which show that, in practice, a certain category of
individuals has been discriminated against Ρdue to social prejudiceΣ, leading to only nominal
equality. Concomitantly, the court stated that, in principle, the spirit of Articles 4(1) and
4(2) of the Constitution (the latter provision stating that ΡGreek men and women have
equal rights and obligationsΣ) allows the state to take appropriate and necessary Ρpositive
actionΣ for a certain period of time, until the existing situation of inequality has ceased. The
Greek Council of State concluded that, in principle, it would certainly be legitimate for the
Greek State to adopt Ρpositive measuresΣ for women, in so far as these measures are aimed
at Ρaccelerating the restoration of de facto equality between men and womenΣ.
This jurisprudence was affirmed by the same courtΣs Judgment 1933/1998,169 where
Ρpositive actionΣ in favour of women by the state was regarded as justified and was founded
not only on the Constitution, but also on Council Directive 76/207/EEC on the
implementation of the principle of equal treatment for men and women as regards access
to employment, vocational training and promotion and working conditions (Article 2(4)),
as well as on Article 4(1) of the UN Convention on the Elimination of All Forms of
Discrimination Against Women of 1979 (which has been ratified by Greece). The wording
of the Greek Supreme Administrative Court judgments is almost identical to that of the UN
Convention provision. This significant case law, along with the constitutional provision of
Article 116(2), should certainly be regarded as a basis for the establishment of positive
action by Greece in favour of racial and ethnic groups, as well as other grounds upon which
discrimination occurs de facto and/or de jure.
168 Greek Council of State judgment 1917/1998 (Plenary).     
 (1998), vol. 42 (Review of public and administrative law), p. 577 (in Greek). Article 6 of Law
2839/2000 also established in principle a quota of on third in favour of women with regard to posts on
boards of public and private organisations.
169       (1998), vol. 42 (Review of public and administrative
law) p. 585 (in Greek). On the right to equality, see also Greek Council of State judgments 1156/2000 and
2096/2000, To Syntagma (2000), vol. 26, pp. 927 and 1 288 respectively (in Greek).

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