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

• Author: Theodoridis, Athanasios
• Pages: 62-64

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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).