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Cyprus / Supreme Court / 2/2016

President of the Republic of Cyprus v House of Representatives

Deciding Body type:
National Court/Tribunal
Deciding Body:
Supreme Court
Type:
Decision
Decision date:
05/07/2017

Key facts of the case: 

The President of the Republic referred for an Opinion to the Supreme a law voted for by parliament in 2016, which had introduced a quota of one third women in the management boards of public organisations. Counsel for the President argued that the law is unconstitutional, contrary to the ECHR and the Charter of Fundamental Rights. The President argued that the quota in favour of women was unconstitutional for infringing the equality provisions of the Constitution, as it introduces positive discrimination in favour of women and this cannot be saved either by article 157(4) of the Treaty for the Functioning of the European Union, nor by the Charter of Fundamental Rights.

The House of Representatives argued that the equality principle as provided in the Cypriot Constitution is not violated, because the law in question does not result in discrimination between equals and if it does create discrimination, this is reasonable discrimination and not arbitrary, it serves the public interest and is in line with the principle of proportionality. In support of this position, Counsel for the House cited the UN Convention on the Elimination of All types of Discrimination against Women and a number of Cypriot judgements.

 

Outcome of the case: 

Article 157(4) of the TFEU (former article 141 of Treaty of the European Union) cannot be used in order to check the constitutionality of a law regulating the appointment of women in management boards of public organisations because the measures foreseen in the law under question are not intended to ensure equality in employment. Instead the measure amounts to positive discrimination in other words preference of women candidates over men candidates irrespective of qualifications, which is not reasonable discrimination but an arbitrary one from a constitutional point of view which disregards objective criteria for appointment. Charter article 23 does not apply because the issue at stake does not concern Union law, as per article 51 of the Charter.  The Court unanimously concluded that the specific provision is not allowed under Cypriot law as it is measure of positive discrimination and affirmative action in favour of women in breach of basic equality provisions of the Cypriot constitution that cannot be saved with reference to EU law. The law is therefore null and void.