Greek report

Prologue

The scope of the report is to briefly present the impact of European Law at the administrative law (and case – law) of Greece. The report consists of two parts ; the first part presents the impact of the European Convention of Human Rights (hereafter ECHR) and the second part presents the impact of the European Union Law.

I The impact of Article 6 of the European Convention of Human Rights (ECHR) about the "right to a fair trial" on litigation proceedings applicable to the administrative courts

The Greek Constitution entrusts the judicial control of public administration to administrative courts. The Constitution provides for a fully developed system of administrative courts next to the ordinary civil courts and all judges (regardless of the court that they serve) have the same constitutional privileges and duties. In that respect the independence and the impartiality of the administrative courts, has never been in doubt . Also the Constitution stipulates that all judicial decisions should be reasoned, a duty that all courts follow. The only limitation that has been introduced in that principle is in the ‘injunction cases’ (concerning interim measures), where the judicial decision can be ‘summary reasoned’. The law establishes the adversarial proceedings and the equality of arms of the parties. In the latter issue after the ruling of European Court of Human Rights in the case of ‘Platakos v. Greece’ [judgment of 11.01.2001] it is stipulated that the time – limit to file an application or an appeal is the same for both the citizen and the state .

In the past four years, the jurisdiction of the ordinary administrative courts has been expanded [1], as opposed to the jurisdiction of the Council of State. This was due to the fact that the Council of State can review administrative acts mainly through the ‘application for annulment’, whereas the ordinary administrative courts review administrative acts mainly through the ‘application for substantive judicial review’. In the first case the judicial control of the administrative act is limited [2] and it can only lead to the annulment of the act. In that respect it is argued that the provided judicial protection is not effective (as required by article 6 ECHR), since in many circumstances a citizen should also seek the reimbursement of damages, via the administrative courts or via the European Court of Human Rights. However, there have also been two important procedural developments : the deposit that the applicant must pay (and which he will receive back if the court rules in his favour) has been risen retroactively from 5€ and 25€ to 100€ and in the tax cases from 5 € to 2% of the tax due [3] and the time-limit to file the ‘application for substantive judicial review’ in the tax cases has been reduced from 60 days to 30 days

The European Court of Human Rights has issued since 1997, more than 245 decisions (of which 158 concern administrative cases [4]) against Greece concerning the infringement of article 6 ECHR as regards the reasonable time of the judicial process. In that respect Law 3900/2010 issued the ‘prelimininary ruling procedure’, whereas the court or any of the parties can file an application within the Council of the State to review any case that is of general interest pending before any court (it is a procedure similar to that of the Court of Justice of EU). The scope is to have a quick final judgment in repetitive cases that are ‘drowning’ the courts. Also, as soon as the Council of State haw issued such a judgment all the courts can review all the ‘same’ cases in a speedy procedure that was established with law 4055/2012. The latter Law was the result of the ‘pilot judgment’ of ECHR in the case ‘Athanasiou et al. v. Greece’ [judgment of 21/12/2010]. This Law introduced the following provisions as regards administrative cases : Firstly any citizen can file an application claiming damages due to the fact that a judicial decision was not made within a reasonable time (this applies to pending cases). Secondly, any of the parties whose case has not been heard within 24 months, can file a ‘speedy application’ so that the case will be heard in a time period of no more than 6 months (this applies to cases filed after 16th September 2012 ).

II The influence of principles of European law in the evolution of administrative law

The current ‘Crisis’ is stressing the national budget and the parliament enacts laws that have a direct impact on the rights of each citizen. The Council of the State has already ruled (Decision 668/2012 of the Grand Chamber) that the measures (reduction of pensions and wages of public employees) that were taken in 2010 where in accordance with the Constitution, as well as the fundamental rights. However, the court emphasized that the power of the Parliament to further reduce pensions and wages of public employees is limited, since the measures should not focus in only one category of citizens (pensioners and public employees) and should also respect human dignity .

As regards the primacy and direct effect of EU law , it is worth mentioning Decision 161/2010 of the Grand Chamber of the Council of State in which the court stated that when reviewing a law the courts must first consider whether the law is contrary to the Constitution and only if the answer to that question is negative, the courts should consider whether the law is contrary to the EU law. The Court stressed that this way of reviewing national laws is not contrary to the principle of the primacy and direct effect of EU law, but it is appropriate, since in order to assess the compatibility of a national law with EU law (and perhaps ask the Court of Justice of EU for a prelimininary ruling) the (only competent) national judge should firstly adjudicate on all the issues of interpretation and applicability of national law [5].
Also, it is worth mentioning that the Constitution (after the Amendment of 2001) explicitly assigns to the state the obligation to respect the principle of proportionality (article 25§1). The Constitution also obliges the State to take into account the precautionary principle when assessing issues concerning the environment (article 24§1). As a result, on the one hand the administration has started to mention these principles in its administrative acts (though not in all of them), and on the other hand citizens have started (much more than in the past) to invoke those principles before the administrative courts.
Perhaps the greatest advance in the principle of transparency was Law 3861/2010, which stipulates that all administrative acts must be published on the internet (with a unique number) with free access to all citizens. Also the Law established the on-line public consultation before the reading of Laws before Parliament and in that respect it enhanced the public participation in the legislature procedure [6]. This principle has also been enhanced with Law 3852/2010, which provided greater participation of the citizen at the level of municipalities and prefectures. This Law creates the ‘Consultation Commission’ [7], with which the council of the municipality or the prefecture must consult in every issue. Also with this Law the administration of various local issues (which were dealt by the Central Government) were decentralized to municipalities and prefectures, in accordance with the principle of subsidiarity . However, the mayors and the presidents of the prefectures (which are directly elected as well as the members of the councils) complain that the above-mentioned decentralization was not ‘supported’ with the transfer of money from the budget of central government to the budgets of local governments [8] and so it remains to be seen whether they will be able to comply with all their new duties.

Conclusion
EU Legislation, as well as the rulings of the European Court of Human Rights and of the Court of Justice of EU have had a profound effect on the new laws that have been enacted in Greece in the past years. It has to be stressed, that many of the Laws that are presented are relatively new and so one cannot yet assess their effectiveness in the day-to-day life of the citizen. Furthermore, the administrative courts have not yet reviewed all those laws and there is not yet an established case law, though the current ‘Crisis’ will probably lead to the reviewing of a greater number of administrative acts and laws by the administrative courts, who will seek for guidance to the Constitution as well as the ECHR and the principles of EU Law