Meeting Beaulieu-sur-Mer 10-11 March 2006- Greece

Greek report on the occasion of the annual meeting of administrative judges

Beaulieu-sur-mer, 10-11 March 2006

A. LEGAL FRAMEWORK

1. According to article 28 par.1 of Greek Constitution ratified treaties have a legal authority superior to that of statutes under the proviso of mutuality. In addition, the next par.2 of the aforesaid article provides that, with a view to serving an important national interest and promoting the cooperation with other countries, it is possible for the Greek State to recognise, through treaties, constitutional competences to organs of international organisations. Moreover, there is an interpretative declaration under the aforementioned article stating that “article 28 constitutes the cornerstone for the participation of Greece in European Integration”.

Notwithstanding the wording of this latter provision of our Costitution, there is a difficulty in accommodating the supremacy doctrine of EC Law when it comes to constitutional law. There are differing views in the legal theory on the matter whether EC Law takes precedence over rules stemming from the Constitution. The same goes for the jurisprudence of the Supreme Courts (especially this of the Council of State).

2. On the matter which judicial body is empowered to check whether administrative authorities and national legislature comply with community law, there must be drawn a distinction: Pursuant to our Constitution (articles 87 par.2, and 93 par.4) every Court enjoys the power to override a rule of law, no matter if it comes from the Parliament or the Administration (delegated legislation, i.e Presidential Decrees), if it impinges upon rules of higher legal authority. This is the result of the system of hierarchy of the rules of law, which is prevalent in our legal order. Consequently, the judge will set aside such inferior rules of law that run contrary to rules of EC Law.

However, the review of the legality of administrative acts, which are incompatible with EC Law, falls within the exclusive jurisdiction fo the Administrative Courts (Structure: Council of State, Administrative Court of Appeal, Administrative Court of First Instance).

3. The usual method of incorporating directives into domestic law is by means of delegated legislation (i.e. Presidential Decrees).

B. USUAL ATTITUDE OF ADMINISTRATIVE JUDGE TOWARDS COMMUNITY LAW

1. The tendency is for the lower Courts to interprete EC Law by themselves as opposed to the Supreme Administrative Court (Council of State), which makes the references for preliminary rulings to ECJ.

2. In general, the Courts take into consideration all relevant directives and general principles of EC Law, the latter of which has an increasingly important role in the judicial practise.

3. All Courts are obliged to consider whether there is a breach of EC Law by statutes (laws enacted by the Parliament) and public authorities, with the exception of cases in procceedings concerning actions for damages against the State, for which there is an ongoing “debate” in the legal doctrine and jurisprudence.

4. In case of conflict of Constitutional law and EC Law, there is a contradicting jurisprudence. (see supra A.1).

5. EC Law and general principles derived from ECJ case law are expressly quoted in judgements.

C. INSTRUMENTS USED BY ADMINISTRATIVE JUDGE

1. Save for constitutional rules, the judge is empowered to set aside every kind of rules of law which infringe EC Law. Therefore, it is self-understanding that an administrative act (irrespective of its nature as individual administrative act or regulation), that is based on such a legal footing, is tainted as illegal. As such, it can be challenged before the Administrative Courts in the context of an application for annulment brought by the adversely affected individual.
2-3. In this case, the competent Administrative Court will quash the unlawfull administrative act. Nevertheless, according to our jurisprudence, when it comes to omission of the national Legislature to enacting implementing measures, the application for annulment is inadmissible, since it was found that the legislator should not be compelled by the Courts to exercise its own legistative power. The Courts still insist on this narrow view, despite it being severely criticised by part of Greek legal theory.