Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions
Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions
In Greece there is a distinction between the administrative courts on the one hand and the civil and criminal courts on the other (Article 93 (1) of the Constitution). The organisation of the two jurisdictional orders follows the classic pyramidal form in this matter: at the top of the civil and criminal jurisdictions is the Court of Cassation; then the courts of appeal and the courts of first instance; finally, at the base of the pyramid, justice of peace. At the head of the administrative jurisdiction is the Council of State; then the administrative courts of appeal and the administrative tribunals of first instance. The third supreme court, the Court of Audits knows, sovereignly, certain specific administrative disputes (listed in Article 98 of the Constitution). Disputes of attribution are settled by a Special Supreme Court (Article 100 of the Constitution).
The creation of administrative tribunals was provided for in Greece as early as 1833. The Court of Audits was first established as an administrative body competent in certain administrative disputes submitted to it. The Council of State was provided for by royal decree in 1833 as well, as a body having rather the character of a Council of the King than that of a real jurisdiction, in spite of some competences of jurisdictional nature which were recognized to him. The Constitution of 1844 abolished the Council of State and enshrined the system of the "sole jurisdiction", according to which the jurisdictional control of the action of the administration in Greece belonged to the civil courts, except exceptions specially introduced by the law. In 1911, the Constitution of 1864 was revised, and the Council of State, having the character and the jurisdiction of an administrative court of annulment, was created. In the end, however, it did not work until 1929. The Council of State's power of annulment had no effect on the competence of the civil courts with regard to administrative disputes of «full jurisdiction». The "single jurisdiction" system was completely reformed by the 1952 Constitution, which determined that administrative disputes should be tried by "ordinary administrative tribunals". It allowed, however, provisionally, the maintenance of the system of the single jurisdiction until the creation of these administrative tribunals. Under the Constitution of 1952, administrative courts with jurisdiction in tax matters were created. The Constitution in force - of 1975, revised in 1986, 2001 and 2008 - provides for a complete system of administrative justice, under which administrative disputes of any kind will be subject without exception to the jurisdiction of the administrative courts. This system was achieved by Law 1406/1983, the first paragraph of which lays down the general rule that "ordinary administrative courts" are competent for all administrative disputes to which the law recognizes the nature of litigation with full jurisdiction. The Council of State, judge par excellence of the appeals for excess of power, also judge of cassation, also remains competent to judge the appeals against judgments of the inferior administrative courts rendered on the appeals for excess of power.
According to the second paragraph of Article 94 of the Hellenic Constitution, the Council of State and the ordinary administrative courts are competent for administrative disputes as provided by law, without prejudice to the powers of the Court of Auditors. "Administrative litigation", which is distinct from "private litigation", means any disturbance of a legal situation caused by an act or omission of an organ, in the narrow sense, of the State or a legal person of public law or of a natural person who renders his services to the State or a legal person under public law, concerning or creating a relation governed by the rules of administrative law. Similarly, the organs of ecclesiastical legal persons, in the case of acts issued on the basis of legislation, not acts taken under norms of canon law. Administrative disputes are distinguished in disputes of annulment and disputes of full jurisdiction. According to the opinion which best corresponds to the provisions of Greek law and the case law of the Council of State, the essential criterion for distinguishing administrative disputes from disputes of annulment and disputes of full jurisdiction is the power available to the competent court in relation to the dispute submitted to his judgement. The request made in the appeal and the grounds relied on are related criteria. The disputes brought before the Council of State and the administrative courts of appeal by way of the petition for excess of power have in Greece a nature of dispute of annulment. All other administrative disputes are of unlimited/full jurisdiction.
Are not susceptible to appeal for excess of power and do not create administrative disputes legal acts issued in the context of contractual relationships or other governed by private law. These acts create private law disputes within the jurisdiction of the civil courts.
According to art. 94 al. 3 of the Constitution: "In special cases and in order to obtain uniform application of the same legislation, the law may entrust the judgment of certain categories of private law disputes to the administrative courts, and certain categories of administrative disputes of full jurisdiction to the civil courts". This article allows the creation of jurisdictional blocks to avoid divergent solutions to similar issues, to which the duality of jurisdiction could lead.
In the case of administrative contracts it is necessary to distinguish between administrative acts: a) which are issued before and for the purpose of concluding the contract, such as the notice of competition or the award, and b) those which , addressing the contracting party, relate to the interpretation, performance and termination of the contract, such as the imposition of penalties or fines, forfeiture et.c. The administrative acts of the first category, qualified as detachable, are susceptible of action for excess of power. Those in the second category create administrative disputes of full jurisdiction, which fall within the jurisdiction of administrative tribunals. Also subject to petition for annulment by a non-contracting party are administrative acts taken on the basis of clauses of the contract binding third parties. It is not admissible the action for excess of power against the acts of the legislative bodies, nor, more generally, the acts of the authorities included in the legislative power. "Legislative acts" by which, in accordance with Article 44 par. l of the Constitution, the law of necessity, have the quality of legislative acts, assimilated to those of the legislative body. Therefore, they are not likely to be attacked by an action for abuse of power.
Certain acts of the Head of State or of the governmental bodies, although presenting all the characteristics of the administrative act, constitute a particular category, because they are not subjected to the judicial control by the action for abuse of power. These acts, known as "acts of government", are taken on the basis of the competence granted by the Constitution or by legislative acts and regulate matters relating to the so-called "political power" or "governmental function". The limits of this function, the content of which is in theory disputed, are fixed by the jurisprudence of the Council of State, which characterizes a specific act as an act of government, the action for abuse of power brought against him being for this reason rejected as inadmissible.
In addition, the judicial review of the acts of the organs of the judiciary is not admissible. Thus, the action for abuse of power is inadmissible against decisions of courts of any kind in general, as well as acts of "judicial authorities" or"judicial organs", even if they are not made up entirely of magistrates. These acts ("acts of judicial administration") relate to the organization and functioning of the courts and the exercise of their jurisdiction, to the situation of the magistrates (promotions, transfers, secondments, changes of category and exercise to their disciplinary power) and the smooth functioning of justice. According to paragraph 6 of Article 90 of the Constitution, "acts" made under this Article are also not subject to action for abuse of power.
Excerpts from the Hellenic Constitution of 1975 (Revised 1986, 2001 ** and 2008)
PART III ORGANIZATION AND FUNCTIONS OF THE STATE
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SECTION E 'THE JUDICIARY
Chapter Two Organization and Jurisdiction of the Courts
Article 93 1. The courts are distinguished in administrative, civil and criminal, and are organized by special laws. 2. ... 4. ...
Article 94 1. The Council of State and the ordinary administrative courts shall hear administrative disputes as provided for by law, without prejudice to the powers of the Court of Auditors. 2. Civil courts hear disputes in private law as well as cases of non-contentious proceedings as provided by law. 3. In special cases and in order to obtain uniform application of the same legislation, the law may entrust the judgment of certain categories of private law disputes to the administrative courts, and certain categories of administrative disputes to the civil courts. 4. Any other jurisdiction of an administrative nature may also be entrusted to the civil or administrative courts as the law provides. These competences also include the taking of measures aiming at the conformity of the administration with the decisions of justice. Court decisions are enforced, including against the State, local authorities and legal entities governed by public law, as provided by law.
Article 95 1. The competence of the Council of State includes: ** a) The annulment on action of the executive acts of the administrative authorities, for excess of power or violation of the law. (b) The appeal of final decisions rendered by ordinary administrative courts, as provided by law. (c) The adjudication of administrative disputes of full jurisdiction submitted to it under the Constitution or laws. d) The elaboration of all regulatory decrees. 2. The provisions of Article 93 (2) and (3) shall not be applied in the exercise of the powers provided for in the case of the preceding paragraph. 3. The judgment of certain categories of cases falling within the scope of the annulment proceedings of the Council of State may be entrusted by law, according to the nature or importance of these cases, to the ordinary administrative courts. The Council of State is the second instance, as provided by law. 4. The powers of the Council of State are regulated and exercised as more specifically provided by law. 5. The Administration is required to comply with jurisdictional decisions. The breach of this obligation incurs the responsibility of any competent body, as provided by law. The law provides the necessary measures to ensure the compliance of the Administration.
2.2.1. General organisation of the administrative jurisdictional order
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?
According to the rather exhaustive provisions of the constitutional text, the control of the administration (in the organic sense of the term according to settled case - law) is carried out by the administrative courts (Articles 94-95): Council of State (the inventory of its powers is drawn up by Article 95 (1)), administrative courts of appeal and administrative courts of first instance. The Council of State is the judge of the action for excess of power par excellence. The law may make the courts of appeal or the courts of first instance competent to hear the appeal for excess of power against a specific category of cases (section 95 (3)). In this case the Council of State is the judge of appeal against their decisions. Courts of first instance and courts of appeal have full jurisdiction remedies, the State Council being, in this case, the judge of cassation. It may be that the Council of State is competent in the first and last resort, on a judicial remedy of full jurisdiction (article 95 par. 1 c; eg the "official's action", ie the full-fledged remedy available to public servants in the event of dismissal). Administrative tribunals are of a general nature; there are no specialized administrative courts for specific disputes. Ordinary courts are competent when the administration acts without resorting to the prerogatives of public authority and puts itself on an equal footing with the citizens (eg conclusion of a contract of private law, recruitment of contract staff for dealing with unforeseen and urgent needs). The jurisdiction of the Court of Audits is defined constitutionally (Article 98). It is entrusted with the litigation of: a) public accounts, b) retirement pensions of public officials and c) the responsibility of public servants towards the Administration. In Greece there is no Constitutional Court, such as the Constitutional Council in France. The constitutional review of laws having a diffuse character, it can be done by any court. The Constitution provides (Article 100 (1)) that if the supreme courts (Council of State, Court of Cassation, Court of Auditors) make divergent judgments on the constitutionality of a law (or of a legislative provision), Supreme Special Court is competent (see also supra question 1.1 in fine) to settle the divergence created by their judgments. This court could be characterized as constitutional court but does not know acts of the administration.
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?
The Council of State sits in plenary formation and in six sections (chambers). Each section is chaired by a vice-president; the fifth is, in addition to its jurisdictional activities, responsible for rendering an opinion on the legality of draft regulatory decrees. The state councilors and the assessors at the Council of State (maîtres des requêtes) are assigned to a section with the functions of rapporteur: the first have deliberative voice, while the second have only a consultative voice. The auditors are responsible for assisting State Councilors in the performance of their duties as rapporteurs. The sections adjudicate in litigation in formation of five members (the vice-president, two councilors of state, two assessors) or seven members (the vice-president, four councilors of state, two assessors) in function the importance of business. The fifth section, in consultative formation, is composed of at least a vice president, a councilor of State and an assessor, which, in this case, has deliberative voice. The Council of State in plenary formation is composed of at least half of the members of the Council, who have a deliberative voice, and of two assessors. It is seized of the most important cases by the President of the Council of State or the sections on referral. Its referral is mandatory in cases where the constitutionality of a legislative provision is in question. According to par. 5 of art. 100 of the Constitution: "When a Section of the Council of State, the Court of Cassation or the Court of Audit deems a provision of a formal law unconstitutional, it shall refer the matter to the corresponding plenary assembly unless this issue was decided by an earlier decision of the Plenary Assembly or the Supreme Special Court of this article. The plenary assembly is constituted in jurisdictional formation and pronounces definitively, as it is envisaged by the law. This regulation also applies by analogy in the elaboration of regulatory decrees by the Council of State. "
The plenary formation is also seized for the interpretation or the control of constitutionality of a formal law if there is divergence with the Court of Cassation or the Court of Auditors. In this case, if the assembly approves the decision of the section, the matter is referred to the Supreme Special Court, whose judgment solves the difference.
The administrative courts (courts of first instance and courts of appeal) are organized in chambers, which are specialized only in the largest courts. Each court (unicameral) or chamber is chaired by a magistrate at the rank of president. The chambers judge litigation in single judge formation or three members (the president and two magistrates) according to the importance - defined by the law - of the cases.
2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?
In Greece there is no consultation of the Council of State on government bills before they are tabled in Parliament, except, in practice, the particular case of bills concerning the administrative jurisdiction. Of all the rules of law, it is only the presidential decrees that are subject to the prior control of legality (as well as legalistic) of the Council of State -which materializes in an opinion- and this, by virtue of the Article 95 par. 1st, al. d, of the Constitution. The enactment of such decrees by the President of the Republic is possible thanks to Article 43 para. 2 paragraph 1 of the Constitution, which reads as follows: "on the proposal of the competent minister is allowed the enactment of regulatory decrees by virtue of a special legislative delegation and within the limits thereof". This opinion is issued by a formation with three or five judges and has no binding value for the administration, nor binds the Council ruling in litigation, but a decree is illegal if it isn't submitted to the Council of State. The section may refer the matter to the Assembly if it is a project dealing with an important matter; it is obliged to send it when there is a problem of unconstitutionality of the legislative authority under which the decree is made (Article 100 (5) of the Constitution). Up to now, the question of the compatibility of this function of the Council of State with the European Convention on Human Rights has not arisen. In practice, the members of the Council who formed part of the panel that gave the opinion do not participate, as far as possible, in the formation of a judgment in which the question of the legality of the decree may arise.
2.2.4. Tools and documentary resources available to judges
The Council of State and the (inferior) courts judging on the substance of the disputes that sit in the largest cities of the country (Athens, Thessaloniki, Patras et.c.) have a library with legal books (legal journals, manuals, commentaries and laws. .). In addition, an electronic database has been in operation for a few years, allowing magistrates of the administrative order to have access to all the administrative case law. The judges of the Council of State and the aforementioned courts have at their disposal laptops, provided by the State. An electronic justice system (OSDDY - DD) was introduced in 2015, embracing all administrative justice (Council of State, Courts and Administrative Courts). This system has replaced the computer systems set up at the Council of State and a number of administrative jurisdictions. It already allows the administrative judges to have immediate access to all the administrative case law ( Council of State and courts judging on the substance of the dispute), which obviously makes their task considerably easier.
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?
Until the creation of the National School of Judges (by the law 2236/1994) the magistrates were recruited by competition. There were separate competitions for the recruitment of judges of the Council of State (the last competition was held at the end of 1994), administrative courts, and civil and criminal courts and justices of peace. The School of Judges, which is accessible through competition, after its reform by Law 3689/2008, has three sections: An administrative section (the Court of Audit is considered as administrative court), a civil and criminal section and a section for prosecutors. To be appointed to a vacant position one must be a laureate of the School of Magistracy. More specifically, after a period of study of eleven months and before their appointment, the students of the administrative section of the School of Judges follow a probationary period of five months with the Council of State, the Court of Auditors or administrative courts of first instance according to their results and preferences. Ten months after their appointment they are promoted (as auditors or magistrates of the administrative courts who judge on the substance of the disputes) after examination of their professional skills by the correspondent Superior Council of the Judiciary.
The magistrates who are part of the administrative justice belong to the category of the administrative magistrates, distinct category of the magistrates who are part of the judicial justice. As already mentioned, within the administrative judges we distinguish the judges of the State Council and the magistrates of the administrative courts. Assessors and state councilors are appointed by decree, after a decision of the Superior Council of the Judiciary, by promotion among the members of the Council of State of the next lower grade. From the constitutional revision of 2001 it is however possible for the administrative judges to be promoted to the rank of State Councilor, for a fifth of the places of Councilors. The president and the vice-presidents are appointed by decree, on proposal of the Cabinet, by promotion among the councilors of State.
The Constitution guarantees the "personal" independence of magistrates (Articles 87-91). Among the guarantees of personal independence we can mention the irremovability (ie the magistrates are appointed for life, until they reach the age limit set by the Constitution at 67 years for magistrates of the rank of president of court of appeal and superior and 65 years for the others), as well as the fact that for all that concerns the mutations, the promotions of the judges, their disciplinary responsibility and in general for everything regarding the development of their career, they are the Superior Councils of the Judiciary (there are three: one for administrative justice - composed of State Councilors - one for civil and criminal justice, composed of councilors to the Court of Cassation and one specific to the Court of Auditors) and Disciplinary Councils (also composed of magistrates) who decide. Promotion is decided on merit. Nevertheless, the promotion to the ranks of president and vice-president of the three supreme courts, as well as the positions of Procurator General at the Court of Cassation is carried out by the Cabinet. The Constitution (Article 88 (6)) does not permit the change of jurisdiction, ie that a judge can not move from one court order to another (eg from civil and criminal jurisdiction to administrative jurisdiction). The only exception allowed is the judges of the administrative courts of the merits who can accede to the rank of State Councilor (see above). Exceptionally, art. 88 al. 6 of the Constitution, allows the transfer of the assessors to the courts of first instance and the assessors to the prosecution. Magistrates are formally forbidden to occupy a place in the active administration (Article 89 (3) of the Constitution). It is possible, exceptionally, for a judge to participate in a disciplinary council, or to a commission exercising control or disciplinary powers, as well as to commissions for the preparation of laws (art. 89 (2) of the Constitution).
What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
Actions against an administrative act (or against an omission to enact an act) are distinguished by an action for annulment (action for excess of power) and remedies (recourse) of full jurisdiction. There is an action for annulment when the administrative judge can, after having checked the legality of the act, cancel it, ie to make it disappear, in principle, ex tunc. There is an remedy of full jurisdiction where the court can not only annul the contested measure, but also reform it or (where appropriate) order the administration (State or public-law body) to compensate the plaintiff, paying him a sum of money, either once, or (which is less common) in the form of an annuity. Actions against regulatory acts are always actions for annulment, whereas actions against an individual act are either actions for annulment or recourse of full jurisdiction. Recourse against an individual act is, in principle, an action for annulment, unless the law provides that recourse against a specific category of cases is an remedy of full jurisdiction (see question 1.3 above).
The Council of State is, in principle, the judge of excess of power, unless the law makes the administrative courts of appeal or the administrative courts of first instance competent to judge appeals for excess of power against a specific category of acts. Administrative courts are competent, in principle, to try remedies of full jurisdiction. No jurisdiction has the power of injunction against the administration. With regard to administrative contracts we must distinguish between whether we are before or after the conclusion of the contract. Individual administrative acts issued for the purpose of concluding the contract (detachable acts) are contested by way of an action for excess of power, whereas disputes arising from administrative acts concerning the interpretation, performance or termination of the contract are disputes of full jurisdiction.
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?
There are emergency and summary proceedings. The judge hearing the motion for interim relief may be the same as the judge of the merits. At the Council of State the judge of the summary rules in collegial formation. However, the President of the Council of State or of the competent Section may issue alone a provisional order suspending the execution of an administrative act, which remains in force until the issuance of the decision of the collegial formation. Before the administrative courts, the judge in chambers rules in collegial formation or alone (in cases where he is competent to rule alone on the merits of the case). Referral to the Council of State is governed by Article 52 of Decree 18/1989 and, for administrative courts, by Articles 200-215 of the Code of Administrative Contentious Procedure.
Emergency procedures cover the entire field of administrative law, although special rules may apply to specific areas of administrative action (eg tax litigation, public procurement). Lastly, when the Council of State judges on appeal (against a judgment of a lower court in the matter of appeal for excess of power) it is possible, if the strict conditions provided for by law and case law are met, that it grants suspension of execution of the contested administrative act to the lower court.
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
The administrative contentious procedure is governed by several principles, among which are the principle of equality of the parties and that of the adversarial system. According to these principles, which are essential to any contentious procedure, the parties are equal before the court, they enjoy the same rights and have the same obligations; the same means of defending their positions must be offered to them. The parties must be summoned to appear in time for the hearing; the court must give them the opportunity to see the documents in the file and the means of the other party. The procedure is an essentially written procedure, particularly at the investigative level, which is inquisitorial. During the proceedings, witnesses may be heard before the administrative courts of first instance, when they consider an appeal of full jurisdiction; the judge rapporteur (in the case of an action for abuse of power) delivers his report; likewise the lawyers of the parties deliver their pleadings. The hearings of administrative tribunals are public. Court decisions, which must be specifically motivated, are pronounced in open court. The principles of the procedure are found in the texts of domestic law (Presidential Decree 18/1989 on the Council of State, Code of Administrative Contentious Procedure - Law 2717/1999) and in particular in the Constitution, which enshrines the right of everyone to legal protection by the courts, as well as the opportunity to present their points of view before them (Article 20 (1)). According to the Constitution "No one may be distracted against his will of the judge whom the law has assigned him" (Article 8). Therefore, the court that will judge a case must be appointed in advance, and not for trial, according to abstract and general criteria. Similarly, the judges who form the tribunal must be appointed according to objective criteria and not for a specific case.
All the laws relating to the contentious procedure (presidential decree on the Council of State, Code of Administrative Contentious Procedure, Code of Civil Procedure, Code of Criminal Procedure), on the one hand, recognize to the litigant the right to request the recusation of a judge and on the other hand require magistrates to request their exclusion if reasons that might call into question their impartiality exist (eg if they have kinship relations with the parties to the trial or if they have been heard as witnesses in the same case et.c.). Judges enjoy personal (see question 2.3) and functional (Article 87 of the Constitution) independence. Functional independence means, above all, that the courts are obliged not to apply laws whose content is contrary to the Constitution; on the other hand, the magistrates in the exercise of their functions are not subject to the hierarchical control of any authority (administrative or jurisdictional).
In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
Administrative judges control administrative acts in relation to the Constitution, European Union Law, International Law, domestic laws, general principles of administrative law and regulations.
The review of constitutionality of laws by the courts is explicitly provided in the Constitution. Art. 87 par. 2 states that “in the exercise of their duties, judges shall be subject only to the Constitution and the laws; in no case whatsoever shall they be obliged to comply with provisions enacted in violation of the Constitution” and art. 93 par. 4 that “the courts shall be bound not to apply a statute whose content is contrary to the Constitution”.
Furthermore, administrative judges are also competent to control the conformity of laws and regulations with international treaties. According to art. 28 par. 1 of the Constitution, international treaties that have been ratified by law and entered into force according to their respective conditions are integral part of the domestic legal order and prevail over any contrary legal provision. That is to say, they are placed at a supra-legislative but infra-constitutional level.
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
Administrative judges are competent to review the executory/ enforceable acts taken by the administration in the field of public law. As a result, the non-enforceable acts performed by the administration are not subject to judicial review, while the civil courts are competent to rule on disputes relating to acts performed by the administration in the context of a private law relationship.
In addition, certain acts of the Head of State or of governmental bodies, although they have all the characteristics of the administrative act, are not subject to judicial review, since they regulate questions relating to the so-called political power or the function of the government (for example: proclamation of the referendum, dissolution of the assembly et.c.). However, it is up to the Council of State to decide in the last resort whether an act falls into this category (and thus to dismiss the action for annulment against it as inadmissible) or not (see also above question 1.3).
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
The degree of control exercised by the administrative judges varies according to the nature of the contested act and the margin of appreciation left to the administration. It should be noted from the outset that the judge can not control the appropriateness of a decision, nor the technical assessments of the administration (eg toxicity of a chemical). Lastly, it can not substitute its own estimate of a situation for that of the competent administrative authority.
In the case of regulatory acts, the examination consists, in principle, of determining whether the act is based on statutory authority (legislative delegation) and whether the conditions and limits set out in the enabling provision have been met. Whether the established regulation is desirable or effective is not examined.
In the case of individual administrative acts, control essentially consists of determining whether the administrative authority misused its discretionary power, that is, exceeded the limits of its discretionary competence. The limits of discretion are generally determined by the following factors: (a) reasonable content, based on common sense and experience, of the concept that is left to the administration, (b) equality in the exercise of discretion, (c) the principles of reasonable administration, including the principle of proportionality and the principle of the legitimate expectation (trust) of the individual. The judge also checks whether the contested measure is legally motivated and may censure the lack of motivation or the existence of an unlawful or insufficient reasoning. In addition, particularly in the case of individual administrative acts performed in a discretionary manner, the judge may also verify whether the act, although bearing in itself all the marks of legality, has been issued for a purpose obviously different from the one for which the legislation provided for it (misuse of power). The judge of the action for excess of power may examine an error of fact made by the administration.
With respect to individual administrative acts performed under a bound competence, the judge checks whether the administration has applied the actual legal rule that actually governs the specific proceeding, whether that standard is valid and has been correctly interpreted and whether there has been an error of law in the characterization of the facts.
It should be noted that administrative judges, when exercising their full jurisdiction, ie in the case of a recourse with full jurisdiction or opposition related to the Revenue Collection Code , also consider the relevant facts.
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
The Greek constitution requires that the opinion of dissenting judges be mentioned in the judgment (Article 93 (3)). In addition, the law provides that the names of dissident judges are mentioned in the judgment (article 40 of Law 2172/1993).
Are there alternative dispute resolution methods? Please specify.
Administrative disputes can not in principle be settled by other dispute resolution methods, administrative recourses and in particular the compulsory preliminary recourse aside. Nevertheless, administrative contracts, ratified by law, may provide that if a dispute were to arise, it would be settled by arbitration. In addition, Law 4446/2016 added a new article to the Code of Administrative Procedure, which provides that claims for compensation arising from the performance of public contracts are subject to a conciliatory procedure before an administrative judge. The case is only tried if a conciliation agreement has not been concluded. The tax law knew, in some cases, a procedure of transaction between the administration and the administered - taxpayer.
Is there a specific digital procedure for the submission of claims?
Law 4055/2012 provides that an application can be filed via the Internet both before the Council of State and the administrative courts, while the presidential decree of application was published in 2013 (40/2013). A precondition is that the lawyer concerned has acquired an advanced digital signature. It should be noted that so far only legal documents introducing the trial can be submitted in digital form and not other documents, such as briefs. The litigants have not yet made extensive use of this possibility and most claims are still filed on paper.
Court fees can also be paid digitally.
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
Administrative tribunals, when exercising their full jurisdiction, render their judgments both as to law and as to facts (merits). In case of recourse or opposition related to the public revenues collection code, the court, by its decision, annuls or modifies totally or partially the administrative act. The amendment of the act is carried out within the limits of the claims submitted by the plaintiff and, consequently, the court can not, in principle, reform the act to its detriment. If the administrative authority has not examined the respect of all the legal conditions for the issuing of the document, the court does not modify it but annuls it and refers the case to the administration so that the competent authority can determine whether the other conditions for the issuing of the act are also fulfilled. In the event of invalidation of an administrative act by reason of incompetence of the issuing administrative authority, substantial procedural defects or failure of that authority to exercise its discretion, the court shall refer the case to administration. Similarly, if the plaintiff challenges the administration's failure to take an administrative act, the court, if it admits the recourse, refers the case back to the administration.
The Constitution provides that the administration is required to comply with court decisions (section 95 (5)). In this regard, Law 3068/2002 provides the following procedure: A group of three judges within the jurisdiction that rendered the relevant judgment examines, at the request of the private party concerned, if the administration has not applied or has not correctly applied the decision of the court and, if so, it calls on her to comply within a prescribed time. If the time has elapsed without the administration having complied with the decision of the court, the same panel imposes a penalty. If the administration does not pay the fine to the petitioner, a forced (compulsory) execution may take place against him.
To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?
A judgment of the Council of State annulling a regulatory administrative act or of an administrative court annulling or modifying an individual administrative act has an erga omnes effect.
Res judicata stemming from all judgments of the Council of State and administrative courts accepting or rejecting the remedy shall apply to the parties to the proceedings and to their successors in title, provided that the decisions are final. Res judicata from a final judgment covers both substantive and procedural matters of an administrative nature which have been settled by the judgment at issue, provided that they constitute a necessary element of the decision made. Therefore, obiter dicta are not covered by res judicata.
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?
The decisions of the Council of State can only be contested in two cases. A third party who suffers damage by virtue of a decision of the Council of State annulling an administrative act may contest this judgment before the Council of State (opposition of third parties), provided that it has not been summoned to participate in the trial. In addition, the decision of the Council of State that the European Court of Human Rights finds that it was made in violation of a right (procedural or substantive) guaranteed by the European Convention on Human Rights, is subject to a retrial before the section of the Council of State which rendered the judgment (Article 16 of Law No 4446/2016). It should also be noted that the decisions of the Council of State may be the subject of a request for correction or interpretation before the same Court.
The judgments of the other administrative courts (with the exception, of course, of the Court of Auditors) in the matter of an action for annulment are subject to appeal to the Council of State.
The judgments of the administrative tribunals of first instance and, in particular, the judgments on petitions, actions and oppositions (in disputes relating to the Revenue Collection Code) are in principle subject to appeal before the administrative courts of appeal. The final decisions of the administrative courts are subject to appeal to the Council of State (there are, however, admissibility criteria, for example, an application for cassation is inadmissible if the amount in dispute does not exceed 40.000 euros or, in the case of case of administrative contracts, 200 000 euros).
The appeal period is, in most cases, sixty (60) days from the day following the day the decision is served on the party harmed by the judgment (Appellant).
The time limit for filing a petition for cassation is also sixty (60) days.
I. Council of State
Registered cases
|
|
2013 |
2014 |
2015 |
2016 |
2017 |
|
All kinds combined |
5.618 |
4.481 |
3.201 |
4.675 |
3.682 |
Handled cases (registered in previous years too)
|
|
2013 |
2014 |
2015 |
2016 |
2017 |
|
All kinds combined |
8.825 |
9.639 |
6.506 |
6.083 |
4.916 |
Pending cases in 31 december
|
|
2013 |
2014 |
2015 |
2016 |
2017 |
|
All kinds combined |
24.768
|
19.613 |
16.308 |
16.296 |
14.892 |
As regards the Council of State, for cases registered from 2015 (15.115 in total, 4.775 handled), it takes an average of 541.2 days for the judgment.
II. Administrative courts
a. Administrative courts of first instance
|
Cases |
2014 |
2015 |
2016 |
2017 |
|
Registered |
--- |
54.379 |
53.934 |
60.100 |
|
Handled |
--- |
99.510 |
79.872 |
98.698 |
|
Pending in 31-12 |
308.860 |
263.729 |
237.791 |
199.193 |
b. Administrative Courts of appeal
|
Cases |
2014 |
2015 |
2016 |
2017 |
|
Registered |
--- |
19.480 |
15.714 |
18.380 |
|
Handled |
--- |
24.000 |
16.637 |
25.040 |
|
Pending in 31-12 |
48.170 |
43.650 |
42.727 |
36.067 |
On the basis of the aforementioned figures, the cases pending at the administrative courts (Courts of Appeal and Tribunals of First Instance) as at 31.12.2017 amounted to 235.260, compared to 280.518 on 31.12.2016 and 307.379 on 31.12.2015.
The Council of State includes, a president, 10 vice-presidents, presiding the six sections (A ', B', Γ ', Δ', Ε 'and ΣΤ'), 52 State Councilors, 58 Assessors and 48 Auditors (total 169).
In 26.3.2018 there were 2 members of the General Commissariat for Administrative Courts (administrative judges at the level of Councilor and Vice-President of the Council of State; the function of the Office of the Commissioner is to supervise the proper functioning of the administrative courts judging on the substance of administrative disputes), 73 presidents of administrative court of appeal, 256 magistrates of administrative court of appeal, 109 presidents of administrative court of first instance and 493 magistrates of administrative tribunal of first instance (total 934).
In 2018 the justice budget amounted to 608,000,000 euros. For 2019, according to the draft budget tabled in Parliament, it amounted to 657,000,000 euros (with only a budget of 34,494,000 euros for the Court of Auditors).
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