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On the Codification of Administrative Procedure in Greece

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On the Codification of Administrative Procedure in Greece ON THE CODIFICATION OF ADMINISTRATIVE PROCEDURE IN GREECE VASSILIKI KOUMPLI* This report aims at providing insight as regards the codification of admin- istrative procedure law in Greece. Its structure adheres to the instructions of the General Rapporteur, Prof. Jean-Bernard Auby, with a view to assist- ing him in the preparation of his general report on the Codification of the Law of Administrative Procedure for the 2nd Thematic Congress of the International Academy of Comparative Law (Taipei, 24-26 May 2012). It is divided into three parts: following an introductory section attempting to provide a definition of the concept of ‘administrative procedure’ (I), the second part sets out a succinct illustration of the main features of adminis- trative procedure law (II) and the third part focuses on the presentation of the focal aspects of the Greek Administrative Procedure Code (III). I. THE CONCEPT OF ‘ADMINISTRATIVE PROCEDURE’ A. The scope of the term ‘administrative procedure’ For the purposes of this work and given the absence of a statutory provi- sion defining the term, ‘administrative procedure’ is understood to mean the actions of public authorities in order that an administrative decision is made. The majority of legal doctrine seems to agree on this definition, albeit with slightly different wording. Professor Spiliotopoulos prefers * Research Associate, Hellenic Institute of International & Foreign Law; Attorney at Law, Athens Bar Association. The report will also be published in J.-B. Auby (ed.), International Academy of Compar- ative Law: Codification of Administrative Procedure (Bruylant, Brussels 2013). RHDI 65 (2012) 512 Vassiliki Koumpli [RHDI 65:511 the term ‘administrative process’ to the term ‘administrative procedure’ in order to define “… the actions of the administrative organs or individuals which are necessary for an administrative act to be issued”1, that is an act entailing the application of the legal rules developed by the legislature to particular situations or cases. In the French version of his handbook, the term ‘procédure administrative non contentieuse’ is used to define “… les normes impersonnelles d’application générale qui réglementent la consti- tution, la composition et le fonctionnement des organes administratifs, la compétence et les opérations des organes administratifs et des admi- nistrés, nécessaires à l’émission des actes administratifs”2. In this sense, ‘administrative procedure’ refers to the actions belonging to the stages of production and application of administrative acts, and not to the regulation set out by them – even though the latter may ultimately be affected by the followed process3. According to this approach, the term ‘administrative procedure’ encom- passes the rules and principles governing the status of administrative acts and the requirements that shall be fulfilled for their validity. Such rules and principles particularly concern: (a) the production, form4, modifica- tion, revocation and abrogation of administrative acts; (b) the competence, constitution, composition and functioning of the administrative bodies issuing administrative acts; (c) the direct or indirect participation of indi- viduals in the issuance process, (e.g. through the election or appointment of administrative organs, the filing of petitions, the exercise of the right of prior hearing, the submission of comments, the participation in debates concerning draft acts, the participation in referenda etc.); (d) the access to public data; (e) the conclusion, form, performance and termination of administrative contracts. 1 E. Spiliotopoulos, Greek Administrative Law (Athens/Brussels 2001) 101. See also A. Tachos, Greek Administrative Law (9th edn, Athens/Thessaloniki 2008) 647 [in Greek]. 2 E. Spiliotopoulos, Droit administratif hellénique (Athènes/Bruxelles 2004) 103. 3 G. Siouti, Administrative Procedure, in A. Gerontas, S. Lytras, P. Pavlopoulos, G. Siouti & S. Flogaitis, Administrative Law (2nd edn, Athens/Thessaloniki 2010) 201-202 [in Greek]. 4 In the past, legal literature and case-law referred to the term ‘form’ so as to define not only the external characteristics of administrative acts but also the procedural requirements for their validity. See M. Stassinopoulos, Administrative Law (Athens 1957) 236 et. seq. [in Greek]; G. Siouti, The Concept of Administrative Procedure and its Difference from the Form of Administrative Acts, Επιθεώρηση Δημοσίου Δικαίου & Διοικητικού Δικαίου (=Epi- theorisi Dimosiou Dikaiou & Dioikitikou Dikaiou – EDDDD) 1990, 21, 26 [in Greek], also published in Justice and Law: Intellectual Tribute to Michail D. Stassinopoulos (Athens/ Komotini 2001) 531 [in Greek]. 2012] Codification of administrative procedure 513 A broader definition of the term ‘administrative procedure’ has been proposed by Professor Efstratiou, who has taken account of the expan- sion of the activities of Public Administration in the last decades due to its involvement in many areas of the economic and social life. As a con- sequence, apart from issuing administrative acts, public authorities also carry out informal actions often specified by verbal or written guidelines, instructions, interpretative circulars etc., and consisting, for instance, in the organisation of their internal function or in the material provision of services. It has been argued, therefore, that the concept of ‘administrative procedure’ should be interpreted in such a way as to include these actions too5. B. The extent of the term ‘administrative procedure’ Article 26 of the Greek Constitution6 incorporates the doctrine of sepa- ration of powers. State authority is divided into the three traditional pow- ers: (a) the legislative power, which is exercised by the Parliament, (b) the executive power, which is exercised by the President of the Republic and mainly the Government, and (c) the judicial power, which is exercised by the courts. Given the close connection of the term ‘administrative proce- dure’ with the ‘administrative act’, as determined above, government pro- cesses in the strict sense as well as judicial review procedures fall outside its scope. Specifically: 1. Exclusion of government processes The Government or “Cabinet” consists of the Prime Minister and the ministers, each of whom is in charge of a particular ministry7. Govern- 5 P.-M. Efstratiou, The Law of Administrative Procedure, EDDDD 2005, 245, 249 [in Greek]. 6 The current Constitution came into force on 11 June 1975 and established Greece as a presidential parliamentary republic. It was revised in 1986 and 2001. 7 Article 81 I of the Constitution. The issues concerning the composition and func- tion of the Government are regulated by the relevant constitutional provisions and by Law 1558/1985 (Government Gazette no A 137/1985), as amended, which is contained in cod- ifying Presidential Decree 63/2005 (Government Gazette no A 98/2005), as amended, and Presidential Decrees 184/2009, 185/2009 and 186/2009 (Government Gazette no A 213/2009), Presidential Decree 189/2009 (Government Gazette no A 221/2009), Presiden- tial Decree 24/2010 (Government Gazette no A 56/2010) and Presidential Decree 96/2010 (Government Gazette no A 170/2010). For an overview in the English language, see Spilio- 514 Vassiliki Koumpli [RHDI 65:511 ment’s competence is twofold: it is entrusted with the definition and direc- tion of the country’s general policy, on the one hand8, and with the exer- cise of public administration, on the other hand9. Most of its competences in the former case are of guiding character, lacking direct enforceability, and, therefore, the decisions taken in this respect do not seem to have the nature of an administrative act. These acts are defined as ‘acts of state’ (κυβερνητικές πράξεις – actes de gouvernement). In the Greek legal order, the treatment of acts of state is connected with judicial review. Explicit reference to them is only made in Article 45 V of Presidential Decree 18/1989 on the Council of State10, which stipu- lates that “acts of state and orders pertaining to the exercise of political power shall not be challenged by an application for annulment”. Due to the absence of a definition in this provision, the term ‘act of state’ is inter- preted by the Council of State on an ad hoc basis. There are certainly argu- ments against the unconditional exemption of acts of state from judicial review, but currently this issue is of limited practical importance11. 2. Exclusion of judicial review procedures Even though administrative procedure and judicial review could be seen as complementary tasks for the function of public administration, the boundaries between them are clear. Administrative procedure constitutes the rules and principles applying to administrative bodies, as distinguished from judicial review procedures, which apply to courts. Judicial review has evolved over a period of years into a system of con- stitutional and statutory doctrines that define its proper boundaries as system of oversight, furnishing an important set of controls on adminis- topoulos, supra note 1, 175-186; P.D. Dagtoglou, Constitutional and Administrative Law, in K.D. Kerameus & Ph.J. Kozyris (eds), Introduction to Greek Law (3rd revised edn, The Netherlands 2008) 23, 38-41. In the French language, see Spiliotopoulos, supra note 2, 59, 356. 8 Article 82 I of the Constitution. 9 Article 83 of the Constitution. 10 Infra, I.B.2., note 17. 11 For a thorough analysis, see among others G. Trantas, The Acts of State Between the Protection of the Public Interest and
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