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ASSOCIATION INTERNATIONALE DES HAUTES JURIDICTIONS ADMINISTRATIVES INTERNATIONAL ASSOCIATION OF SUPREME ADMINISTRATIVE JURISDICTIONS Presentation form Name of the Court: Council of State Name of the President/Chief Justice: Aikaterini Sakellaropoulou Address:47-49, Panepistimiou Av. Phone number : (+ 30) 2132102098 Fax: (+ 30) 2132102097 Website: www.adjustice.gr E-mail: [email protected] 1. NATIONAL JUDICIAL ORGANISATION 1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order 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). 1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts 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 Association internationale des hautes juridictions administratives (A.I.H.J.A.) / International Association of Supreme Administrative Jurisdictions (I.A.S.A.J.) Conseil d’Etat – Place du Palais Royal – 75100 Paris cedex 01 – France Téléphone / Phone : (+33) 1 40 20 80 11 – Télécopie / Fax. : (+33) 1 40 20 81 34 Courriel / Email : [email protected] – Site internet / Website : www.aihja.org / www.iasaj.org Banque / Bank : HSBC FR PALAIS ROYAL – 3 place André Malraux – 75001 Paris IBAN : FR76 3005 6000 4500 4554 1130 225 – BIC : CCFRFRPP 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. 1.3. Criteria of competence of the administrative jurisdiction 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 2 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. 2. ORGANISATION OF THE ADMINISTRATIVE JURISDICTIONAL ORDER 2.1. Key founding texts Excerpts from the Hellenic Constitution of 1975 (Revised 1986, 2001 ** and 2008) PART III ORGANIZATION AND FUNCTIONS OF THE STATE ................ 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.
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