ECHR judgment of 23 May 2019 in the case of “Sine Tsaggarakis A.E.E. (v. Greece)” (application No. 17257/13).
In 2013, the applicant application was assisted in preparing the application. Subsequently, the complaint was communicated to Greece.
In the case, an application was successfully considered against conflicting court decisions in cases the purpose of which was to close a competing commercial enterprise. In the case, there was a violation of the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant company, which owns a cinema, challenged in court the permits issued by a competing company for the construction and operation of a similar cinema in a neighboring district of the city. She claimed, in particular, that according to the urban development plan, this zone was intended for housing.
Having examined the first complaint, the Fourth Section of the Council of State issued a ruling according to which respect for “legitimate trust” prevented the legitimacy of the building permit from being reviewed by the administration at the stage of issuing the operating permit. Having established the discrepancy between the judicial practice and the Fifth Section, the Fourth Section decided to refer the case to the Plenum of the State Council.
Subsequently, although the Plenum did not agree with the position of the Fourth Section, the latter nonetheless dismissed the applicant company’s complaint on the basis that the circumstances of the case were “exceptional”.
However, the Fifth Section, having examined another complaint by the applicant company, ordered the new cinema to be sealed.
Assuming that the decisions made in the case contradicted each other, the applicant company appealed against the discrepancy in judicial practice, which violated its right to legal certainty.
QUESTIONS OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. (a) Applicability. (i) A dispute over civil rights and obligations. Despite the fact that at first glance the complaint of the applicant company concerns the issue of protecting the rule of law, it cannot be equated to actio popularis. The applicant company submitted, inter alia, arguments about the loss of customers, which resulted in the activities of a competing cinema, and the Court has many times recognized the clientele as an interest, which is “property”.
The applicant company's right to initiate the relevant process was not disputed either by the persons involved in the proceedings or by the various judicial sections of the Council of State who examined the case.
Thus, in view of the importance of the subject matter of the claim in the present case, the nature of the disputed actions and the right of the applicant company to initiate the corresponding “dispute” process raised by the applicant company, there was sufficient connection with the “civil law” that it had.
(ii) The decisive nature of the dispute. The outcome of the proceedings before the Council of State was decisive for the law concerned, since a decision made in favor of the applicant company would have led to the closure of the competing cinema, which was the aim pursued by the applicant company.
(b) Merits. It appears that the conditions of legal certainty established by the Court were not complied with in the present case.
(i) Substantial discrepancy. There was a "deep and constant" discrepancy between the case-law of the Fourth and Fifth sections of the Council of State on the question of whether it was possible or even necessary to check the legality of the building permit again in the course of considering the legality and issuing the operation permit.
This discrepancy has existed for many years. In addition, it dealt with issues of common interest, since this discrepancy affected several similar cases and suggested that the administrative authorities observe the most important principles of administrative and constitutional law.
(ii) The existence of a mechanism for harmonizing case-law. In the administrative law and order of Greece, the function of resolving contradictions between different sections of the Council of State or between other administrative authorities belongs to the Plenary of the Council of State.
In the present case, the Plenum of the Council of State decided that in order to ensure the best observance of the principle of environmental protection enshrined in the Constitution, the possibility of building a cinema should be checked not only at the stage of issuing a building permit, but also at the stage of issuing an operating permit.
In addition, the decision of the Plenum of the State Council was not limited to an abstract statement of the relevant principles, but essentially resolved the key issue of the dispute under consideration.
(iii) The effectiveness of the mechanism. Re-examining the case, the Fourth Section essentially remained in the position of its previous case-law, citing “exceptional circumstances”. However, the Plenum of the State Council has already taken into account the particulars of the case.
As a result of the proceedings, a situation arose in which, on the one hand, the resolution of the Fourth Section allowed the cinema to function normally while, on the other hand, the resolution of the Fifth Section ordered the cinema to cease its activities (by sealing).
In addition, the situation was aggravated by the refusal of the mayor's office to execute the decision of the Fifth Section, which was approved by a committee of the State Council designed to monitor the proper execution of the decisions, on the basis that the rival cinema submitted an application for "bringing it into compliance with the law."
Thus, the divergence in the case-law of the Fourth and Fifth sections of the State Council has occurred for several years, it exists today, despite the intervention of the Plenum of the State Council. The situation of legal uncertainty that arose because of this proves that this mechanism of harmonization of case-law was not effective.
In the case there was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted by five votes in favor and two with “against”).
In application of Article 41 of the Convention. The Court awarded the applicant company EUR 8,000 in respect of non-pecuniary damage, dismissing the claim for pecuniary damage and ordering the Greek authorities to review the case within six months if the applicant company so requested.