Konstantinos Koussoulis - The Timeliness of Judicial Review and Retroactive Effect of Appeal...

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Transcript of Konstantinos Koussoulis - The Timeliness of Judicial Review and Retroactive Effect of Appeal...

  • 1/16/2017

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    Timeliness of judicial review and

    retroactive effect of appeal decision

    The Greek experience

    THE ROLE OF THE JUDICIARY IN THE CHANGINGDIGITAL SINGLE MARKET 11TH SEMINAR FOR NATIONAL JUDGES

    National Regulatory Authority

    Hellenic Telecommunications and Post Commission ()

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    Competent Courts

    Council of State

    EETT regulatory actsEETT individual acts ofimportant character

    Athens AdministrativeCourt of Appeal

    EETT individual acts

    Competent Courts

    Greek Constitution, art. 95

    1. The jurisdiction of the Supreme Administrative Court pertains mainly to:a) The annulment upon petition of enforceable acts of the administrative

    authorities for excess of power or violation of the law

    3. The trial of categories of cases that come under the SupremeAdministrative Courts jurisdiction for annulment may by law come underordinary administrative courts, depending on their nature or importance.The Supreme Administrative Court has the second instance jurisdiction, asspecified by law.

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    Legal Remedies

    Council of State:

    -Petition for annulment (legality and reasoningcontrol, no power tomodify, only to quash)

    -Appeal on points of lawagainst judgments ofAdministrative Courtof Appeal

    Athens AdministrativeCourt of Appeal

    -full jurisdiction recourse(power to modify)

    Timeliness

    Laws 3082/2002, 3431/2006: all EETT acts arechallenged before the Athens Admin. Court of Appeal

    Council of State 3919/2010 judgment:The above provisions are unconstitutional. EETTregulatory acts and individual acts of importance shouldbe challenged before the Council of State.

    Law 4070/2012: EETT regulatory acts Council ofState, acts imposing sanctions and individual acts Administrative Court of Appeal

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    Timeliness

    Negative factors: general overloading of courts,different remedies, division of jurisdiction

    Implications:Significant delays

    Timeliness

    Digital Market CasesTiming

    Administrative Court of Appeal:5 months to 2 years

    Council of State1 to 6 years

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    Timeliness

    Example:Greek wiretapping case 2004-2005Two independent authorities involved (ADAE,EETT) Both imposed sanctions for the same facts

    12.1.2007 ADAE 1.decision15.10.2010 Council of State 1.Judgment2.1.2013 ADAE 2.decision4.12.2015 Council of State 2. Judgment

    18.10.2007 EETT decision18.4.2011 Administrative Court of Appeal Judgment12.4.2012 Appeal on points of law: still pending in the Council of State

    Timeliness regarding NRA

    Council of State:NRA has to issue a decision in reasonable timeafter hearing the case.12 or 16 months after hearing is not reasonabletime.

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    Timeliness and retroactive effect of appeal decision

    Judgments quashing NRA individual decisionsrefer mainly to financial sanctions and are dueto procedural irregularities.

    Case is referred back to the NRA in order toissue a new decision keeping legal safeguardsof due process.

    Timeliness and retroactive effect of appeal decisionLaw provisions give to the Court on petitions forannulment the option

    i) to set a deadline to the Administration in order to restore procedural irregularities

    ii) to set a quashing date other than the issue date of the challenged act, but not after the publication day of the judgment.

    These options are not yet used in digital marketcases.