FIRST SECTION
DECISION
Application no. 77504/13
RADIO ATHINA MONOPROSOPI ETAIRIA
PERIORISMENIS EFTHYNIS
against Greece
The European Court of Human Rights (First Section), sitting on 3 May 2022 as a Chamber composed of:
Marko Bošnjak, President,
Péter Paczolay,
Alena Poláčková,
Erik Wennerström,
Raffaele Sabato,
Lorraine Schembri Orland,
Ioannis Ktistakis, judges,
and Renata Degener, Section Registrar,
Having regard to the above application lodged on 5 December 2013,
Having regard to the observations submitted by the respondent Government and the fact that the applicant company did not submit observations in reply,
Having deliberated, decides as follows:
THE FACTS
1. The applicant company, Radio Athina Monoprosopi Etairia Periorismenis Efthynis, is a company registered under Greek law, which was established in 1988 and is based in Athens. It was represented before the Court by Mr P. Lazaratos, a lawyer practising in Athens.
2. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr K. Georgiadis, Legal Advisor at the State Legal Council.
3. The facts of the case, as submitted by the Government were not contested by the applicant company. They may be summarised as follows.
4. The applicant company is the owner of various mass communication media. On 27 June 2002 it lodged an application (αναγνωριστική αγωγή) with the Athens Administrative Court of First Instance requesting the court to: a) recognise that all its current and former employees, editors, journalists and employees of other specialities, were subject to the supplementary insurance of the United Press Organisation of Supplementary Insurance and Medicare (Ενιαίος Δημοσιογραφικός Οργανισμός Επικουρικής Ασφάλισης και Περίθαλψης (ΕΔΟΕΑΠ), henceforth “EDOEAP”), irrespective of whether they were members of the Editors’ Union of Athens Daily Newspapers (Ένωση Συντακτών Ημερησίων Εφημερίδων Αθήνας (ΕΣΗΕΑ)); b) oblige EDOEAP to insure its employees; c) recognise that none of its current or future employees should be subject to the supplementary insurance by the Social Security Institute (Ίδρυμα Κοινωνικών Ασφαλίσεων (ΙΚΑ), henceforth “IKA”), which was succeeded by the legal person of public law established by Article 6 of Law no. 3029/2002, the Unified Fund of Employed Persons’ Supplementary Insurance (Ενιαίο Ταμείο Επικουρικής Ασφαλίσεως Μισθωτών (ΕΤΕΑΜ), henceforth “ETEAM”); d) recognise that IKA had illegally levied on the applicant company the supplementary insurance of its employees and additional contributions amounting to 880,186.59 euros (EUR); e) recognise that the applicant company had unduly paid, in partial settlement of the above amount, EUR 641,681.94; f) recognise that IKA has the obligation to return the amount paid with legal interest, or else according to the provisions for unjustified enrichment; g) recognise that the applicant company did not have the obligation to pay the rest of the amount that had been levied to IKA; h) oblige IKA and EDOEAP to pay EUR 500,000 for moral damage to the applicant company.
5. By decision 6379/2004, the Athens Administrative Court of First‑Instance dismissed on the merits the application concerning the return of the money given to IKA as contributions and the award of moral damage. The court ruled in particular that the insurance of the applicant company’s employees with IKA was lawful, as the relevant provisions requiring an employee to be a member of the relevant professional association in order to be insured by EDOEAP had not been repealed by Article 31 § 2 of Law no. 1264/82, nor were they contrary to the Constitution. It also rejected the rest of the applicant company’s requests as inadmissible.
6. On 8 September 2004 the applicant company lodged an appeal against the first-instance decision. By decision no. 1550/2006, the Athens Administrative Court of Appeal upheld the reasoning of the Athens Administrative Court of First-Instance.
7. On 22 December 2006 the applicant company lodged an appeal on points of law with the Supreme Administrative Court. The First Section of the Supreme Administrative Court issued judgment no. 3872/2009 holding that the first-instance court and the appellate court had correctly examined solely the request concerning the return of the money given to IKA as contributions and the award of moral damage, and had dismissed the rest as inadmissible. In addition, the Section referred the case to the Plenary of the Supreme Administrative Court for the resolution of a conflict between legal provisions. In particular, the First Section considered that the legislative provision requiring the employees to be members of the relevant professional associations in order to be insured by EDOEAP (Article 3 § 1 of emergency Law no. 248/1967) could be contrary to Articles 4 § 1, 12 § 1 and 22 § 5 of the Constitution, in light of judgment 65/2003 of the Court of Cassation which had held that the above-mentioned legislative provision had been repealed by Article 31 § 2 of Law no. 1264/1982.
8. According to the dissenting opinion of one judge sitting in the Section, the applicant company lacked locus standi to lodge the appeal on points of law and put forward grounds concerning the question of its employees’ being subject to social security organisations. In his view, that matter concerned solely the employees and not the employer (paragraph 3 of decision no. 3874/2009 of the Supreme Administrative Court).
9. The Plenary of the Supreme Administrative Court issued decision no. 2262/2013. A majority of thirteen judges declared the appeal inadmissible. In particular, it held that only the employees of the applicant company had direct locus standi to put forward arguments relating to the conflict between the obligation to be a member of the relevant professional association in order to be insured by the insurance organisation, and several provisions of the Constitution. The decision, in its relevant parts, read as follows:
“(...) [A]s it follows from what precedes, the applicant company questioned, on the one hand, the legality of IKA organs’ actions, by which contributions and additional contributions had been levied on the applicant company for the supplementary insurance of its employees ...and, on the other hand, the omission of EDOEAP’s organs to insure those employees. [The applicant company] argued that the employees in its business should have been insured by EDOEAP, because the applicable provisions (Article 3 § 1 of emergency Law no. 248/1967), which provide that EDOEAP shall insure only those press employees who are members of the relevant professional organisations, were contrary to the articles of the Constitution which protect equality, free development of personality, the right to social security and the employees’ right to freedom [to form and join] trade unions. In any event, those provisions were repealed by the later provision of Article 31 § 2 of Law no. 1264/1982, by which the legislator forbade the ...dependence of the insurance of journalists to a certain insurance organisation from their membership to certain professional associations.
However, the interest of the applicant company to put forward these reasons, which refer: a) to the violation by those provisions of the rights enshrined in the Constitution in favour not of the employer, but of the employees (negative aspect of the freedom to join a trade union, equality in social security, equality of access to the profession of journalist, equal hiring opportunities, right to freely develop one’s personality) ..., and b) to the validity of those provisions..., is not direct, but indirect, because the interest of the employees of the applicant company’s business who would be the only ones who would have direct legal interest ... is interposed. Therefore, having regard to the lack of legal interest of the applicant company ... to put forward those arguments, its action, which was based on the unlawfulness, on those grounds, of the IKA’s organs’ actions, and of the omission of EDOEAP to insure those employed in its business, should have been rejected as inadmissible. Therefore, the contested decision correctly held, even with different reasoning, that [the applicant company’s action] was lawfully rejected at first-instance. And this, independently from whether the action was admissible in its part directed against EDOEAP... given that the applicant company had not invoked at the same time its own specific actions in order to insure its employees to the insurance organisation and actions of [the organisation’s] organs rejecting or omitting to reply to relevant requests...”
10. A minority of twelve judges disagreed. Nine of them considered that in case there were acts levying on the employer contributions for the insurance of its employees, who were questioning their being subject to the insurance organisation, there was a parallel right of the employer to lodge an application against those acts, as he was the one who had to pay those contributions, without his being obstructed from putting forward reasons that were, in principle, for the benefit of the employees. The other three judges considered that, when an employer was lodging an application against acts obliging him to insure his/her employees, there was always a right for him/her to put forward arguments relating to the employees being subject to a certain insurance organisation. Therefore, according to the judges supporting those views, the issues raised by the appeal on points of law should be examined.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Constitution11. The relevant provisions of the Greek Constitution read as follows:
Article 4
“1. All Greeks are equal before the law.”
Article 12
“1. All Greeks shall be entitled to form non-profit-making unions and associations, in accordance with the law, which may not, however, make the exercise of this right subject to prior authorisation.”
Article 22
“5. The State shall see to the social security of employees, as defined by law.”
Article 100
“5. When a Section of the Supreme Administrative Court, of the Court of Cassation or of the Court of Audit consider a provision of law to be unconstitutional, it shall compulsorily refer the matter to the relevant Plenary, unless it has already been considered by a prior decision of the Plenary or by the Special Supreme Court referred to in the present Article. The Plenary shall convene in judicial formation and shall issue a final decision, as provided by law...”
Code of administrative procedure12. The relevant provisions of the Code of Administrative Procedure read as follows:
Article 63
“1. Without prejudice to the specific provisions of [this] Code, the enforceable individual administrative acts or omissions that, according to the law, result to administrative disputes of substance shall be subject to appeal.”
Article 64
“An appeal may be lodged by a person that (a) has direct, personal and current locus standi; or (b) to whom locus standi is recognised by a special provision of law.”
Article 71
“An action can be lodged by anyone who has, against the State or a legal person of public law, a pecuniary claim deriving from a legal relationship of public law.”
Article 78
“An action for a claim based on the unlawfulness of an enforceable administrative act or omission is not inadmissible if the relevant legal remedy provided by law has not been lodged against that act or omission. In that case, when examining the case, Article 80 § 2 shall apply.”
Article 80
“2. If a claim is based on the unlawfulness of an enforceable act or omission, the court, in the absence of res judicata, shall incidentally examine the lawfulness of that act or omission.”
Presidential decree no. 18/198913. The relevant Articles of Presidential Decree 18/1989, which codifies the laws relating to the Supreme Administrative Court, reads as follows:
Article 14
“2. The Plenary shall be competent:
a. for any case that the President of the Supreme Administrative Court refers to it due to its great importance, especially when it concerns a matter of general importance, even if the case has been introduced before a Section...
b. For a matter or case that is referred to it by a Section constituted of five or seven judges for the reasons cited in the above subparagraph. The referral judgment shall be considered the report...
3. The Plenary when taking upon a case according to subparagraph b) of the preceding Article and after resolving the matters of general importance, shall hold the case and examine it in its entirety, or refer it back to the relevant Section.
4. When a Section of the Court tends towards taking a decision which differs from one taken by the Court of Cassation or the Court of Audit as regards the constitutionality or the meaning of a law, refers the case to the Plenary, which can decide further according to the preceding paragraph, unless the case should be referred to the Special Supreme Court provided for by Article 10 of the Constitution.”
Article 47
“Legitimate interest. 1. An application for annulment against an administrative act can be lodged by any individual or legal person who is concerned by the act, or whose legitimate interests, even if non-pecuniary in nature, are infringed upon.”
Emergency law no. 248/196714. The provisions of emergency Law no. 248/1967 “concerning the establishment of a Journalists’ Unified Supplementary Insurance and Healthcare Fund” as in force at the time, read as follows:
Article 1
“As from 1 January 1968, the supplementary insurance of the members of the existing unions: a) ...; b...; c) Staff of Athens’ Daily Newspapers; and d)..., shall be exercised by a unified fund. To this end, a “Unified Press Organisation of Supplementary Insurance and Healthcare (EDOEAP)” shall be established...”
Article 3
“1. All the members of the unions referred to in Article 1 above shall be compulsorily subject to the insurance provided by EDOEAP.”
Law no. 1866/198915. Article 15 of Law no. 1866/1989 as in force at the time (it was later modified by Article 66 para. 1 of Law no. 266/1999), reads as follows:
“1. Members of the Journalists’ Union of Athens Daily Newspapers and of the Union of Daily Newspapers..., that are employed or shall be employed in the future as journalists to non-state radio or television stations that operate or will operate within the boundaries of the Prefectures of Attica and Thessaloniki, shall be subject to the insurance of the Pensionary Fund of Athens and Thessaloniki Staff Members («Ταμείο Συντάξεων Προσωπικού Εφημερίδων Αθήνας-Θεσσαλονίκης-ΤΣΠΕΑΘ»), if they are paid at least the salaries provided for in the collective labour agreement of the Greek Broadcasting Corporation (ERT S.A.). The same shall apply to members of the Union of Staff of the Athens’ Daily newspapers and the Union of Staff of Daily Newspapers... that are employed or will be employed to the above radio or television stations, if they are paid at least the salaries provided for in the labour collective agreement of the staff of Athens’ Daily Newspapers. The rest of the staff that are employed in non-State radio and television shall be insured in the relevant insurance organisations...”
Law no. 1264/198216. The relevant provisions of Law no. 1264/1982 “Concerning the democratisation of the trade unions’ movement and safeguarding of the trade union’ freedoms of employees” read as follows:
Article 1
“2. This law shall not apply to (a) journalists’ unions, with the exception of provisions of Articles 12, 14, 15, 19, 20 (excluding subparagraph (c) of paragraph 1), 21, 22, 23 and 26; (b)...”
Article 31
“Any legal provision that establishes, limits or depends the right to work in the press and the enjoyment of incidental labour rights conditional on membership in a specific professional association or on them being subject to Law no. 1186/1991 or to a specific insurance association shall be repealed.”
Relevant case-law of the domestic courts17. The Court of Cassation has held that a provision which sets as a prerequisite the membership of a certain professional union in order to be insured in an insurance organisation, is invalid because it is contrary to Articles 12 § 1 and 22 § 5 of the Constitution, which provide the general principle that all social security organisations have the obligation to insure anyone who exercises the profession which is covered by that organisation, and that a law cannot set as a prerequisite for the obligatory social security, the participation or not in a professional association (decisions 65/2003, 570/2004 and 2149/2004).
18. According to the well-established case-law of the Supreme Administrative Court, the administrative courts when examining an action for compensation, and in the absence of res judicata, shall consider incidentally the lawfulness of the enforceable act or omission on the basis of which the action for compensation is lodged. Therefore, when an appeal on the merits (προσφυγή ουσίας) has not been lodged against the administrative act or omission, as provided by law, the control of the lawfulness of that act or omission shall be performed by the court dealing with the action for compensation within the limits defined by the provisions of the Code of Administrative Procedure relating to the appeals on the merits (decision no. 2260/2013 of the Plenary of the Supreme Administrative Court, and decisions nos. 841/2015, 2176/2012, 4109/2010 of the Supreme Administrative Court).
19. By decisions nos. 1314/2016 and 1483/2016, the Supreme Administrative Court confirmed that Article 3 of emergency Law no. 248/1967 had been repealed by Article 31 § 2 of Law no. 1264/1982 and that had been contrary to Articles 12 § 1 and 22 § 5 of the Constitution. Therefore, press employees were compulsorily subject to the complimentary insurance by EDOEAP without necessarily belonging to the relevant professional organisations, even if they had not applied for their insurance by EDOEAP.
THE LAW
Alleged violation of Article 6 § 1 of the Convention20. The applicant company complained that the Supreme Administrative Court had breached the principle of legal certainty and the adversarial principle. It relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The parties’ arguments(a) The Government
21. The Government argued that, in essence, the applicant company complained about the assessment of evidence and the result of the proceedings before the domestic courts. However, the Supreme Administrative Court had given sufficient reasons when dismissing the applicant company’s appeal on points of law and the Court was not competent to rule on errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.
22. The Government submitted that there was no divergent case-law of the Supreme Administrative Court on the issue of the legal standing of employers. The decisions invoked by the applicant company were not relevant or decisive on that issue. In particular, decision no. 876/2013 of the Plenary of the Supreme Administrative Court dealt with the matter of the observance of the administrative procedure required under Article 12 of Law no. 1418/1984, namely the submission of an objection as a condition of the admissibility of an administrative appeal. In that judgment, the domestic court dismissed with full reasoning the appeal on points of law in so far as it concerned the appellant’s argument that the principle of legal certainty required that the change in case-law not be applied in his case. Judgment no. 4094/2012 of the Plenary of the Supreme Administrative Court dealt with the matter of the inadmissibility of an appeal before the administrative courts due to lack of authorisation of the lawyer signing the appeal. Lastly, decision no. 606/2008 of the Plenary of the Supreme Administrative Court dealt with the issue of the legal standing of a joint venture to lodge an application for annulment.
23. It thus followed that none of the above decisions accepted the alleged change in the case-law nor provided that such change should not apply to the parties concerned in the proceedings before it in order to protect legitimate expectations. In addition, the fact that the First Section of the Supreme Administrative Court had found the case admissible by its judgment no. 3872/2009 and had referred it for determination of another aspect before the Plenary did not imply the adoption of some procedural rule, as alleged by the applicant company. This was because the Plenary of the Supreme Administrative Court was not bound by the Section’s decision on the admissibility of the relevant appeal on points of law. Besides, the same considerations applied to the Court whose Grand Chamber was not bound by the Chamber’s decisions in so far as the admissibility issues were concerned.
24. Turning to the compliance with the adversarial principle by the Supreme Administrative Court, the Government argued that the applicant company had enjoyed a fair hearing, during which it had been able to put forward and assert all its claims both in writing and orally.
25. In any event, the applicant company could not claim that the issue of its legal standing had never been raised before the Plenary had issued its judgment. In particular, according to the dissenting opinion of one of the judges of the Section, the applicant company lacked locus standi precisely for the same reason as upheld by the Plenary (see paragraph 7 above). In addition, EDOEAP had already pleaded before the first-instance court that the applicant company lacked legal standing to put forward arguments relating to the insurance of the employees as that way, the employer would substitute his judgment with that of his employees. The applicant company responded to this allegation in their addendum to their memorandum dated 8 December 2003 before the Athens Administrative Court of First-Instance.
(b) The applicant
26. The applicant company argued that, in its decision no. 2262/2013, the Plenary of the Supreme Administrative Court had not complied with the principle of legal certainty. In particular, up to that moment, the administrative courts such as the Athens Administrative Court of Appeal and Supreme Administrative Court had accepted that the employer had had the right to lodge a relevant action given that it was liable for paying the contributions to the insurance organisation. It invoked in this regard decision no. 3873/2009 of the First Section, which referred the case to the Plenary for a different matter without questioning the applicant company’s locus standi. Therefore, the Plenary of the Supreme Administrative Court changed the case-law as it stood up to that point by concluding that the employer had not had the right to put forward an argument relating to the insurance of the employee without, however, the application of that criterion being foreseeable. If the Supreme Administrative Court wished to change its case-law, it should have excluded the cases pending before it and made that change applicable only for the future in order to safeguard the applicant company’s right to effective judicial protection. A similar approach had been taken by the decisions of the Plenary of the Supreme Administrative Court nos. 876/2013, 4094/2012 and 606/2008. The applicant company had lodged its application and the appeal on points of law in accordance with the rules as applicable up to that time and thus, any change in the case-law should not have been applied in its case.
27. The need not to apply the change of the case-law in the cases before it but only to future proceedings was even more evident given that in this case, decision no. 2262/2013 of the Supreme Administrative Court had been taken with a majority of thirteen judges as opposed to a minority of twelve judges. The applicant company also brought to the Court’s attention decisions nos. 1314/2016 and 1483/2016 of the Supreme Administrative Court (see paragraph 19), considering them entirely relevant in the present case.
28. The applicant company further argued that the Supreme Administrative Court had not respected the adversarial principle. In particular, the legal standing of the applicant company had never been questioned up to that point, neither by the first-instance and the appellate court nor by the First Section of the Supreme Administrative Court. Therefore, the applicant company had never been given the chance to comment on the issue of admissibility but was completely taken aback by the reasoning of the decision of the Plenary, without being able to present its arguments on the issue of its legal standing.
The Court’s assessment29. The Court notes that it is not necessary to examine whether Article 6 is applicable in the circumstances of the present case, since the application is in any event inadmissible on other grounds.
(a) Respect of the principle of legal certainty
(i) General principles
30. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII; Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999‑I; and Saez Maeso v. Spain, no. 77837/01, § 22, 9 November 2004). Its role is to verify whether the effects of such interpretation are compatible with the Convention (see Kuchoglu v. Bulgaria, no. 48191/99, § 50, 10 May 2007, and Işyar v. Bulgaria, no. 391/03, § 48, 20 November 2008).
31. That being so, save in the event of evident arbitrariness, it is not the Court’s role to question the interpretation of the domestic law by the national courts (see, for example, Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008). Similarly, on this subject, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see Engel and Others v. the Netherlands, 8 June 1976, § 103, Series A no. 22; Gregório de Andrade v. Portugal, no. 41537/02, § 36, 14 November 2006; and Ādamsons, cited above, § 118).
32. As regards its case-law on conflicting decisions given by domestic courts, the Court refers to its judgments in the cases of Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58 and 61, 20 October 2011), and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016), in which it set out the principles applicable to such cases.
33. In this regard, the Court has already acknowledged that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Santos Pinto v. Portugal, no. 39005/04, § 41, 20 May 2008).
34. The Court has been called upon a number of times to examine cases concerning conflicting court decisions (see, among other authorities, Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999‑VII; Paduraru v. Romania, no. 63252/00, ECHR 2005‑XII (extracts); Beian v. Romania (no. 1), no. 30658/05, ECHR 2007‑XIII (extracts); and Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009), and has thus had an opportunity to pronounce judgment on the conditions in which conflicting decisions of domestic supreme courts were in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention (see Perez Arias v. Spain, no. 32978/03, § 25, 28 June 2007; Beian (no. 1), cited above, §§ 34‑40; Ştefan and Ştef v. Romania, nos. 24428/03 and 26977/03, §§ 33‑36, 27 January 2009; Iordan Iordanov and Others, cited above, §§ 48‑49; and Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008).
35. In so doing it has explained the criteria that guided its assessment, which consist in establishing whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Lupeni Greek Catholic Parish and Others, cited above, § 118, and Iordan Iordanov and Others, cited above, §§ 49-50).
36. The Court points out, however, that the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04, § 74, 18 December 2008). Case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. “the Former Yugoslav Republic of Macedonia”, no. 36815/03, § 38, 14 January 2010, Albu and Others v. Romania, nos. 34796/09 and 63 others, § 34, 10 May 2012, and Nejdet Sahin and Perihan Sahin, cited above, § 58).
(ii) Application of the above principles to the present case
37. The Court notes that the applicant complained that decision no. 2262/2013 of the Plenary of the Supreme Administrative Court overturned its previous case-law as regards its legal standing to raise such an argument, breaching thus the principle of legal certainty. It relied on the decisions previously issued in the context of the same case, namely decision no. 6379/2004 of the Athens First-Instance Administrative Court, decision no. 1550/2006 of the Athens Court of Appeal, and most importantly on decision no. 3873/2009 of the First Section of the Supreme Administrative Court, which referred the case to the Plenary. According to the applicant, in all these decisions rendered by the domestic courts, the applicant company’s legal standing in raising arguments relating to the insurance of its employees was never questioned and therefore, the overturn of that conclusion at the Plenary of the Supreme Administrative Court was contrary to Article 6 § 1 of the Convention.
38. The Court finds it necessary to clarify at the outset that the issue complained of by the applicant company relates to the employer’s legal standing in respect of raising arguments relating to the employees’ insurance, pursuant to Article 3 § 1 of emergency Law no. 248/1967, in the context of an action lodged by the employer and not to the substance of the dispute before the domestic courts, namely the alleged contradiction of that provision to the Greek Constitution.
39. Turning to the applicant company’s complaint that decision no. 2262/2013 of the Plenary resulted in a breach of the principle of legal certainty, the Court notes that the applicant company relied on the decisions rendered by the domestic courts in the context of the same case. However, these decisions were not final, as there were domestic remedies yet to be pursued, of which the applicant subsequently made use. Therefore the issue of admissibility and of the applicant company’s locus standi had not been finally decided upon, when decision no. 2262/2013 of the Plenary of the Supreme Administrative Court was rendered.
40. In particular, as regards decision no. 3873/2009 of the First Section of the Supreme Administrative Court, the Court notes that according to the Government’s allegations, which were not contested by the applicant, the Plenary of the Supreme Administrative Court is not bound by the Section’s decision on admissibility (see paragraph 23 above). Therefore, even though that decision referred the case to the Plenary for determination of a different legal matter (see paragraph 7 above), it was still not a final decision and the Plenary was free to consider all the issues arising from the circumstances of the case before it, including the admissibility of the case.
41. As regards the other decisions of the Supreme Administrative Court mentioned by the applicant company, namely the decisions of the Plenary of the Supreme Administrative Court nos. 876/2013, 4094/2012 and 606/2008, the Court shares the Government’s view that they relate to different legal issues. Accordingly, whether they provided that changes in case-law on those particular matters would be applicable immediately or not is not pertinent in the circumstances of the present case in which no change in the domestic case-law has been established.
42. In respect of decisions nos. 1314/2016 and 1483/2016 of the Supreme Administrative Court brought to the Court’s attention by the applicant company (see paragraph 19 above), the Court notes firstly that they have been issued much later than the impugned decision no. 2262/2013 of the Plenary of the Supreme Administrative Court. Therefore, the applicant company could not possibly have relied on them as having set a legal precedent on which it would base its legal standing and the subsequent alleged breach of principle of legal certainty. In this regard, the Court reiterates that case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see paragraph 36 above, with references to the Court’s case-law). Secondly, the Court notes that these decisions have been issued in the context of a different domestic remedy, namely an appeal against the fines imposed by IKA on an employer and not in the context of an action which aimed in general at the recognition of the obligation of EDOEAP to insure the press employees and the subsequent recognition that the employer had erroneously been charged with contributions and additional contributions.
43. Lastly, the Court notes that the applicant company did not raise a complaint as regards an alleged divergence of the Supreme Administrative Court’s case-law i.e. decision no. 2262/2013, with the decisions issued by the Court of Cassation (see paragraph 17 above). In any event however, even assuming that the applicant company implicitly raised such a complaint, the domestic proceedings which ended with decision no. 65/2003 referred to proceedings brought by a journalist himself in the context of his own insurance with EDOEAP. As regards decisions nos. 570/2004 and 2149/2004 of the Court of Cassation, they were issued in the context of criminal proceedings against the employer and refer to the substantive issue of the applicant company’s action against IKA and EDOEAP, namely whether Article 3 § 1 of emergency Law no. 248/1967 had been abolished and whether it was contrary to the Greek Constitution. However, they did not relate to the employer’s right to raise issues concerning the employees’ insurance within the context of an action lodged by the employer himself.
44. In conclusion, the applicant company has failed to provide examples of final decisions by which the Supreme Administrative Court had decided in the context of similar proceedings that an employer could raise arguments relating to the employees’ insurance and therefore, has failed to demonstrate that there were “profound and long-standing differences” in the case-law of a supreme court (see Lupeni Greek Catholic Parish and Others, cited above, § 118, and Nejdet Sahin and Perihan Sahin, cited above, § 53).
45. It follows that the complaint concerning the alleged non-compliance with the principle of legal certainty is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) Respect of the adversarial principle
(i) General Principles
46. The Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017, and Avotiņš v. Latvia [GC], no. 17502/07, § 119 and other references, ECHR 2016).
47. The Court has also held that the judge himself must respect the adversarial principle, in particular when settling a dispute on the basis of a ground or an objection raised ex officio (see Čepek v. the Czech Republic, no. 9815/10, § 45, 5 September 2013; Clinique des Acacias and Others v. France, nos. 65399/01 and 3 others, § 38, 13 October 2005; and Skondrianos v. Greece, nos. 63000/00 and 2 others, § 30, 18 December 2003).
(ii) Application of the above principles to the present case
48. The Court observes that the applicant company complained that the Plenary of the Supreme Administrative Court rejected its application as inadmissible on the ground that it considered ex officio without the applicant company having been given the opportunity to comment.
49. In this regard, the Court notes that the Plenary of the Supreme Administrative Court used its right to uphold a ground of inadmissibility on its own motion. The applicant company solely complains that it did not have the chance to comment on it.
50. The Court observes that according to the Government’s allegations which were not contested by the applicant company, the issue of the applicant company’s legal standing had been raised before the Athens Administrative Court of First Instance by EDOEAP and the applicant company had the opportunity to reply in its memorandum dated 8 December 2003 filed with that court. It additionally notes that in its decision no. 3873/2009 of the First Section of the Supreme Administrative Court, one judge expressed the opinion that the applicant company lacked locus standi for the same reasons as found later by the Plenary. The applicant company in its memorandum submitted before the Plenary of the Supreme Administrative Courts, after the referral of the case by the First Section by decision no. 3873/2009, did not present any observations on the issue of admissibility that was finally retained by that court.
51. The Court therefore, is of the view that the ground of inadmissibility upheld by the Plenary of the Supreme Administrative Court was based on elements of facts and law which were already part of the debate, and that the applicant company was given the opportunity to comment without being caught off guard (see Les Authentiks and Supras Auteuil 91 v. France, nos. 4696/11 and 4703/11, § 52, 27 October 2016, and Amirov v. Azerbaijan (dec.), no. 25512/06, 18 January 2011; contrast Skondrianos, cited above, § 30; Clinique des Acacias and Others, cited above, § 43; and Čepek, cited above, § 57, in which the applicants had no opportunity to challenge the domestic courts’ rulings made of their own motion).
52. Consequently, the Court concludes that the applicant company had the benefit of adversarial proceedings, in which it was given the opportunity to formulate its comments and possible objections on all matters, including the grounds of admissibility relating to its legal standing.
53. It follows that the complaint concerning the alleged non-compliance with the adversarial principle is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Alleged violation of Article 1 of Protocol No. 1 to the Convention54. The applicant company complained that the dismissal of its application by the Plenary of the Supreme Administrative Court violated its right to the peaceful enjoyment of its possessions as provided in Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The parties’ arguments(a) The Government
55. The Government argued that this complaint should be rejected for non-exhaustion of domestic remedies. In particular, the applicant company had never referred to any violation of its rights under the Convention, not even indirectly or in abstract terms. It never argued a violation of its right to the peaceful enjoyment of its property in the way it analysed and specified that alleged violation before the Court.
56. As regards the merits, the Government argued that the State had not interfered with the property rights of the applicant company. In particular, the applicant company’s allegations that the IKA had erroneously insured its employees instead of EDOPEAP had been rejected by the domestic courts at all instances. The administrative courts had thoroughly examined the applicant company’s claims and considered that the impugned provision, namely Article 3 § 1 of emergency Law no. 248/1967 had not been repealed nor was it contrary to the Constitution. Therefore, the amounts requested by IKA had a lawful basis, as the insurance by IKA is obligatory for any employee who is not insured in another insurance organisation (Law no. 1305/1982), and thus could not be returned on the basis of the provisions relating to unjust enrichment.
(b) The applicant
57. The applicant company did not reply to the Government’s submissions as regards admissibility. As regards the merits, the applicant company argued that decision no. 2262/2013 of the Supreme Administrative Court had resulted in its being deprived of its property. The domestic court considered the applicant company’s action inadmissible, and, as a result, deprived the applicant company of its claim to receive the amounts that it had paid IKA as contributions. Following that decision, the applicant company could no longer request the return of EUR 880,186.59, which was the amount corresponding to the contributions and additional contributions imposed by IKA on the applicant company for the insurance of its employees. Nor could it assert other claims in cases that had been pending before the administrative courts concerning the same legal issue.
The Court’s assessment58. The Court does not have to examine all the issues raised by the parties since this complaint is in any event inadmissible for the following reasons.
59. The Court reiterates that the concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims, in respect of which the applicant can argue that he or she has at least a reasonable and legitimate expectation of obtaining the effective enjoyment of a property right (see Depalle v. France [GC], no. 34044/02, § 63, ECHR 2010). An “expectation” is “legitimate” if there is sufficient basis for that interest in national law – for example if it is based on either a legislative provision or a legal act bearing on the property interest in question (see Saghinadze and Others v. Georgia, no. 18768/05, § 103, 27 May 2010) or where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004‑IX, and Brezovec v. Croatia, no. 13488/07, § 39, 29 March 2011). By contrast, the Court’s case-law does not deem the existence of a “genuine dispute” or an “arguable claim” to constitute a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. Similarly, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký, cited above, §§ 50 and 52, and Tibet Menteş and Others v. Turkey, nos. 57818/10 and 4 others, §§ 59-61, 24 October 2017).
60. As to the present case, the Court observes that the applicant company’s claim for the restitution of the amounts paid as contributions for the insurance of its employees was based on its expectation that Article 3 § 1 of emergency Law no. 248/1967 had been repealed by subsequent Law and was, in any event, not applicable as contrary to the Constitution. For these reasons, it lodged an application for recognition (αναγνωριστική αγωγή), which was in the end rejected as inadmissible as the Plenary of the Supreme Administrative Court considered that the applicant company did not have the right to lodge an action putting forward arguments relating to the insurance of its employees as its interest was indirect in that case. Accordingly, under the relevant law, as interpreted and applied by the domestic authorities, the applicant company had neither a right nor an enforceable claim amounting to a “legitimate expectation” within the meaning of the Court’s case-law to obtain restitution of the contributions in question. The Court is therefore not satisfied that the applicant company’s claim was sufficiently established to constitute a “possession” falling within the ambit of Article 1 of Protocol No. 1.
61. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
Alleged violation of Article 13 of the Convention62. The applicant company complained that there was a violation of Article 13 of the Convention following the dismissal of its appeal on points of law by the Plenary of the Supreme Administrative Court as there was no other domestic remedy for it to contest the lawfulness of the amounts imposed on it as contributions.
63. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
64. The Government argued that the applicants did not have an arguable claim for the purposes of Article 13 of the Convention. In particular, their claims under Article 1 of Protocol No. 1 had been dismissed as unfounded by all domestic courts, namely the Athens Administrative Court of First Instance, the Athens Court of Appeal and the First Section of the Supreme Administrative Court.
65. The Court reiterates that, in accordance with its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right. Having regard to its above conclusion under Article 1 of Protocol No. 1 to the Convention, the Court does not find that the applicant company has an arguable claim for the purposes of Article 13, which therefore does not apply (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).
66. It follows that the remainder of the application is inadmissible within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 June 2022.
Renata Degener Marko Bošnjak
Registrar President