“As it was decided with no. 1833/2021 decision of the Plenary Session of the Council of State, the provision of par. 1 of article 95 of Law 4387/2016, which established a single regulation for the limitation of claims for payment of contributions of the members of the E.F.K.A. bodies, and its duration is set at twenty years, on the one hand, it contradicts the right enshrined in article 25 par. 1 sec. d' of the Constitution principle of proportionality, since a limitation period of twenty years does not constitute a reasonable length of the period in question, which is required to be relatively short and on the other hand to the principle of legal certainty to the extent that the twenty-year statute of limitations applies retroactively“
ruled the Administrative Court of First Instance of Thessaloniki with the no. 6297/2021 Decision of, on a case successfully handled by our office, fully vindicating the objector, who was called in 2018 in his capacity as President and CEO of an anonymous company during the period from 1.7.1996 to 30.12.1999, to pay its debts.
Specifically, the Court ruled that:
"With these facts, the Court judges that the limitation period of the right of the defendant insurance company to collect the legal debts had been fulfilled before the issuance of the no. 7808/29.11.2018 of individual notification of the Director of the Regional K.E.A.O. Thessaloniki, by which the objector was asked to pay the above debts and, therefore, the individual notice in question, in the part that concerns under no. 921/16.5.2006 and 913/16.5.2006 cash certificate acts, as well as these last cash certificates, are illegal and should be cancelled as for the objector, according to the validly presented relevant reason for the objection".
Next is the no. 6297/2021 Decision of the Single Member Administrative Court of First Instance of Thessaloniki.
Decision number 6297/2021
THE ADMINISTRATIVE COURT OF FIRST INSTANCE OF THESSALONIKI
SECTION I
SINGLE MEMBERS
He met publicly in his audience on May 26, 2021, with judge Alexandros Mitrakas, First Judge D.D. and secretary Sotiria Kesanidou, court clerk,
to hear the objection filed on 24.12.2018 (registration number 4979/2018),
of ……….., who appeared with a statement from his attorney Thomas Kalokiris, according to article 133 par. 2 of the Code of Administrative Procedure, as amended by article 29 par. 1 of Law 2915/2001,
against the legal entity of public law (n.p.d.d.) with the name "Uniform Social Security Agency" (E.F.K.A.) and already "Electronic National Social Security Agency" (e-E.F .K.A.) [Article 51A par. 1 of Law 4387/2016 (A' 85), added by Article 1 of Law 4670/2020 (A' 43)], based in Athens, legally represented by its Governor, in this case by the Director of the Regional Center for the Collection of Insurance Debts (K.E.A.O.) of Thessaloniki, and represented by the attorney of ....
During the discussion, the party who appeared in the audience developed his claims and requested what is mentioned in the minutes. The Court studied the case file and reasoned in accordance with the law. His judgment is as follows:
1. Because, with the considered objection, for which the legal fee was paid (see the electronic fee with payment code 377976426951 0720 0039 and the proof of its payment from 24.5.2021), the annulment of a) under no. 7808/29.11.2018 individual notification of overdue debts of the Director of the Regional K.E.A.O. Thessaloniki, on the part of which the appellant was summoned, as President and Managing Director of the anonymous company with the name .... during the period from 1.7.1996 to 30.12.1999, to pay a debt of 7,452.92 euros (capital: 3,271.08 euros, additional fees: 4,181.84 euros), arising from insurance contributions imposed on her and additional ' these charges and b) the relevant ones, referred to in the above individual notice, under no. 921/16.5.2006 and 913/16.5.2006 of cash certificate transactions, amounting to 1,924.16 euros (plus additional fees, amounting to 2,834.92 euros) and 1,346.92 euros (plus additional fees, amounting to 1,346.92 euros), respectively.
2. Because, sanctioned by the first article of Law 2717/1999 (A΄ 97) Code of Administrative Procedure (C.D.D.) states in article 217 that: "1. An objection can be filed against any act issued in the context of the administrative enforcement procedure and, in particular, against: a) the act of the cash receipt of the income ...", in article 224 that: "1. The court reviews the contested act according to the law and the substance, within the limits of the opposition, which are determined by the reasons and its request. 2. … 3. During the review of the validity of the acts of execution contested by the opposition, the incidental review of the legality of previous acts of execution is not allowed. 4. In the case of an objection against the cash certificate, an incidental inspection is permitted, according to the law and the facts, of the title on the basis of which the certificate was made, as long as there is no legal remedy provided against it that allows its inspection according to the law and the substance or there is no relative res judicata. 5. Claims concerning the repayment of the claim for the satisfaction of which the execution is expedited can be raised with the opportunity to exercise opposition against the act of cash certificate or any act of the execution, and must be proven immediately" and in article 225 that: "The court, if it finds a violation of the law or essential faults of the contested act, proceeds with its total or partial annulment or amendment. Otherwise, it proceeds with the rejection of the opposition". It follows from the above provisions that an allegation regarding any form of repayment of the debt, including the statute of limitations, is examined, exceptionally, at any stage and if presented, as long as it is proven immediately (cf. STE 392/2017).
3. Because, in article 26 par. 3 of the a.n. 1846/1951 "On Social Insurance" (A' 179), as this paragraph was in force at the relevant time, it was defined that: "By means of the regulation, the time of payment of the contributions is determined. The person liable to pay contributions must, within thirty days from the appointed time, pay to the I.K.A. contributions", while according to article 16 of the Insurance Regulation of the I.K.A. (under no. 55575/1479/18.11.1965 decision of the Minister of Labour, B΄ 816): "1. The time of payment of the contributions is defined as the calendar end of the month in which the work or service was provided...". Also, in paragraph 7 of article 27 of the same above a.n. 1846/1951, as it was in force after its amendment by par. 2 of article 44 of n.d/tos 2698/1953 (Α΄ 315) and until 23.12.1997, when it was amended again by article 2 par. 8 of Law 2556/1997, it was provided that: "The right to collect the contributions expires ten years after the end of the financial year, as they became due. On such statute of limitations, the provisions on short-term statutes of limitations of the Civil Code shall apply by analogy." Moreover, given that the statute of limitations provisions of Law No. 496/1974 "On Accounting of Public Law Legal Entities" (A' 204) did not apply to I.K.A.-ETAM. because with the article only of p.d/tos 437/1977 (A΄ 134), as it was amended by p.d. 305/1985 (A' 113), the insurance organizations that were under the supervision of the (then) Ministry of Social Services, as was the I.K.A., were exempted from the application of the provisions of the n.d. 496/1974 (StE 28/2012, 295/2011, 1327/2009) for cases of interruption of the statute of limitations on the financial claims of the Foundation, the provisions of the Civil Code (StE 1717/1994) were applied until 23.12.1997. In particular, the above Code stipulates in article 260 that: ""The statute of limitations is interrupted, when the debtor acknowledges the claim in any way", in article 261 that: "The statute of limitations is interrupted by the initiation of the lawsuit. The limitation period interrupted in this way begins again from the last procedural act of the parties or the court", in article 264 that: "The limitation period is also interrupted by: 1. the delivery of a payment check under an enforceable document. 2. the announcement for verification in bankruptcy. 3. the announcement for ranking in an auction. 4. the submission of an objection to offset the claim" and in article 270 that: "If the statute of limitations was interrupted, the time that has passed until then is not counted and after the interruption has ended, a new statute of limitations begins...". Furthermore, paragraph 8 of article 2 of the aforementioned law 2556/1997 (Α΄ 270, with entry into force from 24.12.1997, see article 32 of this law) replaced paragraph 7 of article 27 of the said law. 1846/1951 and paragraph 7a was added to this article, as follows: "7. All kinds of financial claims of the I.K.A. derived from contributions, prorated additional fees, surcharges, independent additional fees, bad check fines, other interest fines, administrative execution costs, court costs, etc. ... they expire after a decade ... According to the above, the statute of limitations for contributions, household additional fees, surcharges and independent additional fees begins on the first day of the year following the year in which the insurable work or service was provided, and for fines on unsecured checks, interest , court costs, administrative execution costs and other fines starts from the first day of the following year in which their cash confirmation was made. 7a. The provisions of paragraphs 1 and 4 of article 87 of Law 2362/1995, on the suspension of the statute of limitations on the claims of the State, as well as articles 88 and 89 of the same law, on the suspension of the statute of limitations on the claims of the State and the consequences of their statute of limitations, respectively, apply according to the I.K.A. Where in the above provisions the Head of the competent Public Financial Service or the Minister of Finance is mentioned, they mean, respectively, the Director of the Revenue Collection Fund I.K.A. or Cashier Service Manager of a Regional or Local Branch I.K.A. or I.K.A. Governor, from whom the respective responsibilities are exercised". And in paragraph 1 of article 88 of the Public Accounting Code in force at the relevant time (K.D.L., law 2362/1995, A' 247) it was provided that: "The statute of limitations on a monetary claim of the State shall be interrupted by: a. The confiscation of an asset of the debtor or co-debtor or their third guarantor, regardless of whether it is in their hands or in the hands of a third party. b. The issuance of the auction program ... c. The announcement to verify the bankruptcy of either the debtor or a natural or legal person with that co-obligor ... d. The announcement to classify the debtor's property at auction ... e. The announcement to the liquidator of inheritance ... f. The registration of a mortgage or mortgage pre-notification on property ... g. From the beginning of the administrative (forced) execution according to the Public Revenue Collection Code until the list of creditors becomes irrevocable, every act of execution and every procedural act regarding the list of the parties or the court ... 4. With the subject to the provisions of this article, according to the general provisions, the grounds for interrupting the statute of limitations also apply to claims of the State", while in paragraph 1 of article 107 of the same law it was defined that: "The provisions of this law on statute of limitations apply to claims arising after its entry into force. However, with regard to the suspension and interruption of the statute of limitations, the relevant provisions herein shall also be applied to claims that have arisen before its entry into force, if the events causing the suspension or interruption have taken place after its entry into force". Subsequently, with article 56 par. 2 of law 2676/1999 (A' 1) or the above par. 7 of article 27 of n. 1846/1951 was renumbered to 6, while with article 15 par. 2 of law 2972/2001 (A' 291) this paragraph was replaced as follows: "The right of the I.K.A., for the certification in a broad sense of all his financial claims ... is subject to a ten-year statute of limitations that begins on the first day of the year following the year in which the insurable work or service was provided ... The right of the I.K.A. for the collection of all monetary claims of ... is time-barred after ten years from the end of the financial year in which it was confirmed in the narrow sense (cash) ... The provisions of this paragraph apply to monetary claims of salary periods after the implementation of the institution of the A.P.D. . For monetary claims of salary periods before the implementation of the A.P.D., the provisions of paragraph 6 of article 27 of the a.n. 1846/1951, as replaced by article 2 paragraph 8 of law 2556/1997 and renumbered by paragraph 2 of article 56 of law 2676/1999".
4. Because, finally, with paragraph 1 of article 95 of Law 4387/2016 (Α΄ 85/12.5.2016) it was defined that: "From the entry into force of this, the requirements of the Social Security Agencies that are included in the E. F.K.A. from unpaid insurance contributions are subject to a twenty-year statute of limitations, starting from the first day of the following year in which the insurable work or service was provided. This regulation does not apply to requirements that have already expired, according to the provisions in force at the time of entry into force of this provision. The statute of limitations for claims that have arisen before the entry into force of this provision but have not been subject to statute of limitations in the sense of the previous paragraph, is defined as twenty years and begins on the first day of the following year in which the insurable work or service was provided", according to and with article 122 of the same law, its validity starts from its publication in the Government Gazette. As it was decided with no. 1833/2021 decision of the Plenary of the Council of State, the above provision of par. 1 of article 95 of Law 4387/2016, which established a uniform regulation for the limitation of claims for payment of contributions of the members of the E.F. K.A. bodies, and its duration is set at twenty years, it contradicts on the one hand the right enshrined in article 25 par. 1 sec. d' of the Constitution principle of proportionality, since a twenty-year statute of limitations does not constitute a reasonable length of the period in question, which is required to be relatively short and, on the one hand, to the principle of legal certainty to the extent that the twenty-year statute of limitations applies retroactively, i.e. also to claims that had been born before the entry into force of the new provision, they were subject to the one provided for decades for the largest, until the establishment of the EFKA, insurance body, the IKA-ETA. M., a ten-year statute of limitations (as are the lawsuits in this case) and they were not yet statute-barred.
5. Because, in this case, the following emerges from the evidence of the case file: With the under no. 7808/29.11.2018 individual notice of overdue debts of the Director of the Regional K.E.A.O. Thessaloniki, the objector, in his capacity as President and Managing Director of the joint-stock company with the name "FONS RADIO-TV ENTERPRISES ANONYMOS ETEIRIA" during the period from 1.7.1996 to 30.12.1999, was called to pay debts of the total amount of 106,344.09 euros, among which are included the debts confirmed with the under no. 921/16.5.2006 and 913/16.5.2006 cash confirmation transactions, amounting to 1,924.16 euros (plus additional fees, amounting to 2,834.92 euros) and 1,346.92 euros (plus additional fees, amounting to 1,346.92 euros), respectively. These last amounts were charged against the above company with the under no. 444/19.4.2006 Deed of Imposition of Contributions (P.E.E.) and under no. 403/19.4.2006 Deed of Imposition of Additional Charge of Contributions (P.E.P.E.E.) of the Local Branch of Pylis Axios of I.K.A.-ETAM, amounting to 1,924.17 euros and 1,346 .92 euros respectively, which were issued for the insurance settlement of the employee Iordanis Kouklis for the period 8.1997 – 4.1998 and which were delivered to the company on 20.4.2006 (see the company's seal and signature on the body of the above deeds, in the position " THE RECEIVING EMPLOYER"), an objection (under no. 3636/2006) of the latter against them was dismissed with the under no. 544/con.66/23.8.2006 decision of the T.D.E. of the above Branch.
6. Because, with the considered opposition, as the reasons for it are developed in his legally filed memorandum, the objector requests the annulment of the above individual notice, in the part that concerns under no. 921/16.5.2006 and 913/16.5.2006 cash certificate acts, as well as the latter (under no. 921/16.5.2006 and 913/16.5.2006) cash certificates, showing, among other things, that the right of the of the insurance organization to collect the legal claims was time-barred, as on 31.12.2017 ten years had passed since the end of the financial year in which they were asserted (2006). Furthermore, he argues that, in this case, the provision of article 95 of Law 4387/2016 cannot be applied, as it is subject to the constitutional principles of legal certainty and proportionality. The defendant n.p.d.d., with his legally filed memorandum, requests the rejection of the opposition, arguing, in relation to the above reason, that the statute of limitations of his right to collect legal debts was interrupted in the year 2007 , through the notification of the above P.E.E. and P.E.P.E.E. with the record of walling from 24.10.2007, as well as the year 2017, due to the imposition of confiscation in the hands of a third party under no. 66266/24.5.2017 confiscation document. Besides, among the elements of the administrative file are included: a) the record of wall-sticking from 24.10.2007 of the employee of the Local Branch of Pylis Axios of I.K.A.-ETAM. Georgiou Tsachiridis, which has the following content: "Today on 24.10.2007 I went to the company FONS AE A.M. 032703 located at 85 Monastiriou Street to serve it with number 444/06 P.E.E. and 403/06 P.E.P.E.E. and since the employer could not be found, I stuck it on the wall of our office's special sign, in accordance with the provisions of article 27 of the I.K.A. Insurance Regulation." and b) the under no. 66266/24.5.2017 confiscation document of the Director of the Regional K.E.A.O. Thessaloniki, by which the "NATIONAL BANK OF GREECE" bank was forcibly seized, as a third party, what it owes or will owe in the future to the company "FONS RADIOTELEOPTICES EPICHIRISIS ANONYMOS ETEIREIA" up to the amount of 101,322.38 euros, to satisfy the claims of I.K.A.-ET.A.M., including the plaintiffs.
7. Because, according to the provisions listed in the third paragraph, the right of the I.K.A. for collection of his claims from under no. 444/19.4.2006 P.E.E. and 403/19.4.2006 P.E.P.E.E., which go back to the time period 8/1997 – 4/1998, i.e. a period before the start of application of the A.P.D. (1.1.2002), is time-barred, with regard to the contributions and the additional charge for the time period 8/1997 – 23.12.1997, after the completion of ten years from the end of the financial year, in which they became due (as defined by the provision of the article 27 par. 7 of n.n. 1846/1951 before it was amended by article 2 par. 8 of law 2556/1997), while, with regard to contributions and the additional charge for the time period 24.12.1997 – 4/1998, after the completion of ten years, which begins on the first day of the year following the year in which the insurable work was provided (in accordance with the provision of the above-mentioned article 27 par. 7 of Law No. 1846/1951, after its amendment by article 2 par. 8 of Law 2556/1997). Furthermore, according to the proportionally applicable provisions of the A.K. and of K.D.L., the statute of limitations for the claims of I.K.A. from insurance contributions and additional charges on them is interrupted by the performance of any act of execution according to the K.E.D.E., including the cash certificate act. Consequently, the statute of limitations of the defendant insurance organization's right to collect the above debts was interrupted on 16.5.2006, when these debts were confirmed in cash with the no. 921/16.5.2006 and 913/16.5.2006 cash certification acts. From the day after that date, the statute of limitations began anew (cf. STE 495/2016, 3494/2014, 1508/2002), which was completed on 17.5.2016, without any reason for suspending or interrupting the file. until this last date. In particular, the claim of the defendant n.p.d.d. on interruption of the statute of limitations by the service of under no. 444/19.4.2006 P.E.E. and 403/19.4.2006 P.E.P.E.E. on 24.10.2007 and with the imposition of confiscation in the hands of a third party on 24.5.2017 must be rejected as unfounded, according to the first part of it because, regardless of the legality of the notification carried out by bricking, in any case the re-notification of the inventory acts does not constitute, according to the above provisions, due to interruption of the statute of limitations (DEFIoan 53/2017, cf. DEFThes 526/2021), and according to the second part of it because the above-mentioned confiscation was imposed on 24.5.2017, i.e. later than 17.5.2016, according to which the right of the I.K.A. to collect his legal claims was already time-barred. Besides, the provision of paragraph 1 of article 95 of Law 4387/2016 was deemed unconstitutional, according to the already stated in the fourth paragraph, and is therefore inapplicable. With these data, the Court judges that the statute of limitations for the right of the defendant insurance company to collect the legal debts had expired before the issuance of the no. 7808/29.11.2018 of individual notification of the Director of the Regional K.E.A.O. Thessaloniki, by which the objector was asked to pay the above debts and, therefore, the individual notice in question, in the part that concerns under no. 921/16.5.2006 and 913/16.5.2006 cash receipts, as well as the latter cash receipts, are illegal and must be annulled as far as the objector is concerned, according to the validly presented relevant reason for the objection, and the examination is dismissed as futile of the other reasons thereof.
8. Since, in accordance with the above, the considered objection must be accepted and annulled, as far as the objector is concerned, a) under no. 7808/29.11.2018 individual notification of overdue debts of the Director of the Regional K.E.A.O. Thessaloniki, in the part that concerns under no. 921/16.5.2006 and 913/16.5.2006 cash receipts and b) these last cash receipts. Finally, it must be ordered that the tax paid be returned to the objector (Article 277 par. 9 sub. a' of the Civil Code), but that the defendant be freed, in consideration of the circumstances, from his court costs (article 275 par. 1 last sentence of the Civil Code).
FOR THOSE REASONS
He accepts the objection.
Annuls, as regards the objector, a) the under no. 7808/29.11.2018 individual notification of overdue debts of the Director of the Regional K.E.A.O. Thessaloniki, in the part that concerns under no. 921/16.5.2006 and 913/16.5.2006 cash certificate acts and b) the latter (under no. 921/16.5.2006 and 913/16.5.2006) cash certificate acts.
It orders the return to the objector of the tax paid.
Exempts the e-E.F.K.A. from court costs.
It was published in Thessaloniki on 14.12.2021, in an extraordinary public meeting in the audience of the Court.
Thomas Steph. Summer
MDE lawyer
Min. Doctor of Law, AUTH
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