With the no. 4513/2024 Decision in a case successfully handled by our office, the Thessaloniki Administrative Court of First Instance annulled Acts of Imposition of Fines by EFKA, on the ground of infringement of the right guaranteed by Article 20 para. 2 of the Constitution the right to a prior hearing.
In particular, the Court held that: "By the present action, as set out in the memorandum duly lodged on 1-3-2024, the applicant seeks the annulment of the abovementioned decision, claiming, first, that was not called upon to provide explanations before the adoption of the contested P.E.I. and P.E.I.P.E., in order to enable it to put forward its essential legal and factual claims, in breach of the right guaranteed by Article 20(1)(b) of the EC Treaty. 2 of the Constitution in violation of his right to a prior hearing.
This ground is validly raised and must be accepted, because the issuance of a P.E.E. is linked to the subjective conduct of the employer (CoE 3489/2011), so that the employer's conduct is subjective.the competent bodies of the defendant should have invited the applicant to a hearing before adopting the contested P.E.A. and P.E.P.E.A. (due to the tracking nature of the latter), given that this is a new substantive control. Moreover, failure to observe the hearing procedure constitutes a breach of an essential procedural requirement, which (infringement) is not covered by the lodging of a statement of objections
an appeal against the above acts (Delfes 2065/2023).
The following is an extract from the Decision.
Decision number: 4513/2024
THE ADMINISTRATIVE COURT OF FIRST INSTANCE OF THESSALONIKI
(Section A - Single Judge)
Sitting in public in its Chamber on 4 March 2023, Judge Sotirios -
Emilios Tsugos, First Judge of the District Court and Registrar, to hear the appeal, the date of filing of which is 20 September 2023 (no. 2341/20-9-2023),
of .................., which was represented by the declaration of 1-3-2024, pursuant to Article 133 para. 2
C.I.D., the lawyer acting as agent Thomas Kalokiris,
against the legal person governed by public law (n.p.d.d.) with the name 'Electronic
National Social Security Institution" (e.E.F.K.A.), represented by its Governor, the
represented by his lawyer ........
The judgment of the Court is as follows:
1. Because, in the present action, in support of which the applicant
was exempted from the obligation to pay a fee (cf. the Act No 354/14-9-2023 of
of the President of the Fifth Chamber of the Court), annulment is sought, failing which the
reform, of the decision of the Administrative Committee (IC) of the European Commission (EC) of the European Parliament and of the Council No 55/Con.15/29-3-2023
B' Local Directorate of Thessaloniki of the defendant. The latter rejected, by
majority, the applicant's objection No 12387/10-8-2022 against the decision No 12387/10-8-2022
M914/12-7-2022 Contribution Imposition Act (P.E.E.), and Additional Contribution Imposition Act (P.E.E.) No. M907/12-7-2022, which were issued for the supplementary insurance settlement of (2) employees of his company.
2. Because, in Article 20 para. 2 of the Constitution states that: "The right of the person concerned to a prior hearing shall also apply to any administrative act or measure taken against his rights or interests". Moreover, Article 6 of the Code of Administrative Procedure, which was ratified by Article 1 of Law No. 2690/1999 (Government Gazette A' 45), provides that: "1. Before taking any action or measure against the rights or interests of a particular person, the administrative authorities must invite the person concerned to express his or her
its views, in writing or orally, on the relevant matters. 2. The invitation to be heard
shall be in writing, shall state the place, date and time of the hearing and shall specify the
the subject of the measure or action. ... Compliance with the above-mentioned procedure, as well as
the taking into account of the views of the interested party must be apparent from the reasons for the decision
administrative act. ... 3. If the immediate adoption of the adverse measure is necessary to prevent
danger or for imperative reasons of overriding public interest, it shall be possible, exceptionally, without
previous call of the person concerned, arrangement. ... 4. The provisions of par. 1 and 2
shall also apply where the provisions relating to the unfavourable administrative act provide for
the possibility of an administrative appeal'.
3. Because, within the meaning of the above provisions, the administrative authorities, before
issue an adverse decision based on subjective conduct, they must invite
in writing to the interested party to express its views. The above shall also apply to
issued in accordance with the social security legislation P.E.E. and their follow-ups,
P.E.P.E.E. (Council of State, 2348/2015, DEfThes 9, 92, 169/2024, 2065/2023).
of the above-mentioned acts, the formal summons of the person concerned shall be an essential procedural requirement
employer at a hearing in order to give the employer the opportunity to put forward specific
claims and to influence the decision of the insurance institution concerned by the different
display and assessment of critical factual material. Any omission of the above
an essential procedural requirement is not covered by an action for annulment against the PECs; and
P.E.P.P.E.E. before the competent T.D.E. (CoE 2180/2013 7m., 3516/2014).
the plea alleging failure to observe the right to a prior hearing before the
an unfavourable measure, a parallel statement of the allegations put forward by the
appointed before the Administration, if he had been summoned (CoE 2646/2014, 4610/2013, cf. CoE
4447/2012 Plenary), which are material in the sense that they could have an impact on the
influence on the assessment of the facts (CoE 157/2017).
the applicant has put forward a specific and concrete reason in relation to the essential
allegations that he was deprived of the opportunity to bring to the attention of the Administration before the
the adoption of the imputability measure, but it is sufficient to refer to those allegations in the application
(CoE 88/2018). [...]
5. Because, in the present action, as set out in the application dated 1-3-2024
In support of his application, the applicant seeks the annulment of the above decision, claiming,
first, that it was not called upon to provide explanations before the adoption of the contested PPAs; and
P.E.P.E.E.E., in order to enable it to put forward the essential legal and factual
its claims, in breach of the right guaranteed by Article 20(1)(b) of the EC Treaty. 2 of the Constitution in violation of his right to a prior hearing. In particular, the applicant submits that he complied with
always the insurance and labour legislation, and further challenges the employment of the
......................... with the specialty of waitress. This reason is validly put forward and
must be upheld, because the issuance of a P.E.E. is linked to the subjective conduct of the
employer (CoE 3489/2011), in which case the competent bodies of the defendant had to invite the
the applicant to a hearing before the adoption of the contested P.E.I. and P.E.I.P.E. (because of the
of the latter), given that this is a new substantive
control. Moreover, failure to comply with the hearing procedure constitutes a breach of an essential procedural requirement.
the type of procedure, which (infringement) is not covered by a plea in law
an appeal against the above acts (Cases 2065/2023).
be substantiated by reference to the pleas in law which the applicant would put forward before the
institutions of the defendant, if he had been summoned to a hearing, who could, where appropriate, have
affect their judgment with regard to the adoption of the contested measures. Having said that,
unlawfully adopted the contested acts of imputation against the applicant, and erred
the contested decision to the contrary, which must therefore be annulled, while the contested decision is inapplicable as
there is no need to examine the other pleas in law raised in the action.
6. Since, in consequence of the foregoing, the application must be upheld and the decision of the Board of Appeal annulled.
No 55/Con.15/29-3-2023 decision of the Board of Directors of the B' Local Directorate of Thessaloniki, by which
dismissing the objection (appeal) of the applicant No 12387/10-8-2022 (appeal)
the applicant against the P.E.A. and P.E.P.E. Nos M914/12-7-2022 and M907/12-7-2022.
respectively, and refer the case back to the competent bodies of the defendant, pursuant to Article 79(1)(b) of the Regulation. 3
(b) of the Code of Administrative Procedure (ratified by the first article of Law No. 2717/1999, GOVERNMENT GAZETTE
A' 97), in order to comply with the essential procedural requirement of a prior hearing. Furthermore, according to
in the circumstances, order the defendant to pay the costs of the proceedings.
the applicant (Article 275(1), final subparagraph of Article 275(1) of the Code of Administrative Procedure).
BECAUSE OF THIS
He accepts the appeal.
Annuls the decision of the Administrative Committee (IC) No 55/Con.15/29-3-2023
of the B' Local Directorate of Thessaloniki, rejecting the application No 12387/10-8-2022
the applicant's objection (appeal) to the applicant's objection to the applicant's application No M914/12-7-2022 and No M914/12-7-2022
M907/12-7-2022 P.E.E. and P.E.P.E.E. respectively.
Refer the case back to the defendant insurance institution in order to comply with the
essential formula of the previous hearing.
Orders the defendant to pay the applicant's costs.
The decision was published in Thessaloniki on 13-9-2024, at an extraordinary public
sitting in the Court's hearing room, without the parties being present.
Thomas Steph. Summer
Supreme Court Lawyer
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