What is the application for annulment?
The application for annulment is the legal remedy filed, under specific conditions, before the Council of State (StE) or before Ordinary Administrative Courts of another level, by which judicial protection is sought through the elimination of an administrative act on grounds relating to its legality. The application for annulment seeks the full or partial annulment of the contested act (and not its modification), while the court examining the dispute reviews the act only as to its legality and not as to its substance.
Which courts have jurisdiction to hear applications for annulment?
Annulment cases of the Council of State:
- Annulment is achieved upon application by the private party (principle of private-party initiative for the commencement of annulment proceedings).
- An enforceable act of an administrative authority, individual or regulatory, is annulled.
- Constitutionally enumerated grounds of annulment: excess of authority or breach of statute.
Annulment cases of the Administrative Court of Appeals:
- Civil-service matters
- Educational matters
- Town-planning matters
- Other matters under Law 702/1977
Annulment cases of the Administrative Court of First Instance:
The jurisdiction of the three-member Administrative Court of First Instance covers annulment disputes arising from the contestation of individual administrative acts: (a) issued in application of the legislation on aliens in general, and (b) concerning the recognition of a foreign national as a refugee, within the meaning of the Geneva Convention.
What are the conditions for the admissibility of the application for annulment?
Capacity of party
A) Active procedural capacity (procedural ability to file an application for annulment)
– natural persons, irrespective of age, physical health and citizenship
– private-law legal entities of any form
– domestic or foreign public-law legal entities (other than the Greek State), but not against acts that concern them
– an administrative organ against an act of another organ of the same public-law entity, where statute provides for it
– associations of persons or asset pools without legal personality
– joint ventures, where their participation in the tender is provided for by special provisions and by the tender notice
B) Passive procedural capacity
– The State and public-law legal entities, including legal entities of dual nature insofar as they exercise public authority
– independent authorities that issued the contested act: under Article 2 para. 9 of Law 3051/2002 (constitutionally enshrined independent authorities), “the independent authorities have the capacity to appear autonomously in any kind of proceedings the subject of which is acts or omissions of theirs”. Analogous arrangements are contained in special statutes for other independent authorities.
In annulment proceedings the State is represented by the competent Minister, while the public-law legal entity is itself a party.
Capacity for judicial appearance
Private-law legal entities are represented by their legal representatives, associations of persons and asset pools by the persons appointed as their administrators, and foreign legal entities by the persons designated by the law of their seat.
Public-law legal entities are represented in proceedings by their legal representatives, in accordance with the provisions governing them, while independent administrative authorities are represented by their president.
Other general procedural conditions
- Capacity for personal court appearance (power of attorney)
- Formal correctness of the filing of the legal remedy
- Absence of lis pendens
Special conditions
- The nature of the contested act
- The legal interest
- The time limit
- Prior filing of any required administrative appeal
- Absence of a parallel petition
What are considered grounds of annulment?
- Lack of jurisdiction of the authority that issued the act
- Breach of an essential formality prescribed for the carrying out of the act
- Substantive breach of a statutory provision
- Abuse of authority (for individual acts of discretionary power).
What are the effects of the court ruling on the application for annulment?
The annulment judgment has the following effects: (a) the constitutive effect of the judgment, (b) res judicata, and (c) the obligation of compliance by the Administration.
FREQUENTLY ASKED QUESTIONS ON THE APPLICATION FOR ANNULMENT – LAWYER
1. What is the application for annulment and when is it filed?
The application for annulment is the legal remedy by which a private party requests the administrative court to eliminate an enforceable administrative act that affects them, on grounds of legality and not of substance. It is filed against individual or regulatory acts of administrative authorities where there is a finding of lack of jurisdiction of the issuing organ, breach of an essential formality, breach of a statutory provision, or abuse of authority. The court does not modify the act, but only annuls it in whole or in part. As a rule, it is directed against rejection decisions of public services, disciplinary penalties, town-planning acts, decisions of the SYPOTHA, civil-service changes, and decisions of independent authorities.
2. Which court hears the application for annulment?
The competent court is determined on a case-by-case basis. The Council of State (StE) hears most annulment disputes, particularly those concerning regulatory acts and decisions of central organs of the Administration. The Administrative Court of Appeals takes on civil-service, educational and town-planning matters and the other categories under Law 702/1977. The three-member Administrative Court of First Instance hears annulment disputes from acts under the legislation on aliens and refugee-recognition cases. The correct selection of the competent court from the outset is critical, since the wrong route may lead to delay or rejection of the legal remedy.
3. Within what time must the application for annulment be filed?
The filing time limit is, as a rule, sixty days from the service of the contested act or from knowledge thereof, while for residents abroad it is extended to ninety days. This is a strict, peremptory time limit, the lapse of which results in inadmissibility. If an administrative appeal is provided for, the time limit for the application for annulment starts from the service of the decision issued upon it or from the lapse of the time limit for tacit rejection. The exact starting point of calculation depends on the manner in which the act is notified and must be reviewed by a lawyer immediately upon receipt of the document by the private party.
4. What documents are needed to file the application?
The contested act itself with the details of its service or knowledge is required, together with any administrative appeal and the decision issued upon it, as well as any document evidencing the applicant’s legal interest (title deeds, official documents, certifications, correspondence with the Administration). The materials substantiating the grounds of annulment are also collected: the case file, reports, legal opinions, and decisions of collective organs. A special power of attorney, the filing fee and the advance payment of contributions are required. The more complete the file is at the time of filing, the stronger the applicant’s position will be at the hearing.
5. What chances of success does the application for annulment have?
The chances depend on the nature of the defects of the act and on the quality of the substantiation. Strong bases are considered to be the lack of jurisdiction of the issuing organ, the failure to observe an essential formality (e.g. lack of prior hearing, insufficient reasoning), the breach of an express statutory provision, and the exceeding of the outer limits of discretionary power. By contrast, grounds relating to the substantive judgment of the Administration are unlikely to be accepted in annulment review. In parallel with the application, an application for suspension of enforcement may be sought, so that the private party does not suffer irreparable harm until the issuance of a final ruling.
6. What is the role of the lawyer of our firm?
The Law Firm ZIAMPARAS D. & Associates undertakes from the outset the review of the contested act, identifies the legal defects, calculates the time limit and selects the competent court. It drafts the application for annulment with full substantiation of the grounds and of the legal interest, files an application for suspension where necessary, represents the client at the hearing, and monitors the Administration’s compliance after the issuance of an annulment ruling. The firm’s experience in town-planning, civil-service, SYPOTHA, disciplinary cases and decisions of independent authorities ensures a strategic approach from first contact.