Development Agency. Implementation of the project “BIOCLIMATIC REGENERATION OF THE COASTAL FRONT OF AKTI THEMISTOKLEOUS, MUNICIPALITY OF PIRAEUS”. Substantial unlawful term in the tender documents regarding the mandatory execution of the entirety of the works by the bidder alone (or by a single member of a joint venture/consortium), since, in accordance with the exceptional provision of Article 78 par. 2 of Law No. 4412/2016 (and the corresponding Article 63 par. 2 of Directive 2014/24/EU), the restriction of the bidders' right to participate in the tender by relying on the capacities of third parties may only be overridden for certain (quantitative criterion) and  relevant (qualitative criterion) tasks, and not for the project as a whole. The works included in the scope of the contract (pedestrian construction, cycling paths and green open public spaces) do not present specificities requiring capacity which cannot result from the aggregation of the lesser capacities of multiple economic operators. Dissenting opinion: the tender procedure is flawed, but it is not considered substantial, in view of the specific factual circumstances of the case.

Category:
• Pre-contractual Audit
• Public Works

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Imputation of liability against an accounting officer. Subsequent acquitting criminal judgment. 

The administration’s express refusal to examine on the merits the respondent's request for a re-evaluation of the surcharge decision, following a criminal acquittal, is not enforceable until the issuing authority has carried out a fresh investigation on the merits of the case. The appeal filed must therefore be dismissed as inadmissible. Unless otherwise provided by law, the administration was not required to examine the newly submitted evidence or to revoke its recovery decision, as the deadline for challenging the said decision for revocation had expired. The challenged refusal of the administration falls within the scope of its discretionary power to revoke the (original) surcharge decision, without it being vitiated by invalidity, therefore no issue of referral of the case to the administration arises for the purpose of examining the relevant request. Dissenting opinion – Presumption of innocence: The assessing authority is obliged to re-examine the case, taking into account the acquitting judgment of the criminal court, and to render a reasoned decision on the merits of the assessed party's request for a re-evaluation of their case. The relevant omission or refusal of the administration constitutes an enforceable [executory] administrative act.

Category:
• Financial Liability
• Civil Liability

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Financial correction decision. Infringement of the principle of protection of legitimate expectation. 

Financial capital aid programme, under which the supporting documents submitted by the applicant were accepted, in accordance with the terms of the relevant call for proposals, constituting the regulatory framework for the programme in question and binding on investors. The Administration issued a subsequent explanatory guide / internal document addressed to the auditing authorities, which, for the first time, required additional supporting documents; it does not appear that this guide was included in the call for proposals nor that it was known in advance to the interested parties. Therefore, the relevant financial correction decision was issued in breach of the principle of the protection of legitimate expectation, citing as its legal cause the breach of terms and conditions of the respective call for proposals regarding the evaluation of a sub-criterion, due to the failure to submit the aforementioned additional document. Dissenting opinion

Category:
• Financial Liability
• Financial Corrections

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Irregularity due to the failure to complete an investment project within the prescribed deadline under the Operational Programme “Support for Small and Medium-sized Enterprises operating in the sectors of Manufacturing, Tourism, Trade – Services”. The realization, by the beneficiary, of certain expenses, at the time of the disbursement of intermediate installments, does not constitute a legitimate cause for their retention, since the investment must be completed. The business's operating license does not, in itself, prove the completion of the investment, i.e., its state of production readiness. There can be no question of a breach of the principles of proportionality and legitimate expectation. No exemption is conceived on grounds of leniency/equity related to the financial inability to repay the sum charged.

Category:
• Financial Liability
• Financial Corrections

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Financial correction against a contracting authority, due to the approval of the substitution of the initial contractor during the implementation of a public works contract co-financed by the European Regional Development Fund. Annuls the financial correction on the grounds of lack of clarity and predictability of national law regarding the conditions for the lawful substitution of the initial contractor, as well as in the light of the principle of proportionality.

Category:
• Financial Liability
• Financial Corrections

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The period from which the appellant, a member of the faculty (DEP) of a Higher Education Institution (AEI), was placed on mandatory suspension from duties pursuant to Article 331 par. 2 of Law No. 5343/1932, until the automatic termination of their service relationship with the University due to reaching the prescribed age limit, was lawfully not included in their total pensionable service. That period, during which no actual public service was rendered, constitutes a period of “suspension” within the meaning of Article 11(7) of the Pensions Code and cannot therefore be regarded as qualifying for a pension. Moreover, the condition laid down by that provision (subsequent acquittal or exoneration) for the exceptional recognition of this period as pensionable is not met in the present case, since the appellant admits in their brief that their criminal conviction became final and irrevocable by a decision of the Supreme Court (Areios Pagos). The contested measure was adopted pursuant to the provisions of the Pensions Code, without in any way prejudging the guilt of the appellant prior to their criminal conviction becoming irrevocable; therefore, no issue of violation of the presumption of innocence arises. The subsequent granting of a pardon to the appellant by presidential decree is legally irrelevant in that regard, since it does not call into question or affect the validity and legality of their compulsory departure and the resulting interruption of the accrual of the corresponding period as pensionable service.

Category:
• Pension disputes
• Civil Pensioners

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Appeal by a former OAED (Manpower Employment Organization) male employee against the rejection of his application for a pension award under the special civil servants' regime, as a father of a minor child having completed twenty-five years of service in 2010. Difference in pension treatment between men and women under the provisions of Article 56 of the Pensions Code, as they were in force until 31.12.2010 and continue to govern the pension status of those who had already established a pension right by 31.12.2010 upon completing 25 years of pensionable service. Adverse discrimination (Art. 4 par. 1 and 2 of the Constitution) based solely on sex, which is not justified on grounds of general social or public interest or by reasons related to the need for greater protection of women in matters of maternity, marriage and family, or by purely biological differences necessitating the adoption of special measures in their favor. It is also contrary to the principle of equal pay which is historically enshrined in EU law (Article 141 par. 2 of the Treaty of Amsterdam and currently Article 157 par. 2 TFEU). The setting of different age limits for the retirement of men and women cannot be regarded as an acceptable action positive measure under current social conditions. To restore equal treatment between the two sexes, for as long as this adverse discrimination against men remains in force, the more favorable regulation applicable to women must be extended to male employees as well. Grants the appeal, annuls the contested act and remands.

Category:
• Pension disputes
• Civil Pensioners

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Conduct of an international open electronic call for tenders. Award of a contract for student transportation (for the school years 2023-2024 and 2024-2025). The award criterion is the most economically advantageous tender, based on the rental price for appropriate means of public-use transport. Significant discrepancies in kilometric distances during the application of the mathematical formula for calculating the costs of intercity routes compared to those stated in the call for tenders. The estimated expenditure of the contract must be precisely documented, exclusively on the basis of the mathematical formulas included in the Annex of the relevant Joint Ministerial Decision (K.Y.A.). The absence or inaccuracy of the parameters and other factors used to determine, via the mathematical formula, the cost of each route of the tender, do not allow for the justification of the reasonableness of the total amount committed. The respective call for tenders is essentially flawed and, consequently, so is the award procedure as a whole.

Category:
• Pre-contractual Audit
• Public Services

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Referral of a question of constitutionality to the Grand Plenum, pursuant to Article 161, paragraph 1 of Law No. 4700/2020.

Abolition, by virtue of the provision of Article 5, paragraph 1 of Law No. 4488/2017, of the provision of case (b) of Article 62 of the Pension Code (Presidential Decree 169/2007), resulting in the receipt of a pension of the same amount by a perjured/unfaithful official -who committed an illegality against the State or a legal entity governed by public law and was irrevocably convicted- as that of an official who served faithfully. The new rules are not contrary to the constitutional principle of equality (Article 4, para. 1 of the Constitution) and the principle of meritocracy arising therefrom. It is a clear legislature’s policy choice to fully separate the criminally punishable conduct of officials from any definitive (total or partial) loss of their right to a pension. Such legislation cannot be regarded as arbitrarily equating faithfully serving officials with perjured ones, given that the perjured official also provided long-term services on the basis of a legally established civil service relationship, possessing the qualifications required to occupy their post, having paid social security contributions and having fulfilled the temporal requirements for establishing a pension right from the State. The criminally punishable conduct of officials does not constitute a relevant criterion capable of justifying, in a constitutionally acceptable manner, their exclusion from the right to a pension. Any proportional reduction in the pension amount of an irrevocably convicted official who engaged in unlawful activities during the performance of their official duties would constitute an act of legislation and, therefore, an unacceptable interference (Article 26 of the Constitution) by the judge in the functions of the legislative power. Dissenting Opinion: Following the established unconstitutionality and in the absence of specific legislative regulation to this effect -and until its enactment- within the framework of providing judicial protection and applying the general principles of proportionality and proportional equality, the Court may proceed to the primary determination of the amount of the pension payable.
 

Category:
• Pension disputes
• Civil Pensioners

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Compensation claim by a military pensioner due to the unlawful failure of the pension administration to adjust their pensionable earnings pursuant to the provisions of Laws 2838/2000 and 3016/2002. Payment of family allowance. Statute of limitations on the claim.

Conditions and requirements for the adjudication of a military pensioner’s claim before the Chamber (Article 91 of Law No. 4700/2020). Data from the claimant’s electronic pension file were taken into account for the purposes of verifying their status and, therefore, the jurisdiction of the Court. During the period at issue, the payment of the family allowance at a rate of 10 % on the entitled pension differences consisted of a fixed monthly amount and did not depend on the rank, at which the public sector pensioner retired. Ruling that from January 1, 2011, onwards, the substantive effects of the claim shall materialize on the defendant State as of the service of the claim. It follows that, in order to toll (interrupt) the statute of limitations on the plaintiff's claim, the mere filing of the lawsuit is not sufficient, but it is also necessary for it to be served upon the defendant. In the case at issue, the failure to serve the lawsuit on the defendant legal person, as examined by the Court of its own motion, renders the claims time-barred. Dismisses the lawsuit.

Category:
• Pension disputes
• Military Pensioners

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