CASE OF AGOUDIMOS AND CEFALLONIAN SKY SHIPPING CO. v. GREECE
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
András Baka
8. The applicant company is incorporated under Greek law, has its seat in Piraeus and has gone into liquidation. The first applicant is one of the three liquidators. 9. On 22 December 1982 the ship Omega Kasos, registered in Piraeus and owned by K Shipping Co., was seized by the company’s creditors. The ship was put on compulsory sale by auction (αναγκαστικός πλειστηριασμός) on 6 February 1983. It was acquired by the first applicant at the price of GRD 4,002,000. On 15 February 1983 the first applicant sold the ship to the applicant company which in turn sold it to a foreign company. 10. On 17 February 1983 the applicant company asked the registrar of ships (νηολόγος) of Piraeus to remove the ship from his records since it had been acquired by a foreigner. The request was refused on the ground that the applicant company had failed to produce a certificate to the effect that debts owed in respect of the ship to the tax and social security authorities prior to the auction had been paid in full. 11. The applicant company challenged ex parte (εκούσια δικαιοδοσία) the registrar’s refusal before the single-member first instance civil court (Μονομελές Πρωτοδικείο) of Piraeus. On 6 April 1983 the court considered that the production of the certificate requested by the registrar was not necessary; according to the view followed by most courts, a person acquiring a ship put on compulsory sale by auction was not responsible for the previous owners’ debts to the State or the sailors’ social security fund (Ναυτικό Απομαχικό Ταμείο – hereinafter NAT). The registrar and NAT did not appeal against this decision. On 1 June 1983 Omega Kasos was removed from the records of the Piraeus registry for ships. 12. On 10 January 1984 NAT ordered the first applicant and the applicant company, in their capacity as previous owners of Omega Kasos, to pay USD 124,915, by way of social security contributions in respect of the period prior to the auction, plus interest. It also asked them to pay GRD 196,000 for the repatriation of the crew of Omega Kasos who had at one stage been left stranded in a foreign port by the previous ship-owners. 13. On 19 January 1984 the applicants challenged NAT’s order before the multi-member first instance civil court (Πολυμελές Πρωτοδικείο) of Piraeus relying, inter alia, on the decision of the single-member first instance civil court of 6 April 1983. 14. On 30 July 1984 the multi-member first instance civil court of Piraeus found against the applicants, relying on Articles 86 § 6 (a) and 88 § 5 of Presidential Decree no. 913/1978 as interpreted in decisions Nos. 127/1984 and 128/1984 of the Court of Cassation. The applicants appealed. 15. On 30 July 1986 the Court of Appeal (Εφετείο) of Piraeus upheld the appeal considering that the legislation that rendered all the previous owners of a ship responsible for debts to NAT did not cover owners who had acquired a ship put on compulsory sale by auction. The court of appeal relied on Articles 86 § 6 (a) and 88 of Presidential Decree no. 913/1978, as interpreted in its own decision No. 649/1981 and in decisions Nos. 8/1983 and 1118/1985 of the Court of Cassation. The court also mentioned a number of decisions that accepted a different interpretation, which it was not prepared to follow (decision No. 128/1984 of the Court of Cassation and its own decisions Nos. 370/1985 and 460/1985). 16. On 30 June 1987 Parliament enacted Law no. 1711/1987, entitled “Modification and completion of the legislation on NAT and other provisions”. Article 1 § 6 of that law interpreted in an authoritative manner (αυθεντική ερμηνεία) Article 88 § 5 of Presidential Decree no. 913/1978: According to Parliament’s interpretation, this provision also concerned owners who had acquired a ship put on compulsory sale by auction. 17. On 10 June 1988 NAT appealed against the decision of 30 July 1986 of the Court of Appeal of Piraeus to the Court of Cassation relying, inter alia, on Article 1 § 6 of Law no. 1711/1987. The applicants submitted that the 1987 law should not be taken into consideration, inter alia, in the light of the Court’s Stran Greek Refineries and Stran Andreadis v. Greece judgment of 9 December 1994 (Series A no. 301-B). 18. On 22 April 1993 NAT obtained an order for the seizure of the first applicant’s real property. The first applicant did not appeal (ανακοπή) against this order. 19. On 16 April 1997 the Court of Cassation found in favour of NAT. The Court of Cassation reasoned as follows: a person acquiring a ship put on compulsory sale by auction was responsible under Article 86 § 6 (a) of Presidential Decree no. 913/1978 for the previous owners’ debts to NAT; this reading of the provision was also supported (in the words of the Court of Cassation “a further argument in favour of this interpretation can be drawn”) by Article 1 § 6 of Law no. 1711/1987 interpreting in an authoritative manner Article 88 § 5 of Presidential Decree no. 913/1978. The Court of Cassation sent the case back to the Court of Appeal. 20. The proceedings are still pending and the first applicant’s property remains under seizure. 21. Article 77 § 1 of the 1975 Constitution reads as follows: “The authentic interpretation of the laws shall rest with the legislative power.” 22. Presidential decree no. 913/1978 provides the following: “The following persons are jointly and severally liable, without having the right to require that the creditor should first try to execute against the principal debtor, for any contributions resulting from contracts with sailors on the crew list (ναυτολόγιο) or, in general, contributions assessed by a public authority in accordance with the relevant special procedures (βεβαιωμένες): a) all former ship-owners in respect of claims created before they transferred the ship’s ownership, as well as their successors; ...” “The transfer of the ownership of a ship cannot be validly recorded in the registry for ships (νηολόγιο) if unaccompanied by a certificate that the ship does not have any outstanding debts to NAT ... ” 23. The Court of Cassation in its decisions nos. 127/1984, 128/1984, 509/1985, 1145/1987 and 952/1994 considered that the legislation that rendered all the previous owners of a ship responsible for debts to NAT also covered owners who had acquired a ship put on compulsory sale by auction. The same line was followed by the multi-member first-instance civil court of Piraeus in decisions nos. 2796/1980 and 253/1985, the Court of Appeal of Piraeus in decisions nos. 301/1979, 370/1985 and 460/1985, the Court of Appeal of Athens in decision no. 4023/1978, and the Council of State (Συμβούλιο της Επικρατείας) in decision no. 2390/1996. 24. However, in its decisions nos. 8/1983 and 1118/1985 the Court of Cassation adopted the opposite view, which had also been taken by the Court of Appeal of Piraeus in decisions nos. 445/1981, 649/1981 and 915/1982. 25. Law no. 1711/1987 provides the following: “The true meaning of the term ‘transfer’ in Article 88 § 5 of Presidential Decree no. 913/21978 is such that it includes the ... compulsory sale by auction ...” “Monies paid to NAT by successful bidders at auctions for the compulsory sale of ships are returned ... only in cases in which, at the time of the publication of this law, a final judgment (αμετάκλητη δικαστική απόφαση) has been issued.” 26. It was indicated in the explanatory report (εισηγητική έκθεση νόμου) of Law no. 1711/1987 that “the purpose of the interpretative provisions of Article 1 was to settle the disputes, secure the collection of NAT’s resources and harmonise the fund’s legislation with the findings of the courts’ caselaw”. During the parliamentary debates, the Government’s Rapporteur expressed the view that Article 1 of the said law validated the courts’ caselaw on the matter (see the Official Minutes of Parliament - session of 18 May 1987, p. 5990).