CASE OF HORNSBY v. GREECE (ARTICLE 50)
Damage - financial award;Costs and expenses - claim dismissed
John Freeland;N. Valticos
9. On 30 June 1997, the Rhodes Administrative Court allowed in part the applicants’ claims in the action for damages against the State, brought on 3 July 1992 (see paragraph 19 of the principal judgment). It held inter alia: “It appears from the documents in the file and particularly from the accounts … of the limited partnership ‘D. and A. Hornsby and Co’ that during the whole of the period concerned the plaintiffs … were running a private foreign language school, despite the defendant’s refusal to grant them the relevant authorisation. It is therefore not possible to prove the damage they alleged they had sustained in the form of loss of profit, particularly the school fees they would have expected to receive had it not been for the defendant’s unlawful conduct, since they were in fact carrying on the activity for which the relevant administrative authority had refused a licence… Regard being had to the above considerations, neither the alleged damage nor the existence of any loss of profit can be proved. For these reasons, the action must be dismissed as unfounded… On the other hand, the Administrative Court considers that the defendant’s repeated unlawful refusals to grant the plaintiffs’ legitimate request – which amounts to a flagrant breach of the provisions of European Community law – and the refusal to comply with the judgments of the Court of Justice of the European Communities and the Supreme Administrative Court caused the plaintiffs stress over a long period. It therefore considers it appropriate to award each of them 400,000 drachmas in respect of non-pecuniary damage, to which sum is to be added interest at the statutory rate from the commencement of the action, that is from 3 December 1990, when notice of the plaintiffs’ application to the civil courts was served on the defendant… Lastly, the plaintiffs’ request for the present judgment to be made immediately enforceable must be rejected because the conditions laid down in Article 70 § 2 of Presidential Decree no. 341/1978 have not been satisfied in the present case.” 10. By an application lodged with the Court of Justice of the European Communities on 26 April 1994, the Commission of the European Communities had brought an action under Article 169 of the EC Treaty for a declaration that, by maintaining in force the provisions of Article 70 of Law no. 2545/1940 and Decree no. 46508/1976 of the Minister for Education and Religious Affairs (as subsequently amended), the State had failed to fulfil its obligations under Community law, in particular the provisions on movement of workers within the Community. In its judgment of 1 June 1995 the Court of Justice held: “The above-mentioned Greek provisions impose, in respect of recruitment of teachers in private foreign-language schools, more stringent conditions on foreigners, including nationals of other Member States, than they do on Greek nationals. Decision no. 46508 thus provides that the recruitment of foreign teachers requires authorisation by the Director of Private Education and Religious Affairs following submission of certain documents specified in the decision. Renewal of authorisation is also subject to the submission of several documents, including a medical certificate. Furthermore, paragraphs (1), (2) and (4) of Article 70 of Decree-Law no 2545/1940 provide that only persons possessing the qualifications required of teachers within public education may teach in a private school. The competent Minister may, however, decide that the qualifications of Greek nationals who do not satisfy that condition are adequate. … The Hellenic Republic does not deny that the disputed rules are incompatible with Community law. It does, however, point out that a Presidential Decree making the recruitment of nationals of other Member States subject to the same conditions as those required for employment of Greek nationals will be published shortly and that consequently the proceedings will serve no purpose. That argument cannot be accepted. It is settled case-law … that amendments of national legislation are irrelevant for the purposes of giving judgment on the subject-matter of an action for failure to fulfil obligations if they have not been implemented before the expiry of the period set by the reasoned opinion. A declaration of failure to fulfil obligations must therefore be made in the terms sought by the Commission.” 11. The European Commission has decided to refer Greece to the Court of Justice of the European Communities, requesting it to impose financial penalties for failure to apply two judgments concerning infringements of EC rules on the recognition of qualifications, namely the requirement that persons wishing to open private foreign-language schools, or to become directors of or teachers in such schools, must pass an examination in Greek language and history.