CASE OF HORNSBY v. GREECE
Violation of Art. 6-1;Preliminary objection rejected;Just satisfaction reserved
John Freeland;N. Valticos
6. Mr David Hornsby and his wife Mrs Ada Ann Hornsby were born in the United Kingdom in 1937 and 1939 respectively. They are graduate teachers of English and live on the island of Rhodes. 7. On 17 January 1984 the second applicant applied to the Ministry of Education in Athens for authorisation to establish in Rhodes a private school (frontistirion) for the teaching of English (see paragraph 29 below). On 25 January the Ministry refused the application on the ground that only Greek nationals could be granted such authorisation by the provincial secondary education authorities. 8. On 12 March 1984 Mrs Hornsby tried to deliver a second application in person at the offices of the Dodecanese Secondary Education Authority, but the responsible civil servant refused to acknowledge receipt. After a complaint had been lodged by Mrs Hornsby’s lawyer, the authority informed her on 5 June 1984 that under the Greek legislation in force foreign nationals could not obtain authorisation to open a frontistirion. 9. Mrs Hornsby, considering that making nationality a condition for authorisation to establish a frontistirion contravened the Treaty of Rome of 25 March 1957, applied to the Commission of the European Communities, which referred the case to the Court of Justice of the European Communities. In a judgment of 15 March 1988 (no. 147/86, Commission of the European Communities v. the Hellenic Republic), the Court of Justice held that "by prohibiting nationals of other member States from setting up frontistiria the Hellenic Republic [had] failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty". 10. On 1 April 1988 Mrs Hornsby made a further application to the Dodecanese Secondary Education Authority and on the same day Mr Hornsby separately sent the authority a similar application. On 12 April 1988 the authority refused both applications for the same reasons as it had given in its reply of 5 June 1984 (see paragraph 8 above). 11. On 15 September 1988 the Director of Secondary Education for the Dodecanese province informed the applicants that the question of granting non-Greeks authorisation to open a frontistirion was being reviewed by the competent authorities. 12. In a letter of 23 November 1988 the applicants requested the Prime Minister to take the necessary steps to ensure compliance with the judgment given by the Court of Justice on 15 March 1988 (see paragraph 9 above). 13. On 8 June 1988 each of the applicants had lodged with the Supreme Administrative Court an application to set aside the decisions of the Dodecanese Director of Secondary Education (see paragraph 10 above). By two judgments of 9 and 10 May 1989 (nos. 1337/1989 and 1361/1989), the Supreme Administrative Court set the decisions aside in the following, identical terms: "... This application seeks annulment of the Dodecanese Director of Secondary Education’s decision ... of 12 April 1988 rejecting the request of the applicant, a British national, for authorisation to set up a frontistirion for foreign-language teaching in Rhodes. Section 68 (1) of Law no. 2545/1940 ... provides: ‘Authorisation to set up a frontistirion shall be granted to natural persons possessing the qualifications required for employment as a teacher in a primary or secondary school in the public system, or having equivalent academic qualifications.’ In addition, Article 18 para. 1 of the Civil Servants Code - Article 2 para. 3 of which also applies to secondary and primary teachers - provides: ‘No one shall be appointed to a civil service post who does not have Greek nationality.’ It appears from these provisions that it is against the law for a non-Greek to be given authorisation to set up a frontistirion for the teaching of foreign languages. Article 52 of the Treaty of 25 March 1957 instituting the EEC ... proclaims freedom of establishment for the nationals of a member State within the territory of another member State, prohibiting all discrimination on the ground of nationality as regards the right to take up activities as self-employed persons and to set up and run businesses. That provision ... has been ‘directly applicable’ in Greek law since 1 January 1981, when the Treaty came into force, without it being necessary to amend Greek legislation beforehand to bring it into line with Community law. The above-mentioned bar preventing non-Greeks from being granted authorisation to set up a frontistirion for the purpose of teaching foreign languages, in so far as it concerns the nationals of the other member States of the European Communities, is contrary to Article 52 of the Treaty (judgment no. 147/86 of the Court of Justice of the European Communities, 15 March 1988, Commission v. the Hellenic Republic), since it has been without legal force, regard being had to the foregoing considerations, since 1 January 1981. Consequently, the impugned decision rejecting the applicant’s request - based on the erroneous premiss that the bar complained of continues to apply to all non-Greeks, without any distinction between the nationals of other member States of the European Communities and the nationals of non-member States - is unlawful and must therefore be set aside. The application under consideration must accordingly be allowed. For these reasons ... The Supreme Administrative Court sets aside the Rhodes Director of Secondary Education’s decision ... of 12 April 1988. ..." 14. On 3 July 1989 two associations of frontistirion owners and three owners of such establishments in Rhodes lodged a third-party appeal (tritanakopi) against judgments nos. 1337/1989 and 1361/1989 with the Supreme Administrative Court. This appeal was dismissed by the Supreme Administrative Court on 25 April 1991. 15. On 8 August 1989 the applicants lodged two further applications for authorisation with the Dodecanese Secondary Education Authority, enclosing the judgments of the Supreme Administrative Court and emphasising that no further delay in granting authorisation could be justified. However, they received no reply. On 27 February 1990 the applicants’ lawyer again applied to the authority. 16. On 28 March 1990 the applicants brought a private prosecution in the Rhodes Criminal Court against the Dodecanese Director of Secondary Education and any other civil servant responsible, relying on Article 259 of the Criminal Code (see paragraph 24 below). On 22 October 1993 the Criminal Court gave judgment against the applicants, holding that even supposing the director had been acting unlawfully when he refused authorisation, the intent required by Article 259 for the elements of the offence to be made out had not been established. 17. On 14 November 1990 the applicants brought proceedings in the Rhodes First Instance Civil Court seeking compensation (Articles 914 and 932 of the Civil Code and sections 104 and 105 of the Introductory Law (Isagogikos Nomos) to the Civil Code (see paragraph 26 below)) for the prejudice they alleged had been caused them on account of the administrative authorities’ refusal to comply with the judgments of the Supreme Administrative Court (see paragraph 13 above). Mr and Mrs Hornsby claimed 30,025,200 and 41,109,200 drachmas (GRD) respectively for pecuniary damage and loss of income, and GRD 100,000,000 for non-pecuniary damage. 18. On 30 January 1992 the Rhodes First Instance Civil Court declared the application inadmissible (judgment no. 32/1992) on the ground that the dispute submitted to it came within the jurisdiction of the administrative courts. 19. On 3 July 1992 the applicants brought an action for damages against the State in the Rhodes Administrative Court. They relied, inter alia, on Article 914 of the Civil Code and section 105 of the Introductory Law to the Civil Code. In addition, they argued that the compensation should cover not only the pecuniary and non-pecuniary damage they had already sustained but also the damage they would continue to sustain until the administrative authorities granted them the authorisation they sought. On 15 December 1995, in judgment no. 346/1995, the Administrative Court accepted that the administrative authorities had unlawfully refused to process Mrs Hornsby’s application for authorisation of 12 March 1984 (see paragraph 8 above) and that after publication of the judgments of the Court of Justice and the Supreme Administrative Court (see paragraphs 9 and 13 above) they had failed to comply with them. However, considering that the applicants had not sufficiently proved the damage they claimed to have sustained, it ordered further investigative measures. 20. On 20 April 1990 the applicants asked the Minister of Education to intervene. They applied to him again on 14 January and 29 July 1991 and to the Minister responsible for managing Cabinet business on 25 October 1991. 21. On 14 January 1993 the Dodecanese Director of Secondary Education informed the applicants that he had written to the Minister of Education to ask if he could grant the authorisation requested, in the light of the Supreme Administrative Court’s judgments of 25 April 1991 (see paragraph 14 above). On 3 May 1993 he informed them that he had again written to the Minister reminding him that two years had already gone by since the above-mentioned judgments of the Supreme Administrative Court and that their application was still pending. He also referred to three previous letters to the Minister which had gone unanswered. 22. A presidential decree (no. 211/1994) published on 10 August 1994 recognised the right of nationals of member States of the European Communities to establish frontistiria in Greece (see paragraph 28 below). However, those who did not possess a Greek secondary school-leaving certificate had to pass an examination in Greek language and history. On 20 October 1994 the Minister of Education asked the Dodecanese Director of Secondary Education to resume consideration of the applicants’ request in the light of Presidential Decree no. 211/1994 and to keep the Ministry informed of further developments. On 11 November 1994 the Director sent the applicants a photocopy of the decree and urged them to take the necessary steps. On 7 February 1996 he wrote to them again expressing his surprise that they had not yet taken the examination they needed to pass in order to obtain authorisation to open a frontistirion and to teach in one. He informed them that it was illegal for them to continue working in a frontistirion (belonging to a Greek national) under the relevant new legislation and asked them to regularise their situation if they wished to avoid application of the statutory penalties. 23. Article 95 para. 5 of the 1975 Constitution provides: "The administrative authorities shall be under an obligation to comply with judgments of the Supreme Administrative Court setting aside their decisions. Breach of that obligation shall engage the responsibility of any authority in breach, according to the provisions of statute law." 24. Article 259 of the Criminal Code provides: A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party shall be punished by up to two years’ imprisonment, save where the offence is punishable pursuant to another provision of criminal law." 25. The relevant Articles of the Civil Code read as follows: Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded." In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’s decision and any other measure 26. The following provisions of the Introductory Law (Isagogikos Nomos) to the Civil Code (Law no. 2783/41) are relevant: "The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets." "The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility." 27. Sections 45 and 50 of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court, of 30 December 1988/9 January 1989, govern applications for judicial review of acts or omissions by the administrative authorities: 1. An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public-law legal persons and against which no appeal lies to another court. ... 4. Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph 1, an application for judicial review is admissible even in respect of the said authority’s failure to issue such decision. The authority shall be presumed to refuse the measure either when any specific time-limit prescribed by the law expires or after three months have elapsed from the lodging of the application with the authority, which is required to issue an acknowledgment of receipt ... indicating the date of receipt. Applications for judicial review lodged before the above time-limits shall be inadmissible. An application for judicial review validly lodged against an implied refusal [on the part of the authorities] is deemed also to contest any negative decision that may subsequently be taken by the authorities. Such decision may however be challenged separately. ..." 1. Except as otherwise provided, an application for judicial review must be made within sixty days of the day following the date of notification of the impugned decision or the date of publication ..., or, otherwise, of the day following the day on which the applicant acquired knowledge of the decision. In the cases provided for in paragraphs 2, 3 and 4 of section 45, time begins to run when the time-limits prescribed in those provisions have expired. ..." 1. The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure. ... 3. In the case of failure to take action, where the Supreme Administrative Court allows the application, it shall refer the case back to the relevant authority so that it can take the action incumbent on it. 4. In discharging the obligation imposed on them by Article 95 para. 5 of the Constitution, the administrative authorities must comply with the judgments of the Supreme Administrative Court in the light of the circumstances of each case, either by taking positive measures to that end or by refraining from any action contrary to the Supreme Administrative Court’s decision. Failure to do so may entail, in addition to the criminal penalties laid down by Article 259 of the Criminal Code, personal liability in damages. 5. Judgments of the plenary court or the divisions allowing or refusing applications to set aside shall constitute binding authority in respect of the parties to a particular case and also in respect of each case or dispute pending before the judicial or other authorities where the administrative issue determined by the Supreme Administrative Court is decisive for the outcome." 28. The presidential decree of 10 August 1994 on "bringing Greek legislation concerning the setting up and running of frontistiria ... into conformity with Articles 7, 48, 52, 58 and 59 of the Treaty instituting the European Economic Community" provides: "The purpose of the present decree is to bring Greek legislation concerning the setting-up and running of frontistiria ... into conformity with Articles 7, 48, 52, 58 and 59 of the Treaty instituting the European Economic Community, by abolishing all forms of discrimination on the ground of nationality." "In addition to what is provided in section 68 (1) of Law no. 2545/1940 on private schools, frontistiria and boarding-schools, authorisation to set up a frontistirion shall also be granted to nationals of the member States of the European Union, providing that they have the qualifications required by law for such authorisation to be granted to a Greek national. European Union nationals shall be required to produce similar documentary evidence and the certificate prescribed by section 14 (10) of Law no. 1566/1985, which shall be applicable by analogy." "If the applicants ... do not have a Greek secondary school-leaving certificate, they shall be required to produce a certificate attesting that they understand Greek and speak it fluently and have a knowledge of Greek history. In order to obtain such a certificate, applicants must take an examination under regulations laid down by the Minister for Education and Religious Affairs." 29. Section 63 of Law no. 2545/1940 defines a frontistirion as "the organisation in one place of courses for groups of more than five persons, or, regardless of the composition of the groups, for more than ten persons in total per week, which have as their purpose, either to supplement and consolidate instruction forming part of the curriculum for primary, secondary and higher education (the latter whether or not preparatory to university entrance), or to teach foreign languages or music or to provide general training in extra-curricular activities, for not more than three hours a day per group consisting of the same persons". Section 68 of the same Law provides that the setting up of a frontistirion is subject to authorisation which may be granted only to natural persons who hold the qualifications required for employment in the civil service as a teacher in the public-education system. Those qualifications include, according to Article 18 of the Public Servants Code, the possession of Greek nationality. According to Law no. 284/1968, frontistiria for foreign languages may be administered only by persons holding the statutory qualifications; for a definition of those qualifications, reference is made to Law no. 2545/1940, which requires, in particular, the possession of Greek nationality. Greek nationality is also required in the case of all persons teaching in a frontistirion of whatever kind. The only exception to that rule was laid down by Decree no. 46508/1976 of the Minister for Education and Religious Affairs. That decree, which, however, applies only to frontistiria engaged in the teaching of foreign languages, provides: "Each frontistirion may employ only one foreign national if it does not employ more than four foreign-language teachers of Greek nationality. If it employs more than four Greek nationals, it shall be authorised to employ more foreign nationals in the proportion of one foreign national to five Greek nationals."