Article 70 of law 4795/2021 and the amendment of the provisions for the term of office of members of independent authorities

The limited term of office of the members of independent authorities is one of the basic guarantees for the personal and functional independence of these authorities and their members. Article 70 of Law 4795/2021 brings changes in issues directly related to the term of office of the members of the (constitutionally guaranteed) independent authorities. This can only raise concerns about whether this provision is in line with the guarantees and requirements that must be in place to ensure the effective independence of independent authorities.

Article 70 of Law 4795/2021 (Government Gazette 62 A ‘/17.04.2021) entitled “appointment of a member of an independent authority who is serving or has served a term in a high rank position for a full term…” amends paragraph 2 of Article 3 of law 3051/2002 bringing about changes in issues concerning the term of office of members of (constitutionally guaranteed) independent authorities. One specific paragraph of law 3051/2002 is amended here for the 2nd time in 2021 (the first changes by way of Article 49 of law 4779/2021) while a little later, Article 25 of law 4800/2021 provided that,“the seventh subparagraph of paragraph 2 of Article 3 of law 3051/2002 (A ‘220), regarding the term of office of members of independent authorities who are appointed in case of the death, resignation, or loss in any way of a member of an independent authority, also applies to the already serving members of independent authorities.” It is also worth mentioning that at the beginning of the year, law 4765/2021 was passed, which regulated issues related to the operation of ASEP, including issues related to the term of office of the members of this authority.

In particular, Article 70 (formerly Article 54 of the draft law) provides that: “the term of office of the members, including the Presidents, the Ombudsman, the Vice-Presidents and the Deputy Chairman, is six years without the possibility of renewal. Subject to par. 2 of Article 44 of law 4765/2021 (A` 6) on the possibility of extension of the term of office of the members of ASEP …a prior or current term of office in the position of Vice President or Deputy Chairman or ordinary member does not prevent his appointment for a full term in a higher position in the same Authority. In such a case, no more than two (2) terms are allowed in total and the total duration of the term of office is not allowed to exceed twelve (12) years.” (changes in bold)

With this provision we could say that an exception is introduced in the limitations placed on the term of office in Independent Authorities as the time spent in another position is not counted in the calculation of the limited term of office in a higher position. For this reason, in the context of the discussion of the bill in the parliamentary plenary session, opposition MPs demanded the withdrawal of this provision and, in fact, an objection of unconstitutionality was submitted by three SYRIZA MPs.

The circumvention of the concept of the limited term of office and thus the violation of Article 101A of the Constitution; the consideration of this provision as specifically intended to enable the appointment of a particular candidate; the consequences that such a provision has on the independence of independent authorities, as well as the attempt to staff ASEP with personnel selected by the government were some of the bases of criticism levelled (see pp. 52, 56, 73, 77-79, 86-87, 92-93, 98-99, 119, 137 minutes of the Parliament).

The answer given to the above concerns/objections was, among other things, that the current regulation “does not in any way affect the integrity and independence of the members of independent authorities,” and that what it introduces can not be understood as a way of extending the term of office, and that what the opposition says in the context of unconstitutionality is a pretext and amounts to, “a deliberate paraphrase which does not reflect the literal interpretation, which is absolutely clear, but neither a teleological one” (see pp. 79-81 minutes of the parliament).

However, the provision of a specific, limited term of office for the members of independent authorities is one of the elements that ensure their personal and functional independence. To further ensure this independence, the term of office “shall be deemed to be completed on the basis of the terms and conditions applicable at the time of the commencement of this term of office, as any subsequent intervention in a term of office… would not allow this authority ‘to be perceived as capable of operating, under any circumstances, beyond any suspicion of bias.” For this reason, the professor of Administrative Law, K. Giannakopoulos, considers that the present provision violates the case law of the Court of Justice of the European Union and the Constitution. It is noted that the Scientific Service of the Parliament had also expressed concerns regarding the content of the provision (see page 24 of the report by the Scientific Service of the Parliament).