Legislative provision of retroactive incompatibility clauses removes serving members of the Competition Commission

Article 101 of law 4623/2019 provided retroactive incompatibility clauses for the chairman, the vice-chairman and the members of the Competition Commission, which in turn led to the automatic dismissal of the Chairman, the Vice-Chairman and 2 members of the Commission. Despite the fact that the Plenary Session of the Council of State ruled by a majority that both Article 101 and the consequent dismissal of the above persons from their positions are in accordance with the Constitution and EU law, concerns about the legality of this provision remain.

Article 101 of Law 4623/2019 provided that the positions of Chairman, Vice-Chairman and member (full or alternate) of the Hellenic Competition Commission are incompatible with any form of duties or employment held within the last five years in the Office of the Prime Minister or the General Secretariat of the Prime Minister, in a member of the government’s office or political office, or in the office or Secretariat of any Minister of the government. This entered into force upon the publication of this law in the Government Gazette with retroactive effect, thus applying to persons already serving in the Comission.

This resulted in the automatic dismissal of the Chairman and 3 members of the Committee from their position, in the middle of their term of office. A few days earlier, Law 4622/2019 had also resulted in the termination of office of the Inspector General of Public Administration, in the middle of her term. 

The legislature’s decision to apply the incompatibility clauses retroactively to those already serving proved controversial in the parliamentary plenary sessions in the context of the adoption of both laws 4623/2019 and 4622/2019. (see pp. 15, 21, 33, 39-40, 44, 91-92, 114 of the parliamentary minutes of 7 August ; pp 5, 8, 42-43 , 67-68, 71 from 8 August; pp 17, 33-34, 46, 52, 59, 62, 66, 80  from the 5 August ; pp 28-29, 32 from the  6 August.) Some of the points raised included the following:

The Scientific Service of the Parliament in its report of 6-8-2019 also pointed out that the functional independence of independent authorities must be ensured and underlined the risks involved in any early termination of the planned terms of office of their members, referring to judgments of the Court of Justice of the European Union (hereafter CJEU) and the content of the directives concerning the operation of the National Competition Authorities (see pp. 19-22).

On August 13, 2019 the dismissals of the relevant members of the Competition Commission were published in the Government Gazette (Government Gazette 567/2019). An application for the annulment of these dismissals was lodged before the Council of State, with the applicants claiming that their removal from the Commission was unlawful on the basis that the retroactive nature of the incompatibility clauses pursuant to which their automatic dismissal occurred, violates: i) the provisions of Directive (EU) 2019/1; ii) the protective guarantees laid down by EU law and CJEU case law; (iii) constitutional principles and provisions, such as the personal and functional independence of the members of the Commission; the principle of continuity of functioning of independent authorities; the rational organization and functioning of independent authorities; the principles of legitimate expectations and proportionality as well as the principles of legal certainty and good legislation (see more here on  1 and 2).

With majority decisions 911-917/2021, the Plenary Session of the Council of State ruled to reject the applications for annulment. It is noted, however, that in the view of the minority, the provision of retroactive incompatibility clauses and the consequent dismissal of serving members from their positions should be considered unconstitutional. Finally, it is worth mentioning that K. Giannakopoulos, a professor at the Law School of Athens (see 1 and 2), criticized the arguments invoked by the majority to reject the annulment applications stating, that in fact, (and referring here not only to these specific cases), that not only did the majority of the Supreme Administrative Court not respect the rule of law, but used it in a way that undermines the concept itself and interpreted it in a manner that serves the political agenda of the government, which appears determined to be openly arbitrary.