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.
The legislature is in principle free to make new regulations that diverge from those in force in the past. However, in a state governed by the rule of law, the enactment of legislation must take place in a general, impersonal and objective manner as well as with respect for the general principles, guarantees and values of both the Constitution and supranational rules.
In this case, Article 101 of Law 4623/2019 introduced incompatibility clauses for the chairman and members of the Competition Commission, which applied retroactively to persons already serving. This resulted in the automatic dismissal of the Chairman and 3 members of the Commission in the middle of their term.
The retroactive application of these incompatibility clauses and the resultant dismissal of serving members of the Commission have been widely criticized as violating constitutional and supranational provisions, principles and guarantees, including the provisions of Directive (EU) 2019/1, the obligation to respect the term of office, the personal and functional independence of the independent authorities and the persons serving in them, and the principle of proportionality.
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