On the independence of independent authorities in Greece in 2021

Independent authorities are governed by specific principles and requirements, which in turn creates obligations for other bodies of state power. Ensuring and respecting the personal and functional independence of these authorities is one of these obligations, as is giving serious consideration to official opinions expressed by these authorities.  However, in 2021, some phenomena have been observed that raise concerns about whether the above principles and obligations are being respected in Greece today.

Independent authorities are administrative bodies that are part of the legal entity of the state but enjoy intra-administrative independence and have financial and administrative autonomy. This means that their actions and responsibilities are not subject to scrutiny by the executive, but only to parliamentary and judicial scrutiny.

Independent authorities may be enshrined in the Constitution (e.g. Ombudsman – Article 103 paragraph 9 of the Constitution) or provided for by common law (e.g. the Competition Commission). The activities carried out by these authorities vary and they may have the role of institutional guarantor; supervisor to ensure credibility, meritocracy and transparency; market regulation, or in some cases it may perform more than one of these functions.

The role played (or that should be played) by independent authorities and their relationship with politics and democracy is a complex field (see E. Venizelou and K. Giannakopoulos, this interview with A. Dervitsiotis and the theses of I. Giannakos and T. Psimmas). However, once their existence and activities have been established and accepted, the executive must respect and promote their independence and not engage in acts that cast doubt on their work, nor on their neutrality and objectivity. Furthermore, the executive and the legislature are obliged to give serious consideration to opinions expressed by these authorities in their relevant areas of expertise.

However, some actions and practices have been observed which raise concerns about the substantive independence of these authorities. There are also questions and doubts around the extent to which the opinions/recommendations proffered by these authorities are taken into consideration in the decision making process.

The plan announced by the Government for the merging of two independent authorities has raised a number of concerns. Through the merger, these two authorities will cease to exist and along with it the term of office of its members will end, with all that this implies for their personal independence. 

In their place the Government has proposed a new independent authority. The Hellenic Single Public Procurement Authority (HSPPA) and the Authority of the Examination of Preliminary Appeals (AEPP) will be merged to form the Unified Public Procurement Authority. In August 2021, the HSPPA issued opinion No. A8/2021, which addresses problematic elements in the proposed legislation and potential points of contradiction with European and constitutional provisions, whilst noting more generally the (negative) consequences that the proposal could have in the field of public procurement.

These comments, however, do not seem to have been taken into consideration by the Vice Presidency of the Government who initiated the bill and in October 2021, when the bill entered the consultation process, HSPPA issued decision No. 12. /2021, proposing the establishment of a committee to review the proposed regulations. It is worth noting that the proposed merger also provoked the reaction of professional organizations representing almost all public works contractors, who considered that it would constitute a further setback in these times, which they say are defined by arbitrariness and a lack of transparency. The issue was also the subject of much commentary by the press (see Kathimerini and money review).In addition, some specific cases have been identified which could be perceived as (impermissible) attempts to interfere in the work and independence of independent authorities. Below the main points, but for fuller analysis see this article by the professor of Administrative Law, K. Giannakopoulou as well as this article in the newspaper Efimerida ton Syntakton. 

i) Article 70 of law 4795/2021 changes the terms and conditions of the term of office of the members of independent authorities, with immediate effect – i.e. it changed the terms and conditions of those who are already in office. In fact it was this provision that made it possible to elect as president of one independent authority a specific person who had already spent some time as vice president.

ii) Article 236 of law 4798/2021 amends the candidate profile and method of appointment of the  President of the Anti Money Laundering Authority. Whilst under previous legislation the candidate was required to be a current prosecutor, this amendment made it possible to elect a retired (honorary) prosecutor. It also allowed the selection of the President to be made by the Government rather than the Supreme Judicial Council, which was the case previously.

Recommendations and opinions offered by independent authorities have often not appeared to be taken into account during the legislative process or the conclusion of administrative contracts. The following cases are indicative:

a) Article 87 of law 4790/2021 concerns the privacy of communications, and whilst a number of doubts have been raised about its legality, the relevant independent authority was not consulted in the legislative process.

b) Article 24 of law 4792/2021 provides for exceptional public procurement procedures in a manner and in a field where the exceptional nature of the procedure is at risk of becoming a permanent deviation from public procurement methodology. This amendment was passed despite the fact that the relevant independent authority, the HSPPA, had advised against this legislation..  

Other issues:

a) There are general concerns about whether the obligation to protect personal data is respected by the state and to what extent the opinion of the Hellenic Data Protection Authority is being taken into account by the Government. (see this article in taxheaven, and this letter from the Deputy Head of Health of SYRIZA to the president of the Hellenic Data Protection Authority).

b) The HSPPA has issued guidance which attempts to identify, summarize and categorize, by thematic sections, the most common errors and irregularities involved in the public procurement process and in the appeal process in negotiations. Certain irregularities are observed again and again, which calls into question whether or not the contracting authorities (i.e. the public sector) are taking into consideration the recommendations that have been provided by the authority.

c) Reports suggest relationships are being maintained between Presidents or members of independent authorities with members of the Government (see this article by the pressproject). 

As detailed above there are concerns at various levels regarding the function of independent authorities in Greece. The actions taken by the executive and the legislature, and the indirect or direct intervention in the staffing and operation of these authorities, can only raise concerns. In particular, it is questionable whether independent authorities (both in the specific cases mentioned and in general) can operate without suspicion of bias and therefore whether they are capable of carrying out their work independently of any governmental influence. This calls into question both their independence and the work that they produce. The failure of the Government to call on these authorities to contribute their expertise in the legislative process, or for the Government to take into account their recommendations and expert opinions when they are offered is also a cause for concern, especially in the context of the passage of controversial legislation with a dubious legal basis.

Ultimately, the question that arises is, ‘what role can and should independent authorities play in Greece?’ The only sure thing is that their independence and objectivity must be guaranteed. Likewise, their expert opinion and recommendations should be respected at all times, and not only when it suits the Government’s agenda.