The Court does not review decisions of national courts unless they are unreasonable or arbitrary

JUDGEMNT

Sailing Club of Halkidiki ‘I Kelyfos’ v. Greece 21/11/2019 (applications nos. 6978/18 and 8547/18)

see here  

SUMMARY

Halkidiki-based sailing group ” I Kellifos” has appealed to the Council of State due to a gradual increase in the mooring and berthing fees . That Court, after a series of postponements, dismissed the appeal because of a change in legislation that freed the fees from any state control.

The Court observed that the undeniably lengthy proceedings could be explained by the repeated
adjournments of hearings. While a number of them had been adjourned by the Supreme
Administrative Court of its own motion, some hearings had been affected by a lawyers’ strike.
However, the Court acknowledged that there had been valid reasons for the Supreme Administrative
Court to adjourn its examination of the cases until the end of 2014, on account of a complete change
in the legislative framework during that year, following the previous review in 2013, as regards the
fixing of mooring and berthing fees in marinas, which are owned by the Greek State.

PROVISION 

Article 6 par. 1

PRINCIPAL FACTS

The first applicant, the “I Kelyfos” Sailing Club of Halkidiki, is a group of boat owners who rent
moorings in Porto Carras marina in Sithonia (Halkidiki). The second applicant, Mr Dimitrios
Papafilippou, is a boat owner, member of the sailing club and the chairman of its board of directors,
as well as being its legal representative.

In 2010 the marina’s management company raised the mooring and berthing fees charged to boat
owners by a large amount. According to the applicants, only the State, as owner of all the country’s
ports, was entitled to run marinas or entrust their management to third parties through a statutory
procedure.

Over time the Porto Carras Marina company submitted a number of successive pricelists, all
approved by ministerial decision, each time increasing the fees.

On 27 October 2012 and on 3 July 2012 the sailing club brought proceedings in the Supreme
Administrative Court for the annulment of the ministerial decisions which had approved the price
rises.

On 8 August 2013 a law abolished the obligation for pricelists to be approved by ministerial decision
and required that they simply be notified to the Ministry of Tourism. In 2014 Law no. 4254/2014
abolished any obligation of notification and of approval by the Ministry.

In two judgments the Supreme Administrative Court decided that there was no case to answer in the
proceedings brought by the sailing club, noting that the law had abolished the obligation to have
pricelists approved by the Ministry of Tourism and that the validity of the previous approval
decisions had expired.

For its part, the Porto Carras Marina company brought civil proceedings against members of the
sailing club for payment of unpaid mooring and berthing fees.

THE DECISION OF THE COURT…

Article 6 § 1

The Court noted that the proceedings on the two appeals lodged by the sailing club had been
undeniably lengthy on account of the repeated adjournments of hearings. While a number of them
had been adjourned by the Supreme Administrative Court of its own motion, some hearings had
been affected by a lawyers’ strike. But the Court also observed that the year 2014 had been decisive
for the case, as the plenary formation of the Supreme Administrative Court had delivered judgments
which for the first time addressed questions that were similar to those of the applicants. It was also
in 2014 that Law no. 4254/2014 had entered into force. The Court thus found that there had been
valid reasons for the Supreme Administrative Court to adjourn its examination of the cases until the
end of 2014.

The Court observed that the Supreme Administrative Court had dismissed the applicants’ claims with
detailed reasoning based on well-established case-law. In its first judgment it had taken the view
that there was no need to continue its examination of the appeal against the Ministry’s decision to
approve the increase in mooring and berthing fees on the ground that the sailing club had not relied
on an individual legal interest.

In its second judgment the Supreme Administrative Court had taken the view that the sailing club
could not rely on a legal interest in support of continuing the proceedings because, on the one hand,
the subject matter of its complaints did not concern the administrative consequences of the
ministerial decisions it was challenging, and on the other, the questions raised, being of an economic
nature, could be referred to the civil courts. Lastly, the Supreme Administrative Court had found that it was no longer necessary to pursue the matter, as the validity of the decision challenged by the club had expired in 2014 and Law no. 4254/2014 had come into force.

The Court reiterated that it was not a court of fourth instance and that it would not call into
question, under Article 6 § 1, the assessment of the domestic courts, unless their findings were
arbitrary or manifestly unreasonable. In the present case the Court observed that the grounds on
which the Supreme Administrative Court had dismissed the applicants’ requests could not be
regarded as arbitrary or unreasonable.

There had thus been no violation of Article 6 § 1(echrcaselaw.com).

 


ECHRCaseLaw

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