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06 February, 2024

Council of State: Legalisation of arbitrary acts in public spaces and pilotage is unconstitutional

houses in the city of Athens

The provisions of the laws on the legalisation of unauthorised constructions (and uses) are once again questioned, following the issuance of decision No. 91/2024 of the Council of State. The judgement in question concerns the constitutionality of Article 11, para. 1(d.i) of Law 4178/2013, applicable at the time of the issuance of the administrative act under scrutiny; this provision, however, has been replaced by -the almost identical- Article 98 para. 9 of Law 4495/2017, which is still in force.

In short, the provision -both in its older and its current form- provides that the owner of a horizontal property may seek the legalisation of unauthorised constructions extending to areas of common use of a property by a decision (or request, as applicable) of the simple majority of co-owners.

As is evident from the decision in question, the Court held that the said provision is not in compliance with:

(a)   Article 24 of the Constitution, because the legalisation of an arbitrary construction (“and indeed by a simple majority of the co-owners”) in the uncovered areas of the plots (pilotis), which according to the planning provisions should remain free of constructions, results in the subversion and, in any case, distortion of the sound urban planning imposed by Article 24.

(b)   Article 25 para. 1 (rule of law) and Article 2 para. 1 (protection of human dignity) of the Constitution, because the State should guarantee its citizens the correct application of the law and the effective functioning of the State services for the enforcement and implementation of the law.

(c)    Article 4 (principle of equality) of the Constitution, as it puts law-abiding citizens at a disadvantage by allowing the legalisation of unauthorised constructions.

 The above considerations are indeed phrased quite broadly and, in this sense, it could be deduced that issues of unconstitutionality are also raised for other provisions of Law 4495/2017, which have the same effects, i.e. exceeding the building terms and conditions set by law, unequal treatment by allowing legalisations and burdening law-abiding citizens, etc.

Because of the significance of these matters, the Fifth Chamber of the Council of State referred the case to the Plenary. It remains to be seen whether the broad wording was intentional or whether the questions of unconstitutionality are limited to the specific provision of Article 11, para. 1(d.i) of Law 4178/2013 (and the currently applicable similar provision of Article 98 para. 9 of Law 4495/2017).

It looks like we’re in for a nail-biter.

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