Facing l’etat d’exception: The Greek Crisis Jurisprudence

—Christina M. Akrivopoulou, Adjunct Lecturer, Democritus University of Thrace

Greek courts have only recently attempted to control the Memoranda entered into between the Greek state and the European Union and IMF, which impose austerity measures on the country. This judicial self-restraint has mainly been due to the extreme severity of the financial crisis. In theory, on occasions where the state faces a true emergency, it can use the instrument of a state of exception (l’ état d’ exception) in order to allow protection of the public interest to prevail temporarily over the full realization of constitutional rights. Further, these crises empower the executive over the legislature and the judiciary. The Greek crisis jurisprudence in general terms seems to confirm this doctrine and thus the judiciary has largely abstained from interfering with the executive’s choices regarding the introduction of taxes, the enforcement of budget cuts, and reductions in the salaries and pensions in the public sector.

For example, the Greek Council of State, in case 668/2012, upheld the measures prescribed in the first Memorandum (entered into in may 2010) concerning budget cuts and reductions in the salaries and pensions of the public sector by taking into account the need to serve exceptional and urgent goals of general public interest as well as the need to guarantee the country’s obligations towards the European Union and the International Monetary Fund. More specifically, the Council accepted that in this case the principles of proportionality, equality, the fair distribution of public burdens and the right to property were not infringed since the need to service the country’s external debt and the enhancement of its financial credibility were crucial. Similarly, in judgment 1685/2013 the Council upheld an expanded financial contribution for annual incomes exceeding 60,000 euros. It justified the measure due to the need of protect the public interest and underlined that the relevant legislation (Article 18 of Law 3758/2009) did not violate the constitutional restriction permitting the retroactivity of laws that impose taxes only for the year prior to their adoption (Article 78, paragraph 2 of the Greek Constitution).

Other institutions have been less deferential in their approach. The Greek Court of Auditors, in an opinion on February 20, 2012, reviewed a fourth set of programmed cuts on public sector pensions and underlined that these cuts “violate the principles of a social state, but also lead to its destruction since they deteriorate the pensioners situation to such a level that the principle of human dignity according to the Constitution is jeopardized.”

The Greek Council of State is expected to issue a bolder decision regarding second Memorandum provisions, entered into in March 2012, abolishing the trade unions’ right to resolve labor conflicts by appealing to arbitration committees. Unofficially the Council has released the opinion of many members of the Court that consider this specific provision as infringing the very core of collective bargaining as it is acknowledged in Article 22, paragraph 2 of the Greek Constitution and in the European Convention of Human Rights, the Social Charter, and the relevant framework set out by the International Labor Organization. This perspective is in tune with the recent condemnation of Greece by the European Social Charter Committee because of the deregulation of labor relations for those workers under the age of 25 (Complaints 65 & 66/ 19.10.2012).

Suggested Citation: Christina Akrivopoulou, Facing l’etat d’exception: The Greek Crisis Jurisprudence, Int’l J. Const. L. Blog, July 11, 2013, available at: http://www.iconnectblog.com/2013/07/facing-letat-dexception-the-greek-crisis-jurisprudence.