Arbitrary decisions to demolish buildings are not legal.

The large number of declarations of arbitrariness—which, according to yesterday’s data, exceeds 875,000—seems to have played a decisive role in the “shift” of the Plenary Session of the Council of State in its case law on arbitrariness. In its reasoning, the supreme court of appeal expressed confidence in the provisions of Law 4178/13 for the prevention of unauthorized construction and thus, for the first time since 1983, the legalization of unauthorized buildings was ruled constitutional. The only exception is cases of unauthorized buildings for which an irrevocable court decision has been issued for demolition—something that, with a broad interpretation, could also apply to cases that are or will be brought before the courts in the future.

Decision 1858/15 of the Plenary Session is a milestone in urban planning legislation, as it overturns a 30-year-old unshakeable stance on the issue of illegal construction. “Taking into account the set of measures enacted to prevent the continuation of illegal construction activity in the future, the Court it considers that the relevant provisions of the law, which refer to illegal construction in the past, are constitutionally acceptable,” states the decision, citing the provisions of Law 4178/13 (which have so far been almost entirely unenforced) for the prevention of illegal construction. In fact, examples from Italy, Spain, and Croatia, which have taken similar action, are also cited.

“Previous ‘systems’ to tackle illegal construction did not work because they were based solely on the repressive measure of demolition, which, on the one hand, was not applied even minimally and, on the other hand, was negated by successive legislation,” it is stated.

Strong minority

Ten councillors voted against the decision, including the rapporteur in the previous decision (on Law 4014/11), Aikaterini Sakellaropoulou. The minority group supported the established arguments of the Council of State’s case law regarding the reversal of urban planning and the violation of the principles of the rule of law and the equality of citizens before the law.

The only arbitrary decisions that “lose” the possibility of legalisation are those that have been irrevocably ruled against by a court of law. As ruled by the Council of State, the relevant provisions are annulled “because they are contrary to the principle of separation of powers and the obligation of the administration to comply with the content of annulment decisions.”

The positive decision on legalization is certainly a victory for the Ministry of Environment, as the Council of State accepted almost all of its arguments, even referring to the large number of declared unauthorized buildings (41 million square meters). The decision was welcomed yesterday by the Technical Chamber of Greece, which recalled its contribution to the drafting of both relevant laws, as well as their contribution to the employment of engineers.