ANESC PAPERS – D.M. Tsakiri : the Protection of Fundamental Social Rights in the Greek Legal System

A.N.E.S.C. PAPERS

DESPOINA M. TSAKIRI, Lawyer in the Bar Association of Thessaloniki, Greece

THE PROTECTION OF THE FUNDAMENTAL SOCIAL RIGHTS IN THE GREEK LEGAL SYSTEM

TABLE OF CONTENTS

I- INTRODUCTION.. 4

II- THE FRAMEWORK OF FUNDAMENTAL SOCIAL RIGHTS IN THE GREEK LEGAL ORDER 6

1. Constitutional sources and ordinary legislation. 6
2. International legal sources. 7
3. EU legal sources. 8
4. The Greek system of judicial review.. 9

III. THE APPLICATION OF THE EUROPEAN SOCIAL CHARTER IN THE GREEK LEGAL ORDER  11

1. Preliminary remarks. 11
2. The Greek jurisprudence on the European Social Charter. 11

i.The decision 217/2012 of the Council of State. 12

ii.The decision 1374/1997 of the Council of State. 12

iii. The decision 1571/2010 of the Council of State. 13

iv. The decision 37/2013 of the Court of first instance of Chios. 14

IV- THE GREEK AUSTERITY MEASURES IN THE LIGHT OF FUNDAMENTAL SOCIAL RIGHTS THROUGH THE JURISPREUDENCE OF THE GREEK COURTS 16

1. Preliminary remarks. 16
2. Review of the jurisprudence on the Greek austerity measures. 17

a) The Greek austerity measures as an object of the centralized control of constitutionality 17

i. The decision 668/2012 of the Plenary Assembly of the Council of State concerning Memorandum I 18

ii. The decision 1285/2012 of the Plenary Assembly of the Council of State concerning Memorandum I 19

iii. The decision 3354/2013 of the Plenary Assembly of the Council of State concerning Memorandum I  22

iv. The decision 2307/2014 of the Plenary Assembly of the Council of State concerning Memorandum II 24

b) The Greek austerity measures as an object of the diffuse control of constitutionality 26

3. Decisions of International judicial and quasi-judicial bodies on the Greek austerity measures 27

a) The condemnation of the Greek austerity measures by the ILO supervisory bodies 27

b) Decision of the ECHR dated 7^th May 2013 (Case Koufaki and Adedy v. Greece) with regards to the Decision 668/2012 of the Council of State (Plenary Assembly) 30

c) Decisions Nos 65 and 66/2012 of the European Committee of Social Rights. 32

V. CONCLUSION.. 34

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THE PROTECTION OF THE FUNDAMENTAL SOCIAL RIGHTS IN THE GREEK LEGAL SYSTEM

 

I. INTRODUCTION

 

The current study aims to present the framework of the fundamental social rights in the Greek legal system as this has been formed in the national and international cadre. In the first part of the current study we will address the legislative sources of the fundamental social rights in the Greek legal order as well as the hierarchy and the relations among them in case of contradiction. After a brief presentation of the role of social rights in the Greek legal order, it will be also presented the Greek system of the constitutionality control as this is realized by the Greek courts and constitutes a substantial part of the judicial review in Greece.

In the second part of the study, it is attempted a more detailed presentation of the role of the European Social Charter in the Greek legal order and, in particular, the evolution of the binding nature of the Charter through the Greek jurisprudence. As long as the European Social Charter guarantees in solemn manner fundamental social rights, the Greek judge could neither disregard its applicability nor avoid the justification in case of non-implementation of its provisions.

Finally, taking into consideration the fact that the protection of fundamental social rights has been seriously evoked in Greece after the adoption of the austerity measures in accordance with the Memoranda, the third part of the current study is dedicated to the examination of the main issues related to the unconstitutionality of these measures as it has been developed by the Greek courts. With regards to the cases concerning the governmental austerity measures taken in accordance with the imposed Memoranda, Greek courts had the opportunity to proceed in the control of constitutionality of the austerity measures in order to diagnose the obvious contradiction of the majority of these measures to the Constitution and the international rules. However, things did not evolve as expected.

The austerity measures have been also considered by international and European institutions which monitor the implementation by the state parties of the ratified international treaties for the protection of human rights and it was found out

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