© Springer International Publishing Switzerland 2015Eva SteinerComparing the Prospective Effect of Judicial Rulings Across JurisdictionsIus Comparatum – Global Studies in Comparative Law310.1007/978-3-319-16175-4_7
7. The Role of Case Law and the Prospective Overruling in the Greek Legal System
Athens Law School, National & Kapodistrian University of Athens, 32, Alopekis Street, Athens, 10675, Greece
Mayer Brown LLP, Brussels, Belgium
The sources of Greek Civil law are traced back to the Roman-Byzantine Law as enshrined in the Hexavivlos, hence linked to the legislation of Justinian, Roman law and fundamental principles as expressed in the Pandects. The sources of Greek law are statutory legislation and customs. The former enjoys a clear quantitative and qualitative superiority. With regard to international law, dualism is the prevailing theory, while acquis communautaire enjoys undisputed supremacy. Positivisation of legal principles may be viewed as a means of convergence between idealism and legal positivism. The legislator enjoys the legislative prerogative, not reaching, though, the point of legislative monopoly. Judicial rulings do not qualify as a source of law; by contrast, they are only binding as to the specific case under judicial review (res judicata). Precedent creates no binding effect to any judge; however, any deviation should be attempted in a sparing manner for the sake of legal certainty and foreseeability. Settled case law and particularly that of the Supreme Courts may, though, be regarded as an indirect source of law with a quasi legislative and superior persuasive power. By way of exemption, case law is recognized as a source of law in the field of administrative law where violation of judge-made rules may give reason for annulment. The notion of prospective overruling is not encountered in the Greek legal system where any judicial ruling may only have a ‘retrospective’ effect, while statutory law has almost exclusively prospective effect.
A Short Introduction to the History of Greek Civil Law
The Greek law of contracts belongs to the Roman-Germanic family of law. The sources of Greek civil law back to the time of the Greek Revolution of 1821 were Roman-Byzantine Law1 and customary law, which varied throughout the territory of what would be the Greek state after 1830.2 Following Liberation, Byzantine-Roman law and customary law came to the forefront. French law also survived through the translation of the French Commercial Code that was in force. As to Civil law, the first important measure to be taken was the Royal Decree of 23rd February 1835, which stipulated the parallel force of the laws of the Byzantine emperors as contained in the Hexavivlos of Constantine Armenopoulos and of customs3; therefore, modern Greek Civil law was intimately re-linked with the law in force at the time of the fall of the Byzantine Empire and even earlier, with the legislation of Justinian, with the very sources of Roman law and those principles which were regarded as the raison ecrite of civilized nations and whose contemporary expression was the law of the Pandects then in force in Germany (Stathopoulos/Karampatzos, Contract Law in Greece, 3rd ed., 2014, pp. 24–25; in detail Papadopoulou-Klamaris, Entwicklungsphasen des griechischen Zivilrechts bis zur Einführung des griechischen BGB, in: Festschrift für R. Stürner, Band II, 2013, pp. 1143–1159). The Roman-Byzantine law was not regarded as extraneous by the social corpus (as the founding father of the Greek Civil Code, Professor Georgios Balis, stated in his Report to the Head of the Government and the Minister of Justice accompanying the final draft version of the Civil Code on 17th December 1939) and therefore it was argued that no breach with the Roman legal tradition occurred.
The Greek Civil Code was drawn up in the 1930s among political and economic turbulences, but it came into force only after the end of the Second World War, namely on 23rd February 1946, 111 years after the first Royal Decree regulating Greek Civil law. Georgios Balis, a prominent legal scholar and the head of the drafting committee of the Greek Civil Code (hereinafter: CC), argued that there was no reason for the newly established Civil Code to be a mere reproduction of a foreign Civil Code; on the contrary, this legislation ought to reproduce Civil law as applied by that time in the Greek territory subject to adjustment in line with modern social and economic context (Balis in his speech for the ratification of the Civil Code on 15th March 1940; see also Papadopoulou-Klamaris, supra).
The influence of the approach of the Pandects as incarnated in the German Civil Code (Bürgerliches Gesetzbuch, hereinafter: BGB) is another decisive factor to be mentioned. Pecuniary relations were thoroughly modeled after the relevant provisions of BGB, while previous legal tradition stemming from the Byzantine years could not be ignored. Such a feature was the introduction of a wide scale of general clauses into CC based upon the principle of equity (i.e. good faith and common usages). Such general rules, though, had long been a feature of Greek customs. Other examples of general rules or clauses are the civil protection of personality (Art. 57 CC), the prohibition of abusive exercise of a right (Art. 281 CC), the possibility of termination or adjustment of a contract due to an unforeseen change in circumstances (Art. 388 CC) etc. – up until recently such provisions were not encountered in BGB.4
The Sources of Greek Law
The sources of Greek law (sources formelles) 5 are (i) legislation, that is, statutes enacted by the State, and (ii) customs,6 whose importance though is extremely limited nowadays. This is explicitly envisaged in Art. 1 CC, pursuant to which
rules of law are incorporated in laws and customs.
Amongst these two sources there is a de facto quantitative and qualitative superiority of positive statutory law (Stathopoulos/Karampatzos, supra, p. 26) due to clarity and certainty provided by the latter.
Moreover, the generally accepted rules of international law (Art. 28 § 1 of the Greek Constitution, hereinafter: C) are rendered a direct source of domestic law (pursuant to the aforementioned constitutional provision). This category encompasses rules of international customary law as well, even stemming from international conventions not yet ratified. By way of contrast, international treaties do not constitute a separate source, since these treaties become domestic law by virtue of their ratification by a law. Dualism is predominant in Greece; therefore, international conventions and treaties have to be incorporated into the national law as described above in order to be legally effective. Art. 28 § 1 C reads, namely, as follows:
Both aforesaid categories of international law are granted a superior formal force in relation to the ordinary laws (“they prevail over any contrary provision of the law”; Art. 28 § 1 C); in the hierarchy, namely, they rank after the Constitution and have precedence over common laws (Stathopoulos/Karampatzos, supra, p. 27).
The generally recognized rules of international law, as well as international conventions as of the time they are ratified by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.
Last, but currently of utmost significance, is the issue of supremacy (interchangeably referred to as primacy) of EU law over national law. This fundamental principle was not embodied in the founding Treaties of the EU,7 but was subsequently established by the case law of the Court of Justice of the European Union (hereinafter: CJEU). Pursuant to this principle, any national law –the Greek Constitution included– that conflicts with EU law must be ignored by national courts so that EU law may take effect. National law is neither rescinded nor repealed, but its binding force is suspended.
No matter what theoretical disputes may have arisen in the past, nowadays primacy of EU law is undoubtedly accepted by Greek scholars and courts.8 The Court of Justice of the European Union has steadily invoked arguments from the point of view of international law, such as the nature of EU law as common and uniformly mandatory for all Member States.9
Positivisation of Legal Principles
Antipositivism, namely expressed as an inherent aspect of legal idealism, has been, in the past, the prevailing approach in the Greek legal system [Tsatsos, The Issue of the Interpretation of Law (in Greek, Το πρόβλημα της ερμηνείας του δικαίου), 2nd ed., 1978, p. 15, Mitsopoulos, Problems of Validity of Law (in Greek, Προβλήματα ισχύος του δικαίου), Nomiko Vima 1976, p. 1 and Despotopoulos, Philosophy of Law (in Greek, Φιλοσοφία του Δικαίου), 2000, 2nd ed., p. 136, are the main representatives of this opinion. On the contrary, Manesis, Critical Considerations on the Notion and Importance of Law (in Greek, Κριτικές σκέψεις για την έννοια και τη σημασία του Δικαίου), in: In memoriam of Konstantinos Tsatsos, 1980, pp. 365, 384, has steadily supported the introduction of positivism into the Greek legal system]. Tsatsos suggested that natural law with an alterable content does not have the validity of law; it may operate however –being the most suitable incarnation of the idea of justice itself– as a guideline for the establishment of positive law. Tsatsos further supported the view that the principal source of law is the idea of the justice itself, that is, social freedom, while Despotopoulos traced the fundaments of law in ethics, mentioning that anyone who establishes positive law has to be inspired from natural law – in other words, one has to establish law according to justice [Despotopoulos, The System of Law from a Philosophical Aspect (in Greek, Το σύστημα του δικαίου από τη σκοπιά της φιλοσοφίας), in: Minutes of the Academy of Athens, meeting on 18.04.2000, p. 235].
Nonetheless, antipositivism has been steadily criticized. Stathopoulos [Legal Positivism and Idealism in the Legacy of the Sophists and Plato – The Positivisation of Idealism Nowadays (in Greek, Νομικός θετικισμός και ιδεαλισμός στη σοφιστική διδασκαλία και τον πλατωνισμό – Η σημερινή θετικοποίηση του ιδεαλισμού), Elliniki Dikaiosini 2013, pp. 1–29] emphasizes on the main weakness of antipositivism, namely the inherent difficulty in concretizing the exact content of the idea of justice, as envisaged above, and the source of the supra-positive rules deriving therefrom. This approach entails a high degree of subjectivism that leads to legal uncertainty, which, in turn, renders the law vulnerable and subject to ideological and political manipulation. Stathopoulos suggests that the only way to secure both legal certainty and justice is through positivisation of abstract legal principles; therefore, any supra-positive principles that demand to be applied, so that the drawbacks of pure positivism are eliminated, shall be incorporated into statutory law either in the Constitution or in ordinary law of a lower hierarchical scale.10
One will gratefully accept today that the positivisation of abstract legal principles has been the main step towards convergence between legal positivism and idealism. Through this procedure, that is, the incorporation of abstract legal principles into positive law, most frequently in form of constitutional provisions, these legal principles turn into statutory rules; therefore, as such, they are rendered legally valid and binding.
Nonetheless, there has been an issue with regard to the legal validity of principles that may not have been positivised. However, this issue may be of no relevance when considering that there is no fundamental legal principle that has not been positivised [Stathopoulos, supra, p. 22]. Even the abstract idea of justice, characterized as ‘self-established’ by Mitsopoulos [Problems of Validity of Law (in Greek), Nomiko Vima 1976, p. 14], due to its acclaimed generality that does not allow its incorporation into a single statutory provision of general validity, has been positivised in the Greek Constitution, namely through the establishment of constitutional provisions not subject to revision. The constitutional legislator, recognizing the paramount significance of principles that lie in the heart of our legal culture and democratic system, has exempted them from any eventual constitutional amendment. According to Art. 110 § 1 C:
The provisions of the Constitution shall be subject to revision with the exception of those which determine the form of government as a Parliamentary Republic and those of Art. 2 § 1 (“Respect and protection of the value of human being constitute the primary obligation of the State.”), Art. 4 § 1 (“All Greeks are equal before the law.”), § 4 (“Only Greek citizens shall be eligible for public service, except as otherwise provided by special laws.”) and § 7 (“Titles of nobility or distinction are neither conferred upon nor recognized to Greek citizens.”), Art. 5 § 1 (“All persons shall have the right to develop freely their personality and to participate in the social, economic and political life of the country, insofar as they do not infringe the rights of the others or violate the Constitution and the good usages.”) and § 3 (“Personal liberty is inviolable. No one shall be prosecuted, arrested, imprisoned or otherwise confined except when and as the law provides.”), Art. 13 § 1 (“Freedom of religious conscience is inviolable. The enjoyment of civil rights and liberties does not depend on the individual’s religious beliefs.”) and Art. 26 (“1. The legislative powers shall be exercised by the Parliament and the President of the Republic. 2. The executive powers shall be exercised by the President of the Republic and the Government. 3. The judicial powers shall be exercised by courts of law, the decisions of which shall be executed in the name of the Greek people.”).
In light of the above, there can be no doubt that the contribution of natural law, as a means of mitigating any unfair outcome resulting from the strict application of legal positivism –following Aristotle’s demand for ‘individualized justice’–,11 to the whole shaping and structure of the Greek legal system is more than evident.12 Nowadays, abstract legal principles have been positivised either in the Constitution or in international conventions or in ordinary law such as general clauses (e.g. Art. 288 CC, good faith etc.).
The positivisation of abstract legal principles intimately linked with justice has been overall acclaimed even by scholars with an idealistic background; see Beys, Legal Principles in Theory and Practice (in Greek, Οι δικαιικές αρχές στη θεωρία και στην πράξη), Dike 2006, p. 1106, who regards the positivisation of the principle of proportionality as the utmost culmination of this procedure; also Doris, Introduction to Civil Law (in Greek, Εισαγωγή στο Αστικό Δίκαιο), Vol. A’, 1991, p. 33 (“positivisation of objectified principles binding for the legislator and the judge”). Furthermore, supporters of the so-called ‘soft’ or ‘inclusive positivism’ such as Coleman, Saper, Lyons and Waluchow accept the positivisation of moral considerations that “become part of the law because the sources make it so”; see further in Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy, 2003.
At any rate, any invocation of principles that do not fall under statutory law may be regarded either as redundant or even threatening for the integrity of positive law (Stathopoulos, Legal Positivism and Idealism in the Legacy of the Sophists and Plato – The Positivisation of Idealism Nowadays, Elliniki Dikaiosini 2013, p. 22), since it may even lead to its distortion.13
The Primacy of the Legislator and the Stance Adopted by Case Law
The primacy of the legislator is a fundamental characteristic of the Greek legal system. The judge, whose functional and personal independence is provided for by the Constitution (Art. 87 C), guarantees the observance of the laws and the protection of the citizen from illegalities.
On the other hand, agreement can easily be reached that judicial rulings, in principle, do not qualify as a source of law. The judge remains subject to the law deriving from the aforesaid sources and has no competence to make law. According to Art. 87 § 2 C:
While fulfilling their duties, judges shall be subject only to the Constitution and the laws.
Pursuant to the relevant strict provision of the Greek Constitution (Art. 26), faithfully adhering to the principles expressed by Montesquieu, the three functions of the state, that is, the legislative, the executive and the judicial, are clearly separated.14 In the Greek legal system, the legislator enjoys the so-called legislative prerogative (Rechtsetzungsprärogative des Gesetzgebers), though this prerogative does not reach the point of legislative monopoly (Rechtsetzungsmonopol). 15 In practice, additional sources of law appear; therefore, legal pluralism, a basic consideration encountered in sociology of law, is still present – though significantly restricted.
The above mentioned framework, even if not obvious at once, provides, though, the judge with a really active and ‘creative’ role regarding the implementation of law. Mainly due to the introduction of ambiguous provisions and general clauses whose abstract and impersonal stipulations need to be further concretized, the role of the judge is crucial and it may even be maintained that in these cases the judge somehow ‘creates’ law; this ‘creative’ role of the judge emerges especially in the so-called ‘hard cases’ [see Posner, How Judges Think, 2008, passim; also the same, in: The New York Review of Books, The Court: A Talk with Judge Richard Posner (an interview-discussion with Eric Segall), 29.09.2011]. In the words of Judge Posner (in: The New York Review of Books, supra):
if a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.
Such cases actually reveal how below any shining veneer of strict separation of powers there often seems to lurk somewhere the reality of ‘judge-made law’. However, a serious caveat must be entered here: in civil law systems –such as the Greek one– such judicial decisions are only binding as to the specific cases under judicial review (res judicata); there is no further commitment to those particular rulings for anyone else not involved in the cases considered. Therefore, the next judge called upon to issue a decision in a similar case is not bound to follow it, even if it may have come from a superior court or any of the Supreme Courts; the next judge is, namely, free to interpret it applying her own considerations, thus following her own interpretation no matter what settled case law might order.16
It is rather self-evident that the aforementioned primacy of the legislator does not entail that she may act in an arbitrary manner. For she is bound to the Constitution and the constitutionality of laws may be reviewed by any Greek court –there exists, therefore, a so-called ‘dispersed constitutionality control’–, though only as to the specific case brought to them; and if a certain statutory provision is deemed ‘unconstitutional’, then the court shall not apply said provision. For, as provided for in Art. 93 § 4 C
The courts shall be bound not to apply a statute whose content is contrary to the Constitution.
Though, a statutory provision, even if assessed as running contrary to the Constitution, may not be nullified, in principle, with an erga omnes binding effect.
According to Art. 100 C the Special Supreme Court of Greece (Art. 100 C)17 has the sole and exceptional competence to render a statutory provision invalid with an erga omnes binding effect. More particularly, when controversial decisions over the constitutionality of a statutory provision have been issued by the Supreme Courts of the three jurisdictions present in Greece –i.e. Council of State (Supreme Administrative Court), Areios Pagos (Supreme Civil and Criminal Court) and Court of Audit–, the Special Supreme Court has the final say on this matter. Its judgment has an erga omnes effect and, therefore, the statutory provision at dispute is rendered void (Spiliotopoulos, Handbook of Administrative Law (in Greek, Εγχειρίδιο Διοικητικού Δικαίου), 9th ed., 2001, p. 450). The judgments of this Court are irrevocable (Art. 100 § 4 C) and the provisions of a statute declared unconstitutional shall be invalid as of the date of publication of the respective judgment (or as of the date specified by the latter).18
The Role of Case Law in the Greek Legal System
In a jurisdiction where the majority of its rules are of customary origin such as Common law,19 the role of the courts in formulating the exact content of these rules is paramount. On the contrary, the pendulum swings to other side where positive law prevails, where namely the importance of case law as a source of law is significantly restricted – if even recognized as such.
As already alluded to above, case law of national and international courts is not and has never been recognized as a typical source of law in the Greek legal system [Tsatsos, The Problem of the Sources of Law (in Greek), 1941, p. 234, includes case law in Chap. 7 under the title ‘False sources’ (ψευδείς πηγές); see also Karampatzos, The Methodological Impact of the Doctrine of the Normative Power of the Factual (in Greek, Η μεθοδολογική αξία της θεωρίας περί κανονιστικής δύναμης του πραγματικού), Dike (Δίκη) 2008, pp. 8–28]. According to Tsatsos (supra, pp. 131, 238):
The judge makes law for the specific case brought before him.
Though, moving away from the principles of legal positivism, case law may be viewed as an indirect source of law, included in the so-called sources matérielles. These sources of law, namely case law and jurisprudence (Rechtswissenschaft), are not recognized as typical sources of law because they lack in typical validity [the majority of Greek scholars classify case law as a factor of formative force; in between Doris, Introduction to Civil Law (in Greek, Εισαγωγή στο αστικό δίκαιο), Vol. A’, 1991, p. 84, Simantiras, General Principles of Civil Law (in Greek, Γενικές Αρχές Αστικού Δικαίου), 4th ed., 1988, no. 52]. The procedure through which these sources produce law is not reflected in any statutory provision and therefore this law may not be treated as positive law stricto sensu (Tsatsos, The Problem of the Sources of Law, 1941, p. 131). Pursuant to Tsatsos, though (ibidem, p. 131), case law should not be treated as a mere cognitive source of law (Rechtserkenntnisquelle).