By Elena Galaris

His judges Co state that the effects of unconstitutionality must not understand them building permitswhose construction works have been proven to have started until 11.12.2024, the date when the president of the Supreme Court of Cassation, Michalis Pikramenos, announced the decision.

“The start of implementation of the building permits means the excavation work for the construction of the building, the time of which must be proven in any appropriate way, such as, among others, a) by notifying, in any way, the start of the work excavation to any administrative authority, b) by the electronic submission of the Analytical Periodic Declaration (APD) by the employer to the EFKA database, etc., if the disclosure or submission of the above information must be made by December 11, 2024. However, the electronic automatic issuance of the building permit and the receipt of a permit number are not sufficient, nor the electronic notification of other Services, which only concern the issue of the permit and do not prove the start time of the construction works” state the judges.

At the same time it is pointed out that the Plenary decided that “the system of the provisions of the N.O.K. (articles 10 par. 1, 15 par. 8, 19 par. 2 and 25 par. 1), which provide increases to the building factor and the height, as incentives for the construction of buildings, does not, in principle, contradict from the content of the provisions alone, in article 24 par. 2 of the Constitution.

This is because a) the building being carried out, by virtue of the increase in the s.d., does not appear to be manifestly excessive, so that it definitely leads to a constitutionally impermissible deterioration of the living conditions and the environment, and the building condition referred to the height does not, by itself, constitute of, adverse change in conditions, b) the incentives are accompanied by the compensations of the reduction of coverage, the creation of high energy efficient buildings and the increase of common areas and green areas, which are, according to common experience, favorable elements for the environment.

B. However, the motives of the N.O.K., due to their prominent urban planning character, they cannot be implemented directly by issuing building permits issued pursuant to the N.O.K., but it is up to the urban planning legislator to include them in the local planning. In local planning, the consequences on the residential environment of the area where the incentives are applied are weighed, with documentation of the relevant judgment on the basis of a special scientific study, which is drawn up as part of the planning approval process and takes into account the physiognomy of each settlement. Therefore, the N.O.K.’s incentive system contradicts article 24 par. 1 and 2 of the Constitution. This is not, in principle, because of the content of the contested provisions, which are not, according to the above, per se unconstitutional, but for the reason that these provisions provide, directly to the building services, the possibility to issue building permits, deviating from the building conditions in force based on the urban planning regime of each area.

C. The provisions of article 11 par. 6 of the N.O.K. for the counting or not in the building coefficient of various areas of the buildings are legitimately established horizontally with the Building Regulation, because they are not an issue that goes back to the local urban planning.

At the same time, the judges judge that: “it is unconstitutional not to include the balconies and the building up to 35 sq.m. on the roof, as well as simulating the swimming pool with a planted surface. These, therefore, must be counted in the p.d. On the contrary, it is constitutional not to include the bay windows, i.e. limited architectural elements dimensions, and staircases that are not residential areas.

In their decisions, the judges point out that “the Court weighed the public interest on the one hand, and, on the other hand, the principles of legal certainty, predictability and the trust of the governed who built, trusting the legislative regime and the established incentives of Law 4067/ 2012, and who acquired in good faith rights in rem over said properties.

The Court pointed out that the reason why the provisions in question are considered unconstitutional is due to the established jurisprudence of the Court, which the legislator did not take into account when enacting the N.O.K. (n. 4067/2012), in order to preserve the principle of legal certainty. This principle is served when the jurisprudence of the Supreme Courts is taken into account when making legislation”.

Questions and answers about NOK

What exactly was decided by decisions 146-9/2025 of the Plenary Session of the CoE?

It was judged that the system of provisions of the NOK, which establishes incentives for increasing the building conditions (building factor, height) for the construction of buildings, could be introduced in the urban planning of specific areas depending on their specific characteristics but cannot, according to Constitution, to be established with a provision of general application, as in the present case, because this leads to the overthrow of the current urban planning of each region.

Is it the first time that a decision of the Council of Ministers with such content has been published?

Today’s decisions refer to the question of the relationship between the general building regulations and the more specific building conditions of each area. Similar issues have been raised many times in the past and the Court has always accepted that the more specific building conditions of each area prevail and apply, as long as they are more environmentally friendly. This issue has also been decided on the provisions of the current NOK with the 705/2020 decision of the Plenary.

Why did it take so long to rule on the constitutionality? NOK exists since 2012.

First of all, due to the economic crisis there was a decline in construction activity and a limitation in the issuance of building permits, with the result that no relevant trials have been opened. The building permits that led to the current decisions of the Plenary were issued in 2022, i.e. 10 years after the entry into force of the NOK, the referring decisions of the 5th section were published in 2024, the cases were discussed in the Plenary in October 2024 and the ordinance was published two months then, in December of the same year.

Are cases pending in the CoE on the constitutionality of other building incentives of the NOK?

Yes. Other cases with building permits are pending in which the question of the unconstitutionality of other provisions of the NOC (eg tunnels, expansion of underground garages, etc.) is raised.

Who is bound by the decisions of the Plenary Sessions?

Typically only the parties to the specific cases. However, since the illegality of the building permits is due to the unconstitutionality of the law, these decisions can have consequences for the legality of all permits issued based on the provisions that were deemed unconstitutional. For this reason, today’s decisions, by their express consideration, limited the effects of unconstitutionality. Thus, permits for which construction work has begun and, much less, been completed, cannot be canceled or revoked because of this unconstitutionality.

However, permits which had already been challenged in the courts until 11.12.2024, can be canceled for this reason, even if construction work had already started, because otherwise it would violate the right to judicial protection.

Are the licenses that have been issued and for which there is still a deadline for judicial challenge at risk?

Permits for which construction work has not yet begun can be canceled for the reasons stated in the decisions. Permits for which construction work has begun are not in jeopardy due to the application of the NOK’s unconstitutional incentives, but are only in jeopardy if they have other misdemeanors.

What do we mean by the term start of construction work? How does this prove?

The start of implementation of the building permits means the excavation works for the construction of the building, the time of which must be proven in any suitable way, such as, among others, a) by the notification, in any way, of the start of the excavation works to any administrative authority, b) by the electronic submission of the Analytical Periodic Declaration (APD) by the employer to the EFKA database, etc., if the disclosure or submission of the above information has been made until December 11, 2024. However, the electronic automatic issuance of the building permit and the receipt of a permit number are not sufficient, nor the electronic notification of other Services, as they only concern the issue of the permit and do not prove the start time of construction work.

My license was ruled unconstitutional by the courts. Am I entitled to compensation?

When damage is caused by the unconstitutionality of a law, there is in principle a right to compensation, as long as the other conditions for the State’s civil liability are met. The right to compensation is judged according to the special circumstances of each case by the competent administrative courts.

Did the CoE take into account the impact of these decisions on investment and transaction security?

Yes. The Court applied the legislation that allows the consequences of the judgment of unconstitutionality to be taken into account and, in this particular case, exhausted the scope of this legislation to limit the damage that may be caused by the decisions to economic activity and the security of transactions.