The 5th Department of the Council of State published its opinion on the draft Presidential Decree for the approval of the Special Environmental Equivalent Plan for Upgrading Cities (ESPIAP) to offset the use of NOK incentives, which was deemed constitutional and legal.
The draft DP had been submitted to the 5th Department of the Council of State for legislative processing after the decisions of the Plenary of the Supreme Court of Cassation (146-149/2025) and today Thursday the opinion No. 135/2025 was published (chaired by the State Councilor Roxani Giannoulatos and rapporteur the priest Andreas Skoufalos), which revokes the ambiguity regarding the use of NOC incentives.
Specifically, the statement of the Council of State is as follows:
“With the 135/2025 processing minutes of the 5th Department of the Council of State (President: R. Giannoulatou, Councilor, Rapporteur: A. Skoufalos. Paredros) a draft presidential decree was deemed legal, which was prepared after the 146-149/2025 decisions of the Plenary of the Court regarding the unconstitutionality of the incentive system of NOK. The draft decree was drawn up in accordance with the provisions of Law 5197/2025, with Article 68 of which an environmental equivalent mechanism was established to deal with the use of incentives and surcharges based on building permits that had been issued before the issuance of the above annulment decisions of the Court. These are, in particular, building permits that have either been canceled by a court decision or were challenged until 11.12.2024, so they are covered by the unconstitutionality diagnosed by the Court and are very likely to be cancelled.
The mechanism includes a Special Plan for the Environmental Equivalent of Upgrading Cities (ESPIAP), which is financed by amounts of environmental equivalent paid by the interested parties, and the reissuance of building permits with a process that varies according to whether or not the building’s bearing organization has been completed. The mechanism includes the selection of the most appropriate environmental equivalent measures from those provided for in Law 5197/2025 (article 68 par. 2) at the level of a municipal unit or, for the metropolitan complexes of Athens and Thessaloniki, a municipality, based on an environmental pre-control or, if applicable, a strategic environmental impact study.
The Fifth Section, repeating the case law of the Supreme Special Court, accepted that, in the case of legal relationships that have been irrevocably determined by court decisions, the legislator is not prevented from regulating these relationships again with new rules of law, as long as they are of a general nature and do not regulate an individual relationship. Consequently, the above-described system, which was introduced after the issuance of the above annulment decisions of the Court, was judged to be compatible with the Constitution, because the possible re-issuance of the above building permits will be the product of a new and different legislative regime, which does not aim to resolve a specific dispute, but to establish a general and abstract regulation with objective criteria (completion or not carrier, etc.) and impersonally.
However, it was decided that, according to the authorizing provisions, the possible re-issuance of the above building permits requires the completion of an environmental pre-control of the project, which is prepared, as mentioned above, at the local level, or, if necessary, a strategic environmental impact study”.
Source: Skai
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