Observing law-making patterns in times of crisis

ABSTRACT

This article examines the impact of the acute economic crisis that began in late 2009 on the law-making way in Greece. Through an analysis of the legislation enacted between 2010 and 2015, a consistent pattern emerged: Each time the crisis intensified, the Greek governments resorted to ‘legislative acts of necessity’ bypassing the established rules of proper law-making to the detriment of the smooth function of parliamentary democracy.

KEYWORDS:

• Law-making way
• patterns in law-making
• parliamentary democracy
• Greece
• economic crisis

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 European Commission, ‘Directorate-General for Economic and Financial Affairs’ (May 2010) (61) The Economic Adjustment Program for Greece, Occasional Papers 42-93.

2 The single decision group created by the European Commission, the European Central Bank, and the International Monetary Fund.

3 As judged by the Greek Council of State in its decision No. 668/2012.

4 Panayotis Glavinis, Greece’s Memorandum of Understanding in the International, European and Domestic Legal Orders (Athens-Thessaloniki: Sakkoulas, 2010), 90. (In Greek)

5 Ibid, 46 and 99.

6 According to Article 74 (5) of the Greek Constitution, ‘a draft or law proposal containing provisions not related to its main subject matter shall not be introduced for debate’. In addition, under the same provision, ‘no addition or amendment shall be introduced for debate if it is not related to the main subject matter of the Bill or law proposal’.

7 According to Article 76 (1) of the Greek Constitution, ‘every draft and every law proposal shall be debated and voted on once in principle, by article, and as a whole’. For the legislative process to go through these three stages (discussion and voting in principle, by each article separately, and finally as a whole), it becomes necessary to divide the legislative text into separate articles based on their regulatory content.

8 Article 85 (3) of the Standing Orders of the Parliament

9 Article 92 of the Standing Orders of the Parliament

10 Articles 38 and 91 § 1 of the Standing Orders of the Parliament

11 Article 44 (1) of the Greek Constitution

12 Article 76 (4) of the Greek Constitution

13 Articles 72 (3), 74 (5) and 76 (1) of the Greek Constitution and 89 (7), 90, 93 (2 and 3) of the Standing Orders of the Parliament

14 https://ec.europa.eu/eurostat/databrowser/view/teibs010/default/table?lang=en

15 Laws Νο. 3845/2010 ‘Measures for the application of the support mechanism for the Greek economy by euro area Member States and the International Monetary Fund’ and No. 3847/2010 ‘Adjustment of the Christmas and Easter holiday allowances and the leave allowance for pensioners’

16 Laws No. 3863/2010, 3864/2010, 3865/2010, 3871/2010, 3895/2010, and 3919/2011.

17 Law No. 4024/2011 ‘Pension provisions, uniform pay scale – grading system, labour reserve and other provisions for the implementation of the Medium-term Fiscal Strategy Framework 2012-1015’.

18 Records of the Plenum of the Hellenic Parliament, 13th Parliamentary Term, Third Session, 12th Meeting, 18 Oct. 2011, p. 529, <https://www.hellenicparliament.gr/Praktika/Synedriaseis-Olomeleias?sessionRecord=e5538aab-3fd3-4406-a66b-973eaee9eb9e> accessed 21 October 2022.

19 Mainly in law 3846/2010 ‘Guarantees for occupational safety and other provisions’, which was published immediately after the law of the first Memorandum (law No. 3845/2010) in May 2010 when the ESI fell to 82.8. Out of the 35 total articles of the law, 16 are unrelated to its main objective. Furthermore, article 32, which is irrelevant to the core focus of the law, occupies the space of a small bill. Notably, paragraph 1 of this article is structured into five whole chapters!

20 Greek Government Gazette, Vol. Α΄ 262/16-12-2011 and 268/31-12-2011.

21 For example, article 33 regulates matters of the Ministry of Education.

22 The Law of Second Greek Memorandum. The title of the law is ‘Approval of the Draft Financial Assistance Facility Agreements between the European Financial Stability Facility, the Hellenic Republic and the Bank of Greece, approval of the Draft Memorandum of Understanding between the European Commission, the Hellenic Republic and the Bank of Greece and other urgent provisions for the reduction of the public debt and the rescue of the national economy’

23 ‘Rules for the amendment of securities, issued or guaranteed by the Greek Government by consent of the Bondholders’, No. 4051/2012 ‘Provisions regarding pensions and other urgent provisions for the application of the Memorandum of Understanding of law 4046/2012’

24 ‘Law falling within the competence of the Ministries of Health and Social Solidarity and of Labor and Social Insurance applying the provisions of Law ‘Approval of the Draft Financial Assistance Facility Agreements between the European Financial Stability Facility (E.F.S.F.), the Hellenic Republic and the Bank of Greece, approval of the Draft Memorandum of Understanding between the European Commission, the Hellenic Republic and the Bank of Greece and other urgent provisions for the reduction of the public debt and the rescue of the national economy’ and other provisions’

25 ‘Ratification of the Act of Legislative Content ‘Very urgent measures for the implementation of the Medium-term Fiscal Strategy 2012–2015 and of the State Budget for 2011’ and of the Act of Legislative Content ‘Regulation of very urgent issues for the implementation of law 2024/2011 and of issues falling within the competence of the Ministries of Administrative Reform and E-Governance, Interior, Finance, Environment, Energy and Climate Change, and of Education, Lifelong Learning and Religious Affairs and related to the implementation of the Medium-term Fiscal Strategy Framework 2012-2015’

26 In March 2012, the euro area agreed on a private sector involvement (PSI) to alleviate Greece’s debt burden by restructuring sovereign bonds held by private investors.

27 Greek Government Gazette, Vol. Α΄ 171/5-9-2012, 174/6-9-2012, 175/7-9-2012, 188/3-10-2012, 209/30-10-2012, 210/30-10-2012, 211/31-10-2012, 224/12-11-2012, 228/18-11-2012, and 229/19-11-2012.

28 Ratification of the Act of Legislative Content ‘Regulation of issues on the capital enhancement of credit institutions’, of the Act of Legislative Content ‘Regulation of issues on the implementation of laws 3864/2010, 4021/2011, 4046/2012, 4051/2012 and 4071/2012’, of the Act of Legislative Content ‘Regulation of issues on publishing financial reports of the credit institutions and their subsidiaries which operate in the financial sector’ and other provisions of the Ministry of Finance.

29 ‘Reduction of Public Expenditure, Regulation of Issues of Financial Control, and other provisions’.

30 Ratification of the Act of Legislative Content of September 6th, 2012 ‘Amendment of the last section of paragraph 1 of article 3 of law 3986/2011 «Urgent measures for the implementation of the Medium - Term Fiscal Strategy 2012-2015» (A' 152), as in force’, of the Act of Legislative Content 'Repeal of the minimum percentage of the Greek State in ELPE (Hellenic Petroleum), DEI (Public Power Corporation), OPAP (Organization of Football Prognostics), ODIE (Hellenic Horse-race Betting Organization), EYDAP (Athens Water Supply and Sewerage Company), EYATH (Thessaloniki Water Supply and Sewerage), ELTA (Hellenic Post), Port Authority of Piraeus, Thessaloniki, Alexandroupoli, Volos, Eleusina, Igoumenitsa, Iraklio, Kavala, Corfu, Lavrio, Patras and Rafina, as well as the repeal of article 11 of law 3631/2088 (A'6)' and other provisions.

31 ‘Approval of the Medium-term Fiscal Strategy Framework 2013–2016 - Urgent Measures for the Implementation of the Medium-term Fiscal Strategy Framework 2013-2016’.

32 Law No 4111/2013 ‘Pension provisions, amendments of law 4093/2012, ratification of the Act of Legislative Content «Approval of the Draft Agreements Amending the Master Financial Assistance Facility Agreement between the European Financial Stability Facility (E.F.S.F.), the Hellenic Republic, the Hellenic Financial Stability Fund (H.F.S.F.) and the Bank of Greece, under the title ‘Master Financial Assistance Facility Agreement’, of the Financial Assistance Facility Agreement between the European Financial Stability Facility (E.F.S.F.), the Hellenic Republic and the Bank of Greece, under the title ‘PSI LM Facility Agreement’ and of the Financial Assistance Facility Agreement between the European Financial Stability Facility (E.F.S.F.), the Hellenic Republic and the Bank of Greece, under the title ‘Bond Interest Facility’, provision of authorizations for the signature of Agreements» and other provisions of urgent nature’.

33 Eurogroup statement on Greece, <https://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ecofin/133857.pdf> accessed 21 October 2022.

34 Laws No 4147/2013 ‘Ratification of the Act of Legislative Content of 31.12.2012 'Provisions of very urgent issues of the competence of the Ministries of Interior, Labor, Social Security and Welfare, Public Order and Citizen Protection, of the General Secretariat of the Government and the State Minister', and other provisions’, No 4152/2013 ‘Urgent measures for the implementation of laws 4046/2012, 4093/2012 and 4127/2013’, No. 4172/2013 ‘Income taxation, urgent measures for the implementation of law 4046/2012, of law 4093/2012 and of law 4127/2013 and other provisions’, No. 4254/2014 ‘Measures on the support and development of the Hellenic economy in the framework of the implementation of Law 4046/2012 and other provisions’, and No. 4281/2014 ‘Measures for the assistance and development of the Hellenic economy, organizational issues of the Ministry of Finance and other provisions’.

35 Laws No 4333/2015 ‘For the negotiation and conclusion of the loan agreement with the European Stability Mechanism (ESM)’, No 4334/2015 ‘Urgent provisions for the negotiation and the conclusion of agreement with the European Stability Mechanism (ESM)’, No 4335/2015 ‘Urgent measures for the implementation of law 4334/2015’, and No. 4336/2015 ‘Provisions regarding pensions – Ratification of the Draft Financial Assistance Facility Agreement by the European Stability Mechanism (ESM) and regulations for the implementation of the Funding Agreement’ (the law of the third Memorandum).

36 Greek Government Gazette, Vol. Α΄ 79/14-7-2015, 84/18-7-2015, 90/31-7-2015, 97/17-8-2015, 100/19-8-2015, 101/22-8-2015, 102/26-8-2015.

37 Andrez Zwitter, ‘The Rule of Law in Times of Crisis: A Legal Theory on the State of Emergency in the Liberal Democracy’ (2012) 98(1) ARSP: Archiv für Rechts und Sozialphilosophie/Archives for Philosophy of Law and Social Philosophy 110.

38 Ιbid, 100

39 Ibid, 103

40 Cicero, De Legibus, book III, part III, sub. VIII