The case concerns a building constructed pursuant to a building permit issued in 1998. That permit was subsequently annulled by a final and irrevocable decision of the Plenary Session of the Council of State in 2010, on the grounds that the building was located within a traditional settlement subject to a special protection regime. Following the annulment of the permit, the building was deemed illegal. Nevertheless, the owners brought the building under Law 4495/2017 on unauthorized constructions, which, subject to certain conditions, provides for exemption from demolition. The Urban Planning Authority even approved completion works.
The Fifth Chamber of the Council of State, by a strong majority, held that this inclusion was unconstitutional. According to the decision, the legislature may not “regularize” buildings whose building permits have been annulled by a judicial decision, as this would violate the Administration’s obligation to comply with court judgments. In simple terms, the Court held that the legislature cannot, through statutory provisions, effectively nullify a final and binding judicial decision.
The Court emphasized that the contested provisions create a “breach in the legal order,” as they weaken the constitutional review of legislation by the courts and infringe upon the principle of the separation of powers. In particular, in cases where a permit has been annulled for substantive planning and zoning reasons, the automatic exemption of the building from demolition is, in the view of the majority, tantamount to an indirect revival of an invalid permit.
For these reasons, both the certificate of inclusion of the building under the unauthorized construction regime and the approval of the completion works were annulled. The three-storey building on the island of Syros was definitively classified as illegal and subject to demolition, bringing to a close a judicial dispute that had lasted nearly thirty years.
In view of the seriousness of the matter, the Fifth Chamber decided to refer the issue to the Plenary Session of the Council of State. The Plenary Session will determine whether the provision of Law 4495/2017 that allows for the regularization of buildings with annulled building permits or permits pending judicial review is constitutional. The case is expected to be heard in April 2026, with the decision anticipated in the summer of the same year.
The significance of the case extends far beyond the specific property at issue. Legal experts note that, should the Plenary Session find the provision unconstitutional, the entire system of “environmental offsetting” could be called into question, along with numerous building permits issued under the New Building Regulation Code (NBC), particularly those currently under judicial challenge. Such a development could block or invalidate projects that are presently regarded as lawful on the basis of special regulatory arrangements.
Already, the decision of the Fifth Chamber is being invoked by municipalities in their new legal challenge against the New Building Regulation Code and the Presidential Decree on environmental offsetting. The municipalities argue that the State may not circumvent final judicial decisions, as doing so undermines the rule of law and the protection of the environment.
