An objection against the constitutionality of the bill, which also includes regulations for water management in Thessaly, is filed today Thursday in Parliament by the Head of Department for Rural Development and Food and Member of Parliament for Larisa of SYRIZA – Progressive Alliance Mr. Vassilis Kokkalistogether with members of the official opposition.
Among other things, it is emphasized that the specific bill contradicts, among other things, the jurisprudence of the Council of State, which clarifies with absolute clarity that public goods such as water should not be removed from the State and assigned to the exclusive competence of the newly created Public Company. Because, in this way, the character of water as a social good, necessary for the life and health of citizens is lost and also the character of the legal goods of life, health, and property, as constitutionally protected goods, is lost.
In more detail, the text of the objection of unconstitutionality: “The MPs of SY.RIZ.A. that we sign, we raise objections and objections due to the unconstitutionality of Articles 3 – 13 of Chapter A “FORMATION AND OPERATION OF THESSALIA WATER MANAGEMENT ORGANIZATION OF THESSALIA ANONYMOUS COMPANY” of Part A “MODERNISATION OF WATER PROTECTION” of this draft law.
With the proposed provisions of articles 3-13 of the draft law, the Ministry of the Environment, in order to deal with climate change, which has as a consequence the occurrence of extraordinary weather phenomena, with disastrous consequences, making the daily life of citizens difficult and leading to the urgent need for protection of the citizens, prefers as an effective solution the establishment of a legal entity under private law with the name “Water Management Organization of Thessaly Anonymi Etairia” (O.D.Y.TH. S.A.).
The purpose of the Organization will be a) the development of a strategy for the protection and management of the waters of the Water Division of Thessaly, b) the supervision and supervision of strategic plans and in general c) the supervision and activity around issues related to the use of water in the wider area of Thessaly.
In order to fulfill these purposes, it is possible to a) enter into program contracts with public sector bodies and the OTAs. and b) and to supervise the good condition and smooth operation of the anti-flood and anti-drainage works, and the irrigation network by conducting inspections and imposing fines on offenders.
The legal goods that need protection, through the proposed provisions, are on the one hand the protection and management of the waters of Thessaly, a department where water is the main driver of the development of the agricultural economy, on the other hand, the fundamental constitutional rights of Life, of Health, Safety, Property from the risks of extreme weather phenomena, due to climate change.
These are social goods of the highest importance, directly protected by the constitutional provisions of articles 2 par. 1, 5 par. 1 & par. 5, 21§3 & 22 of the Constitution.
In particular, with regard to water management in Thessaly, the formulation of water policy and the management of flood risks due to climate change, given that these are public goods, according to the jurisprudence of the Council of State, the decisions on them, they must not be removed from the State and assigned to the exclusive competence of the created Public Company. Because, in this way, the character of water as a social good, necessary for the life and health of citizens, is lost and also the character of the legal goods of life, health, property, as constitutionally protected goods, which are under the obligation of the State, as long as the responsibility of formulating a flood risk prevention policy is directly intertwined with the life, health and property of citizens, therefore, the alienation of the State is constitutionally intolerable.
However, according to what has been decided by the Plenary of the Council of State (1906/2014, 190-191/2022), in order to ensure the health of the citizens mandated by the Constitution in articles 5 par. 5 and 21 par. 3, nothing but direct state control over A.Em is meant, which cannot be replaced by simple supervision through the competent Ministry.
The state impermissibly delivers to O.D.Y.TH. SA its powers, i.e. regulatory, regulatory, licensing, sanctioning, pricing, which according to the Constitution belong exclusively to it. (articles 5 par. 5 and 21 par. 3).
According to a previous report of the Scientific Service of the Hellenic Parliament, “(…) the provision of public utility services does not constitute an activity inseparable from the core of state power (…)” (StE 1906/2014 All). “[και] may be assigned to a public company in the form of a Public Limited Company, as in this case, which provides public utility services of absolutely vital importance (…), under the guarantee of the constitutionally mandated control of the S.A. by the Greek State. And control is not allowed to be carried out simply by exercising State supervision over it, but at the same time through its share capital, (…) (StE 190, 191/2022 All. See also, StE 1223-1224/2020 7m. referrals to the Plenary), and through the exercise of decisive powers by the State.
In view of the above assumptions and constitutional imperatives, the establishment and operation of “ODYTH S.A.” is in direct opposition to them, in the manner provided for in the draft law, and in particular:
A. Article 2 provides that the O.D.Y.TH. S.A. operates for the sake of the public interest in accordance with the rules of the private economy, under the supervision of the Minister of Environment and Energy, subject to the supervision of ODYTH. S.A. regarding the land improvement networks, which is exercised by the Minister of Rural Development and Food, as well as the supervision of the O.D.Y.Th. S.A. in terms of anti-flood projects, which is exercised by the Minister of Infrastructure and Transport.
However, the provision in question contradicts the Principle of the constitutionally mandated control of the SA by the Greek State, as the control is not allowed to be carried out simply by exercising the State’s supervision over it.
B. The powers fully transferred by this draft law to the Board of Directors of S.A. are not in line with and deviate from the aforementioned jurisprudence of the Council of State, as they do not ensure the necessary control of S.A. by the Greek State , which does not retain any decisive authority, transferring to the Organization full authority and responsibility for the protection of the above social goods, and maintaining only simple supervision.
In particular, it is assigned to O.D.Y.TH. S.A. the full management through the Board of Directors, which formulates its strategy and development policy, is responsible for every act related to its administration, management and the pursuit of its purpose, prepares its strategic and operational plan, determines the long-term main goals for the fulfillment of the purposes of O.D.Y.TH. S.A., the methods of their implementation, the determination of the total cost and the method of financing the individual actions. The ODYTH takes care of the preparation of the River Basin Management Plan and the Flood Risk Management Plan, grants water use permits, takes care of the preparation of the Strategic Plan for Flood Protection Projects (Master Plan), for the control and maintenance of the flood protection projects, as well as for risk analysis and preparation to deal with situations related to water management, such as flood, drought or water scarcity, e) take care and carry out the necessary actions for planning, construction, control, maintenance, administration and the operation of land improvement projects and networks acts and ensures the collection and monitoring of all hydrological and meteorological data of the Water Department of Thessaly.
The Greek State, although it will be the sole shareholder, does not have decisive authority and responsibility for the management of the S.A., except that it retains the right to exercise supervision, through the co-competent Ministries, but not enough, as it is NOT ENSURED only by supervision and the possession of the equity capital, the guarantee of the public purpose of ensuring to society those vital goods, in this case water, safety, life, health and property, without which the normal conditions for the dignified human existence and the free development of his personality and activity, which are guaranteed by the above articles of the Constitution.
The Greek State illegally and despite the dictates of the Constitution, alienates itself from its special obligations, which are connected with the provision of vital services for society, as these obligations derive from the Constitution.
C. According to the proposed provision of article 3, O.D.Y.TH. S.A. operates for the sake of the public interest in accordance with the rules of the private economy… and is governed by Law 4548/2018 (Α΄ 104), on the law of joint-stock companies.
In violation of the constitutional imperatives, the State alienates itself from its specific constitutional obligations, which are connected with the provision of vital services for society as a whole, and assigns these obligations to an Anonyme Company, therefore a company under commercial law, governed by the law on joint-stock companies.
The Jurisprudence of the Supreme Court (Coll. 1906/2014), decided that:
(“[η] and in essence, the transformation of the public enterprise into a private one, which operates with a view to profit, makes uncertain the continuity of the provision of affordable public utility services, especially of high quality, which is not fully ensured by state supervision…”.
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Tags: Kokkalis files objection unconstitutionality bill water management Thessaly
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