Abstract
L. 3471/2006, which incorporated Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002, abolished and replaced L. 2774/1999 on the Protection of Personal Data and of Private Life in the Field of Telecommunications, passed mainly in implementation of the Directive 97/66/EC, the latter being abolished since 31 October 2003 with the above mentioned Directive 2002/58/EC.
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Literature
G. Albouras, Transformation of the Consequences of Invalidity to an Economic Magnitude According to the Provision of Art. 931 CC, EllDni 47, 712 ff. The author takes up art. 931 GCC which aims, according to the author, at offering the victim a lump sum beyond that provided by art. 929 GCC. Accordingly, damage compensated for by art. 931 GCC cannot merely be the consequence of the inability to work and gain income, as the said damage is remunerated according to art. 929 GCC. In order for art. 931 GCC to apply, it is further required that damage is the consequence of the invalidity or disfiguration in particular. The writer notes that scientific criteria, namely the nature and severity of the invalidity, the character of the work the victim used to exercise, the high level of specialisation required in the business market, the payment of a healthy employee, etc., are required in order to evaluate the invalidity and its degree and that such criteria can be found in the legislation on insurance. If the degree of invalidity does not allow the victim to exercise any kind of work, art. 931 GCC cannot apply; in such a case the victim is entitled to full compensation provided by art. 929 GCC.
A. Danilatou, Damages, in the Series “Special Subjects of Law” Directed by Tsoumas B., Vol. 1 (Athens 2006) This is the first volume of a series that aims at presenting the issue of damages in various fields in an alphabetical order. In this volume the presentation of torts is included.
K. Fountedaki, Issues of Civil Medical Liability in Case of a Person’s Birth with a Serious Disease or Invalidity (Wrongful Life), in: M. Stathopoulos/ K. Beis/ Ph. Doris/ I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis, Vol. I (2006) 913 ff. The writer deals with the controversial matter of wrongful life. She outlines 70 the general preconditions required for the establishment of the doctor’s civil liability, refers to the notion of medical fault and looks into the causal link between the illegal and culpable act of the doctor and the birth of an unhealthy or disabled child. The most crucial problems, however, that arise in regard to wrongful life are connected to the notion of damage. The question raised is whether the birth and existence of a child suffering from a disease can be regarded as damage and whether the child is entitled to compensation. The writer notes that awarding a claim for damages to the child would mean not only that the life of a person with a severe disease constitutes damage, but also that his non-existence would be preferable to him; such a conclusion, however, would contravene the constitutional protection of human dignity (art. 2 of the Greek Constitution) and the constitutionally imposed obligation of the State to protect the disabled (art. 21 § 2 of the Greek Constitution). Moreover the claim for damages comes up against dogmatic impediments, because the difference theory, the aim of which is to restore the victim to the property status he would have enjoyed had the tort not taken place, cannot apply in cases of wrongful birth: had the medical fault not taken place, the child would not have avoided a reduction to his property, but he would have never existed and would thus have no property at all. As regards the claim for non-pecuniary damages, the writer notes that the existence of a person cannot be regarded as an offence towards that same person. Moreover, the person suffering cannot demand compensation for moral harm, because that would constitute a claim for the relief of the moral suffering caused by his own existence. Accordingly, the writer is against awarding a claim for damages for the unhealthy child, accepting however such a claim on the part of the parents, and concludes that the protection of people suffering from a severe disease or handicap is more a matter of social solidarity rather than an “acrobatic” and anti-systematic establishment of the doctor’s civil liability.
G. Gasparinatos, Civil Liability of the Administration of Corporations, Theory — Jurisprudence (Athens 2006) This thesis focuses on the civil liability of the administration of corporations towards third persons. The first part of the study is dedicated to the tortious liability of directors, which is based on art. 71 sent. b’ GCC in combination with art. 914 ff. GCC. The author points out that, in the last few years, the jurisprudence has tended to hold directors responsible also for the acts or omissions of third persons (employees or others), considering them as guarantors for the prevention and avoidance of every tort in the ambit of liability of the corporation. It is advised that this tendency of the jurisprudence has to be reconsidered, as it threatens to highly increase the risk of personal liability of directors to non-acceptable levels.
A. Kontogianni, Contributory Negligence in Civil Law (Athens 2006) In this extensive and very interesting thesis (441 pages), art. 300 GCC on concurrent fault, which also applies to torts, is thoroughly analysed. The author, after making a historical and comparative survey on contributory negligence, focuses on the regulation and the field of its application in civil law. She presents the preconditions stipulated by art. 300 GCC by looking into the contribution of the party suffering the damage both before and after the damage is caused, as well as his liability for the acts of third parties. She also analyses the legal consequences of the victim’s contributory negligence and concludes that in the rule of art. 300 GCC a general principle is expressed which surpasses the law of damages and can apply by analogy to other similar cases where the creditor has shown a concurrent fault and has contributed to his own damage. Procedural issues regarding the subject matter are also tackled.
V. Kostavara/ I. Romanos, Civil Liability of the Public Domain for the Collapse of a Building Due to an Earthquake as a Result of the IIIegal Acts of the Competent Urban Planning Office, ChrID 2006, 91 ff. On the occasion of the decision 641/2004 of the Three-member Administrative Court of First Instance of Patras, which dealt with the catastrophic earthquake of 1995 in the city of Aigio and more specifically with the collapse of a block of flats which resulted in the death of a number of people, the writers of the article mention the extreme importance of the decision not only because it constitutes a moral vindication for the relatives of the victims, but also because it is recorded as the first court decision to ever acknowledge civil liability for the collapse of a building due to an earthquake to the competent self-administration (Prefecture) for the acts and omissions of the civil servants who staff its urban planning office. The above mentioned decision 641/2004 was followed by a string of decisions, namely the decisions of the Three-member Administrative Court of First Instance of Athens No. 2375, 2378, 2580 and 2583/2005 issued on the Ricomex case,67 which, on the same grounds, were in favour of the persons who sustained damage because of the collapse of buildings due to an earthquake; in these cases the defectiveness of the buildings was attributed to the illegal exercise of duties by the urban planning organs.
A. Kotzambasi, Domestic Violence as a Social Phenomenon and the Legal Protection Provided by Civil Law (Observations on the Bill on Domestic Violence68), Arm 60, 1525 ff. The author looks into domestic violence as a social phenomenon and presents its evaluation by the jurisprudence, as well as its legal protection provided by law. She refers to the claims which protect the marital relationship, the fragmentary regulation of separation in legislature and both the voluntary and judicial suspension of marital relationships. The author observes that the bill on domestic violence does not add new civil forms of protection to the already existing ones. However it is of great value at the symbolic level, as it expresses a new concept against the tolerance which has until now been shown towards domestic violence. She adds as a concluding remark her hope that, with the change of attitude, judges will soon adjudicate significant amounts of damages for moral harm in cases of domestic violence, which have been given no importance until now.
St Kousoulis, Concurrence of Contractual and Delictual Liability, in: M. Stathopoulos/ K. Beis/ Ph. Doris/ I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis, Vol. I (2006) 441 ff. Taking as a starting point the consistent jurisprudence of the Greek Supreme Court, according to which, when the act or omission which constitutes a contractual non-performance is simultaneously and in itself unlawful, the two liabilities, delictual and contractual, concur, the author contemplates these two liabilities. He notes that the current trends in theory do not share the aforementioned view of the jurisprudence, but the view expressed for the first time by the member of the Academy, Emeritus Professor A. Georgiadis, according to which, in such a case, only one claim is born, but this claim is founded on two different legal bases. After an extensive argumentation, the author concludes that this last view best complies with the Greek system of liability and leads to the appropriate solutions as regards civil procedure.
A. Kritikos, Article 931 GCC. An Unnecessary Provision? Thoughts and Issues Raised, in: M. Stathopoulos/ K. Beis/ Ph. Doris/ I. Karakostas (eds.), Essays in Honour of Ap. Georgiadis, Vol. I (2006) 501 ff. The author looks into art. 931 GCC. He presents the different opinions that have been put forward to date concerning the legal nature of the claim for additional compensation due to disfiguration; he delves into the question of whether art. 931 GCC introduces an independent claim and refers to the consistent opinion of the jurisprudence that the establishment of the claim requires particular incidents other than those required for the establishment of the claims based on art. 929 and 932 GCC. The writer concludes that art. 931 GCC applies when the invalidity or disfiguration could merely possibly unfavourably affect the economic-professional future of the victim. It applies even when no claims based on art. 929 sent. a GCC are raised. Accordingly, the lawsuit does not need to correspond with the exaggerated demands of the jurisprudence as to its contents. Nonetheless, it is required that the way the invalidity affects the victim’s future is specified and determined in the lawsuit. The lawsuit which describes the invalidity and merely mentions that it will affect the victim’s future with no further specification is utterly vague. Thus, according to the writer, it is required that the lawsuit mentions that, in view of the victim’s inclinations and capacities, it is highly possible that the victim will alter the profession he previously exercised or that he will not be able to take on the profession he had hoped to or that he will be forced to choose a less profitable profession. The above mentioned criteria will allow the court to define the reasonable amount of compensation.
I. Markou, First Thoughts on an Unnecessary and III-Fitted Intervention of the Legislator. Matters from the New Provisions of Art. 79 § 5 L. 5960/1933, EllDni 47, 1283 ff. The writer criticizes the amendment made to L. 5960/1933 on cheques by art. 15 § 3 of L. 3472/2006.69 The notion that the previous legal bearer and endorser of the cheque, who paid the amount of the cheque to the legal bearer after a relevant recourse, is entitled to claim damages according to art. 914 GCC cannot, according to the writer, be accepted. It could lead to the oddity that the previous legal bearer would automatically, i.e. without the will of their beneficiaries, have multiple claims to damages, with possibly different content or subject. The new provision is also ambiguous as to who can be regarded as prejudiced and as to the exact content of the claim to damages, thus resulting in insecurity in the law. Last but not least the writer points out that it is likely that the issuer of the cheque needs to be protected against an “avalanche” of claims for damages filed against him.
G. Mitsopoulos, Proportionality and the Control of the Court of Cassation for Excessive Adjudication of Damages for Moral Harm, ChrID 2006, 769 ff. With the occasion of the decision 132/2006 of the Supreme Court,70 the author notes first that the term “reasonable” amount of damages provided by art. 932 GCC is a legal term which allows the Supreme Court to control the lower courts’ judgments as to the adjudicated amounts of money. Furthermore, he notes that the application of the principle of proportionality by the Supreme Court in its decision no. 132/2006 was not correct for the following reasons: a. Proportionality is a principle which must be taken into consideration when interpreting and applying a rule of law, therefore it presupposes that the court has the power to examine the lower court’s decision as to the violation of a rule of law, which may encompass the violation of the principle of proportionality. No new ground for cassation is created because of the principle of proportionality. The existence of a ground for cassation for violation of the law is presupposed; when controlling this ground of cassation it will be checked whether the aim of the law is violated and in this frame it will be judged whether the principle of proportionality has been also violated. b. Proportionality as a ground for cassation creates the danger of expanding the control of the Supreme Court to vast areas of law, where the structure of the regulations excludes the application of the said principle. c. The principle of proportionality must not exceed the permissible limits of interpretation, as they have been defined by the jurisprudence of the Court of Human Rights, combined with the constitutional provisions regarding the matter.
K. Roussos, The Prescription of the Claim Stemming from a Tort, ChrID 2006, 81 ff. With the occasion of the decision no. 12/2005 of Areios Pagos (full bench), 80 which deals with damages to the victims of the Ricomex factory which collapsed during the September 1999 earthquake,71 the author touches on two issues concerning the law of torts: a) culpability and more specifically the meaning and preconditions of dolus eventualis and b) the prescription of the tortious claim. The author analyses the issue of prescription, also aiming at giving an overview of the developments in jurisprudence as concerns the interpretation of art. 937 GCC and contributing to the solution of matters connected with the twenty-year prescription of claims stemming from a tort.
K. Roussos, The Employer’s Civil Liability for Omitting to Promote a Private Employee, ChrID 2006, 865 ff. The writer notes that the illegal omission to promote an employee may establish not only contractual, but also tortious liability. Illegality, as a precondition of art. 914 GCC, is based on the violation of art. 281 GCC, the criteria of which are used to judicially control employers’ decisions regarding promotions. There is, however, a trend in jurisprudence to acknowledge tortious liability without examining whether the employer’s behaviour is abusive in cases where the staff regulation has legislative force and to deny tortious liability in cases where the regulation has contractual force. The writer criticizes this differentiation as inconsistent with the notion of tortious illegality. Furthermore, the writer focuses on matters concerning prescription. Given that in cases of omission to promote both contractual and tortious liability are established, multiple provisions on prescription can apply: art. 249 GCC, providing for a twenty-year prescription period as to the contractual claim to promotion, art. 937 GCC providing for a five-year prescription period as to the tortious claim to promotion and salaries, art. 250 no. 17 GCC providing for a five-year prescription period as to the claim for salaries. The prevailing view in jurisprudence applies art. 937 GCC and accepts that, in case of successive omissions to promote, which take place as the natural consequence of the initial omission, each one of these omissions does not constitute a new tort; thus the conclusion reached is that the five-year prescription period commences from the initial omission. The author is against the afore-mentioned prevailing judicial view and stresses that the contractual liability cannot unjustifiably be set aside in order for the provisions on torts to apply. He maintains that, regarding the claim to promotion, the twenty-year prescription period provided by art. 249 GCC should also apply.
V. Vathrakokoilis, Interpretation — Jurisprudence of the Civil Code, Vol. 3, Law of Obligations, Special Part: Art. 741–946 GCC (Athens 2006 In this volume, among other articles of the GCC, also those related to torts are interpreted, and the relevant recent jurisprudence is presented.
E. Zervogianni, The Restoration of the Status Quo Ante as a Form of Damage Compensation (Athens 2006) The author in her thesis, which covers 388 pages, presents in a most detailed way the restoration of the status quo ante as a form of damage compensation. The focal point of the analysis is art. 297 sent. b GCC, which provides for the restoration of the status quo ante as a form of damage compensation and is one of the most fundamental rules of the general law of compensation and applies both to contractual and delictual liability. The general frame of the application of art. 297 GCC is followed by a most interesting typology, which includes — amongst others — the damage caused to the body or health and the damage to environmental goods.
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Dacoronia, E. (2008). Greece. In: Koziol, H., Steininger, B.C. (eds) European Tort Law 2006. Tort and Insurance Law, vol 2006. Springer, Vienna. https://doi.org/10.1007/978-3-211-77572-1_15
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