According to Article 53(3) of Presidential Decree 18/1989, as this paragraph was replaced by Article 12(1) of Law 3900/2010 and subsequently by Article 15(2) of Law 4446/2016 (entry into force: 22.12.2016): Ø “3. An application for cassation shall be admissible only where the party, by specific allegations contained in the introductory pleading, asserts that there is no case law of the Council of State or that the challenged decision conflicts with the case law of the Council of State or of another supreme court or with a final and unappealable decision of an administrative court.The inadmissibility referred to in the preceding sentence is cured if, up to the first hearing of the case, a decision of the Council of State or of another supreme court or a final and unappealable decision of an administrative court which is contrary to the challenged decision is brought to the court’s attention in writing at the initiative of the party, even if it was not invoked in the introductory pleading.” According to Article 53(4) of Presidential Decree 18/1989, as replaced by Article 12(1) of Law 3900/2010 (entry into force: 01.01.2011): Ø “4. An application for cassation shall not be admissible where the amount in dispute brought before the Council of State is less than forty thousand (40,000) euros, unless the challenged decisions are rendered in actions on the merits and concern periodic benefits, or the establishment of the right to a pension, or the establishment of the right to a lump-sum benefit and the determination of its amount.Specifically, in disputes arising from administrative contracts, this threshold is set at two hundred thousand (200,000) euros.These amounts may be adjusted by presidential decree issued upon proposal of the Minister of Justice, Transparency and Human Rights, following an opinion of the Plenary of the Council of State. Ø In disputes concerning social security contributions, taxes, duties, fees and related charges, fines and other sanctions, the amount in dispute shall mean the amount of the contribution, tax, etc. Contested before the Council of State, excluding surcharges and additional taxes. Ø The provisions of the preceding paragraphs shall also apply where the remedy lodged before the court of first instance was dismissed on procedural grounds. Ø Where the application for cassation is lodged by a private party, the competent authority or the public law legal person shall submit to the Council of State, through the Registry of the Court, a memorandum concerning the above amount in dispute. Ø Where the application for cassation is lodged by an administrative authority or a public law legal person or by their supervising Minister, the said memorandum shall be submitted together with the lodging of the cassation application.”
INTERPRETATION OF THE ABOVE PROVISIONS
Within the meaning of the above provisions, which apply to applications for cassation lodged after their entry into force irrespective of the date of publication of the challenged decision (Council of State 2177/2011, seven-member formation), the admissibility of an application for cassation requires the cumulative fulfilment of the conditions laid down in both of the above paragraphs (Council of State 679/2021, 456/2020, 2185/2019, 856/2013, seven-member formation, inter alia). More specifically, where the dispute does not have an immediate pecuniary subject matter, or where it has a pecuniary subject matter of at least 40,000 euros, or where it arises from an action on the merits and concerns periodic benefits or the establishment of the right to a pension or to a lump-sum benefit and the determination of its amount, the admissibility of the application for cassation requires the raising of allegations meeting the requirements of Article 53(3) of Presidential Decree 18/1989. Conversely, where the dispute has a pecuniary subject matter of less than 40,000 euros, the application for cassation is inadmissible, irrespective of whether allegations of the content described above are raised (Council of State 456/2020, 2903–2905/2020, 2185/2019, inter alia).
IN PARTICULAR AS REGARDS ARTICLE 53(3) OF PRESIDENTIAL DECREE 18/1989
Where the admissibility of an application for cassation depends on the raising of allegations as required by Article 53(3) of Presidential Decree 18/1989, the appellant bears a procedural burden, on pain of total or partial inadmissibility of the application, to substantiate, by specific and concrete allegations contained in the introductory pleading, that each ground of cassation raises a specific legal issue. Such legal issue must concern the interpretation of a statutory provision or of a general principle of substantive or procedural law, decisive for the resolution of the dispute brought before the Court, in respect of which either no case law of the Council of State exists or the findings and conclusions of the challenged decision conflict with existing and non-overruled case law of the Council of State or another supreme court or with a final and unappealable decision of an administrative court (Council of State 456/2020, 2903–2905/2020, 2185/2019, inter alia). Case law, in this sense, means the jurisprudence formed on precisely the same decisive legal issue resolved in a case involving the same or substantially similar factual circumstances, and not jurisprudence concerning a merely analogous or similar legal issue (Council of State 679/2021, 456/2020, 2185/2019, inter alia). In particular, where the appellant invokes lack of case law or conflict between the challenged decision and existing case law, such lack or conflict must not concern issues of reasoning connected with the factual assessment of the case, but must relate exclusively to the interpretation of a statutory provision or a general principle capable of broader application, irrespective of whether such interpretation is expressed in the major or minor premise of the judicial reasoning of the challenged decision and the decisions allegedly in conflict (Council of State 456/2020, 2185/2019, inter alia). In light of the above, grounds of cassation challenging the sufficiency of the reasoning of the challenged decision in relation to the factual findings of the court of first instance do not raise a legal issue in the above sense, as they do not concern the interpretation of a statutory provision or general principle of broader application.By contrast, grounds relating to the legal characterization of factual circumstances accepted as unreviewable by the court of first instance do raise such a legal issue, since their resolution may create a jurisprudential precedent with guiding or general applicability. Accordingly, case law is deemed to exist only where the Council of State has resolved a case involving the same or substantially similar factual circumstances, as only then can the same legal issue be considered to have been decided (Council of State 1972/2021, seven-member formation, 908/2022, 160/2020). Similarly, where courts of first instance interpret and apply indeterminate legal concepts (e.g. reasonable time, causal link, etc.) by subsuming the factual data of each case under such concepts, an issue of jurisprudential precedent arises only where the competent court (the Council of State, another supreme court or an administrative court) has ruled in a case involving identical or similar legal and factual circumstances, since only then can it be considered that the same legal issue has been resolved (see Council of State 1972/2021, seven-member formation, 908/2022, 160/2020, 1207/2019). Furthermore, where conflict with existing judicial decisions or lack of case law of the Council of State is duly substantiated, the application for cassation is admissible and examined only insofar as, and only in relation to, the grounds concerning the specific legal issue in respect of which such conflict or lack of case law exists (Council of State 1972/2021, seven-member formation, 160/2020). Finally, “case law of the Council of State”, for the purpose of establishing admissibility due to conflict, includes interpretative rulings of the Court, whether explicit or implicitly but clearly derived (Council of State 2607/2018; Cf. Council of State 167/2017, seven-member formation, 2599/2015, seven-member formation), which may be found either in the major or in the minor premise of the judicial reasoning (Council of State 956/2021, 88/2018, 331–336/2018, 4183/2015, inter alia).
IN PARTICULAR AS REGARDS ARTICLE 53(4) OF PRESIDENTIAL DECREE 18/1989
Where there are multiple appellants or respondents, the amount of the pecuniary subject matter of the dispute is determined separately with reference to the amount corresponding to each of them (Council of State 594/2021, 372/2021, 1895/2018, 452/2016, seven-member formation, inter alia).
Periodic benefits
Periodic benefits are those which have a predetermined content and recur at specific time intervals, without their generation or existence being subject to a condition, but arising solely by the lapse of the time period prescribed by law. Within the meaning of the provision, “periodic benefits” are benefits provided by the State (including social security institutions) to their lawful beneficiaries, but not public burdens, namely tax and customs charges or multiple fees (Council of State 1337/2020; Cf. Council of State 263/2019, in chambers).
Right to a pension
An application for cassation is admissible, without the restriction set by the above provision, i.e. even if the pecuniary amount in dispute is less than forty thousand (40,000) euros, where the dispute resolved by the courts of first instance following an action on the merits concerns, inter alia, the establishment of the right to a pension. Such disputes include exclusively those arising from the examination by the competent funds of whether the statutory conditions for the establishment of the right to receive a pension benefit are met.By contrast, disputes arising at the commencement or during the course of the insurance relationship, before the issue of pension entitlement arises (such as disputes concerning insurance coverage, recognition of insurance periods, characterization of an accident as occupational or not, insurance classification under the Regulation on Heavy and Unhealthy Occupations, or the right to continue optional insurance, even where the disputed issues may affect the future establishment of pension entitlement) are disputes without an immediate pecuniary subject matter.
Tax disputes
Where the contested act of the tax administration imposes both principal tax and additional tax, the additional tax is, in principle, not taken into account for the calculation of the amount in dispute (Council of State 3260/2017, 2934/2017, seven-member formation, 172/2018, seven-member formation, inter alia). Where an administrative appeal against multiple assessment acts of the tax authority is dismissed by a single decision, that decision is, for the purposes of calculating the amount in dispute at cassation stage, broken down into as many rejecting acts as there were acts challenged by the administrative appeal (Council of State 2934/2017, seven-member formation, 172/2018, seven-member formation). Where a single action challenges the implied rejection of an administrative appeal against multiple acts, and the administrative court issues a single decision, the amount in dispute before the Council of State is, in principle, determined separately for each act (Council of State 2934/2017, seven-member formation, 1897/2016, seven-member formation, 886/2016, seven-member formation, 2698/2015, seven-member formation, 1763/2014, in chambers, inter alia). By way of exception, however, the amounts corresponding to acts imposing income tax on the same party for the same financial/tax year, based on the finding by the tax authority of the existence of the same undeclared taxable matter, are aggregated, since in such a case the single challenge and the issuance of a single judicial decision are fully justified by the identical regulatory content and common factual basis, as well as by the need for effective administration of justice (Council of State 1895/2018).
EXCEPTION TO THE RESTRICTIONS OF ARTICLE 53(4) OF PRESIDENTIAL DECREE 18/1989
According to Article 2 of Law 3900/2010: Ø “Against a decision of an administrative court which holds a provision of a formal statute unconstitutional or contrary to another supra-legislative provision, without that issue having been resolved by a prior decision of the Council of State, an application for cassation, in the case of a dispute on the merits, or an appeal, in the case of an annulment dispute, shall lie before the Council of State, by way of derogation from any other provision.If the Council of State finds that the conditions of this provision are not met, it may, where the decision is subject to appeal before another court, refer the case to that court for adjudication.” Within the meaning of the above provision, the so-called “leapfrog” cassation appeal is lodged by way of derogation from any other provision and is therefore admissible even where the pecuniary amount in dispute is less than forty thousand (40,000) euros, where it challenges a decision of an administrative court of first instance or appeal which declares a provision of a formal statute or a regulatory administrative act unconstitutional or contrary to another supra-legislative provision (Council of State, Plenary, 219/2021). If the issue of conflict with a higher-ranking legal provision is resolved between the publication of the challenged decision and the hearing of the cassation application, the latter becomes inadmissible.
