Certificatory (confirmatory) acts of the Administration do not constitute administrative acts in the strict sense, since they lack enforceability; they merely confirm an already existing legal situation and, therefore, are not amenable to judicial review.
Such a certificatory act — which is inadmissible for judicial challenge — arises where the Administration rejects a second application submitted by an administered person following the rejection of a first application of substantially identical content, without any intervening material new element between the initial rejection and the resubmission of the request.
More Specifically
Article 63 of the Code of Administrative Procedure (Law 2717/1999, as in force)
Article 63 provides:
“1. Subject to the provisions of special statutes of the Code, enforceable individual administrative acts or omissions giving rise by law to administrative disputes of a substantive nature shall be subject to an action (recourse).
2. An omission exists where the administrative authority, although legally obliged, fails to issue an enforceable individual administrative act in order to regulate a specific legal relationship. The omission is deemed to occur upon the lapse of the time limit prescribed by law for issuing such act, whether ex officio or upon application by the interested party. In the latter case (implicit refusal), if no such time limit is prescribed by law, the omission is deemed to occur upon the lapse of three months from the submission of the relevant application to the Administration. The omission is also deemed to occur where a positive administrative act is issued from which it may be implicitly inferred that the Administration is unwilling to regulate a specific legal relationship. […]”
From the above provisions it follows that a non-enforceable administrative act is not admissibly challenged by way of recourse. Such is the case of the express or implied refusal of the Administration in response to a second application of identical content submitted by the administered person, where no new substantive examination of the case has taken place. Such refusal is merely confirmatory in nature and signifies the Administration’s persistence in the solution previously adopted.
“Identical content” means the absence of invocation of new and material elements capable of leading to the acceptance of the subsequent (second) application.
Application for Annulment
Furthermore, Article 45 of Presidential Decree 18/1989 provides:
“1. An application for annulment on the grounds of excess of power or violation of law shall be admissible only against enforceable acts of administrative authorities and legal entities governed by public law.
4. In cases where the law imposes on an authority the obligation to regulate a specific legal relationship by issuing an enforceable act falling within paragraph 1, an application for annulment shall also be admissible against the authority’s omission to take the required lawful action. The authority shall be deemed to refuse such action when the specific time limit prescribed by law lapses without action; otherwise, when three months have elapsed from the submission of the relevant application to the Administration […]”
Accordingly, within the meaning of this provision, a confirmatory administrative act — that is, an express or implied act by which the Administration declares its adherence to a prior express or implied act or omission, without conducting a new substantive examination of the case and in the absence of invoked and proven material new elements — is not subject to challenge by way of an application for annulment, as it lacks enforceability. This is so where the relevant factual and legal framework upon which the case is assessed remains unchanged.
Relevant Case Law
Symvoulio tis Epikrateias 1754/2017
Symvoulio tis Epikrateias 3672/2014
Symvoulio tis Epikrateias 5094/2012
Symvoulio tis Epikrateias 1318/2008
