Protection of the right to a prior hearing

The right to a prior hearing is a fundamental right enshrined in the Charter of Fundamental Rights of the European Union, Article 41(1)(2), which provides that every person has the right to an impartial, fair and timely examination of their affairs by administrative bodies and includes the right of each person to a prior hearing before an individual measure is taken against them. Additionally, it includes the right to have access to his file and the obligation of the administration to justify its decisions.

Similar protection is provided by article 43(1) of the General Principles of Administrative Law L.158(I)/1999, which provides that the right to be heard is granted, except in cases expressly provided for by law, to any person who will be affected by the issuance of an act which is disciplinary or adverse in nature.

This right was emphasised in the decision issued by the Administrative Court in cases No. 274/22(i) and 275/22(i) dated December 12, 2023.

Specifically, as emerges from the decision of Judge A. Zervou, the tender review authority (TRA) accepted the recourses of interested parties and annulled the decision of the contracting authority to award a tender through a negotiation process without prior publication to the applicant and additionally declared the relevant contract invalid.

The contracting authority decided to request an offer from the applicant on the grounds that the company in question was the only one that had suitably qualified staff. Before signing the contract, a voluntary announcement was made and after 10 days, in view of the fact that no recourse was filed, the authority proceeded to sign the contract with the applicant.

The TRA concluded from the content of the administrative file, that the reasons put forward by the authority contained contradictions and did not justify resorting to a negotiation process without prior publication and that the research carried out and what was taken into account was incomplete and incorrect.

Examining the request to declare the contract invalid, it decided that it did not find compelling reasons of general interest not to and declared it invalid.

The applicant company, which was awarded the tender and signed the contract, was informed of the filling of the recourses by the interested parties before the TRA and requested to be heard, a request which the TRA rejected. The applicant challenged the decisions of the TRA because it wrongly and illegally deprived her of the right to a previous hearing.

The court ruled that by signing the contract the applicant acquired specific rights, which were obviously affected by the contested decision and for this reason, it concluded that the TRA was obliged to grant the applicant the right to be heard before issuing its decision, as provided for in article 43(1) of Law 158(I)/99.

The court referred to case law of the Supreme Constitutional Court, case No. 93/16, dated 11.9.2023, where it was decided that the prior hearing of the interested party has a dual purpose, on the one hand, to give the interested party the opportunity to support their rights or interests, and on the other hand, to ensure the administration has better information to operate in a more efficient, reasonable and fairer way.

It pointed out that in the decision C-650/19, the ECJ recalled that Article 41(2)a of the Charter of Fundamental Rights of the European Union states that the right to good administration includes the right of every person to a hearing before measures are taken against them. The right to be heard belongs to the rights of the defence and respect for these is a general principle of the Union law, which applies even if there is no specific regulation in this regard.

The court concluded that the declaration of invalidity of the contract, from which the applicant derived rights, clearly constituted an unfavourable measure for them and ordered the annulment of the contested decisions of the TRA.

George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: [email protected], tel: 24818288