CONCURR ING OPINION OF JUDGE MORENILLA

1.  I voted with the majority for the finding that there was a violation of Article 6 para . 1 of the Convention ( art. 6-1) in the present case. In the following paragraphs I expres s my point of view separately.

2.  In my opinion this case opens a new, dynamic stage in the development through case-law of the concept of the "right to a court" in a field - administrative proceedings - which has very deep historical roots in the legal systems of many European States influenced by French administrative law. The specific features which distinguish administrative proceedings from civil proceedings are mostly based on the existence of a decision on the part of the respondent public authority which has directly harmed someone ’ s personal r ights or legitimate interests.

3.  The applicants alleged that the administrative authorities ’ refusal to comply with the judgments of the Supreme Administrative Court setting aside the decisions refusing them the authorisation they had sought to open an English-teaching school in Rhodes on the sole ground that they did not have Greek nationality, when they were nationals of another member State of the European Communities, had infringed their right to effective judicial protection of their civ il rights. The Court concluded (see paragraph 45): "By refraining for more than five years from taking the necessary measures to comply with a final, enforceable judicial decision in the present case the Greek authorities deprived the provisions of Article 6 para . 1 of the Convention (ar t. 6-1) of all useful effect."

4.  The present case therefore raises the question of the scope of the judgments given by the Supreme Administrative Court in connection with the applicants ’ applications to set aside the above decisions of the competent administrative authorities refu sing the authorisation sought. The same question might arise, mutatis mutandis, in other systems based on the French model of administrative proceedings.

5.  The French Conseil d ’ Etat has succeeded in turning administrative proceedings into a safeguard for the individual against excesses on the part of the public authorities by making them similar to civil proceedings, with just one difference: the review of the lawfulness of the administrative decision in issue carried out by the administrative courts. That difference was a decisive factor in the creation of an independent procedure within the jurisdiction of the administrative courts, with the Conseil d ’ Etat at the top of the hierarchy as the supreme organ responsible for scrutiny of t he administrative authorities.

6.  Because of the way the system has developed over the course of time, its primary purpose is to review the lawfulness of the impugned decision (particularly by means of an application to set aside). In such proceedings the administrative court, in setting aside the unlawful decision, exhausts its powers. "Thus the judge can only set aside the unlawful administrative decision, otherwise he would infringe the principle of the separation between administrative authorit ies and administrative courts. He cannot, by his own judicial decisions, try to fill in the vacuum created by the decision to set aside" (see Debbasch -Ricci, Contentieux administratif , Paris , 1990, p. 833).

7. That was the historical-legal context in which, on 9 and 10 May 1980, the Greek Supreme Administrative Court delivered the judgments which were not implemented by the administrative authorities, a failure on their part which was considered by the majority to constitute an infringement of the applicants ’ right to a court.

8.  In the present case Mrs Ada Hornsby applied in 1984 (after Greece joined the European Communities) for authorisation to set up a pr ivate English-teaching school. The administrative authorities rejected this application on the sole ground that such authorisation could be gr anted only to Greek nationals. The Court of Justice of the European Communities held that there had been a failure by Greece to comply with the requirements of Articles 52 and 59 of the EEC Treaty, which conferred on the nationals of one member State the freedom to settle in the territory of another while at the same time prohibiting all discrimination on the ground of nationality as regards the right to take up activities as self-employed persons and to set up and run businesses.

9.  The Supreme Administrative Court ’ s (identical) judgments mention the qualifications required pursuant to section 68 (1) of Law no. 2545/1940 for authorisation to open a frontistirion ; such authorisation "shall be granted to natural persons possessing the qualifications required for employment as a teacher in a primary or secondary school in the public system, or having equiva lent academic qualifications". They also refer to Article 18 para . 1 of the Civil Servants Code - Article 2 para . 3 of which also applies to secondary and primary teachers - which provides: "No one shall be appointed to a civil service post who does not have Greek nationality", and conclude: "It appears from these provisions that it is against the law for a non-Greek to be given authorisation to set up a frontistirion for the teaching of foreign languages."

After mentioning Article 52 of the EEC Treaty and citing judgment no. 147/86 of the Court of Justice of the European Communities, of 15 March 1988 (Commission v. the Hellenic Republic), the Supreme Administrative Court went on to say: "Consequently, the impugned decision rejecting the applicant ’ s request - based on the erroneous premiss that the bar complained of continues to apply to all non-Greeks, without any distinction between the nationals of other member States of the European Communities and the nationals of non-member States - is unlawful an d must therefore be set aside. The application under consideration must accordingly be allowed. For these reasons ... [t]he Supreme Administrative Court sets aside the Rhodes Director of Secondary Education ’ s decision ..." (see paragraph 13 of the judgment).

10.   According to section 50 (1) of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court, "The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure." Section 50 (4) provides: "In discharging the obligation imposed on them by Article 95 para . 5 of the Constitution [see paragraph 23 of the judgment], the administrative authorities must comply with the judgments of the Supreme Administrative Court in the light of the circumstances of each case, either by taking positive measures to that end or by refraining from any action contrary to the Supreme Administrative Court ’ s decision. Failure to do so may entail, in addition to ... criminal penalties ..., p ersonal liability in damages."

11.   According to that legislation, the Supreme Administrative Court ’ s judgments were final decisions allowing Mr and Mrs Hornsby ’ s applications to set aside and determined the specific issue. The refusal of authorisation to open a frontistirion was set aside as being contrary to Article 52 of the Treaty instituting the European Economic Community, which was directly applicable in Greece at the time when the applications for authorisation were made. Admittedly, the judgments did not set aside the administrative authorities ’ refusal on account of any other illegalities which might have vitiated it - relating, for example, to the question whether the applicants had the qualifications required of Greek nationals by the legislation then in force. In their operative provisions they did no more than set aside the refusal of authorisation without ordering that the authorisation sought should be granted. As a result, in spite of further requests for execution of the Supreme Administrative Court ’ s judgments, the Greek administrative authorities have still, eight years later, not granted the authorisation to which the applicants were entitled under the G reek law in force at the time.

12.   That being the case, the rigidity - and indeed formalism - of administrative proceedings to set aside cannot justify this denial of justice nor require further procedural steps to be taken to obtain a new court decision on a case where the applicants ’ rights had been determined by the highest administrative court. Nevertheless, the opinion of the majority is consistent with our case-law, which interprets Article 6 para . 1 of the Convention (art. 6-1) in accordance with the principles established in its Preamble and in Article 3 of the Vienna Convention on the Law of Treaties, that is to say in a teleological, autonomous and evolutive manner, adapted to social needs. In the Golder judgment of 21 February 1975 (Series A no. 18, p. 17, para . 35) the Court held: "The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally ‘ recognised ’ fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para . 1 (art. 6-1) must be read in t he light of these principles."

13.   That unitary view of judicial proceedings, in which disputed personal rights are the subject of detailed argument between the parties before a judge who must later make a final determination of them, seems to be opposed to a rather abstract idea of justice in which the individual is obliged to go to a court, as if he were responsible for law enforcement, to contest the lawfulness of an administrative decision, though that decision is prejudicial to his personal rights. Even if his application to set aside is allowed, such a procedure cannot bring him redress for the injury done to him because the court remits the case to the administrative authorities for them to recommence the proceedings.

14.   The Court has already expressed its views on the effectiveness of such proceedings "by instalments" in the following terms: "Even supposing that the Supreme Administrative Court had allowed [the applicants ’ ] application, there is nothing to indicate that they would have obtained the authorisation sought, as the authorities did not in practice always comply with the decisions of the Supreme Administrative Court" (see the Manoussakis and Others v. Greece judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1359, para . 33). Likewise, in the Scollo v. Italy judgment of 28 September 1995 (Series A no. 315-C, p. 55, para . 44), the Court held: "the inertia of the competent administrative authorities engages the responsibility of the Italian State under Article 6 para . 1 (art. 6-1)."

15.   Consequently, in spite of the difficulties of adapting it to a now outdated concept of historical administrative law (see Garcia de Enterria -Fernandez Rodriguez, Curso de Derecho Administrativo , Madrid , 1986, vol. II, pp. 36-54), on the effectiveness of the fundamental right of access to a court I agree with the majo rity ’ s finding of a violation. This element is becoming essential for the administration of justice in a democratic society and a firm enunciation of the principle seems to me as timely as it is necessary. In short, I see this as a step towards harmonisation of the safeguards required in administrative proceedings and civil proceedings in order to ensure more effective protection of the rights of individuals in their dealings with administrative authorities. Administrative decisions are ceasing to occupy the dominant position in administrative proceedings and becoming merely t he reason for their existence. The object of administrative proceedings is formed solely by the originating application, from which the legal situations of the individuals concerned are derived.