DISSENTING OPINION OF JUDGE PETTITI

I voted with the minority for non-violation, on account of the reasoning and the legal stance adopted by the majority, whose arguments did not, in my opinion, take sufficient account of the specific features of the present case.

It was not a question of the general application of Article 6 (art. 6) by the courts of the member States of the Council of Europe, whether or not members of the European Union, or of refusal to comply with a judicial decision which had become "final and enforceable" in respect of a particular litigant.

Before that stage it was, above all, a dispute over Community law between a litigant who was a national of a Community member State and a State which was a member of the European Union.

On 15 March 1988 the Court of Justice of the European Communities held that the Hellenic Republic had failed to comply with its obligations under Articles 52 and 59 of the EEC Treaty by prohibiting EEC nationals to set up frontistiria (language schools).

The European Court of Human Rights should therefore draw a distinction between review of the lawfulness of the impugned decision and the adoption of legal decisions designed to fill the vacuum created by the decision to set aside.

On this point, I endorse that part of Judge Morenilla ’ s concurring opinion which reads:

"According to that legislation, t he 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 o f authorisation to open a frontistirion was set aside as being contrary to Article 52 of the Treaty instituting the European Econ omic Community, which was directly applicable in Greece at the t ime when the applications for authorisation were made. Admitt edly, the judgments did not set aside the administrative authoriti es ’ refusal on account of any other illegalities which might hav e vitiated it - relating, for example, to the question wheth er the applicants had the qualifications required of Greek nationals by th e legislation then in force. In their operative p rovisions they did no more than set aside the refusal of authorisat ion without ordering that the authorisa tion sought should be granted. As a result, in spite of further requests fo r execution of the Supreme Administrati ve Court ’ s judgments, the Greek administrative authorities have still, eight years later, not granted the authorisation to which the applicants were entitled under the Greek law in force at the time."

Irrespective of the specific remedies and actions against the State for breaches of Community law, and looking at the case purely from the standpoint of Article 6 of the Convention (art. 6), it must be considered that the Supreme Administrative Court ’ s judgments did no more than set aside as null and void the decision of 12 April 1988 rejecting the application for authorisation to open a school, which was contrary to the decision of the Court of Justice of the European Communities.

These judgments did not have any operative provisions obliging the State to grant the applicants a uthorisation to open a school. The refusal of authorisation which gave rise to the judgments could not therefore, in my opinion (and contrary to what is said in paragraph 45), be held for the purposes of Article 6 (art. 6) to constitute a denial of justice for failure to execute them directly.

But since the applicants had already applied to the administrative and judicial authorities according to the correct procedures it was incumbent upon the State, immediately after the judgments of the Supreme Administrative Court, to make speedy arrangements to control access, including regulations and forms for verifying qualifications, and to organise the qualifying examination. The authorities ’ failure to do so, in spite of the judgment of the Court of Justice of the European Communities, resulted in deadlock. The control process adopted by the States of the European Union in the matter of the directives relating to practice as a lawyer could have been implemented. If it had been, a finding either that the applicants no longer wished to maintain their request or that the State had refused to apply the law would have permitted the conclusion that there had not been or that there had been a breach of Article 6 (art. 6). The delay by the authorities in fulfilling their administrative obligations under Community law could, to a certain extent, have amounted to a refusal of access and unwillingness to accept a judicial solution, which would, if so, have constituted a violation of Article 6 (art. 6). In that sense, the conclusion adopted in the judgment was not necessary as matters stood.