DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I did not vote with the majority for a violation of Article 6 para. 1 (art. 6-1). In my view the applicant has not been deprived of his right to a court or of his right of access to a court within the meaning of the Golder judgment.

It is true that ex officio subrogation, provided for in Decree no. 30 of 31 May 1956 , occurs in the event of the refusal of the debtor (the engineer ’ s client) to pay. Under Article 2 para. 5 of the Decree, in conjunction with Article 83 of the Code of Civil Procedure, the creditor retains the right to intervene at any moment in the proceedings. It does not seem to me that this provision takes away the right to bring proceedings or is prejudicial to the payee, even though it alters the manner in which that right may be exercised.

I do not consider it to have been established that, where the T.E.E. refuses to exercise the right to bring proceedings, the person concerned is definitively deprived of his right of action except in order to seek payment of the fees to the T.E.E. The Athens Court of Appeal, in its judgment of 16 November 1987, did indeed state that only the T.E.E. had capacity to bring proceedings for the recovery of fees, but in the light of the decision of the Larissa Administrative Court of Appeal (judgment 8/1988) it remains possible for the payee to take proceedings in person to recover his fees or to sue the T.E.E. if the latter refuses to institute proceedings or has been negligent in carrying out its duties under the subrogation system. Furthermore, the engineer also has available to him the "subrogation action" under Article 72 of the Code of Civil Procedure, which is a clause of general application.

Since there is no consistent and definitive case-law from the Court of Cassation on this question of principle (judgment 309/1986 being of limited scope), I am of the opinion that it is premature to find the Greek Government to be in breach of Article 6 (art. 6).

[*]  The case is numbered 32/1990/223/285-287.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating  applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear  only with the printed version of the judgment (volume 209 of  Series A of the Publications of the Court), but a copy of the  Commission's report is obtainable from the registry.