The Plenary Session of the Council of State (CoS) has ruled key provisions of the New Building Regulation unconstitutional, effectively “freezing” a significant segment of the construction market that was planned for the future, particularly in the northern and southern suburbs of Attica.

Furthermore, the provisions deemed unconstitutional pertain to thousands of permits across the country.

However, the State Councilors clarified that, for reasons of public interest, the effects of this unconstitutionality should not apply to building permits for which construction work has demonstrably begun. The immediate effect of the Plenary’s decision will commence on the date of its publication, expected in January. Nonetheless, building permits challenged before the CoS must be annulled, according to the Councilors.

Specifically, in a closed-door session, the Plenary of the Council of State declared unconstitutional the part of the New Building Regulation that establishes incentives for increasing building coefficients (building coefficient, height) for constructing buildings, in exchange for energy upgrades and the enhancement of public and green spaces.

Simultaneously, the Plenary ruled that it violates the Constitution to exclude internal balconies (lofts) and 35 sq.m. of primary use space on a building’s rooftop from the building coefficient, as well as to equate swimming pools with planted areas.

More specifically, according to a statement from the CoS President Michalis Pikramenos, the court ruled:
I. The system of provisions in the NBR (articles 10, 15 paragraph 8, 19 paragraph 2, and 25), which establishes incentives for increasing building coefficients (building coefficient, height) for constructing buildings, in exchange for energy upgrades and the enhancement of public and green spaces, contravenes Article 24 paragraphs 1 and 2 of the Constitution.

This is not primarily due to the content of these provisions but because they grant building services the ability to issue permits that deviate significantly from the urban planning rules of each area. These incentives should have been considered, and their consequences assessed in the urban planning phase, supported by a specialized scientific study documenting the regulations in light of the unique characteristics of each settlement.

II. Furthermore, the Court ruled that it is unconstitutional to exclude from the building coefficient (under article 11 paragraph 6 of the NBR) internal balconies (lofts) and 35 sq.m. of primary use space on rooftops, as well as equating swimming pools with planted surfaces (article 19 paragraph 2 of the NBR). Such constructions must be included in the building coefficient calculation. Conversely, excluding bay windows and stairwells from the building coefficient does not violate the Constitution.

As a result, the challenged permits must be annulled for the above reasons.

III. Finally, the court, weighing the principles of legal certainty, predictability, and protected trust of citizens, alongside public interest, ruled that the effects of unconstitutionality should not apply to building permits for which construction work had demonstrably begun before this announcement. However, this limitation of unconstitutionality does not extend to pending litigation.

The decision is expected to be published in January of the coming year.

Background
On October 11, 2024, in the Plenary Session of the Council of State, a discussion was held concerning the constitutionality of the provisions of the New Building Regulation that allow increases in building coefficients and height, among other things. This discussion included the participation of the General Secretary of Spatial Planning and Urban Environment from the Ministry of Environment and Energy, Efthymis Bakogiannis, and the Mayor of Alimos, Andreas Kondylis.

That day, under the impeccable direction of CoS President Michalis Pikramenos, 13 lawyers presented their arguments. Additional interventions, either supporting the NBR’s validity or challenging it, were made by the Ministry of Environment and Energy, the Technical Chamber of Greece, the Central Union of Municipalities of Greece (KEDE), and 10 construction companies.

Two opposing positions emerged during the discussion: one supporting the constitutionality of the NBR and the other advocating for its unconstitutionality.

The four cases under review concerned building permits in the Municipality of Alimos, where requests had been made to annul building permits issued by the municipality’s construction service.

It should be noted that the CoS has already issued decisions suspending building permits in Kifisia issued under the NBR.

Specifically, the question of the NBR’s constitutionality was addressed in October by the Plenary Session of the Supreme Administrative Court, presided over by Michalis Pikramenos, following a referral from the Fifth Chamber of the CoS. The rapporteurs were State Councilors Maria Sotiropoulou and Christiana Bolofi.

The Chamber had previously ruled provisions in articles 10 and 25 of the NBR (Law 4067/2012) unconstitutional, which allowed building coefficient increases for minimal reductions in coverage or the construction of buildings with higher energy efficiency (construction bonuses).

Additionally, the Fifth Chamber had determined that provisions of the NBR excluding primary-use spaces such as lofts, attics, and bay windows from the building coefficient calculation are unconstitutional and incompatible with European Union law. These exemptions increased the height, construction, and number of floors, while the creation of primary-use spaces on rooftops was also ruled unconstitutional.

During the Plenary Session, the rapporteurs for the four cases, State Councilors Maria Sotiropoulou and Christiana Bolofi, presented additional reports on the matters at hand.