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Decision 9/2022 (In Banco, Constitutional)
Subject
Division of Powers, Federal Paramountcy

Summary: Power of a polity to enact a fiscal statute taxing carbon emissions in contravention of a federal statute claiming exclusive power to regulate the same, which does not include a tax. A polity may not enact laws in contravention of overarching federal legislation, even when the substantial purpose of the impugned act falls within the purview of the polity's enumerated powers. The federal government has the power to set binding common standards of a minumal or maximal nature, where it explicitly purports to do so. Where it has done so, polities may not set their own, non-conforming standards. Arguments regarding the substance of the federal act and its effects on constitutional rights are irrelevant and non-judicable.​

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№ 9/2022
THE SUPREME COURT
IN BANCO​

Constituted by the judges: G. Polyzoïdis, Chief Justice; A. Tsertsetis, K. Theodorakopoulos, M. Adamidis and P. Thermiotis, Associate Chief Justices; T. Papanikos, Petitioner, and L. Kerameus, N. Kozyris, A. Alexiadou, Th. Kantakouzenos, Ph. Palaiologou, D. Petropoulos, N. Dimopoulos, M. Athanasiadis, D. Anastasiadis, A. Pantelopoulos, D. Andreou, M. Lentzou, E. Tiveriadou, V. Symeonidou, Z. Kyriakopoulos, A. Livos, G. Alexandrou, P. Angelou, E. Doukas, Ch. Sotiropoulos, M. Kondylis, E. Chatzioannidou, A. Papalambrou, Th. Chrysanthis, Ch. Iliadou, Justices.

Convened in public at its Seat on 28 March 2022, in the presence of the Registrar, K. Papoulis, to try the following case between:

The Applicants: The Policy of Navarone, legally represented by its Secretary of Justice, who was represented in court by the Chairman of Legal Council of that Polity, M. Latinos; the Polity of Leontis, legally represented by its Secretary of Justice, who was represented in court by the Chairman of Legal Council of that Polity, G. Karoutsos; the Polity of Thoricus, legally represented by its Secretary of Justice, who was represented in court by the Chairman of Legal Council of that Polity, S. Athmoneus.
The Carian Environmental Association “Gaia”, which was represented by Anaxandros Petroupolitis of Petroupolitis & Associates.
The Carian Federalist Association, which was represented by Adamantios Nomikos of Nomikos, Kyrillos, Theotokopoulos & Associates.
The Respondent: The Crown, legally represented by the Minister of Justice, who was represented in court by the Chairman of the Legal Council of the State, D. Galatas.

The instant action lies from application for judicial review № 95-17/2022 made to this Court by the applicants in first and final instance by way of art. 95 of the Constitution, alleging violations of articles 1, 6, 17, 101 and 102 of the Constitution by the Royal Government due to the enactment of Federal Statute № 42/2021 by the Parliament of Caria and the promulgation thereof by the Sovereign as a Law of the State. Two of the applicants, the Carian Environmental Association “Gaia” and the Carian Federalist Association, filed separate applications by way of art. 94 of the Constitution (№ 94-33/2022 & 94-34/2022), seeking identical relief with regard to the same subject matter as the other applicants. These later applications were joined to the present action at the instance of the Petitioner and with the approval of the Chief Justice and the Associate Chief Justices. The applicants collectively seek a declaration that the impugned act is ultra vires the Royal Government, or, in the alternative, that it violates one or more of the fundamental rights enshrined in the Second Part of the Constitution, and that it is, therefore, of no legal force and effect. The respondent denies all claims made by the applicants and seeks a dismissal thereof as lacking basis.

HAS REASONED ACCORDING TO THE LAW
Federal Statute № 42/2021 “Dispositions regarding environmental protection and carbon emissions” (hereinafter the “Act”) was enacted by the Parliament and the Crown of Caria with a view to constituting a general, overarching, and complete nationwide framework for regulating environmental protection, with a particular focus on laws touching carbon emissions. The Act is couched on the Royal Government’s power to make common regulations and set common standards to ensure the uniform quality of governmental services across the country, which is explicitly stated in art. 101 par. 3 of the Constitution, which grants to the Royal Government the “coordination and verification of the actions of the organs of government of the Polities”. This power extends to all powers granted to the Polities of Caria by arts. 101 and 102 of the Constitution, including environmental protection.

Here, the Act has explicitly outlawed the imposition of taxes on carbon emissions by both natural and legal persons, as well as any indirect levies, licensees fees or duties having the same effect or purpose (art. 10.). The Act has instead provided for the enactment of local standards, as well as inspection, reporting and enforcement mechanisms to ensure that these standards are met (art. 17). These standards must meet at least the minima contained in the Act, without exceeding the maxima (art. 18). Importantly, the Act provides for administrative and criminal offences for violations of these standards, including fines and other penalties for offenders, as well as public officials violating the Act (arts. 20, 21, 23). As such, the Act can be said to both purport to be and to indeed constitute a complete regulatory framework regarding environmental protection in so far as carbon emissions are concerned. Therefore, the Act is owed both deference and obedience by all organs of the Polities in all their acts. This includes legislative acts by the legislative organs of a polity, as well as regulatory acts by other organs.

Nonetheless, on November 23, 2021, the Polity of Navarone enacted Polity Statute № 7/2021 “Establishment of a tax on carbon emissions for the purposes of environmental protection” (hereinafter the “Contravening Act”). In doing so, the Polity asserts that it has exclusive jurisdiction over environmental protection; that the federal reserve power does no apply because it is acting unilaterally instead of in coordination with the organs of other Polities; and that, at any rate, since the Contravening Act only applies within the Polity's borders, Polity law must prevail over any contravening federal legislation.

It is well established in jurisprudence (See Decisions № 63/2020, 77/2003 and 101/1998 of this Court) and based on the written text of the Constitution (arts. 101, 102) that environmental protection, just like all Polity powers, is not absolutely exclusive. Whereas such powers are exclusive in the sense that the Royal Government may not enact laws solely dealing with the exercise of such powers within one or more specific Polities, the Royal Government is still allowed, by way of its reserve power, to enact any laws it may see fit to set and enforce common standards across the country. These standards can preempt or supersede Polity laws on the same subject matter, provided they explicitly purport to do so. Polities have no recourse against such an act, provided that it has been properly enacted.

In the case at bar, the Act, as mentioned before, is a valid national framework of common standards in the field of environmental protection regarding carbon emissions. Thus, the Act can and does supersede and preempt contravening Polity laws. Here, the Contravening Act explicitly contradicts several segments of the Act; these include different standards (arts. 11-22), different enforcement mechanisms (arts. 23-26), and the explicit enactment of a tax on carbon emissions (arts. 3, 5, 27). Therefore, the Contravening Act is invalid and of no force and effect to the extent that it contravenes the Act, by way of which it has been preempted.

The fact that Navarone enacted the Contravening Act on its own does not bring it outside the Royal Government's reserve power. Federal legislative paramountcy cannot be frustrated or rendered nugatory merely by unilateral action by one Polity. Evidently, the purpose of common standards is that they should stand regardless of whether it is a single Polity on its own or multiple Polities at once that seek to contravene them (See "Foundations of Constitutional Law", 2nd ed., K. Leptos, University of Nikaia Press, 1999, pp. 303-89). For the same reason, the fact that a Polity's illegal acts only extend or purport to extend to its own territory is irrelevant to the doctrine of federal paramountcy; an illegal act does not become legal simply because the actor did it within the limits of their nominal jurisdiction or authority.

Given that the Royal Government's legislation was valid, its refusal to collect and redistribute tax revenue under the Contravening Act was legal and sound. The Royal Government may choose to collect revenue for a Polity tax or levy it considers invalid, and then hold it without redistributing it to the Polity, while adjudication of the tax or levy's lawfulness is pending; however, the Royal Government is not at all required to do so, if it chooses not to (See Decision № 44/1966 of this Court). Therefore, any arguments for relief based on this ground must fail.

Finally, with regard to arguments based on individual rights and freedoms as guaranteed in the Second Part of the Constitution, an analysis under these headings is barred in so far as taxes are concerned. It is long established law that taxes cannot be challenged on individual rights grounds, except where they are discriminatory or arbitrary. As the applicants have not made any claim to that effect, no arguments on such grounds may be heard. Thus, any arguments pertaining to articles 1, 6 and 17 of the Constitution are irrelevant and without merit for the purposes of this appeal.

FOR THESE REASONS
REJECTS the applications of the applicants № 95-17/2022, № 94-33/2022 & 94-34/2022 to this Court seeking a declaration that Federal Statute № 42/2021 is unconstitutional.
JUDGED and decided in Nauplia on 28 March 2022.
PUBLISHED in Nauplia in a public session, at the Court’s hearing chambers, on 29 March 2022.​

THE CHAIRMAN OF THE COURT
(L.S.) Georgios Polyzoïdis

THE REGISTRAR OF THE COURT
(L.S.) Konstantinos Papoulis

THE EDITOR OF THE COURT BULLETIN
(L.S.) Grigorios Metaxas