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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1987) 3 CLR 1815
1985 January 18
[TRIANTAFYLLIDES. P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
VARNAVAS NICOLAOU AND SONS LTD.,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTER OF COMMERCE AND INDUSTRY,
Respondent.
(Case No. 225/79).
Imports - Condition on import licence that applicant should purchase a quantity of similar goods from a local company - The Imports (Regulation) Law 49/ 62, sections 3 and 4(2) - Such condition is permissible in virtue of said pro visions of Law 49/62.
Constitutional Law - Right to exercise a profession, trade or calling - Constitution, Art. 25 - Condition on import licence that applicant should purchase a quantity of similar goods from a local company - A restriction of the right to free trade, permissible under para. 2 of Art. 25.
Constitutional Law-Right to enter freely into contracts - Constitution, Art. 26-Condition in import licence that applicant should purchase a quantity of similar goods from local company - Art. 26 is not relevant to the facts of this case.
By means of the sub judice decision respondents refused to grant the applicants a licence to import Swedish timber, because the applicant was not willing to comply with a condition that they should buy from Cyprus Forest Industries Ltd. a quantity of timber.
Counsel for the applicants submitted, inter alia, that the said condition was imposed illegally and in abuse of power, and that, in any event, it is inconsistent with Article 25 and Article 26 of the Constitution.
Held, dismissing the recourse: (1) The condition was imposed in virtue of the discretionary power under section 4(2) of Law 49/62 for the encouragement of local production and manufacture, as provided in section 3.
This Court cannot substitute its discretion for that of the Minister, and it cannot interfere with the exercise of the discretion, unless established that it was exercised in a defective manner.
(2) The complained of condition is a restriction of the right protected by Article 25 permissible under paragraph (2) of Article 25 because it was imposed «in the public interest» for the encouragement of local production and manufacture of timber.
(3) Article 26 is not relevant to this case, because the applicants, by means of the condition complained of, are not prevented from entering into any particular contract.
Application dismissed.
No order as to costs.
Cases referred to:
Savvidou v. The Republic(1970)3 C.L.R. 118;
Vounioti v. The Republic (1974) 3 C.L.R. 313;
Pemaros v. The Republic (1975) 3 C.L.R. 175;
Irfan v. The Republic, 3 R.SC.C. 39;
Impalex Agencies Ltd. v. The Republic(1970)3 C.L.R. 361;
Psaras v. Ministry Of Commerce and Industry (1971)3 C.L.R. 151;
Vassos Eliades Ltd. v. The Republic(1979)3C.L.R. 259.
Recourse.
Recourse against the refusal of the respondent to grant applicant a licence for the importation of Swedish timber.
N. Papaefstathiou, for the applicants.
A. Vassiliades, for the respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicants are, in effect, complaining against the refusal of the respondent Minister of Commerce and Industry to grant to them a licence for the importation of Swedish timber.
On 11 April 1984 I gave in this case a Decision" rejecting two preliminary objections which had been raised by counsel, for the respondent and the contents of such Decision have to be treated as being incorporated in the present judgment.
In the said Decision of 11 April 1984 there were set out the salient facts of this case and there were referred to the relevant legislative provisions.
It is quite clear that the licence applied for by the applicants was not eventually granted to them by the respondent because they were not willing to comply with the condition that they should enter into a contract with the Cyprus Forest Industries Ltd for the purchase from such company of a quantity of timber equivalent to 10% of the quantity which they wished to import.
Counsel for the applicants has submitted that the said condition was imposed illegally and in abuse of powers.
The Cyprus Forest Industries Ltd is a public company engaged in the production of timber and fifty-one per cent of its share capital is owned by the Republic.
The aforementioned condition was imposed by the respondent in the exercise of the discretionary powers vested in him under section 4(2) of the Imports (Regulation) Law, 1962 (Law 49/62) for the encouragement of local production and manufacture, as provided by section 3 of Law 49/62.
There existed, therefore, express legislative authorization enabling the respondent Minister to act in the way complained of by the applicants and this Court cannot interfere with the exercise of his relevant discretionary powers unless it is established that they were exercised in a defective manner; and the applicants have not satisfied me that this is so. Moreover, this Court cannot substitute its own discretion in the place of that of the respondent Minister, especially in a matter of policy such as the present one (see, inter alia, in this respect, Savvidou v. The Republic, (1970)3 C.L.R. 118, Voulpioti v. The Republic, (1974) 3 C.L.R. 313 and Pemáros v. The Republic, (1975)3 C.L.R. 175).
Counsel for the applicants has submitted, further, that the said condition is in the nature of taxation which was imposed without being envisaged by express legislative provision, but I can find no merit whatsoever in the submission that such condition is in any way a tax or something akin to it.
It has been contended by counsel for the applicants that the imposition of such condition contravenes the principle of equality, which is safeguarded by Article 28 of the Constitution, that it interferes with the right of the applicants to carry on their trade and business, which is safeguarded by Article 25 of the Constitution, and that it deprives the applicants of the possibility of entering freely into contracts, contrary to Article 26 of the Constitution.
Regarding the alleged infringement of Article 28 of the Constitution no sufficient particulars were given in support of a very vague and general assertion of counsel in this respect and, on the material before me, I cannot find any contravention whatsoever of the said Article 28.
As regards the alleged violation of Article 25 of the Constitution I am of the view that the complained of condition is a restriction of the right protected by the said Article 25 which is permissible under paragraph (2) of Article 25 because it was imposed <<in the public interest for the encouragement of local production and manufacture of timber; and, it is useful to refer, in this respect, to, inter alia, Irfan v. The Republic, 3R.S.C.C. 39, Impalex Agencies Ltd. v. The Republic, (1970) 3 C.L.R. 361, Psaras v. The Ministry of Commerce and Industry. (1971) 3 C.L.R. 151 and Vassos Eliades Ltd. v. The Republic. (1979) 3 C.L.R. 259).
Before concluding I will refer briefly to Article 26 of the Constitution the provisions of which are not, in my view, applicable in the circumstances of the present case because the applicants, by means of the condition complained of, are not prevented from entering into any particular contract.
In the light of all the foregoing the present recourse fails and it is dismissed accordingly; but with no order as to its costs.
Recourse dismissed.
No order as to costs.