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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 76
1989 January 21
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
CHRISTOS SIAMPETAS,
Applicant.
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
COMMERCE AND INDUSTRY AND OTHERS,
Respondents.
(Case No. 794/87)
Executory act — Confirmatory act — Permit to import weighing machines on condition that they should not be put in the market — Rejection of new application to market them — In the absence of new material, the decision is confirmatory.
Legitimate interest - Constitution, Art. 146.2 - Free and voluntary acceptance of an act - Deprives acceptor of right to challenging - Acceptance of import permit on condition that goods will not be marketed - Rejection of new application to market them - Applicant has no legitimate interest to challenge such refusal.
Weights and measures -The Weights and Measures Laws, 19/74 and 75/77, sections 28 and 68- Whether Regulations 126 (h), 172, 178 and 232(b) ultra vires said sections Question determined in the negative.
Constitutional Law - Right to trade - Constitution, Art. 25.1-Meridian Trading Co. Ltd v. Ministry of Commerce and Industry (1987) 3 C.L.R. 1930 cited with approval.
Constitutional Law - Equality- Constitution, Art. 28- Does not exclude reasonable distinctions -Mikrommatis v. The Republic 3 R.S.C.C. 125 followed.
The facts can be roughly deduced from the above Headnotes. The principles applied by the Court in dismissing the Recourse sufficiently appear therein.
Recourse dismissed. Costs against the applicant.
Cases referred to:
P.M. Tseriotis v. Republic (1984) 3 C.L.R. 693,
Papadopoullou and Another v. Republic (1986) 3 C.L.R. 25,
Papadopoullou and Another v. C.B.C. (1987)3 C.L.R. 1685,
Meridian Trading Co. Ltd. v. Ministry of Commerce and Industry (1987) 3 C.L.R. 1930,
Sofoclides v. Republic (1986) 3 C.L.R. 1312,
Impalex Agencies Republic (1970) 3 C.L.R. 361,
Psaras v. Ministry of Commerce and Industry (1971) 3 C.L.R. 151,
Marangos v. Municipal Committee of Famagusta (1970) 3 C.L.R. 7,
Spyrou and Others v. Republic (No.2), (1973) 3 C.L.R. 627,
Stavrou v. Republic (1976) 3 C.L.R. 66,
Michaeloudes v. Republic (1979) 3 C.L.R. 56,
Menicos v. Republic (1983) 3 C.L.R. 1130,
Ethnikos v. K.O.A. (1984) 3 CL.R. 1150,
Christodoulou v. Republic I R.S.C.C. 1,
Mikrommatis v Republic 2 R.S.C.C. 125.
Recourse.
Recourse against the decision of the respondents to reject applicant's application to sell weighing machines.
A. Eftychiou, for the Applicant.
P. Clerides, Counsel of the Republic B, for the Respondents.
Cur.adv. vult.
KOURRIS, J. read the following judgment. By the present recourse applicant challenges the decision of the respondents dated 18.8.1987, whereby the application of the applicant to sell weighing machines JYIFA was rejected by the respondents.
Applicant on 28.1.1987, applied to the Ministry of Commerce for the import of weighing machines (appendix 1. to the opposition).
On 29.3.1987, the Director of Weights and Measures approved the application under the condition that the weighing machines should not be put on the market.(απαγορεύεται η χρήση στο εμπόριο) (appendix II to the opposition). Thereupon, applicant secured a licence for the import of the said weighing machines on 31.3.1987 (Appendix III to the opposition).
Applicant, on 16.8.1987, applied to the Director of Weights and Measures to put the said weighing machines on sale (Appendix IV to the opposition), and the Director of Weights and Measures informed him that his application cannot be approved because the weighing machines do not comply with the relevant regulations (Appendix V). Hence applicant filed the present recourse against the refusal of the Director of Weights and Measures.
Applicant relies on the following legal grounds:
(1)The decision of the Director of Weights and Measures is contrary to Article 25.1(2) of the Constitution;
(2)The Regulations 126(0), 172. 178 and 232(b) of the Weights and Measures Regulations 1981 are ultra vires ss. 28 and 68 of Weights and Measures Laws, Law 19/74 and 75/77;
(3)The decision of the Director of Weights and Measures contravenes Article 28 of the Constitution;
(4)The sub judice decision lacks due inquiry and sufficient reasoning.
The respondents raised the following two preliminary issues:(i) the challenged decision is not executory; and (ii) the applicant has no legitimate interest to file the present recourse because he accepted to import the said weighing machines under conditions and he did so freely and unreservedly.
I agree with learned counsel for the respondents that the decision of the respondents dated 14.8.1987 is not justiciable as it is not executorybut confirmatory. Applicant by his letter dated 16.8.1987 did not adduce any new material. His original application dated 28:1.1987 contained all the material which is also contained in his letter of 16.8.1.987. His addition is that .the said weighing machines are products of good quality and that they are put on the market in several other countries. (See P.M. Tseriotis v. Republic (1984) 3 C.L.R. 693 at pp. 701 - 703.)
With regard to the second point, whether applicant has a legitimate interest or not I am satisfied that the applicant has no legitimate interest file the present recourse. He accepted the decision of the respondents under the condition not to put on the market the weighing machines and his acceptance was free and unreserved In point of fact, after this decision of the respondents, he applied for an import permit. (See Papadopoullou and Another v. The Republic(1986) 3 C.L.R. 25, 54 and FriniPapadopoullou and Another v C.B.C. (1987) 3 C.L.R. 1685.
The decision of these two points disposes of the recourse but I propose to deal with the legal points raised by counsel for the applicant:
(1) Whether the Sub Judice Decision contravenes Article 25 of the Constitution.
This point was tackled in the case of Meridian Trading Co. Ltd. v. Ministry of Commerce and Industry (1987) 3 C.L.R. 1930, where Pikis J. said the following:
"Art. 25 safeguards the right of every person to practise any profession or carry on any occupation, trade or business. Neither the Import Regulation Law nor the order made thereupon purport to limit the freedom of the applicants to establish themselves as traders. In fact, the trade without hindrance. The alleged grievance does not, to my comprehension, affect their freedom to engage in the import trade as such but the circumstances of carring on that trade, a separate and distinct question. This appreciation of the implications of s. 3 of the Imports Regulation Law has been judicially acknowledged and sanctioned in Impalex Agencies Ltd. v. Republic (1). Moreover, in an earlier case, namely, HousseinIrfan and 4 others and the Republic (Minister of Commerce & Industry (2), the Supreme Constitutional Court took the view that regulation of the import trade is in any event a permissible cause for limitation of the freedom safeguarded by Art. 25.1..".
With due respect, I agree and adopt the above passage and the limitations imposed on the importation of weighing machines are part of the governing policy in the public interest, and for the protection of the public. (See Sofoclides v. Republic (1986) 3 C.L.R. 1312 - 1316; Impalex Agencies v. Republic (1970) 3 C.L.R. 361 and Psaras v. Ministry of Commerce and Industry(1971) 3 C.LR. 151. Therefore, I hold the view that there has been no violation of Article 25 of the Constitution.
(2) Whether Regulations 126 (0). 172, 178 and 232 of the Weights and Measures Regulations 1981 are ultra vires ss. 28 and 68 of Weights and Measures Laws No. 19/74 and 75/77.
The principles whether Regulations are ultra vires the enabling law have been expounded in a series of cases by the Supreme Court. (See, inter alia, Marangos v. MunicipalCommittee of Famagusta (1970) 3 C.L.R. 7; Spyrou and Others v. Republic (No.2) (1973) 3 C.L.R. 627; Stavrou v. The Republic (1976) 3 C.L.R. 66; Michaeloudes v. Republic (1979)3 C.L.R.56; Menicosv.Republic(1983)3 C.L.R. 1130).
In the case of Ethnikos v. K.OA. (1984) 3 C.L.R. 1150, at p. 1156, it is stated:
"When a subsidiary legislation is examined with a view to deciding on a contention that is ultra vires, the answer to this question depends, in every case on the true construction of the relevant enabling power concerned."
The subordinate legislation, in order to be valid, must be intra vires the statute which authorised the making of it. If the sub judice administrative decision was reached under a law, which includes public instrument, which was not validly made, such decision has to be annulled and to be declared to be null and void. (Christodoulou v. Republic 1 R.S.C.C. 1).
Section 28(1) of Law 19/74 reads as follows:-
'Το Υπουργικόν Συμβούλιον δύναται διά Κανονισμών να καθορίζη τα φυσικά χαρακτηριστικά, ύλην, σχήμα, μορφήν και λεπτομέρειας κατασκευής, ανθεκτικότητα, αποδοτικότητα, και εν γένει τας τεχνικάς και λοιπάς προδιαγραφάς και λεπτομέρειας κατασκευής και τα μέσα, μηχανισμούς και μεθόδους ή διαδικασίαν ελέγχου τούτων και τα ανεκτά όρια σφαλμάτων ή διαφοράς ακριβείας, των εν κοινή χρήσει μέτρων και σταθμών.'
Section 68(2)(0) of the same law reads as follows:-
'τα φυσικά χαρακτηριστικά, την μορφήν, τας λεπτομέρειας κατασκευής, τα υλικά, τον εξοπλισμόν, τα όρια ανοχής, την αποδοτικότητα, την αντοχήν, τας μεθόδους ή διαδικασίας των πειραμάτων ελέγχου εν σχέσει προς πρότυπα μέτρα ή σταθμά·'.
In view of the wording of the said sections, I am satisfied that the said regulations are intra vires the enabling section 28 and 68(2)(0).
(3) Violation of Article 28 of the Constitution.
Counsel for the applicant contended that the sub judice decision contravenes Article 28 of the Constitution because there is an inequality with regard to the marketing of weighing machines.
Article 28 of the Constitution was the subject of a recourse as far back as in 1961 in the case of Mikrommatis v. The Republic 2 R.S.C.C. 125., where at p. 131 it is stated:-
"In the opinion of the Court the term 'equal before the law' in paragraph 1 of Article 28 does not convey the notion of exact arithmetical equality but it safeguards only against arbitrary differentiations and does not exclude reasonable distinctions which have to be made in view of the intrinsic nature of things. Likewise, the term 'discrimination' in paragraph 2 of Article 28 does not exclude reasonable distinctions as aforesaid."
Applicant failed to substantiate this point because he did not produce to the Court any material indicating that the Director of Weights and Measures granted a permit to any other person to import any weighing machines similar to the machines imported by the applicant and allow him to put them on the market. Therefore, this point fails.
With regard to the points raised by applicant that there has been no due inquiry and no sufficient reasoning of the sub judice decision, this is without substance and fails.
From the totality of the material before me, am satisfied that there has been due inquiry and sufficient reasoning of the sub judice decision.
For all these reasons, the recourse fails and in the exercise of my discretion I order applicant to pay costs. Costs to be assessed by the Registrar.
Recourse dismissed with costs
against applicant.