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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1989) 3A CLR 687
1989 June 16
[KOURRIS, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
ETERIA PYRION "I APHRODITI LTD",
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTRY OF
COMMERCE AND INDUSTRY,
Respondent.
(Case No. 813/86)
Executory act - Administrative policy to maintain the existing legal regime - Expression of such policy - Not justiciable.
By means of this recourse the applicants challenge the refusal of the respondents to give special protection to their interest. In effect, the refusal amounts to a refusal to change the degree of protection given to the industry of the applicants. The Court dismissed the recourse on the ground that the decision complained of is outside the ambit of Art. 146.1 of the Constitution.
Recourse dismissed. Costs against
applicant.
Cases referred to:
Savvidou v. Republic. (1970) 3 C.L.R. 118,
Pernaros. v. Republic (1975) 3 C.L.R. 175,
C. Caraylannis v. Republic (1980) 3 C.L.R. 39,
Tricomitis v. Republic (1985)3 C.L.R. 2328,
Eteria Pyrion Aphrodite Ltd. v. Republic (1988) 3 C.L.R. 1555.
Recourse.
Recourse against the refusal of the respondent to give special protection to the Cyprus Industry of Safety Matches.
S. Mamantopoulos for L. Papaphilippou, for the Applicants.
St. Ioannidou (Mrs), Counsel of the Republic B, for the Respondent.
Cur. adv. vult.
KOURRIS, J. read the following judgment. By the present appeal applicants pray as follows:-
A. Declaration of the Court that the act and/or decision of the respondents contained in their letter dated 21.10.1986 whereby they refused the application to give special protection to the Cyprus Industry of Safety Matches is null and devoid of any legal effect;
B. Alternatively, declaration of the Court that the respondents failed to decide on the lawful claim of the applicants which was accompanied by new material, contrary to Article 29 of the Constitution and that everything which was not done ought to have been done.
The applicants are the only manufacturers of safety matches in Cyprus and they have been in the business since 1962. The Government, since their establishment gave them protection through import controls, tariffs and also exempted them from import duties of the raw materials used for the manufacture of their products. The Government, through the Ministry of Commerce and Industry still affords them a degree of protection, but they feel aggrieved with the degree of protection given to them and petitioned the Ministry of Commerce and Industry on several occasions asking it to impose stricter control on the importation of foreign manufactured safety matches and to certain types of lighters. They based their representations on a declining market and corresponding increase of the sales of their competitors who are the importers and distributors of foreign manufactured safety matches.
On the other hand, their competitors were also dissatisfied with Government policy and they complained that the protection given to the applicants was excessive arid unjustified in the circumstances.
The Minister of Commerce and Industry examined the complaints of the applicants and enquired into the necessity of changing their policy and imposing stricter controls on the importation of foreign manufactured safety matches. They concluded that the introduction of more restrictions on the importation of foreign manufactured safety matches, was not in the public interest. In reaching this conclusion they have taken into consideration the effect of damaging the trading relations of Cyprus with other European countries and they thought that it could create problems with the implementation of the Customs agreement of Cyprus with the European Economic Community. On 21.10.1986, the Minister of Commerce and Industry communicated to the applicant his decision not to change the Government policy and also informed them of the reasons for it.
Applicants challenge the decision of the Minister that the economic interest of the country pleads against the introduction of more restrictions in the importation of safety matches. It is the case for the applicants that the Minister made a wrong assessment with regard to the needs of the Cyprus economy in refusing their application for a change of policy. At present the applicants enjoy protection through import controls as to quantity of importation of foreign made safety matches, the imposition of import duties on the importation of foreign safety matches and exemption from payment of import duties of the raw material used by applicants, namely, matchsticks.
Learned counsel for the respondents justified, in her address to the Court, the soundness of Government policy and she also contended that the decision lacks executory character and it is, therefore, not justiciable. She said that administrative action is justiciable and proper subject for review by the Courts but not administrative policy.
Learned counsel for the applicants maintained that refusal to change Government policy affects the interest of applicants in a way entitling them to protect them by recourse under. Article 146.1 of the Constitution. It is settled that administrative policy cannot as such be made the subject of judicial review under Article 146.1 of the Constitution. (Savvidou v. The Republic (1970) 3 C.L.R. 118; Pernaros v. The Republic (1975) 3 C.L.R. 175; C. Garayiannis v. The Republic (1980) 3 C.L.R. 39; Tricomitis v. The Republic (1985) 3 C.L.R. 2328).
In the case of Eteria Pyrion Aphrodite Ltd. v. The Republic of Cyprus (1988) 3 C.L.R. 1555 which dealt with the same issue, based on identical facts as the present case, Pikis, J. at p. 1557 said as follows:-
"Only the implementation of administrative policy resulting in the issuance of an executory administrative act, founded thereon, can be made the subject of judicial action. For its policies as distinct from its actions the executive is only politically accountable.
The subject decision is nothing other than the expression of government policy to adhere to the regime of existing control of imports in an area of great Interest to the public. The inaction of the Minister and failure in particular to change existing regulation of imports is not justiciable. The law, namely, Import Control Regulations (Amendment) Law 1967 (Law 7/67) does not cast an obligation on the Minister to act Upon the motion of any party affected by existing regulations. What the applicants are in essence challenging is the omission of the Minister to alter existing import controls for the protection, of local industry. He had no statutory obligation to act. The subject decision is nothing other than the expression of administrative policy to maintain the existing legal regime. As such it cannot be made the subject of judicial review under Art. 146."
With due respect, I agree and adopt the reasoning of Pikis J. and I likewise find that the subject decision is, an expression of Government policy and it is not justiciable and it is not a proper subject for review by the Courts Consequently, the recourse is dismissed for lack of executory character of its subject matter
Bearing in mind that the applicants tested their claim in Eteria Pyrion v. The Republic (supra), and bearing in mind also that they have not appealed against that decision, and they nevertheless proceeded with the hearing of this recourse which raised the same issues, in the exercise of my discretion, I decided to award costs against them, to be assessed by the Registrar.
Recourse dismissed with costs.