clr/1968/1968_3_12.pdf

1968 Jan. 10 CYPRUS FLOUR A™ A N O W ' [STAVRINIDES, ].] I NT H E M A T T E R O F A R T I C L E 146 O F T H E CONSTITUTION V. REPUBLIC CYPRUS F L O U R M I L L S CO. LTD., AND ANOTHER, (COUNCILOF MINISTERS ΛΑ>.Ι.·,™#, AND ANOTHER) Applicants, and T H E REPUBLIC O FCYPRUS, T H R O U G H T H E C O U N C I L O F M I N I S T E R S AND ANOTHER, Respondents. (Case Nos. 256/65 and 257/65J. Administrative and Constitutional Law—Recourse under Article 146 of the Constitution—Competence of the Court on such recourse—Article 146,paragraph 1—Acts or decisionswhich can be made the subject of a recourse under that Article— They must be «εκτελεστά!» (executory)—Acts ordecisions arising out of a contract cannot be made thesubject of such recourse—"Omission" within Article 146, paragraph 1— It must bean omissionto doan act or take a decision which could be made thesubject of a recourse under that Article— Otherwise the Court has no competence to deal with such omission on a recourse under Article 146—Agreement bet­ ween the Minister of Commerce andIndustry andflour mil­ lersfor reduction inprice of flour pending investigation into flour-milling costs—Decisions and alleged omission of Mini­ ster inconnectionwith, andarising outof,theaforesaidagree­ ment—Outside thescopeof Article 146of the Constitution— The doctrine of «αποσπάσεως τ ώ ν πράξεων»—See, also, herebelow. Acts or decisions underparagraph 1of Article 146of theconsti­ tution—Executory acts or decisions only can be made the subject of a recourse under that Article—Acts or decisions arising out of a contract not amenablewithin the competence of the Court on a recourse under Article 146—So is it with omissionsto doactsor to take decisionswhichcannot be made the subject of such a recourse—The doctrine of detachable acts or the doctrine of «αποσπάσεως τ ώ ν πράξεων»—The doctrine applies only to acts which both areexecutory (έκτελεστσί) and preceded the contract—It follows that in the 12 present cases the doctrine is of no avail to the Applicants— Because the decisions complained of as well as not being «εκτελεστά!» (executory) came after the conclusionof the agreement in question—See, aho, above. 1968 Jan. 10 CYPRUS FLOUR MILLS C O . L T D . AND ANOTHER v. 'Εκτελεστή πραξι$ ή άπόφσσις—See above. «'Απόσπαση πράξεων»—The doctrine of—See above. Contract—Decisions arising out of contract—See above. Omissionwithin paragraph ι of Article 146 of the Constitution— See above. The Applicants in these two cases are,and at all material times have been, a company carrying on the business of flour-milling. Up to and including February 23, 1963 they had been selling their flour at 53 mils per oke. They further allege that on or about that date, at the express request of the Respondents, they agreed to reduce tempo­ rarily the sale price of the flour supplied by them to the public for breadmaking from 53 mils to 51 mils per oke "pending the finding of a committee of inquiry into the cost of flour—milling which was to be appointed by the Respondents". The Applicants further allege that it was an express term of that agreement that the Respondent would compensate the Applicants for any loss "which they would have suffered in case the finding of the committee of inquiry were to the effect that the sale price of the breadmaking flour at 51 mils per oke would not afford rea­ sonable margin of profit to the flour—millers and/or the Applicants"; such compensation not to exceed two mils per oke "which was the difference resulting from the reduction of price made as above stated. In reliance on that agreement the Applicants allege that beginning from February 25, 1963 reduced the price of flour sold by them to 51 mils per oke as aforesaid. On or about October 29 1965, theApplicants received Exhibit 1,i.e. a letter from the Minister of Commerce and Industry, addressed to "Cy­ prus Flour-Millers Association", stating that "in accor• dance with the arrangement made on February 23, 1963, the Government appointed an ad hoc committee to inve­ stigate flour-milling costs"; that the Committee has sub­ mitted its report; and that "the Government having stu­ died this report reaches the conclusion that the prices at which the products of the flour-milling industry are sold 13 REPUBLIC (COIFNCIL OF MINISTERS AND ANOTHER) 1968 Jan. 10 C Y P R U S FLOUR M I L L S Co. L T D . AND ANOTHER V. REPUBLIC ( C O U N C I L OF MINLSTERS AND ANOTHER) afford adequate margins of profit and therefore the payment to the flour-millers of more than 51/—per bag (of fifty okes) of flour is not warranted". The Applicants replied to the Minister by Exhibit 2, i.e. a letter dated November 4, 1965, expressing great regret and surprise at the conclusion reached by the Government; asking, also, the Minister to communicate to them the contents of the report and requesting the Government, failing such disclosure, "to be good enough to give (the Applicants) its own view as to what sum it, for its part, regards as being the sum which should be added to the costs of milling as a reasonable profit so that the two sums together may make up the 'reasonable milling charge'". That letter was answered by Exhibit 3, i.e, by a letter from the Ministry dated December 4, 1965, stating that: "Your... memorandum was placed before the Council of Ministers which decided that the report prepared by the ad hoc committee appointed by the Government was of a confidential nature, the contents of which unfortunately cannot be communicated to you"; and that "the Government having studied the report reached the conclusion that the prices at which the products of the flour-milling industry are disposed afford adequate margins of profit...". Hence the present recourses under Article 146 of the Constitution, whereby the Applicants, in effect, seek:(a) Declaration that the decision of the Respondents contained in Exhibits 1 and 3 (supra) not to pay to the Applicants the difference of two mils per oke of flour sold by the latter during the period February 25, 1963, onwards in implementation of the agreement reached between the Applicants and Respondents as aforesaid, is null and void; (b) declaration that the decision of the Respondents contained in the same letters (Exhibits 1 and 3, supra) to the effect that the price of 51 mils per oke of flour (or 51 shillings per bag of 50 okes) affords adequate marging of profit is null and void; (c) declaration that the omission of the Respondents to decide promptly the matters in prayers (a) and (b) herein above ought not to have been made; 14 (d) declaration that the decision of the Respondents contained in their letter Exhibit 3 (supra) not to communicate to the Applicants the report prepared by the ad hoc committee of inquiry into the cost of flour-milling is null and void. It wascontended bythe Respondents that: (a) No decision apart from information is contained in the aforesaid letters Exhibits 1 and 3 (supra). (b) Even if it is assumed that there exists a decision as alleged, such decision was not taken by an organ, authority or person in the exercise of any executive or administrative authority within Article 146, paragraph i, of the Constitution and, therefore, no recourse under this Article lies in respect of such decision. (c) For the same reasons the omission alleged by the Applicants in their prayer (c) (supra) does not constitute an "omission" within the meaning of the aforesaid Article 146, paragraph 1, and, therefore, no recourse lies in respect thereof either. Paragraph 1of Article 146 of the Constitution reads as follows: " 1 . The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or p6rson, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or ofany lawor ismade inexcessor inabuse of powers vested in such organ or authority or person". In dismissing the recourse as not maintainable under Article 146of the Constitution, the Court:Held,