clr/1982/1982_3_403.pdf

(1982)parties. The duration of the tenancy was extended for one year from 1.1.1981-31.12.1981. By letter dated 16.9.1981 K.O.T. reminded the applicant that the tenancy agreement expired on 31.12.1981 and invited him to deliver possession of the premises. There followed other correspondence between 5 the parties and on 17.11.1981applicantfiledthepresent recourse for a declaration, inter alia, that the decision of the respondents whereby he was required to deliver possession of "Dolphin" was null and void and of no effect whatsoever. The respondents raised the objection that this Court had 10 no competence to entertain this recourse as the act or decision complained ofwasnot anact or decision inthesense of Article 146 of the Constitution. On theobjection: Held,that a decision or act may be the subject of a recourse 15 to this Court if it is the result of exercise of an "executive or administrative authority" in the sense in which such words ate used in paragraph 1 of Article 146; that the aforesaid words must be understood in a strict sense; that an "act" or "decision" in the sense of paragraph 1of Article 146 isan act 20 or decision in the domain only of public law; that civil law rightsinimmovableproperty are,asarule,mattersinthedomain of private law; that acts relating to the management of private property of the state,Uhat give rise to civil disputes of civil nature, are within the exclusive competence of the civil Courts; 25 that the lease of immovable property is such an act of management; that the decisions and/or acts, subject-matter of this recourse,wereno more·than actsofanordinaryprivate landlord; that theyweredoneinvirtueofexpressprovisionsofthisbilateral agreement; that they were not an expression of governmental 30 action or policy in a matter of touristic development and as such predominantly intended to serve a public purpose, but an exercise of private legal rights derived from the agreement; that K.O.T. did not exercise any executive or administrative authority; that, therefore, the subject decisions are within the 35 domain of private law and cannot be the subject of a recourse under Article 146.1 of the Constitution;accordinglythisrecourse is dismissed for lack of competence of this Court. Application dismissed. 404 3 C.L.R. 5 10 15 20 Cbaralambldes τ. Republic Cases referred to: Papaphilippou v. Republic, 1 R.S.C.C. 62; HadjiKyriacouv. Theologia Hadjiapostolouand Others, 3 R.S.C.C. 89; Valana v. Republic, 3 R.S.C.C. 91; Stamatiou v. The ElectricityAuthority of Cyprus,3 R.S.C.C. 44 at pp. 45-46; Greek Registrar of the Co-operative Societies v. Nicolaides,

(1965)3 C.L.R. 164; Silentsia Farms v. Republic

(1981)3 C.L.R. 450 at p. 455; Charatambides v. Republic, 4 R.S.C.C. 24; I.W.S. Nominee Co. Ltd. v. TheRepublic

(1967)3 C.L.R. 582; Mustafa v. Republic

(1973)3 C.L.R. 47; Poyadjisv. Republic

(1975)3 C.L.R. 378; Decisions of theGreek Council of State in Cases No. 1087/1934, 3267/1970, 211/

1. Recourse. Recourse against the decision of the respondent inviting the applicant to deliver possession of "Dolphin" restaurant. Chr. TriantafyHides, for the applicant.
2. Papasavvas, Counsel of the Republic, for the respondent. Cur. adv. vult. STYLIANIDES J. read thefollowing judgment. Cyprus Tourism Organization (hereinafter referred to as "K.O.T.") is a corpora25 lion of public law established by Law No. 54/
3. It exercises administrative power and also manages government immovable . property. 30 35 "Dolphin", a bar-restaurant at Troodos, owned by the Government of the Republic of Cyprus, is managed by K.O.T. By a private contract of lease dated 31.5.1979 (exhibit No. 1) K.O.T. let to the applicant "Dolphin" for the period 1.6.1979— 31.12.
4. The duration of the tenancy could be extended from year to year, but not more than two years, by the landlord under terms and conditions to be agreed by the patties. The duration of the tenancy was extended for one year from 1.1.1981—31.12.
5. (See exhibit No. 2). K.O.T. by letter 405 Stylianides J. Charalambides v. Republic

(1982)dated 16.9.1981 (exhibit No. 3) reminded the applicant that the tenancy agreement expired on 31.12.1981 and invited him on such dateto attend "Dolphin" and deliver tothem possession of the premises and the furniture as per Clause No. 14 of the contract (exhibit No. 1). On 17.10.1981 applicant's advocate addressed to K.O.T. a letter (exhibit No. 4) stating that the applicant is a displaced person, that the premises in question were used also as his residence and consequently, as he was protected by the relevant legislation, he was not bound to quit the premises. On 10 29.10.1981 K.O.T. replied by exhibit No. 5 to the lettei of Mr. Triantafyllides (exhibit No. 4). In exhibit No. 5 it is stated that by the contract of lease between the paities the user of the premises was only as "kentron" and not as lesidence of the tenant. No leave or licence was ever given by K.O.T. for ]5 the u*e of the premises as a dwelling house; the legislation governing dwelling houses of displaced persons was not applicable, and he was requested to deliver possession of the premises at the date of the expiration of the contract, i.e. on 31.12.

1. In the meantime K.O.T. invited through the press tenders for 20 the lease of "Dolphin". On 30.10.1981 applicant's advocate by exhibit No. 6 reiterated that as his client was a displaced person, he would not vacate the premises and that the invitation for tenders was contrary to law. Soon afterwards the applicant reported to 25 this Court, By this recourse he seeks a declaration that the decisions contained in the letters of 16.9.1981 and 29.10.1981 (exhibits No. 3 and 5) are null and voidand of no effect whatsoever and that the respondents are precluded from asserting that the legis- 30 lation relating to dwelling houses of displaced persons— obviously Law No. 56/78—is not applicable. The respondents raised the objection that this Court has no competence to entertain this recourse as the act or decision complained of is not an act 01 decision in the sense of Article 35 146 of the Constitution. This, legal objection, with the consent of both counsel, was heard as preliminary legal issue. Learned counsel for the lespondents submitted that the mana406 5 3 C.L.R. Charalambides τ. Republic Styllanides J. gement of government property under the rules of private law and the invocation of a clause of a contract of lease are matters of private law. They do not amount to an exercice of an executive or administrative authority. The act or decision 5 complained of was based on a private contract of lease and was not a unilateral act of exercice of power by K.O.T. Learned counsel for the applicant maintained that, having regard to the nature of the sub-judice decision and the object it purported to attain, namely, thefurtherance of public interest. 10 the financial benefit of the State evinced by the invitation of tenders for a new lease and the promotion of tourism, it is an act or decision in the domain of public law and amenable to the jurisdiction of this Court. A decision or act may be the subject of a recourse to this 15 Courtif it'is the ιesult of exercice of an "executive or administra­ tive authority" in the sense in which such words are used in paragraph 1 of Article
2. The aforesaid words must be understood in a strict sense. An "act" or "decision" in the sense of paragraph 1 of Article 146 is an act or decision in 20 the domain only of public law. (George S. Papaphilippou v. The Republic, 1 R.S.C.C. 62; Achilleas HadjiKyriacou v. Theologia Hadjiapostolou and Others, 3 R.S.C.C. 89; Savvas Yiarmi Valana v. The Republic, 3 R.S.C.C. 91). 25 30 35 In John Stamatiou v. The Electricity Authority of Cyprus, 3 R.S.C.C.
3. Forsthoff, P.. at pp. 45-46 said:"Whatever the general and predominant character of the Respondent might precisely be, it is only relevant for the purposes of this case to considei whether, in relation to the particular function which in the subject-matteι of this recourse, the Respondent was acting in the capacity of an "organ, authority or person, exercising any executive or administrative authority" in the sense of paragraph 1 of Article 146". In thecase of TheGreekRegistrar of the Co-operative Societies v. Nicos A. Nicolaides,

(1965)3 C.L.R. 164, the following test was stated:-"In the opinion of the Court it is primarily the nature and character of a particular act or decision which deter- 407 Stylianides J. Charalambides v.Republic

(1982)mines whether or not such act or decision comes within the scope of paragraph 1of Article 146of the Constitution. Such an issue is one which must be decided on the merits and in the circumstances of each particular case and having due regard to such relevant factors as the office and status 5 of the organ, authority, person cr body performing such act or taking such decision, as well as to the circumstances and context in which such act was performed or decision taken. As pointed out by the learned Judge in his Ruling the 'same organ may be acting either in the domain of 10 private law or in the domain of public law, depending on the nature of itsaction'. Ultimately, what isthe important and decisive factor in this respect is the nature and character of the particular function which is the subjectmatter of a recourse". 15 The issue as to whether or not an act or decision comes within the scope of paragraph 1 of Article 146 of the Constitution, is one which must be decided on the merits and in the circumstances of each particular case and having due regard to such relevant factois as the office and status of the organ, as well 20 as to the circumstances and context in which such act was performed or decision taken. (Silentsia Farms v. Republic,

(1981)3 C.L.R. 450 at p. 455). The question of promotion of a public purpose as a determining factor, whether a matter falls within the domain of 25 public or private law, was examined in a number of cases. Reference may be made to Charalambides v. The Republic, 4 R.S.C.C. 24; I.W.S. Nominee Co. Ltd. v. The Republic of Cyprus, through the Registrar of Trade Marks,

(1967)3 C.L.R. 582, Mustafa v. The Republic,

(1973)3 C.L.R. 47; Poyiadjisv. 30 The Republic,

(1975)3 C.L.R. 378). Civil law rights in immovable property are, as a rule, matters in the domain of private law. Acts relating to the management of private property of the Slate, that give rise to civil disputes of civil nature, are within the exclusive competence of the civil 35 courts. The lease of immovable property is such an act of management. Disputes as to the validity, interpretation, performance and legality of such contracts are within thejurisdiction of the civil courts. (Conclusions of the Greek Council of State, 1929-1959, pp. 332-333). 40 408 3 C.L.R. Charalambides τ. Republic Styllanides J. Tn Spiliotopoulos " Έγχειρίδιον Διοικητικού Δικαίου", 1977 edition, paragraphs 424,425 and 426,p. 387,we read:- 5 10 15 20 25 30 35 40 "

1. Δέν περιλαμβάνονται είς τάς διοικητικός πράξεις καΐ συνεπώς δέν υπόκεινται είςαΐτησιν ακυρώσεως, αί πράξεις τωνοργάνων τοϋ Κράτους και τώνλοιπών δημοσίων νομικών προσώπων αί εκδιδόμενοι είςτοπλαίσιον συμβατικών σχέσεων ρυθμιζόμενων Οπότοϋ διοικητικού ή τοϋ Ιδιωτικού δικαίου δια τών οποίων δέν ασκείται δημοσία εξουσία. Αί πράξεις αΰταΐ, έάν διέπωνται υ π ό τών κανόνων τοϋ Ιδιωτικού δικαίου, δημιουργούν διαφοράς Ιδιωτικού δικαίου ΰπαγομένας εϊς την αρμοδιότητα τώνπολιτικών δικαστηρίων έάνέξεδόθησαν βάσει ειδικών κανόνων τοΰ διοικητικού δικαίου, δημιουργούν διοικητικός διαφοράς ουσίας ύπαγομένας εις τ ά τακτικά διοικητικά δικαστήρια ή τ ά πολιτικά δικαστήρια. Είς άμφοτέρας τάς περιπτώσεις αί ανωτέρω πράξεις δέν υπόκεινται είς αΐτησιν ακυρώσεως, ή οποία, τυχόν ασκούμενη κατ' αυτών, εΐναι απαράδεκτος. Αί έν λ ό γ ω πράξεις δύναται νά καταταγούν κατά κατηγορίας είς:
2. α) Πράξεις διαχειρίσεως, ήτοι πράξεις αναφερόμενος είςτηνδιαχείρισιν τηςπεριουσίας τοϋ Κράτους ή τών λοιπών δημοσίων νομικών προσώπων κατά τους κανόνας τοΰ ιδιω­ τικού δικαίου (ΣΕ2144/1966).
3. β) Συμβάσεις καισχετικός μέ αύτάς πράξεις. Οΰτω, τόσον αί συμβάσεις είςτάςοποίας το Κράτος ή τό δημόσιον νομικόν πρόσωπου είναι συμβαλλόμενο ν, όσον καί αί πράξεις τών οργάνων τοϋσυμβαλλομένου Κράτους ή άλλου δημοσίου νομικού προσώπου, αί άφορώσαι τήν έρμηνείαν ή την έκτέλεσιν, έφαρμογήν και λύσιν αυτών, δέν προσβάλλονται δι' αιτήσεως ακυρώσεως Οπό τοϋ αντισυμβαλλομένου έν πάση περιπτώσει καϊ κατ' αρχήν ύ π ό τών τρίτων μή συμβαλ­ λομένων (ΣΕ 1711, 1713/1964). Αί προηγηθεΐσαι της συμ­ βάσεως πράξεις (διακηρύξεις, εγκρίσεις, κατακυρώσεις), έφ' όσον έξεδόθησαν βάσει είδικών κανόνων τού διοικητικού δικαίου, αποσπώμενοι έκ της συμβάσεως έχουν χαρακτήρα διοικητικής πράξεως καϊ προσβάλλονται παραδεκτώς δι' αίτήσεως ακυρώσεως (ΣΕ 1265/1964, 2410/1965). Έάν αί προηγηθεΐσαι της συμβάσεως πράξεις έγένοντο βάσει τών κοινών κανόνων τού Ιδιωτικού δικαίου, ή κατ' αυτών αίτησις ακυρώσεως είναι απαράδεκτος (ΣΕ 2046/1970). Αί δημιουργούμενοι έκ τών ανωτέρω συμβάσεων διαφοραΐ, 409 Slylianides J. Charalambides v. Republic

(1982)έάν μέν ή σύμβασις διέπεται ύπό τών κοινών διατάξεωντού Ιδιωτικού δικαίου, έχουν χαρακτήρα Ιδιωτικών διαφορών καϊ υπάγονταιέν πάση περιπτώσει είς τά πολιτικά δικαστή­ ρια (ΣΕ 4149/1973). 'Εάν όμως ή σύμβασις διέπεται ύπό είδικών κανόνων τού διοικητικού δικαίου, ή έξ αυτής δημι- 5 ουργουμένη διαφορά αποτελεί διοικητικήν διαφοράν ουσίας ύπαγομένην είς τά τακτικά διοικητικάδικαστήριαήπροσω­ ρινώς είς τά πολιτικά δικαστήρια (ΣΕ 316, 413/1972, 1491/ 1973)". ("424. They are not included in administrative acts and 10 therefore are not subject to a recourse for annulment, acts of State organs and other public corporations which are issued within the framework of contractual rela­ tions regulated by administrative or private law by which no public power is exercised. These acts, if governed 15 by the rules of private law, create disputes of private law which are subject to the jurisdiction of the civil courts if they were issued by virtue of special rules of administra­ tive law, they create administrative disputes of substance which are subject to thejurisdiction of the ordinaiy admi- 20 nistrative Couit or the Civil Courts. In both instances the above acts are not subject to a recourse for annulment, which if directed against them, is unacceptable. The said acts may be classified in categories as: 425. (

1. a)Administration acts, i.e. acts which refer to the administration of the property of the state or other public corporations according to the rules of private law (C.S. 2144/1966). 25 426. (
2. b)Coutracts and acts relating to them. Thus, the contracts in which the State or the public Corporation 30 is a contracting party as well as acts of the organs of the contracting state or other public corpoiation relating to their interpretation or their execution, enforcement and solution, ars not attacked by a recourse for annulment by the other contracting party and in any case and as a 35 rule by third parties who are not parlies to the contract (C.S. 1711, 1173/1964). Acts preceding the contract (declarations, approvals, assignments), so long as they were issued on the basis of special rules of administrative law, when detached from the contract have tht character 40 410 3 C.L.R. 5 10 Charalambides v. Republic Stylianides J. of an administrative act and are admittedly subject to a recourse for annulment. (C.S. 1265/1964, 2410/1965). Tfthe acts preceding the contract were made on the basis of the common rules of private law, the application for annulment against them is unacceptable. (C.S. 2046/1970). The disputes created by the above contracts, if the contract is governed by the common rules of private law, have the character of private disputes and aie subject in any case to the jurisdiction of the civil courts (S.C. 4149/1973). But if, however, the contract is governed by special rules of administrative law, the di&pute created by it constitutes an administrative dispute of substance subject to the jurisdiction of the ordinary administrative courts or temporarily to the civil courts. (C.S. 316, 413/1972, 1491/1973)". 15 In Case No. 1087/1934 it was held that the revocation by the Committee foi the Management of Public Properties of a previous decision to sell land to the Municipality of Halkida was held to be a breach of contract of private law and the dispute arising therefrom was beyond the competence of the Council 20 of State; the Committee was not acting for the public interest but for the interest of the Committee; it was not exercising power towards an inferior but was acting as a contractee equal to the other party of the contract. In Case No. 504/1936 it was held that the Council'of State 25 had no competence for disputes arising from contracts, the subject-matter of which was the private property of the State, entered into according to the rules of civil law. in that case by virtue of a contract of lease land was let to the applicant for live years. The Ministry of Finance, relying on Clause 30 14of the contract of lease,terminatedthe tenancy on the ground that the land was required by the Ministry. It was held, that as the termination was based on an express term of the contract of lease, the dispute was within the domain of private law as it arose out of a contract, the subject-matter of which was the 35 private property of the State. (See also Decision No. 3267/ 1970—Decisions of the Greek Councilof State, 1970ST,p. 5048). The management of government property in the way carried out by a private owner falls outside the ambit of Article 146. The Greek Council of State in Case No. 211/1929 (Decisions 40 of the Council of State, 1929, page 599) held that a unilateral 411 Stylianides J. Charalambides v. Republic

(1982)executory act of the administration relating to the management of private property of the State in cases of contracts of civil nature, bearing the legal characteristic of sale and entered into by a special administrative procedure, may be challenged by application for annulment as the unilateral act, detached fiom the contract, is taken by itself as an isolated administrative act. 5 The managment of government property may, in certain circumstances, be carried out in such a manner as to cease to amount to the management of private property only, and to become management, the main characteristic of which is the 10 furtherance of a purpose of public nature, and in such a case and-to that extent such management takes the chaiacter of a public function or service. (Stassinopoulos—Civil Liability of the State—1950, p. 197; see also Kyriacopoulos—Greek Administrative Law—4th edition, volume 3, p. 103). 15 In the present case K.O.T. is a corporation of public law established by statute. It manages government private propeity. It may exercise executive or administrative authority. The bar-iestaurant "Dolphin" in this particular case is Government private property managed by K.O.T. This private property 20 of the State was let to the applicant by a contract governed by private law. The duration of this tenancy is specifically set out therein. It was renewed for one year by virtue of the provisions of the said contract. The decisions and/or acts, subject-matter of this recourse, set out in exhibits No. 3 and 25 5 are no more than acts of an ordinary private landlord. They were done in virtue of express provisions of this bilateral agreement. They are not an expression of governmental action or policy ina matter of touristic development and as such predominantly intended to serve a public purpose, but an exercice 30 of private legal rights derived from the agreement. K.O.T. did not exercise any executive or administrative authority. For all the above reasons the subject decisions are within the domain of private lawand cannot bethe subject of a recouise under Article 146.1 of the Constitution. This recourse, for 35 lack of competence of this Court, is dismissed without order as to costs. Application dismissed. No order as to costs. 412