(1968)3C.L.R. 477,at pp.479-480; and Cyprus Flour Mills Co. Ltd. and Another v. TheRepublic,

(1970)3 C.L.R. 48, at p. 5Z Counsel for the respondents submitted that the decision isone ofprivate lawhavingregard to (a)thegeneral sphereof activities 25 out of which the issue arose; (

1. b)the nature of the specific power exercised in this particular case; and (
2. c)the nature of the specific act. The respondent is one of the Corporations established under the law. We seeno difference between C.B.C. and other similar 30 statutory corporations, such as the Electricity Authority of Cyprus or the Cyprus Telecommunications Authority. They have exclusive power within the domain of activities prescribed by the relevant statute. The general predominant character of the respondents is a 35 Corporation of public law. Whatever, however, the general and predominant character of the respondents might precisely be, it is only relevant for the purposes of this case to consider whethei in relation to theparticular function which isthe subject 745 Stylianides J. Galanos v. C.B.C.

(1984)-matteroftherecourse,therespondentwasactinginthecapacity of an organ, authority or person exercising any executive or administrative authority - (JohnStamatiouv. The Electricity Authority of Cyprus,3 R.S.C.C. 44, at pp. 45-46). In Pelopidas Sevastides v.The Electricity Authority of Cyprus, 5

(1963)2C.L.R.497,theElectricityAuthority,established under the Electricity Development Law, Cap. 171, refused or omitted tosupplyelectricitytoapersonwhohadapplied,for suchsupply. The following legal issue posed foi determination:"Whether, as regards the matters complained of in the 10 recourse, the Respondent was acting in the capacity of an 'organ, authority or person, exercising any executive or administrative authority',

(3)of section 12ofCap. 171,ismadeapplicabletotherespondent, providesthat aperson shall,onapplication,beentitled toa supply ofelectricity on the sameterms on whichany other person in the samearea isentitled in similar circumstances 35 toacorresponding supplyofelectricity and thusintroduces an obligation on therespondent to giveequaltreatment to all applicants for the supply of electricity. 746 3 C.L.R. 5 10 15 20 25 Galanos v. C.B.C. Stylianides J The nature of the duties and functions of the respondent. particularly when considered in conjunction with the powei of the respondent to make regulations and its duty to give equal treatment to all persons, are, in the opinion of the Court, such as to bring the duty of securing the supply of electricity, with which the Court is concerned in this Case, withintht realm of public law,eveniftherespondent is,toa certain extent, a commercial undertaking Anydecision,actoromission oftherespondent, therefore, wh'ch, inter alia, amounts to a failure on itspart to peiform its aforesaid duty, being within the realm of public law, would be 'a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority',

(1965)3 C.L.R. 164, the following test 30 was Iaid:- 35 "In the opinion of the Court it is primarily the nature and character of a particular act or decision which determines whether or not such act or decision comes within the scope of paragraph 1 of Article 146 of 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 suchrelevant factors asthe office and status of the organ, authority, person or body r^rforming such act or taking such decision, as well as to the circumstances and 747 Stylianides J. Galanos v. C.B.C.

(1984)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 private law or in the domain ofpublic law,depending on the nature of its action'. Ultimately, what is the important and de- 5 cisivefactoi inthisrespect isthe nature and character of the particular function which is the subject-matter of a recourse". (See also Charalambides v. The Republic,

(1982)3 C.L.R. 403). In Miliotis v. The Republie (supra), a case on which the 10 appellants relied, a hawker was prevented from entering the Famagusta port area which isproperty of a public nature owned by the Government for public use purposes. The trial Judge said at p. 480:"Of course, the Government may, within certain proper 15 limits, impose restrictions and controls regarding the mode of use by the public of such a property". And further down:"In the circumstances I think that the total exclusion of the Applicant from the Port Area, as a hawker, was decided 20 upon under the influence of a material misconception as to the extent of the obligation of the Government towards the canteenkeeper Of course, nothing in this Judgment should be taken as laying down that the appropriate authorities are precluded 25 from exluding hawkers ingeneral from the Famagusta Port Area, ifsuch stepcan betaken with lawful authority and on proper grounds; I leave this matter entirely open". In Constantinides v. The Cyprus Broadcasting Corporation, 5 R.S.C.C. 34, the following was stated on pp. 39-40:30 "Under section 17of the Cyprus Broadcasting Corporation Law, Cap. 300A, it is part of the duties of Respondent '

(1)(

1. a)to operate by sound or television a public broadcasting service for reception by the public' and also *(l)(
2. d)to promote the development of the Broadcasting service whether 35 in Cyprus or abroad, in accordance, as far as practicable, with recognized international standard practice'; further, 748 3 CA.ll. Galanos τ. C.B.C. Stylianides . in doing so, the Respondent is, inter alia, empowered, bu not also obliged, to '

(2)(

1. e)provide and receive from othe persons matter to be broadcast'. 5 10 15 20 25 30 35 The aforesaid duties (l)(
2. a)and (l)(
3. d)are, in the opinior of the Court, public duties. Thedischarge ofduty(l)(a),above,does notappear tob( involved, in this Case. Concerning duty (l)(d), above, i has been considered by the Court whether or not thenon acceptanceofacontributionmight,incertaincircumstances amount to a breach of such duty which could vest a cor responding right in the author thereof. The Court ha! reached the conclusion that the said duty (l)(
4. d)is, by it! very nature,a duty dueonly to the State,which has certair powers in thematter,and norights of private persons aris* inrelation thereto. This viewis also borneout by the fa that Cap.300A has made,wherever this was intended toI so, specific provision concerning lights to the service to 1 provided by Respondent, as e.g. under sub-section

(3)< section 19, in relation to political parties. Comingnowtotheenablingprovisions ofsection 17

(2)(e above, theCourtis of the opinionthattheydo notinvoh the performance of a public duty by Respondent. 1 accordance with the evidence of the Director of theGree Programmes of Respondent, which on this point has nt been contested, the reception of matter to be broadcas presumably pursuanttothesaidprovisions, ismade under special agreemententeredintospecifically for eachparticula contribution. The Respondent contracts for contribution in the same manner as it may contract for other mean necessary for the performance of its public duties; i decidingwhetherornotsotocontracttheRespondentisnc acting in the domain of public law but in the domain c private law, because the process of seeking, selecting an acceptingcontributionsfor itsprogrammesisnotpartofth public duties of Respondent but a preparatory step whic is part and parcel of the commercial activities of Respor dent, as such activities have already been recognized b this Court,concerning the Electricity Authority of Cypru in the Case of Andreas Marcoullides and The Republic, R.S.C.C. p. 30, at p. 34. 749 Stylianides J. Galanos τ. C.B.C.

(1984)Under a contract for a contribution, as aforesaid, the Respondent and the contributor meet in a legal situation where both parties are on an equal footing, as in any other private law contiactual transaction, and not in an unequal relationship such as existing where a governmental organ exercises power towards a person governed; such latter relationship is indispensable, as a rule, to the notion of an administrative act or decision in the sphere of public law. 5 In the light of the above, and as the circumstances in which thecontributionsof Applicant have notbeen accepted 10 did not involve any decision by respondent upon a public competition for the purpose, in which case somewhat different considerations might have arisen, the Court is of the opinion that the non-acceptance by Respondent of the contributionsof AppUcant,as complained of, is notamatter 15 of public law and does not amount to the exercise of ad­ ministrative or executive authority in the sense of Article 146.1 with the result that this Court has no jurisdiction in . this Case." In Pitsillos v. C.B.C.,

(1982)3 C.L.R. 208, the Full Bench 20 considered only s,19

(3)of the Cyprus Broadcasting Corporation Law, Cap. 300A, which provides:"The Corporation shall at all times keep a fair balance in the allocation of broadcasting hours as between political parties". 25 And it had this to say at p. 217:"Section 19

(3), read in the context of the law in its entirety, aims to ensure that broadcasting be instrumental to the promotion of democratic rule, requiring that effective opportunity be given to opposing view-points to be put 30 across to the people. The duty of the Corporation is two­ fold: Firstly to the public who have a right to adequate information on political issues, and secondly to,political parties who have a right to a proper platform for the venti­ lation of their views." 35. The respondent Corporation was established under s.4 of the Cyprus Broadcasting Corporation Law, Cap. 300A. Its func­ tions and duties are set out in s.17

(1). It is an independent 750 3 C.L.R. Galanos v. C.B.C. Stylianides J . statutory corporation and its activities arc partly within the domain of public law and partly of private law. Some of its duties are due only to the State; some are due to the public and others are for the administration of the pioperty of the 5 Corporation. The property of the Corporation is not communal property. The Corporation, judging from its poweis and dutiesand thegeneral provisionsof the law,isingcnetal a public corporation with mixed duties and poweis - public and private. It has a monopoly for audio and vision broadcasling. 10 in Gicece similar coiporations are of privats law but that is piovided by specific legislation. The general public has an "interest" in the wide sense of the term into the affairs of the Corporation but it has not generally an "interest" in the legal sense of the term. This, however, is not a predominant or even 15 a factor to betaken into consideration in this case. The powers of the Corporation have to be examined in respect of the act or decision complained of. The nature of the act, decision or omission complained of must only be considered. Inthepresentcasetherelevant dutyimposedonthe respondent 20 Corporation is set out in s.I7(l)(c) of the Law that reads:"Control and operate the property of the Coporation in such manner as it may deem expedient". Section 17

(1)is an enabling provision and reads:25 "17.

(2)For the purposes of subsection

(1)of this section the Corporation may, either in its own name or through any agent (a) (I) accept advertisements for broadcasting with or without charge provided that theydo not conflict with the general policy of the Coiporatkm". 30 Thisduty undei S.17

(1)(C) isdue tothe State. The respondent hasto operate itsproperty in thespheieof advertisements, when a charge is paid to it, in a commercial way subject, however, to the general policy of the Corporation. The amount of the charge is not for the promotion of a public purpose. 35 In fixing the prices for the time of advertisements and in applyinga uniform standard practice asto theadvertisements on 751 Stylianides J. Galanos v. C.B.C.

(1984)television, the Corporation is not exercising an imperium but only it operates as a commercial enterprise in the domain of private law. It istruethat onlytherespondent isauthorised by lawto display television advertisements. It hasa monopoly in thisfield. Thisisnot, however,a caseinwhichtherespondent 5 Corporation refused to accept adveitisements of the goods imported by the appellants; it relates to the application of a uniform practice as to "frequency discount" and the offer of 'free spots" to the appellants, in the course of an exploratory process for granting "frequency discount" to them. 10 It has been strenuously argued that the monopoly of the respondent Corporation, if it is not subject tojudicial control, .nayleadtoexcessorabuseofpowerbytheCorporationandthe Dersons affected would be remediless. The question of an arbitrary and in bad faith refusal of ac- 15 ;eptance of advertisements is inconsistent with the proper exercise of the powers and duties of the respondent under i,17

(2)(l)anditmayfall withinthedomain ofpublic law. But, is we have said earlier, wepronounce only on the issue raised, \aving regard to the act or decision challenged in the recourse, 20 indweleaveentirelyopenotherquestionswhichmayariseinthe :xercise of the powers and duties of the Corporation. In the light of the above we hold the view that the act or lecision complained of is within the commercial sphere of the ctivities of the respondent; it isin the domain of private and 25 tot public law and, therefore, not amenable to thejurisdiction f this Court. This would dispose of the appeal as this Court lacks juridiction. With regard to the alleged executory nature of the ctcomplained of, weagreewiththefirst instanceJudgethat in 30 ae particular circumstances of this case the refusal of the lepondents is obviously an act of merely preparatory and injrmative nature in the course of negotiations exploring the ossibility of concluding an advertising agreement and as such . lacks the executory nature whichwould make it possible to 35 hallengeit bya recourseunder Article 146ofthe Constitution, ad it been otherwise within the ambit of this Article. Inthe result theappealisdismissed withnoorder astocosts. 752 3 C.L.U. 5 10 15 20 Galanos v. C.B.C. PIKIS J.: The appellants, a commercial company in the importtrade, wererefused afrequency discountfor theadvertisement of imported products on television, allegedly in breach of the provisions of Article 28 of the Constitution guaranteeing equality before theAdministration. They challenged the refusal by recoursetotheCourt,claimingtheannulment ofthedecision. The theme underlying their lecourse was failure to manage soundly the state monopoly of broadcasting entrusted to the respondents. The background to the recourse is briefly this: Applicants claimed a discount, styled under the Regulations of the respondents, as a "frequency discount", merited because of the frequency with which they advertised their products on television. Respondents refused the application on the ground that extension of thefrequency discount wasrestricted to advertisement of products of the same manufacturer. Therefore, it wasimmaterial that applicants advertised many of their imported products frequently enough, because they emanated from different manufacturers. In other words, the test was not the frequency with which a trader advertised his products but the frequency with which products of the same manufacturer were displayed. The learned trial Judge dismissed the recourse without ene quiring into its merits, holding that the cause, subject-matter of the recourse, did not sound in public law, being a matter exclu25 sively referable to the commercial activities of the Cyprus Broadcasting Corporation. Support for this view was derived from the case of Alecos Constantinidesv.C.B.C.t 5R.S.C.C. 34. The Court also found the recourse was liable to be dismissed for another equally consequential reason, that is, the preparatory 30 nature of the act lacking the executory character necessary to make it justiciable. Appellants argued before us that the decision complained of wasan act in the domain of public law and drew attention to the distinction between, on the one hand, acts of management by a 35 public body of property of private character and, on the other, acts of management of public property in which the public has an interest (see, Stassinopoulos- Law of Administrative Disputes 1964, 4th ed., p. 65). A more pertinent distinction is that between disputes deriving from agreements between public 40 bodies and citizens regulating property matters of a private 753 Pikis J. Galanos v. C.B.C.

(1984)nature and, disputes arising from the unilateial exercise of administrative or executive power bearing on private rights of citizens. In the foimer case, the dispute is amenable to the jurisdiction ofthecivilcourts,whereas inthe latter, depending on the nature of the power and the interest of the public in the 5 matter, it may be amenable to thejurisdiction of administrative courts (see, Conclusionsfrom Decisions of the Greek Councilof State 1929-59, pp. 234-236). It is settled that only unilateral acts of the Administration, entailing the exercise of administrative or executive power, are ii* amenable to the revisional jurisdiction of the Supreme Court. The action must be unilateral in the sense that it originates from the exercise of powers vested by law in the Administration, as opposed to rights deriving from an agreement entered into between the parties. An additional requirement for the justi- 15 ciability of a decision, act or omission of the Administration, is that it must be in the domain of public law. 1shall not concern myself, in this case, with numerous decisions of our Courts instancing application of this principle in different situations. Briefly, the matter decided must be of interest to the public or a 20 section of it, in contrast to decisions of interest only io the citizen affected thereby. In the latter category, mostly fall acts purporting to regulate property disputes, for example, a decision resolving a boundary dispute. An act having the above attributes, does not lose its administrative character if its imple- 25 mentation is dependent upon the execution of a contract. The decision to enter into a contract and itsterms, if it concerns a matter in thedomain of public law, isdetachable, for purposes of review, from the contract that follows and may be litigated in proceedings under Article 146.1 of the Constitution. For 30 example, a decision to award a tender, by the Government Tender Board, is justiciable notwithstanding the fact that interpretation and enforcement of any resulting contract is amenable to the jurisdiction of a civil court. Guided by the above principles, we are required, in this appeal, to determine 35 whether the act under review is either preparatory or referable to a matter of private law and, as such, non justiciable under Article 146.1,.as the learned trial Judge found. I cannot sustain the judgment of the trial Court on cither of the two grounds upon which it isfounded. My reasons for sojudging, 40 are briefly given below, 754 3 C.L.R. Galanos v. C.B.C. Pikis J. TheCyprusBroadcastingCorporationisapubliccorporation, thefunctioning ofwhichisregulated bylaw,namelytheCyprus Broadcasting Corporation Law, Cap. 300A. It is entrusted with a State monopoly of sound and vision broadcasting, the 5 management of which·is of supreme importance to the public. Undoubtedly, it operates in the domain of public law. And with the manifold expansion of TV audience, the interest of the public in the operation and management of C.B.C. can be said to have increased in proportion corresponding thereto. 10 The Corporation is specifically empowered to accept, broadcast and display advertisements—s.l7

(2)(l). Advertising is a matter of interest tothepublic at largeand of specificinterest to those advertisingtheir products on themass media. Advertising over television in particular,is,because of the natureand 15 effect ofthe display of the advertisement and the magnitude of the audience, a unique method of promoting products. The policyoftheCorporation inthisarea,isamatterpre-eminently fallinginthedomain ofpubliclaw,whereasthetermsandconditions upon which advertisements· are accepted is of specific 20 interest to the trading community." Consequently, a complaint by a trader, complaining of unequal, treatment or improper application of the rules adopted by the Corporation to e sure proper standards and uniform- treatment, is justifiable under Article 146.1of the Constitution. I do not regard-the'decision 25 in ConstantinideSy supra, as dictating any other course. Two principles emerge from-the decision in Constantinides: First,, in-fashioning, their programmes—and that includes choice of their contributories—they discharge a public duty for which they are accountable-to the State. Implicit in this·principle 30 is that control in this area isexeicised by the body-politicand> not the judiciary. Second, choice-of their collaborators andimplementation of contracts entered into with contributories,, are referable- to the-domain of private law because the choiceof collaborators is a matter incidental to the commercial acti35 vities of the Corporation,, whereas contracts executed"in this. area are entered' into between' parties negotiating at arm's length: Underlying this decision,is'recognition of freedom of activity to the Corporation to secure appropriate contributions forthedischargeofiisdutiesunder,thelaw. Oncethedischarge; 40 of these duties is not amenable to judicial review,,inevitably 755- •ikis J. Galanos v. C.B.C.

(1984)lecisions flowing therefrom, are likewise beyond the scope of eview. Here, weare concerned not withthe discharge of the general lutiesoftheCorporationbutwiththeevolutionandenforcement •fits policy in a distinct area directly affecting the rights of a 5 ection of thepublic, viz. thetrading community and isof conequence, asearlier explained, to thepublicat large. Decisions akenin distinct areasof interesttothe public,directly affecting herightsof citizens,are liabletojudicial review(see,inter alia, °itsillos v. C.B.C.

(1982)3 C.L.R. 208). Any other approach 10 vould leavethe citizen remediless and deprive the public of the lecessary protection through judicial control in this area. In ayjudgment,the act complainedofwasinthedomain ofpublic iw, it signified a unilateral decision of the Administration and ad all the attributes of an act justiciable under Article 146.1 15 f the Constitution. Nor do IagreewiththelearnedtrialJudgethat theactwasof . preparatory character. Respondents refused a frequency liscount. Their refusal was unqualified and as such deterninative of the rights of the appUcants,in connectionwith their 20 lability for adveitising over the television network. That he respondents offered, as a gesture of good will,free advertiing spots, unacceptable as it turned out to the applicants, did tot alter the character of the decision and did not sap it of its inality. I would, for the reasons given above, allow the appeal. A. LoizouJ.: In the result theappealisdismissedbymajority ustices Savvides, Loris and myself agreeing withthe judgment >fourBrotherJusticeStylianidesjustdeliveredandinthecircumtances there will be no ordei as to costs. 30 Appeal dismissed by majority with no orderas tocosts. 756 25