clr/1984/1984_3_791.pdf

(1984)notconstituteanexecutory administrative act butarca rcgulotury act cf Iegislati\c content and of a general application, in effect delegated legislation and as such cannot be challenged by a recourse under Article 146 of the Constitution; accordingly the recourse must fail. 5 Application dismissed. Cases referred to: Cyprus Industrial andMining Co. Lid.{No. I) v. Republic

(1966)3 C.L.R. 467 at p. 472; Kourris v. Supreme Council of Judicature

(1972)3 C.L.R. 390 at p. 400; Lanitis FarmLtd. v. Republic

(1982)3 C.L.R. 124 at pp. 130131, 132. Recourse. Recourse against the validity of the Villages (Administration and Improvement) (Amending No.3) Regulations of Ayios Dhometios, 1982. |() 15 R. Stavrakis with G. Triantafyllides, for the applicants. A. Vladimerou, foi respondent 1. E. Odysseos, for respondents 2 and 3. 20 Cur. adv. vult. A. Loizou J. read the following judgment. The applicants by the present lecoursc seek a declaration that the Villages (Administration and Improvement) (Amending No. 3) Regulations of Ayios Dhometios, 1982, Notification No. 200 25 published in Supplement HIto the Official Gazette, on the 25th June 1982, including Regulations 163 Β and 163 C ate null and void and of no legal effect whatsoever. The applicants are a Club owning the Nicosia Race Course. On the 25th June 1982 regulations made under section 24(h)(

1. i)30 of the Villages (Administration and Improvement) Law, Cap. 243, as amended by section 7(
2. b)of Law No. 27 of 1982, were published as above set out,regulating the imposition and collect­ ion of tax on sweepstakes and bets; In accordance with regulation 163 C theapplicants were under an obligation to collect from each player and pay to the respon­ dents a tax of 0.75% oh the value of each sweepstake or bet 792 35 3 C.L.R. Nicosia Race Club >. Republic A. Loizou J. placed. Thereupon they filed the present recourse which is based on the following grounds of law: 5 10 15 1. The regulations have a prohibitive and/or destiuctive effect on the Applicants' business, contrary to Article 24.4 of the Constitution. 2. Applicants are being discriminated against because in no other case within the Improvement Board of Ayios Dhometios or any other Improvement Board or, indeed, any other taxing situation, a tax payer is obliged to embark upon the collection of a tax from thiid parties if such collection has such adverse effects on his business. 3. Article 25 is also contravened because the obligation cast upon applicants in effect interferes with their free­ dom to carry on their business, such interference not beingjustified by any of the mattersenumerated in Article 25.2 of the Constilution. 4 20 The regulations complained of are ultra viresthe enabling law because the relevant section 24(h)(
3. i)provides that the collection and payment of the tax will be made by the Nicosia Race Club to the respondents, in accordance with an agreement made between the parties. No such agreement having been made, Regulation 163 C is there­ fore ultra vires the law. On behalf of the respondents, a preliminary objection was 25 raised to the effect that the sub judice regulations do not con­ stitute an administrative decision but are a legislative act and arc not thus subject to a recourse under Article 146 of the Con­ stitution. Ii was contended that they are delegated legislation enacted by the respondent Improvement Board of Ayios Dho30 metios undei the powers conferred upon it by section 24 of the Villages (Administration and Improvement) Law, Cap. 243, and thus this Court cannot test their validity, since by the present recourse the applicants arc not challenging any act or decision cf an executory or administrative nature as lequired 35 by Article 146 of the Constitution. Section24(h)(
4. i)of the empowering Law, Cap.243 as amended by section 7(
5. b)of Law 27 of 1982 gives power to Improvement Boards to make bye-laws foi the purpose, inter alia, of: "(
6. i)να επιβάλλη εφ1 εκάστου ιπποδρομιακούστοιχήματα 793 A. Loizou J. Nicosia Race Club v. Republic

(1984)και εφ' εκάστου ιπποδρομιακού λαχείου κατά την διενέργειαν αυτών, είτε ταύτα διενεργούνται εντός του ιπποδρόμου είτε εκτός αυτού, φόρον μέχρι 0.75 % ή ποσόν αντιπροσωπεΰον το 0.75 % δια την περίοδον μέχρι της 31η? Δεκεμβρίου, 1983, και φόρον μέχρι 1 % 5 ή ποσόν αντιπροσωπεΰον το 1 % από της 1ης Ιανουα­ ρίου, 1984 επί του ποσού εκάστου ιπποδρομιακούστοι­ χήματος ή εκάστου ιπποδρομιακούλαχείου, αναλόγως της περιπτώσεως, το οποίον διενεργείται αναφορικά προς ιππόδρομον κείμενον εντός της περιοχής Βελτιώ- 10 σεως του Συμβουλίου τούτου: Νοείταιότι οεπιβαλλόμενος φόροςβαρύνειτον παίκτην και δεν λογίζεται ως συνιστών μέρος του ιπποδρομιακού στοιχήματος ή ιπποδρομιακού λαχείου, η δε είσπραξις τούτου θα διενεργήται υπό της ιπποδρομιακής αρχής ως ο όρος ούτος ερμηνεύεται εις τους περί Φορολογίας Ιπποδρομιακών Στοιχημάτων και Λαχείων Νόμους του 1973 και 1976, ήτις φέρει την ευθυνην εισπράξεως και καταβολής τούτου εις το Συμβούλιον σνμφώνως προς γενομένην μεταξύ των ονμφωνίαν". 15 20 (in English) "(

1. i)to impose on each sweepstake or bet played, whether these are played within the racecourse or outside it tax upto 0.75% or a sum representing the 0.75% for the period until the 31st December 1983 and tax upto 1% or a sum tepresenting the 1 % as from 1st January 1984, on the amount of each sweepstake or bet, de­ pending on the case, which is played in relation to a racecourse situated within the Improvement Area of this Board: Provided that thetax imposed shall burden the player and is not considered as constituting a part of the sweepstake or bet and its collection shall be made by the Horse Racing Authority, as such term is defined in the Horse-iace Betting (Taxation) Laws 1973 and 1976, which has the responsibility of collecting and paying same to the Board in accordance with an agreement conducted between them". Regulation 163 Β published under Notification 200 has the 794 25 30 35 3 C.L.R. Nicosia Race Club v. Republic A. Loizou J. same provisions as section 24(h)(
2. i)above, also it provides for thereturn of the taxto the player inthe event ofthe cancellation of the sweepstake or bet. Regulation 163C lays down the relevant procedure and pro5 vides for the keeping of books and accounts by the Horserace Authority which must be produced for inspection to the said Board, whenever required. I have no doubts that the subjudice regulations,by their very nature do not constitute an executory administrative act but 10 are a regulatory act of legislative content and of a general application, in effect delegated legislation and as such cannot bechallenged byarecourseunderArticle 146ofthe Constitution. It may be, as theapplicants contend, that as stated in the case of Cyprus Industrial and Mining Co., Ltd. (No. 1) v. Republic 15

(1966)3 C.L.R. 467 at p. 472: 20 "It is, first of all, necessary to bear in mind that once an act or decision emanates from an organ of administration then, as a rule, it is an 'act' or 'decision' within the ambit of a revisionaljurisdiction such as the one laid down under Article 146 (vide Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 228)". But though this may well be the generalprinciple, I cannot agree that it should be indiscriminately applied to all cases in total disregard of the true nature of the decision act or omission 25 being challenged. As stated in the case of A. Kourris v. Supreme Councilof Judicature

(1972)3 C.L.R. 390, at p. 400:- 30 35 "An examination of our case-law showsthat the applicability of Article 146.1 has as a rule been tested mainly on the basis of the essential nature of the decision, act or omission being challenged (see, inter alia, Papaphilippouand The Republic, 1 R.S.C.C. 62, at p. 65; Stamatiou and TheElectricity Authority of Cyprus,3 R.S.C.C.44, at p.46;Demetriou, supra, at p. 127; Eraclidou and Hellenic Mining Co.Ltd. andOthers,3 R.S.C.C. 153,at p. 156; Constantinidesand The CyprusBroadcasting Corporation, 5R.S.C.C. 34, at p. 39; Sevastides v. The Electricity Authority of Cyprus

(1963)2 C.L.R. 497, at p.502, and The GreekRegistrar of the Co-operative Societies v. Nicolaides

(1965)795 Λ. Loizou J. Nicosia Race Club τ. Republic

(1984)3 C.L.R. 164, at p. 170), the nature of the organ, author­ ity or person from which a decision or act emanated, or which was allegedly guilty of an omission, has been treated as a relevant, but not always necessarily decisive, consider­ ation in determining the essential nature of such decision, act or omission (see, inter alia, Papaphilippou,supra, at p. 64; Policeand Hondrou, 3 R.S.C.C. 82, at p. 85; Constantinides, supra, at p. 39; Sevastides, supra, at p. 500; Nicolaides, supra, at p. 171, and Sofocles L&metriades & Son v. The Republic

(1969)3 C.L.R. 557). 5 10 In relationtotheinterpretation of Article 146.1 theframe­ work of our Constitution should be borne in mind, espe­ cially because such framework undoubtedly establishes the separation of powers (see, inter alia,Papaphilippou, supra, at p. 65; Haros and- The Republic, 4 R.S.C.C. 39, 15 at p. 43); it is on the basis of this constitutional frame­ work, as well as in thelight of relevant principles of Admi­ nistrative Law, that decisions, acts or omissions closely connected with the exercise of the legislative power, even though notactually amountingtotheexercise of suchpower, 20 have been found to be outside the ambit of Article 146.1 (see Papaphilippou, supra, at p. 64);and, likewise, decisions acts or omissions closely connected with the exercise of thejudicial power have been found to be outside the ambit of such Article (see, inter alia, Kyriakides, supra, at p. 73; 25 Gavris and The Republic, 1 R.S.C.C. 88, at p. 93; Xenophontos and The Republic, 2 R.S.C.C. 89, at p. 92 and In re C.H. an advocate

(1969)1 C.L.R. 561)". Ample authority as to the nature of the regulations is to be found in the case of Lanitis Farm Ltd. v. Republic

(1982)3 30 C.L.R. 124 where at pp, 130-131 the following passage from Stassinopoulos' Law of Administrative Acts

(1951)at p. 105, is quoted: "Hence and test is a substantive one and foi that more difficult to ascertain. Efforts to specify the subjects which as of their nature belong to the regulatory authority and to place boundaries between these matters and the matters of legislative function, are futile as also is to attempt to 796 35 3 C.L.R. Nicosia Race Club τ. Republic A. Loizou J. specify with absolute accuracy where it commences and where each of the functions of the State ends. 5 10 15 The content of the regulatory act as well as of the law is the establishment of legal rules and such situation of a legal rule constitutes the specification of that, which must be valid as law for everyone, in respect of whom there exists a factual situation concentrating characteristic fea­ tures generally specified. So an undoubtedly internal characteristic of the regulatoiy act is the generality. In its generality lies mainly this, that the legal content of the act is not exhausted by one and only allegation, by oneand only grant, but it retains its force to provoke new appli­ cations, on the undefined and future situations, which have the general prerequisites set out by the act. Consequently theideal type of theregulatory actis theactwhich isaddres­ sed to everybody, is valid without limitation as to place or time and may be applied on a multitudeof relations and objects". And also at p. 132:— 20 25 30 " regulatory acts of a legislative content whether issued by the Council of Ministers or other administrative organ cannot be directly challenged before the Supreme Court as not satisfying the prerequisites of Article 146 of the Constitution and this is the position regarding the order challenged by these two recourses. Support for this approach can also be derived from what was decided in the cases, inter alia, of Policeand Hondrou, 3 R.S.C.C. 82; SophoclisDemetriades & Son and Another v. The Republic

(1969)3 C.L.R. p. 557; and DemetriosPhilippou &Others v. The Republic

(1970)3 C.L.R. 129". That there is at present only one racecourse and consequently that the subjudice regulations apply to this only does not divest the regulations of their general applicability or prevent their application to "future situations" because if a new Horseracing 35 Authority or new racecourses are set upin future the regulations will equally be applicable to them. By the present recourse the applicant Club directly challenges the regulations themselves—and not their application—which 797 Λ. Loizou J. Nicosia Race Club v. Republic

(1984)as explained above cannot be, and for this reason this recourse should fail. Having reached this conclusion, it is unnecessary to deter­ mine the recourse on its merits which is accordingly dismissed with no order as to costs. Recourse dismissed. Noorder as to costs. _. 798 5