clr/1984/1984_3_831.pdf

(1984)trary to Article 3 of the General Rules of K.O.P. annulled the decision of the general meeting. Theappellant "Ethnikos"challengedthedecisionofA.D.E.A. by means ofa recoursewhichwasdismissed on the ground that the act challenged was not justiciable,being in the domain of 5 private law. Upon appeal: Per Stylianides, J., A.Loizou, Savvides^and Pikis,JJ. concurring and Triantafyllides, P., dissenting. Held,that A.D.E.A- was .established by law—Law 41/69— 10 and its powers, duties and functions are regulated by Law; that it determined a sports judicial dispute "athlitiki dikastiki ypothesis" and it exercised imperium; that it did not simply construe the General Regulations of K.O.P. which per se is a document of private law; that thenatureandcharacter of the 15 function of A.D.E.A. with regard to the subjudice decision is primarily one of public purpose—the promotion and proper functioning of the sports and particularly football; that it is • anactordecisionwithintherealmofpubliclaw;thatitsdecision is binding and it has direct consequencesupon football societies 20 and the football association and athletics in general; and that, therefore, A.D.E.A. issuedthe subjudicedecision intheexercise of a unilateral power given to it by Law for a public purpose and, therefore, its decision is in the domain of public Law; accordingly the decision challenged is amenable to the juris- 25 diction of this Court as it satisfies the requirements of Article 146 of the Constitution. Order accordingly. Casesreferred to: Stamatiouv. ElectricityAuthority of Cyprus,3 R.S.C.C. 44; 30 Sevastidesv.Electricity AuthorityofCyprus

(1963)2C.L.R.497; GreekRegistrar of Cooperative Societies v. Nicolaides

(1965)3 C.L.R. 164 at p. 170; Kalisperas Estates Co. Ltd. v. Ministry of Interior

(1982)3 C.L.R. 509; 35 Koudounaris FoodProductsLtd. v. TheRepublic

(1982)3C.L.R. 530; Republic v. M.D.M. EstateDevelopments Ltd.

(1982)3C.L.R. 642; Decisionsof the Greek CouncilofStateNos:840/73and 2238/

1. 40 832 3 C.L.R. Ethnikos v. K.O.A. Appeals. Appeals against thejudgment ofaJudgeoftheSupremeCourt of Cypius (Loris, J.) given on the 30th December, 1983(Revisional Jurisdiction Cases Nos. 415/83 and 423/83)? whereby 5 appellants' recourses were dismissed asthe acts challenged were held nottobejusticiable as beingin thedomain of private law. A.S. Angelides with /. Typographos,for the appellant in Rev. Appeal
2. A.S. Angelides, for the appellant in Rev. Appeal 359." 10 M. Christofides,for respondents. A. Georghiou,for the interested party DOXA. Cur., adv. wit. P.: Mr. Justice Stylianides delivered the judgment of the majority of the Court. TRIANTAFYLLIDES, 15 STYLIANIDES, J.: These appeals aredirected against thedecision ofaJudgeofthis Court whereby therecourses ofthe appellants were dismissed as the acts challenged were notjusticiable, being in the domain of private law. The preliminary objection was raised in the opposition that 20*' this Court has nojurisdiction as the act complained*of isnoi an actwithintheambit ofparagraph 1 ofArticle 146ofthe Constitution. It iswellsettled that only unilateral actsofthe Administration in the exercise of potestas and/or imperium in the domain o! 25 public lawproducing legal results, as opposed torights-derived from an agreement entered into between the parties,rare-amen able to judicial control by this Court. The matter was dealt with by the Supreme Constitution Court and this Court in numerous decisions. 30 In John Stamatiou and The Electricity Authority-of Cyprus 3 R.S.C.C. 44,it was said that whatever the general·and pre; dominant character of the organ, authority or'corporation, it isonly relevant for thepurposes of thecase to considerwhe ther, in relation to the particular-function which isthe subject 35 matter ofthe recourse,therespondent wasacting inthecapacity of an organ,.authority or person, exercising-any executive o> administrative authority.In Sevastidesand'Th'e Electricity Authority,of Cyprus, (1963 • Reported in ( 1 9 8 4 ) 3 ' C.L.R:
3. 833 Stylianides J. Ethnikos τ. K.O.A.

(1984)2 C.L.R. 497, it was said that due regard must be had notonly to the nature and character of the respondent corporation but also, primarily, to thepowers vested in,and duties imposed on, such public corporation and its functions generally, as well as to theparticular natureof thedecition, act or omission con- 5 cerned. Thefollowing test was laid by the Full Benchin The Greek Registrar of the Co-operative Societies v. NicosA. Nicolaides,

(1965)3 CL.R. 164, at p. 170:"In the opinionof theCourtit is piimarily the ratureand character of a particular act or decision which determines whether or notsuch act or decision comeswithin thescope of paragraph 1 of Article 146 of the Constitution. Such an issue is one which must be decided on the merits and inthecircumstancesof each particular caseandhaving due tegard to such relevant factors as the office and status of the organ, authority, person or body performing such act oi taking such decision,as wellas to thecircumstances and contextin which suchact was performed or decisiontaken. 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 of public law depending on thenatureof itsaction'. Ultimately, what is theimportant and decisivefactor inthisrespect isthenatureand character of the particular function which is the subject-matter of a recourse". 10 15 20 25 This was reiterated and applied in a number of decisions during the last score of years. Appellant in Appeal No. 357 is "Ethnikos'* Athlitiko^ Pnevmatikos Omilos, a sports club of Deftera village. 30 Appellant inAppeal No.359isK.O.P. ItistheCyprusFoot­ ball Leagueor Association. Ithasthreedivisions. Itisgover­ ned by its own rules. The last two football clubs of the 3rd division everyyear dropoutandthefirsttwowinners of inferior football association, namely, S.T.O.K., are elevated to K.O.P., 35 provided that they satisfy theother requirements of theGeneial Rules of K.O.P. K.O.A., the Cyprus Sports Organization, was established by LawNo.41/69. ThisLaw wasamendedby LawsNo.22/72, 2/73, 51/77,27/79and 79/80. It is thehighest sports authority 40 834 3 C.L.R. Ethnikos v. K.O.A. Stylianides J. in the Republic—{section 4

(1)). Its members aie appointed by the Council of Ministers. ThepurposeofK.O.A., assetout ins.5oftheLaw,asamended, is ihe promotion of sports and athletics in the.countiy. 5 Foi this purpose it exercises wide and extensive powers given to it by Law. They include, inter alia, the construction of stadiums, athletic centres to be used by the public, the subsidy ofathletic clubsand leagues;theorganization of various spoils and control and supervision of all sport places in the countiy 10 except school sports; the determination of all disputes between sportleaguesand spoitclubs. Ithasthepowertocompulsorily acquire property for the promotion of its objects and the disposition and charge of immovable property belonging to the organization, subject to the prior approval by the Council 15 of Ministers. It hasthe powei to impose punishment on sport associations, clubs, officials, athletes, spoilsmen, etc.; it has disciplinary jurisdiction over the sport leaguer, associations. clubs, etc., and has an appellate jurisdiction to determine and pronounce on all appealsmade against a decision of anyleague 20 or association; it may establish any committees, bodies or organs for the purpose of its powers and duties. It isenabled bylawtomakeregulationssubjecttotheapprovaloftheCouncil of Ministers. K.O.A., established by Law, is a corporation of public law 25 though someof its activitiesmay not bein the sphere of public law. Bythe Cyprus Sports Organization (General Orders andDisciplinary) Regulations, 1970—Regulation 11—a High Sporti Court was established which, however, by r.3 of the amending 30 regulations of 1971, published in the Cyprus Gazette, Suppl. No. Ill, Notification No. 360, it was renamed to High Sports Judicial Committee (A.D.E.A.). A.D.E.A. wasestablished to perform the function of K.O.A. set out in s.6

(2)(

1. ia)and (
2. iy)of,the Law, now renumbered to 35 5

(2)(ia) and iy). Regulation 14conferred on A.D.E.A. original and appellate jurisdiction. Refusal or failuie to comply with any decision of A.D.E.A entails the immediate striking off from the roll of the defaultei 40 andthecharacterizationofthepersonresponsibleforsuchfailure 835 Stylianides J. Ethnikos v. K.O.A.

(1984)or default as "non-spoitsman". This characterization entails the sanctions set out in regulation 16

(4). In the football year 1982-1983 the appellant "Ethnikos" was the first winner in the S.T.O.K. football championship. Under the General Rules of K.O.P. it is one of the requite- 5 ments for the elevation to K.O.P. that the winner of S.T.O.K. should have its seat at a town or village with a population of over 1,500 inhabitants. K.O.P. in a General Meeting decided to admit "Ethnikos" in its 3rd division. 10 The interested party "DOXA" is a football club of Paleometocho village. It wasthe 4th winner in the S.T.O.K. championship. Havinganinteresttokeep"Ethnikos"outofK.O.P., it resorted to A.D.E.A. challenging the aforesaid decision. A.D.E.A.tookupthecaseasan"athlitiki dikastiki ypothessi" 15 (sports judicial case). A preliminary objection was raised by K.O.P.that thecasewasnotwithinthejurisdiction ofA.D.E.A. beingoutsidetheambit of the definition of "athlitiki dikastiki ypothessis" (sports dispute) in the sense of the Regulations. A.D.E.A.decided thatit hadjurisdiction andcompetencetodeal 20 with thecase. Thereafter, relying on the construction it placed on the Rules of K.O.P.relevant to the case, it concluded:"For the aforesaid reasons we decide that 'Ethnikos' of Pano and Kato Deftera does not satisfy the requirements ofArticle 3oftheGeneral RulesofK.O.P.and particularly 25 it is not a society('somation') ofavillagewithapopulation of over 1,500 inhabitants. Therefore, A.D.E.A. decides that the General Meeting of K.O.P. in deciding to admit it in the 3rd division of K.O.P. acted contrary to specific provision of the Regulations and, therefore, such decision 30 (of K.O.P.) is null and void". It is the validity of this decision of A.D.E.A. that the appellants challenge by their respective recourses. From what has already been said, it is clear that A.D.E.A. wasestablished byLawanditspowers,dutiesand functions are 35 regulated by Law. It determined a sports judicial dispute ("athlitiki dikastiki ypothessis"). It exercised imperium. It did not simply construe the General Regulations of K.O.P. whichperseisadocumentofprivatelaw,assubmittedbycounsel for the respondentsand accepted in thejudgment under appeal. 40 Thenatureandcharacterofthefunction ofA.D.E.A.withregard 836 3 C.L.R. Ethnikos v. K.O.A. Stylianides J. to the sub judice decision is primarily one of public purpose —the promotion and proper functioning of the sports and particularly football. It is an act or decision within the realm of public law. Its decision is binding and it has direct conse5 quences upon football societies and the football association and athletics in general. Failure to obey or comply with the decision of A.D.E.A. entails serious adverse consequences. In conclusion A.D.E.A. issued the sub judice decision in the exercise of a unilateral power given to it by Law for a public 10 purpose and, therefore, its decision is in the domain of public Law. The decision challenged is amenable to the jurisdiction of this Court as it satisfies the lequirements of Article 146 of the Constitution. TRIANTAFYLLIDES P.: 1 regret that I cannot agree with the 15 judgment of the majority of the Court which hasjust been delivered by my learned brother Mr. Justice Stylianides, as regards the issue of the jurisdiction of this Court, Under Article 146 of the Constitution, to entertain the recourses (Nos. 415/83 and 423/83) of the appellants, which were dismissed, in the first 20 instance, by a Judge of this Court, Mr. Justice Loris, for want ofjurisdiction (see, in this respect, "Ethnikos" v. K.O.A.,

(1984)3 C.L.R. 140). I will neither state in this judgment the salient facts of these casesnor refer to the relevant legislative provisions because they 25 are adequately set out in the judgments of Loris, J. and Stylianides, J. It iswellestablished that on thebasisof thecorrect construction and application of Article 146.-1 of the Constitution, as it isto be found in case-law of this Court, there cannot be sub30 jected to judicial contiol, by means of a recourse under Aiticle 146, all decisions emanating from administrative organs but only those of such decisions which come primarily within the domain of public law, and not of private law (see, inter alia, in this respect, KalisperasEstate Co.Ltd. v. Ministry ofInterior, 35

(1982)3 C.L.R. 509, CoudounarisFood Products Lid. v.· The Republic,

(1982)3 C.L.R. 530 and The Republic v.- MJD.M. Estate Developments Ltd.,

(1982)3 C.L.R. 642). Without overlooking the status and powers of respondent 2, which is the Supreme Judicial Committee for sporting matters 40 and has been set up by respondent 1,·which isthe Cyprus Sports Organisation, and without excluding the possibility that a 837 Triantafyllidcs J. Ethnikos v. K.O.A.

(1984)decision of respondent 2 other than such as the one involved in the piesent proceedings may be found to come within the ambit ofthejurisdiction under Article 146.1 ofthe Constitution, I amofthe viewthat thedecisionofrespondent2whichhas been challenged bytheaforementioned tworecourses comesprimarily within the domain of private law, and not of publiclaw. 5 The aforesaid decision wastaken byrespondent 2when there waschallenged before itadecision ofthe appellant in Revisional Jurisdiction Appeal 359, which is the Cyprus Football Association, by means of which the appellant in Revisional Juris- 10 diction Appeal 357 was accepted as one of the football clubs in theThud Division ofthe Association. Thesaid Association isnotanorgan ofpublicadministration butaprivate association of football clubs. The fact that bythedecision ofrespondent 2there wasannul- 15 led the decision in question of the Association, with the result that the appellant in Revisional Jurisdiction Appeal 357ceased to participate in the Third Division of the Association, andthe fact that this development generated considerable public interest is not, in my opinion, a sufficient reason for which to treat 20 the subjudicedecisionofrespondent 2asamatter coming within the domain ofpublic law,when, otherwise, becauseofitsnature, it is a matter primarily within the domain of private law. I have in mind that the Council of State in Greece (see,for example,theDecisions ofthe Council of Stateincases 840/1973 25 and 2238/1974) has held that decisions of an organ in Greece which is similar to respondent 2 can be challenged before the Council ofState bya recouise for annulment, which corresponds to a recourse under Article 146.1 of ourownConstitution, but the relevant Decisions of the Council of State in Greece were 30 reached in view of the existence of legislative provisions there which are not to be found in our own legal system. For alltheforegoing reasons I am oftheview that thesetwo Appeals ought to bedismissed on thegrounds that, as correctly found bythe trialJudge,thisCourt doesnotpossessjurisdiction, 35 under Article 146.1 of the Constitution, to control judicially the subjudice decision of respondent 2. TRIANTAFYLLIDES P.: These appeals are allowed by majority and there will not be made any order as to their costs. Appeals allowed by majority. No 40 order as to costs. 838