clr/1987/1987_3_1101.pdf

(2)and Order 221/79 — The regulation tying the relief to applicant's 'financial position* — Not ultra vires enabling law — Gross income of applicant correctlyconsidered — Notion of 'financial position* is not confined to income, but to applicant's overall financial situation — Contnbubon by spouse to applicant's family obligations — A relevant consideration in assessing hisfinancial position Constitutional Law — Equality — Constitution, Art 28 — Invalid persons — Importation ofmotor vehicles—Relief from import duty made dependent on applicant's financial position — Such dependence doesnot violate pnnciple of equality 15 Constitutional Law — Right to decentexistence— Constitution, Art 9 — Benefit todisabledpersonsasregardsimport duty forcarsadapted totheir needstied to their financial position — No violation of Art 9 Constitutional Law — Subsidiary legislation — Legislature entitled to delegate authonty for itsenactment to the Council of Ministers 20 25 Though theMinisterofFinance acknowledgedthatapplicantwas an invalid for the purposes of classification 01 09 of the 4th Table of the Customs and Excise Duties Law 18/78,he dismissedapplicant's applicationtoimportfree of duty or at a reduced rate a car adapted to his needs, on account of applicant'sfinancial position It must be noted that according to the provisions of the relevant classification as amended on 149 79 by RAA 221/79, total or partial relief from import duty was made dependent on «the financial situation of the 1101 S k o v r o · v. Republic

(1987)applicant» In the interests of uniformity of treatment the Minister evolved guidelines based on the income of individial applicants ttis,however, clear that inthiscase the Ministertook intoconsideration applicant's capital assets aswell Held,dismissingthe recourse (1}Regulations 221/79arenot,assubmitted by counsel for applicant, ultra vires section 11

(2)of Law 18/78 Indeed,the Council of Ministers is not only expressly empowered to add and delete classifications, but more pertinently to alter or otherwise amend existing classification Thepower iswide enough toincludecompetencetoamendthe prerequisites of totalorpartialrelief 5 10

(2)Ithaslong been settled thatthelegislature may delegate authontytothe Council of Ministers toenactsubsidiary legislation and,therefore, applicant's submission tothecontrary cannotbe accepted

(3)Thepnnciple of equality safeguarded by Art 28 of theConstitutionisin no way breached by making a distinction between disabled persons depending on theirfinancial position 15

(4)The nght todecent existence safeguarded by Art 9 of the Constitution is not violated by tying the benefit to the financial circumstances of the applicant

(5)The relevant cntena,which refer to income,must be construed, inthe 2 0 absence of any indication to the contrary, as refemng to gross income, moreover, thenotionof «financial situation» isnotconfined toincome,butto his overall financial situation The contnbution of a spouse to applicant's family obligations isa relevant consideration Recoursedismissed No orderas tocosts 25 Cases referredto Policeν Hondrou, 3 RS CC 82 Recourse. Recourse against the refusal of the respondent to approve 30 applicant's claim to import free of duty or at a reduced rate a car adapted toan invalid's needs C. Hadjipieras,for theapplicant. S. Georghiades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 1102 35 3C.L.R. 5 Skourosv. Republic PIKISJ read the following judgment The recourse isdirected against the refusal of the Minister of Finance to approve applicant'sclaimtoimportwhollyfree ofdutyoratareduced rate a car adapted to an invalid's needs Whereas the Minister acknowledged that applicant was an invalid for the purposes of classification 01 09 of the 4th Table of the Customs and Excise Law (18/78), nonetheless he dismissed the application on accountofapplicant'sfinancial position found tobesuch asnotto warrant any relief from import duty 10 The applicant is a secondary school teacher earning a gross salary of £770 97 cent (net of tax £552 or £564) and owns immovable property valued at£12,000 Hiswife tooisin salaned employment, being a school employee, with an income of £414 46cent per month The personal and family circumstances 15 of the applicant were the subject of a social inquiry report prepared by an officer of the Welfare Department There is no disputeaboutitscontents Ameanstestwasconductedwithaview to ascertaining the financial circumstances of the applicant, in accordance with the provisions of the relevant classification as 20 amended on 14 9 1979byRAA 221/69,wherebytotalorpartial relief from importdutyismadedependent, inaddition toa finding of disability, on a decision of the Minister of Finance based on an evaluation «of the financial situation of the applicant» In the interestofuniformity oftreatment,theMinisterevolved guidelines 25 based ontheincome of individualapplicants,wherebypersonsin receiptofanincome ofover£700 -permonthwerenotordinanly granted anyrelief However, itisclearfromthesubjudicedecision that the Ministerdidnot basehisdecision solelyonthe guidelines but took into consideration, apart from th income of the 30 applicant,capitalassetsaswell Bythefirstgrounduponwhichthe decision is challenged, the applicant impugnes the validity of the regulations made in 1979 arguing that the amendment was ultra vires the law, notably, s. 11

(2)of Law 18/78 It was contended that the law did not permit the Council of 35 Ministers,towhomauthontywasdelegated,tomakeamendments to the 4th Table, to introdue a cntenon relevant to the financial situation of disabled persons He contended the power to make amendments ormodifications is,bythetermsoftheenablinglaw, limited to the degree of disability and matters related thereto.I 40 cannot subscnbe tothe submission that the power of the Council ofMinistersisconfined inthewaysuggested bycounsel.Notonly they are expressly empowered to add and delete classifications 1103 PikieJ. Skouro·v.Republic

(1987)but morepertinently theymayalterorotherwiseamend existing classifications oranyone ofthem.Thepowertoalterandamend existing classifications is certainly wide enough to empower the bodytrustedwiththecompetencetoamendtheprerequisitesfor total or partial exemption from import duty. Consequently, I cannot uphold the submission that the amendment of the classification made in 1979 wasultra viresthe provisions of the enablinglaw,notably,s. 11

(2)ofLaw18/78. 5 Another objection to the validity of the amendment of the relevantclassificationisthatitwasimpermissibleforthelegislature 10 todelegateauthoritytotheCouncilofMinisterstoenactsubsidiary legislation. Ithaslongbeensettled thereisnosuchconstrainton legislativecompetence(Policev. Hondrou*). Two other equally untenable submissions concern the constitutionality of the relevant classification, allegely 15 unconstitutional for breach (

1. a)of the provisions of Art. 28.1 safeguarding equalitybefore thelawandtheAdministration,and (
2. b)Art. 9 safeguarding a decent existence. There is nothing offensive inthe classification to equality eitherbefore the lawor the Administration. On the contrary, the classification aims to 20 confer benefits on disabled persons reflecting their physical inequalitytobodilyablepersonsandmayproperlyberegardedas ameasureenactedinthespiritofArt.28.Theprincipleofequality isinnowaybreached bymakinga distinctionbetween disabled persons dependingon theirfinancial situation.TheobjectofArt. 25 28, as often proclaimed, is to guard against intrinsic not arithmeticalinequality. RespectingArt.9, again Ifind nosubstance inthesubmission made.Thedecentexistenceofadisabledpersonisnotthreatened bytyingthebenefit conferred bytherelevantclassification tohis 30 financial circumstances. Lastly,itwasarguedonbehalfoftheapplicantthatthedecision is vulnerable to be set aside owing to a misapplication of the income criteria adopted by the Minister for the guidance of the Administration. The submission isthat the income criteria relate 35 exclusivelytotheincomeofthedisabled persontotheexclusion ofanyothermemberofhisfamilyandsecondlythatitrelatestonet asopposed togrossincome.Therelevantcriteriarefertoincome •3RSCC82. 1104 3C U R , Skourosv.Republic PtldsJ . withoutclassification andshould,intheabsenceofanyindication tothecontrary,beconstruedasreferringtogrossincome.Liability topaytaxisafter allapersonal and nota uniform consideration dependent, inter alia,ontheincomeoftheapplicantasawhole 5 andhisobligations.Therefore,Icannotsubscribetotheviewthat theguidelineswereeithermisconceivedormisapplied. Thenotionof«financialsituation»asrelevantclassificationisnot confined tothe income of the disabled person but tohisoverall financial situation, including assets, liabilities, as well as family 10 obligations.Thecontribution ofaspousetothoseobligationsisa relevant consideration in the overall assessment of the financial situationofadisabledperson. IconcludeitwasreasonablyopentotheMinistertotakethesub judice decision which is hereby confirmed pursuant to the 15 provisions of Art. 146.4(
3. a)of the Constitution. In the result the recourseisdismissed.Lettherebenoorderastocosts. Recoursedismissed. No order astocosts. 1105