3C.L.R. 1987 October9 [LORIS J) INTHE MATTER OF ARTICLE 146 OF THE CONSTITUTION TAK1S SKAROU (NISSISTAXI OFFICE), Applicant, υ THE REPUBLIC OF CYPRUS,THROUGH THE PERMITSREVIEWAUTHORITY, Respondent (Case No 597/85) Administrative Law — Discretion of administration — Generalguidelines, laying down of— An administrative organcannot laydown guidelinescontraryto thepolicyof the law 5 10 15 20 Motor transport— The Motor TransportRegulation Law 9/82 — Cars hired without a dnver — Permits Review Authonty cannot lay down general guidelinesforecastingsuggestionsof the TransportDepartmentand theviews of the Cyprus Tounsm Organisation (Sections 5
(14)and 10
(2)ofaforesaid law) Reasoningof anadministrativeact — Generalpolicydirective— No substituteof a reasoning— Reasoning must be such as to enablejudicialscrutinyof the legalityof the actinquestion On9 1 85the Licensing Authontygranted totheapplicanttwo licences for care hired without a dnver (Z cars) This decision was challenged by a hierarchical recourse before the Permits Review Authonty, which, after having formulated on 17 4 85 certain general guidelines for the purpose of guiding themselves for the resolution of this and other cases, annulled the aforesaid decision of the Licensing Authonty, because thelatter,«onthebasis of the cntena laid down by the Permits Review Authonty on 17 4 85», exercised itsdiscretion wrongly Hencethis recourse Held,annullingthe subjudice decision
(1)TheLicensing Authonty, which Issued its decision on 9 185, could not have possibly had in mind cntena formulated by the respondents on 17 4 85 Moreover, certain of the said 1433 Skarou v. Republic
(1987)cntena are contrarytothepolicy of thelaw Anadministrativeorgan canrot lay down cntena, which arecontrarytolaw.
(2)Cntena in the form of general directive-cannot be issued f iniidtfiiic suggestions of the Road Transport Department aid VIPWS OT ihe Cvpnib Tounsm Organisation, which have to be gi^n due *.πΐικ1*τβι«οηbv the 5 LicensingAuthontyinexercisingitsdiscretionpursuanttcs VI4*ands 10
(2)of the Law such views and suggestions depending or ν fa <·=• u* arn particular case
(3)*Ageneral policydirectiveisnot asubsti'ute for redson.ngof a'tension in the particularcase· (Kynakouν Republic il 'So) 3 CLR 1845 at 1853 10 adopted) The sub judice decision fails to convey clear reasoning to the subject (theapplicantinthiscase)andatthesame timeit enders impossible itsjudicial scrutiny Subjudice decision annulled No orderasto cost* 15 Casesreferredto PEO ν TheBoardofCinematograph FilmsCens >n>&Another
(1965)3 CL R 27 Kynakou ν Republic
(1986)3 CLR 1845 Philippoui /?epnW/c
(1983)3CLR 1386 20 Recourse. Recourse against the decision of the respondent annulling the decision of the Licensing Authonty whereby applicant was granted a licence to own and manage two cars hired without a dnver S Karapatakis, for the applicant Μ Tsiappa(Mrs), for therespondent Cur adv vult LORISJ read the following judgment The applicant impugns by means of thepresent recourse thedecision dated6 5 85,given 30 by the respondent Permits Review Authonty on a hierarchical recourse annulling the decision of the Licensing Authonty, whereby the applicant was granted licence to own and manage two cars hiredwithout a dnver commonly known as «Z»cars,the aforesaid sub-judice decision was communicatedtotheapplicant 35 on 23 5 1985 1434 25 3C.L.R. SIuu .JUv.Republic Lojtu<« Theundisputedfacts ofthiscase maybe summansedas follows: On30.9.83 theapplicant inthepresent recourse applied tothe Licensing Authority ror the grant to him of a licence ιυ own ano manage eleven «Z» cars (vide Appendix 1 attached to the 5 opposition). Areport dated 29.11.83, in respect of thesaid application, was preparedby theFamagustaDistrictTransportInspector (Appendix 2). The Licensing Authority heard the applicant on 13.3.84 10 (Appendix 3)andatitsmeetingof 27.12.84 decided togranttothe applicant a licence for 2 «Z» cars (Appendix 4); the decision aforesaid was communicated to the applicant on 9.1.85 (Appendix 5). The said decision of the Licensing Authority was impugned by 15 means of hierarchical recourses filed on 28.1.85 with thePermits Review Authority by ChristosPapageorghiou, PanayiotaMichael, Security Travel Ltdand KEMTaxi Ltd(Appendix 6). At the meeting of the Respondent Authority of 28.3.85, the hierarchical recourses filed by Security Travel Ltd and KEMTaxi 20 Ltdwere withdrawn (Appendix 7). In the course of the hearing of the remaining hierarchical recourse the respondent Authority laid down certain guidelines thatwould guide themintheresolution of thisparticularcase and obviously of othercases tocomebefore theminthefuture. These 25 guidelines appear inAppendix 8 attachedto the opposition. Relying on the guidelines aforesaid the respondent Authority reached itsdecision on 6.5.85(vide Appendices 9 & 10);the said decision was communicated to the applicant on 23.5.85 (Appendix 11). 30 Thesub-judice decision which issetoutinAppendix 10reads as follows: Η Αναθεωρητική Αρχή Αδειών α φ ο ύ μελέτησε όλα τ α στοιχεία των σχετικών Φακέλων και όλα όσα έχουν λεχθεί από τους προσφεύγοντες και τ ο δικηγόρο τ ο υ 35 ενδιαφερομένου, αποφασίζει την αποδοχή των προσφυγών διότι η Αρχή Αδειών, μεβάση τ α κριτήρια που τέθηκαν στη συνεδρία της Αναθεωρητικής Αρχής Αδειών στις 17.4.1985, άσκησε λανθασμένα τ η 1435 LorisJ . Skarouv.Republic
(1987)διακριτική τηςεξουσία. Επρεπε να προτιμήσει άλλους α ι τ η ι έ ς οι οποίοι πληρούσαν τ απιο πάνω κριτήρια » (And in English «The Permits Review Authonty having considered +he matenal in the relevant files and everything thatwas satd by 5 the applicants and counsel for theinterested party,dec ties;o accept the recourse because the Licensing Authonty exercised wrongly itsdiscretion on thebasisof thecntena laid down by the Permits Review Authonty at its meeting of 17 4 1985 It should have prefered otherapplicants who did 10 fulfil the above cntena») It must be stated, with respect, that the Licensing Authonty could not have had in mind, in connection with ihis particular case, the cntena laid down by the Permits Review Authonty, for the simple reason that the Licensing Authonty exercised its 15 discrenon and gave its decision on 9 1 85, whilst the cntenaguidelines in question were laid down by the Permits Review Authonty on 17 4 85 What the licensing Authonty had inmindand there isnothingon recordmilitatingtothecontrary - were the provisions of the relevant law applicable ιe Law No 9/82 as 20 amended by Law No 84/84 Nowwith regard tothecntenalaiddown by thePermits Review Authonty on 17 4 85, as they appear in Appendix 8 attached to theopposition,Ishall confine myself insayingthismuch Although certain paragraphs are quite consonantwith theprovisions of the 25 relevant Law (such as para (b)based obviously on the provisions of s 5
(9), part of para (d)which incorporates s 5
(13)of the law), therearecntenalaid down, mparticularinthesecond partof para (d), which are contradictory on the one hand with the first partof the same paragraph and inconflict ontheother,with thepolicy of 30 the law, and definitely an administrative organ cannot lay down cntena which are contrary toLaw And, it may be added here by way of answenng argument advanced by learned counsel for the respondent, cntena m the form of general directives cannot be issued forecasting suggestions of the RoadTransport Department 35 and views of the Cyprus Tounsm Organisation, which have to be given due consideration by the Licensing Authonty in exercising its discretion pursuant to s 5
(14)and s 10
(2)of the Law, such views and suggestions depending on the facts of each particular case 40 1436 3C.L.R. Skarouv. Republic LortsJ. Reverting nowtothe reasoning ofthe sub-judice decision: «Administrative law requires that an administrative decision, through which there results a situation unfavourable for the subject,istobedulyreasoned.... Moreover,decisionsofcollective 5 organs, such as the one with which we are dealing with, are particularly required to be reasoned because of the very fact that such decisionsareexpected tobetheresultofthedeliberationsof the members of the said organs...» (videP.E.O. and the Boardof Cinematograph FilmsCensors&Another
(1965)3C.L.R. 27 and 10 the authoritiestherein cited). The sub-judice decision fails to convey clear reasoning for annullingthedecision of the LicensingAuthority; itconfines itself to stating that they «decided to accept the recourse because the LicensingAuthorityexercisedwronglyitsdiscretiononthebasisof 15 the criterialaiddown bythe PermitsReviewAuthority..·Itwholly fails to reason how the decision has application in the circumstances of this case. Inthisconnection Ifully indorse what wasstatedbyPikisJ. inKyriacouv.Repulic
(1986)3C.L.R. 1845 at p. 1853 «A general policy directive is not a substitute for 20 reasoning adecision inthe particular case.» The sub judice decision fails to convey clear reasoning to the subject (theapplicant inthiscase)and atthe same time itrenders impossible its judicial scrutiny; and as stated recently by the learned President of this Court in Phiiippou v.Republic
(1983)3 25 C.L.R. 1386 at p. 1396 «Anadministrative act should contain all the elements which are necessary for the ascertainment of its legality incaseof exercise ofjudicial review.» The only course therefore which is open to this Court is to annul the sub-judice decision of the respondent Permits Review 30 Authorityonthe ground that itisdefective because oflackof due reasoning. Sub-judice decision ishereby annulled;lettherebe noorderas tocosts. 35 •tubjudice decision annulled. No orderastocosts. 1437