clr/1987/1987_3_1815.pdf

(2)— Such condition is permissible in virtue of said provisions ofLaw 49/

1. 5 10 15 Constitutional Law — Right to exercise a profession, trade or calling — Constitution, Art. 25 — Condition on import licence that applicant should purchase aquantity of similar goods from alocal company —A restriction of theright to freetrade,permissible underpara. 2 ofArt.
2. Constitutional Law—Right toenterfreelyinto contracts—Constitution, Art. 26— Condition in import licence that applicant should purchase a quantity of similargoods from localcompany —Art. 26isnot relevant tothefactsof this case. By means of the sub judice decision respondents refused to grant the applicantsalicencetoimport Swedishtimber,becausetheapplicantwasnot willing to comply with acondition that theyshould buy from Cyprus Forest IndustriesLtd.aquantity of timber. Counsel for the applicants submitted, inter alia, that the said condition was imposed illegally and in abuse of power, and that, in any event, it is inconsistent withArticle 25andArticle 26 of theConstitution. 20 Held, dismissingtherecourse: {I) The condition wasimposed invirtue of the discretionary power under section 4

(2)of Law 49/62 for the encouragement of localproduction andmanufacture,asprovided insection 3 1815 Nlcolaou & S o n s v. Republic

(1987)This Court cannot substitute its discretion for that of the Minister, and it cannot interfere with the exercise of the discretion, unless established that it was exercised ina defective manner

(2)The complained of condition is a restncuon of the nght protected by Article 25 permissible under paragraph

(2)of Article 25 because it was imposed -in the public interest» for the encouragement of local production and manufacture of timber

(3)Article 26 is notrelevant tothiscase, because the applicants, by means of the condition complained of, are not prevented from entenng into any particularcontract 10 Applicationdismissed No orderas to costs Casesreferred to Sawidouv TheRepublic

(1970)3 C L R 118, Voumob ν TheRepublic

(1974)3 C LR 313, 15 Pemarosv TheRepublic {1975)3 C LR 175, Man v. The Republic, 3 R S,C C. 39, Impalex Agencies Ltd ν TheRepublic

(1970)3 C LR 361, Psarasv MinistryofCommerce and Industry

(1971)3 C L R 151, VassosEhades Ltd ν TheRepublic

(1979)3 C LR 259 20 Recourse. Recourse against the refusal of the respondent to grant applicant a licence for the importation of Swedish timber N.Papaefstathiou, for theapplicants. A. Vassiliades, for the respondent. 25 Cur. adv. vult. TRIANTAFYLLIDESP.read thefollowing judgment. By means of the present recourse the applicants are, in effect, complaining against the refusal of the respondent Minister of Commerce and Industry to grant tothem a licence for the importationof Swedish 30 timber. On 11 April 1984 Igave in this case a Decision* rejecting two preliminary objections which had been raised by counsel for the •See

(1987)3CLR 1793 1816 3C L R . NicoUoa ft Sons v.Republic Triantafylllde· P. respondent and the contents of such Decision have to be treated as beingincorporated inthe present judgment. In the said Decision of 11 April 1984 there were set out the salient facts of this case and there were referred to the relevant 5 legislative provisions. Itisquite clearthat the licence applied forbytheapplicants was not eventually granted to them by the respondent because they were not willing to comply with the condition that they should enter intoa contract with the CyprusForest IndustriesLtdfor the 10 purchase from suchcompany ofa quantity oftimberequivalent to 10% of the quantity which they wished to import. Counsel fortheapplicantshassubmitted thatthesaid condition wasimposed illegallyand inabuse of powers.The Cyprus Forest Industries Ltdisa public company engaged 15 in the production of timber and fifty-one per cent of its share capital isowned bythe Republic. Theaforementioned condition wasimposed bythe respondent in the exercise of the discretionary powers vested in him under section 4

(2)oftheImports(Regulation)Law, 1962(Law49/62) for 20 the encouragement of local production and manufacture, as provided bysection 3 of Law49/62. There existed, therefore, express legislative authorization enabling the respondent Ministertoact inthe way complained of bythe applicantsand thisCourt cannot interfere with the exercise 25 of his relevant discretionary powers unless it is established that they were exercised in a defective manner; and the applicants have not satisfied me that this isso. Moreover, this Court cannot substitute itsown discretion intheplace of that of the respondent Minister, especially in a matter of policy such as the present one 30 (see,interalia,inthisrespect, Sawidou v. The Republic,

(1970)3 C.L.R. 118, Voulpioti v. The Republic,

(1974)3 C.L.R. 313 and Pemaros v. The Republic,

(1975)3 C.L.R. 175). Counsel for the applicantshassubmittted, further, thatthe said condition isin the nature of taxation which was imposed without 35 beingenvisaged byexpress legislativeprovision, but I can find no merit whatsoever in the submission that such condition isin any waya taxorsomething akin toit. 1817 Triantafylllde·p. NlcolaouftSon.v.Republic

(1987)It has been contended by counsel for the applicants that the imposition of such conditioncontravenesthepnncipleof equality which is safeguarded by Article 28 of the Constitution, that it interferes with thenghtoftheapplicantstocarry ontheirtradeand business, which is safeguarded by Article 25 of the Constitution, 5 and that it depnves the applicants of the possibility of entenng freely intocontracts, contrarytoArticle 26 of the Constitution Regarding the alleged infnngement of Article 28 of the Constitution no sufficient particulars were given in support of a very vague and genera! assertion of counsel inthisrespect and,on 10 the matenal before me, I cannot find any contravention whatsoever of thesaid Article 28 As regards thealleged violation of Article 25 of the Constitution I amof theviewthatthecomplained of condition isarestnction of the nght protected by the said Article 25 which is permissible 15 under paragraph

(2)of Article 25 because it was imposed «in the public interest» for the encouragement of local production and manufacture of timber, and,itis useful torefer, mthis respect,to, interalia, Irianν The Republic, 3 RS CC 39, Impalex Agencies Ltd ν The Republic,

(1970)3 C LR 361, Psaras ν The Ministry 20 of Commerce and Industry,

(1971)3 C L R 151 and Vassos EhadesUd ν TheRepublic

(1979)'*CLR 259) Before concluding I will refer briefly to Article 26 of the Constitution the provisions of which are not, in my view, applicable in the circumstances of the present case because the 25 applicants, by means of the condition complained of, are not prevented from entenngintoany particularcontract In the light of alt the foregoing thepresent recourse fails andit is dismissed accordingly, but with no orderas toits costs Recourse dismissed. 30 No orderas to costs. 1818