(1988)1988March22 [A.LOIZOU, J.] INTHE MATTER OF ARTICLE 146OF THECONSTITUTION STAMATIOU ANDLARTIDESLTD., Applicants, THECYRPUS TELECOMMUNICATIONS AUTHORITY, Respondent. (CaseNo.1072185). Executory act-informative course. act—The latter cannot be challenged by a re Cyprus Telecommunications Authority—Fees inrespect of theprovision, installalion andmaintenance of subscriber ownedprivate branch exchanges (Ρ Α ΒX)—Whether relevant regulations ultra vires TheInland Telecom municationsService Law,Cap. 302—Question determinedinthe negative. 5 Thefactsof thiscasesufficiently appear in thejudgmentof theCourt Recoursedismissed. Noorder as tocosts. Casesrtferredto: Kyriakides v. TheRepublic
(1982)3 C.L.R,611; Savvav. TheRepublic
(1986)3C.L.R. 1222; Malesis v.TheRepublic
(1986)3C.L.R.
- 606 10 3 C.L.R. Stamatiou & Lartides v. CY.TA. Recourse. 5 Recourse against thedecision of therespondent whereby certain fees were payable to therespondent inrespect of theprovision, installation and maintenance of subscriber owned private branch exchangesbytheparties. Chr.Cleridesyfor theapplicants. A. Hadjioannou, for the respondent. Cur. adv. vult. 15 ™ A.LOIZOU J.read thefollowing judgment. Bythepresentrecoursetheapplicantcompany seeksadeclaration oftheCourtthat thedecision of therespondent Authority contained initsletterof the 17thOctober 1985,totheeffect thatcertain fees werepayable totherespondent inrespetoftheprovision,installation andmaintenance of subscriber owned private branch exchanges (PBXS), by their parties,isnull andvoid andof nolegaleffect whatsoever. The applicant company supplies private branch exchanges, electronic equipment, telephones, etc. on the 26th September 1985 and 7th October 1985, "intending to market, install and maintain PABX Systems"they wrotetotherespondent Authority to be informed of the "possible one time and recurrent changes payable"toit, whoreplied on the 17thOctober 1985,thatthefollowing feeswerepayable. 1.Equipment approval fees based on the cost of such equipment (non-recurrent),payable bythe supplier. 25 2.Feesfor thework necessitated for theapprovaloftheinstallation and connection of theAuthority's network, payable bythe subscriber, and,
- Annual maintenance fees,payable bythe subscriber. 607 A. Loizou J. Stamatiou & Lartides v. CY.TA.
(1988)The applicant Company informed therespondent Authority thatit was willingtopay equipmentapproval aswellas installa tionandconnectionfees for thePABXsystem butdeclinedto pay any fees for a;sociate equipment,for each extension for other customers.Itdeclined topayannualmaintenancefees inviewof 5 thefact thatsuchwould becarriedoutbythe applicants. TherespondentAuthority repliedonthe21st December 1985, totheeffect that: "Theratesquotedhadbeenfixed bytheAuthority inaccor dancewith itsrules andregulationsandwerefinal. 10 Thefees payable inrespect of (a)associate equipment(b) extensions and(c)otherconnectionswerenot theactualinstal lation/connection fees butfees for work necessitated for the approval of theirconnectionwith theAuthority's network. Thefees payable for maintenancerepresentedthecompensation for theinvolvementof theAuthority,incaseof malfunc tions of thesubscriber's equipment." 15 Theapplicantasaresultfiled thepresentrecourse. Before proceedings to deal with therecourse on its meritsΓ proposefirst toconsiderwhetherthesubjudice letteramountsto anexecutory administrative decision within theambitof Article 146 of theConstitution,amatterwhich can beexamined by this Courtex proprio motu. ™ Relevant is, what was statedinthecase of Vassos Kyriakides v.TheRepublic
(1982)3C.L.R.611 at619,totheeffect that: 25 "Itis well settled thataletter,which ismerely of an infor mative natureanddoes notcontainadecision creating anew legal situation,is notof anexecutory natureand,therefore,it cannot be made the subject-matter of a recourse under Art. 146." 608 30 3 C.L.R. *Stamatiou & Lartides v. CY.TA. A. Loizou J. Similarly inthepresentinstance,Iconsiderthattheletterof the respondent of the 17th October 1983,which is challenged by the presentrecoursedoes notcontainanexecutory administrativede cision butonly information inreply totheapplicant'sletterof the 5 26th September 1985,requesting "alist of possible one-timeand recurrent changes payable to CYTA" and is as such outside the . scope of Article 146 of the Constitution.(See Savva v. The Re public
(1986)3 C.L.R. 1222 at p. 1228; Malesis v. TheRepublic
(1986)3 C.L.R. 1214 at p. 1219. Ο 5 0 c Q However, if it were tobe found thatsuch letteris of an execu tory nature,Ipropose toconsider briefly the grounds of law put forward onbehalf of theapplicantcompany. It was argued thatundersection 19
(1)of the InlandTelecom munications Service Law, Cap.302, therespondentAuthority is notaprofit making organization andtherefore all changes, being fees and not taxes, must be correlated to thecosts of rendering such services and thatthetotal revenue of theAuthority must be such as to cover its liabilities and provide for further develop ment. Consequendy,since all installations andconnection will be carried outby theapplicantcompany,as well as any maintenance, such fees as specified are arbitrary and unjustified and arecon trary tolaw andany regulations supporting theimpositionof such fees mustbe ultraviresthe law. It was also argued that under section 43 of Cap. 302 therespondentAuthority has nopower toprecharge for its services es pecially in view of the fact that such services may never be re quired if nomalfunctioning ever occurs. I do notconsider thatthecharges as containedin therespon dent's letter of the 17th October 1985, are excessive orcontrary totheLaw orthattherespondent Authority will be charging for something inrespect of which noservice willever be offered be cause, even when maintenance, which is theonly itemto which such argumentscan be related to, is carried outby the subscriber under Regulation 36
(2)theAuthority still has tomaintainits in609 A.Loizou J. Stamatiou & Lartides v. CY.TA.
(1988)ternal installations of which the subscriber's equipment is connected andalsowhen thereisanymalfunctioning ofthesubscriber's equipment, the Authority may inevitably be involved toascertain the sources of such malfunctioning and whether it originates from its own end from the subscriber's equipment. g Nothing in my view contained in the regulations in question is contrary to01inconflict with theprovisionsof theLaw; they are therefore not tiltra-vires thelaw assuggested. For the reasons stated above this recourse must fail and is hereby dismissed with noorders astocosts. j( Recourse dismissed. No orderasto costs. 610