3 C.L.R. 1988 March31 · '' [STYLIANIDES, I ] ETERIA FEDERATED AGENCIES LTD., Applicants, v. THEMUNICIPALCOMMITTEEOFLIMASSOL, Respondents. (CaseNo. 193/86). Executoryact—Confirmatoryact—The requiredelementsfor the classification ofanactasconfirmatory. Timewithin whichtofile arecourse—Writtenrequestsubmitted totheadministration under Art 29 of the Constitutionfor reconsideration of a decision—Itneitherinterruptsnorsuspendstheperiod oftime. Doctrineofjudicial precedent—Decision byslimmajorityoftheFullBenchof theSupreme Court—Binding onamemberof theCourtexercisingoriginal jurisdiction. Generalprinciples ofadministrative law—Thepresumption thatadecisionof theadministration isreachedafter acorrectascertainment oftherelevant facts—Burden ofrebutting it—How rebutted. Reasoningofanadministrativeact—Therequireddegree—Principlesapplicable—Determinationoffees byMunicipalityfor aprofessional licence—itis notexpectedthattheMunicipalitywouldgiveverydetailedreasoning. 15 20 ' The applicants applied to the Municipal Committee of Limassol for a professional licence. By letter dated 21.10.85 the respondents informed theapplicants that the fees payable for the licence would be£600.By letter dated 11.11.85theapplicantsfiledanobjection. By letterdated 10.1.86 the respondents informed die applicants that their request for reduction of the fees was unjustified. Hence this recourse, which wasfiled on21.3.86. 709 Federated Agencies v. L' ssol M' pality
(1988)Held,dismissing the recourse:
(1)Thedecision communicated by theletterof 10.1.86was confirmatoryof theearlierdecision,communicated by theletterof21.10.85. Foranacttobeconfirmatory thefollowing elementsarerequired:(
- a)Identity of theissuing authority. 5 (b)Identity of theperson orpersonstowhom itrelates. (c)Identity of theprocedure. (d)Identity of thereasoning;and (
- e)Identityof theorder. As there wasno new inquiry in respectof new facts, theonly executory decision in thiscase isthatcommunicated by the letterof21.10.85. 10
(2)The question whether a written request under Art.29of theConstitution addressed toanadministrative organ for reconsideration of itsdecision suspends or interrupts the running of the 75 days (Art. 146.3 of the Constitution) hasbeen determined inthenegative byamajority decision of the Full Bench of this Court in Larkos v. The Republic.
(1987)3 C.L.R. 15 2189. Inaccordance with thedoctrine ofprecedent thisCourt isbound by the said decision.
(3)This recourse fails, also on the substance. The applicants failed to discharge the burden cast on them.They failed toshow that the subjudice 20 decision istainted byany misconception of fact orany failure tocarry out due inquiry. As regards the issue of reasoning, what is due reasoning is a question of degree,depending upon thenatureofthedecision concerned. Adecision even laconic may convey thereason why itwas taken. What isdue reason- 25 ing depends on theparticular circumstances ofeach case.Having regard to the natureof the subjudice decision itisnotexpected from the Municipal Corporations to give very detailed reasoning for thedetermination of the fees payable for professional licence. Recourse dismissed withcosts. 710 -^ 3 C.L.R. Federated Agencies v. L'.ssol M' lity Casesreferredto: •. • . . - • * -. Kolokassides v. TheRepublic
(1965)3 C.L.R.542; Varnava v. TheRepublic
(1968)3 C.L.R. 566; ... · , Kyprianidesv. TheRepublic
(1982)3 C.L.R. 611; Spyrou v. TheRepublic
(1983)3 C.L.R. 354; . ,, Goulielmosv. TheRepublic
(1983)3C.L.R.883; , Evangelou v.-ElectricityAuthorityofCyprus
(1979)3 C.L.R.159; Larkos v.TheRepublic
(1987)3C.L.R.2189; 10 : ,. Republic v. Demetriades
(1977)3C.L.R..213; • , Republic v.Ekkeshis
(1975)3C.L.R. 548; \ ,• . - -..-Skaros v.TheRepublic
(1986)3C.L.R.2109;. Pissas v.TheRepublic
(1974)3-C.L.R.476; L. andiG.lacovidesEnterprises Ltd. v.TheRepublic
(1986)3 C.L.R.
- . ·. . t• f ,^ Recourse. ·· .Recourse against the decision of the respondents to impose on applicant the sum of £600.- as professional tax for the year
- A. Drakosy for the applicants.' - . . . Y. Potamitis, for the respondents. · 20 Cur. adv. vult. 711 Federated Agencies v. L' ssol M' lity
(1988)STYLIANIDES J. read the following judgment. The appli cants by this recourse seek the annulmentof the decision of the respondents, whereby it was determined thatthefee of £600.- be paid by theapplicants for licence tocarry theirbusiness within the municipal limits of Limassol for theyear
- 5 The applicants are a registered company which carries travel, tourist and insurance agency business at Nicosia and Limassol. Their headoffice is at Nicosia. On 28.1.1985 theapplicants,in pursuance of theprovisions of section 157 of the Municipal Corporatiosn Law, Cap. 240, applied totheMunicipal Committeeof Limassol for a professional licence for theyear 1985 -(Exhibit 1). χο The respondents by letter dated 21.10.85 - Exhibit 2 - in formed the applicants that the fee for professional licence for 1985, payable by them,was determined at£
- -and requested 15 payment thereof. On 11.11.85 theapplicants objected in writing tothis amount alleging that it was excessive. The reply tothis objection is con tained in letter - Exhibit 5 -dated 10.1.86, whereby the applicants were informed thattheirrequest for reduction of theprofessional tax imposed for 1985 was unjustified, according to a decision taken by therespondents attheirlast meeting. 20 Hence this recourse, which was filed on 21.3.
- The respondents in theopposition raised two preliminary ob jections:25 (a)Thattherecourse is outof time;and (b)Thatthe letterof 10.1.86containsconfirmatory actand no more. It is well settled thata confirmatory act lacks executory nature 712 3 C.L.R. Federated Agencies v. L' ssol M* lity 5 ΙΟ 15 Stylianides J. and,therefore,itcannotbe madethesubject-matter of a recourse under Article 146 of the Constitution. A confirmatory actordeci sion is an actordecision of the administration which repeats the contents of aprevious executory actand signifies theadherence of theadministration toacourse already adopted;it-is notin itself executory because itdoes notitself determine thelegal_position of an individual case,and this is thereason itcannotbe the subject of arecourse. An act which contains aconfirmation of an earlier one, may, however, be executory and, therefore, subject to a recourse.for annulment,if it has been madeafter anew inquiry intothe matter -{Kolokassides v. TheRepublic
(1965)3 C.L.R., 542; Varnava v. The Republic
(1968)3 C.L.R. 566; Kyprianides v. The Re public
(1982)3 C.L.R. 611 and Spyrou v. The Republic
(1983)3.C.L.R. 354). As to when a new inquiry exists Irepeat what I have said in Spyrou v. Republic (supra) atpp.358 to 359:- 2fj 2<r "When does a new inquiry exist is a question of fact. In general, it is considered to be a new enquiry, the taking into considerationof new substantive legal orfactual elements,and the used new material is strictly considered, because he who haslost thetimelimit for thepurposeof attacking anexecutory act, should notbe allowed tocircumvent such a time limit by thecreationof a new act,which has been.issued formally, after a n e w inquiry, but in substance on the basis of the s a m e ele- - tments.Thereis anew inquiry particularly when, before theis sue of the subsequent act,aninvestigation takes placeof new : ly emerged elementsor,altough preexisting, were unknownat the time and are taken intoconsideration in addition toothers for thefirst time.Similarly, itconstitutes new inquiry thecar rying outof alocal inspectionorthecollectionof additionalin. formation in thematterunderconsideration." For an act to be confirmatory the following elements are re quired: , , 713 Stylianides J. Federated Agencies v. L' ssol M' lity
(1988)(a)Identity of theissuing authority. (b)Identity of theperson orpersons towhom itrelates. (c)Identity of the procedure. (d)Identity of thereasoning; and (e)Identity of theorder. (See Tsatsos - Application for Annulment, 3rd edition, pp. 132-133; Kyprianides v. Republic (supra); and Goulielmos v. Republic
(1983)3C.L.R. 883,at pp. 894-896) In the present case the letter -objection of the applicants -of 11.11.85 does not state any new facts. It simply repeats part of thecontentsof their application of28.1.
- The administration by their letterof 10.1.86did not accede to the request of the applicants to reduce the fees determined by them andpayable by theapplicants,and theyreiterated theirprevious decision. The decision contained in Exhibit 5 is no more than a confirmatory act. The only executory decision is the one contained in theletter of the21stOctober,
- ,« ,? The law in operation until 18.10.85 wasthe Municipal Corporations Law, Cap. 240,as amended byLaws 64/64 -62/
- As from 18.10.85 the new Municipal Corporatiosn Law, 1985 20 (Law No. 111/85) came intoforce. Itis acomprehensive legislation, which repealed allprevious laws. In section 157(l)(a) of the old law provision is made for any person aggrieved to appeal to the Commissioner of the district within 21days from thedate ofthe notification to himof thede- 25 termination of thefee payable.Thiswasa hierarchical recourse. The new law does not contain such aprovision and, therefore, 714 3 C.L.R. Federated Agencies v. L' ssol M' lity Stylianides J. any person aggrieved may apply to this Court under Article 146 asprovided therein. Paragraph 3of Article 146of theConstitution provides that a recourse shall bemade within 75daysof thedate when thedeci5 sion or act was published or, if not published and in thecaseof an omission, when itcame tothe knowledge of the person making therecourse.This,according toourjurisprudence isaprovision of public policy and, therefore, mandatory. This period is shorter than any period provided inthelimitation lawsfor actions IQ . before thecivil Courts.The objective is tohave speedy determination of thelegality of theactsof theadministration,for thebet-• terinterests of thecitizen,of theadministration and of the people atlarge,soasnottoleaveinabeyance thechallenge ofthelegality of theadministrativedecision. J5 20 The request of the applicants of 11.11.85 isnot a hierarchical recourse, but apetition tothecorhpetentadministrative authority toreview itsearlierdecision more favourably totheapplicants. Itis well settled that when alawprovides for ahierarchicalrecourse,orreview byareviewing authority and an applicant exerciseshisrightinthatrespect,theadministrativeprocess isconsidered as continued till adecision is taken by the hierarchical and superior organ, or by areviewing authority and the75daysperiodprescribed in paragraph
(3)of Article 146of the Constitution iscomputed asfromthis latterday. 25 The question that poses is what is the effect on theperiod of 75daysfor filing arecourse, if acitizen does notmakeatoncea recourse against thisdecision, but seeks from thecompetent administrative authority, which hasreached it,a reconsideration of thematterbyawritten request. 30 The right toaddress and submit written request tothecompetentpublic authorities is safeguarded by Article 29of theConstitution whichreads:- 715 Stylianides J. Federated Agencies v. L' ssol M' lily
(1988)"
- Every person has the right individually orjointly with others toaddress written requestsorcomplaints toanycompetent public authority and tohave them attended toand decided expeditiously; an immediate noticeof any such decision taken duly reasoned shall begiven totheperson making the request 5 or complaint and in any event within a period not exceeding thirty days.
- Where any interested person is aggrieved by any such decision or where no such decision is notified to such person within theperiod specified in paragraph 1 of this Article, such .JQ person may haverecourse toacompetentcourt inthematterof such request or complaint." In numerous decisions this Court has said, from the early dates of the introduction in thiscountry of theadministrativejurisiction by Article 146of theConstitution, that Article 146should j«j be interpreted and applied inaccordance with theinterpretation of analogous provisions by administrative tribunals in a number of European countries, such asFrance,Greece and Italy. In all these countries a petition for redress, analogous to the petition safeguarded in Article 29 of the Constitution, affects thedate of the -n computation of theperiod within which arecourse may bemade. InGreece,France and Italy thetime within which arecourse may be made against thedecision complained of, ceases torun whena written request tothecompetent public authority ismade,provided theapplication for reconsideration ismade before theexpiryof theperiod within which arecoursemay bemadeagainst thedecisionconcerned; and thetime within which arecoursecan bemade commences to run afresh either as from the date a reply is received or as from the expiry of the time within which a reply ought tohavebeen given,incasenosuch reply isactually given - 30 (see Stassinopoulos on the Law of the Administrative Disputes
(1964), pp. 208-209; Dendia Administrative Law, Volume C, pp. 293-294; Kyriakopoulos Greek Administrative Law, Volume C, pp. 116and 132and TsatsosApplicationfor Annulment, 3rd Edition, pp. 90-96). 716 35 3 CX-R. ' Federated Agencies v. L' ssol M' lity Stylianides J. Triantafyllides, P., in Evangelou v. The Electricity Authority
(1979)3 C.L.R., 159;adopted and applied the aforesaid principle. 5 10 15 20 ~c nn 'The Full Bench of thisCourt in Revisional Jurisdiction Appeal No. 365,riotyet reported, by a slim majority (three to two),decided that a written petition under Article 29 does neither suspend, norinterrupt therunning of thetime for filing arecourse. His Honour Judge Loris and'myself in Larkos v.'The Republic
(1987)3 C.L.R. 2189 adopted the view of Professor Tsatsos, that a written'petition'for review to'the competent authority only suspends theperiod of 75'days for 30days -theperiod provided in Article 29of the Constitution for replying to an applicant - or for shorterperiod, if thereply is actually given earlier. Failure to take into consideration the 30days period would in effect make therighttoaddress the authorities nugatory,or would discourage the citizen toexercise his right under the Constitution. The exercise of the right to address the authorities is conducive to good administration and atthesame time itrelieves the Court from the influx of recourses. According to'thedoctrine ofjudicial precedent, as enunciated in'The Republic (MinisterofFinance andAnother) v. Demetrios Demetriades
(1977)3C.L.R. 213,the'majority decisionin Larkos case, is binding on me. Therefore, the period of 75 days is computed from the date that the letter of 21.10.85 came to the knowledge of the applicants. The recourse was filed on 21.3.1986;therefore, itisclearly outof time and cannot be entertained bythis-Court. .' ' '·. * :'This recourse fails, also, on the substance. The grounds advanced for the annulment of the subjudice decision are that the respondents failed toexercise properly their discretionary power by'riot carrying out due inquiry,resulting in'material misconception astothefacts;'arid thatitlacksdue reasoning. Ah administrative decision by presumption is reached after a 717 Stylianides J. Federated Agencies v.L' ssol M' lity
(1988)correctascertainmentoftherelevantfacts.Thispresumptionisrebuttable.Theburdenof establishingthatanadministrativedecisionwasreached onthebasisof misconception aboutamaterial fact restsonthepersonchallengingthevalidityofsuchdecision on this ground.This burden isdischarged,evenif theapplicant 5 raisesadoubtinthemindoftheCourtinthisrespect.Aprobabilitythatamisconception hasledtothetakingofthedecisioncomplainedofissufficient tovitiateanadministrativeact- (Republic v. Ekkeshis
(1975)3 C.L.R. 548; Skaros v. The Republic
(1986)3C.L.R.,2109,atp.2115). 10 Havingregardtothematerialplacedbeforeme,theapplicants failed todischargetheburdencastonthem.Theyfailed toshow thatthesubjudicedecisionistaintedbyanymisconceptionoffact oranyfailuretocarryoutdueinquiry. Therespondentsinarrivingatthesubjudicedecisionhadbe- 15 forethemnotonlythefactssetoutintheapplicationoftheapplicantsof28.1.85,butothermaterialsuchasthesizeandextentof thebusinessoftheapplicantsinLimassol. Whatisduereasoningisaquestionofdegree,dependingupon thenatureofthedecisionconcerned.Adecisionevenlaconicmay 20 convey thereason whyit wastaken.Whatisduereasoningdependsontheparticularcircumstancesofeachcase-Pissasv.Republic
(1974)3C.L.R.,476;Skaroscase (supra) andL. &G. lacovides Enterprises Ltd. v. TheRepublic
(1986)3 C.L.R., 2101, atp.2106). Havingregardtothenatureofthesubjudicedecisionitisnot expected from theMunicipal Corporationstogiveverydetailed reasoning for the determination of the fees payablefor professionallicence. Nocomparison canbemadebetweenthefeeimposedonthe 30 applicants in 1983(£250.-)and 1985(£600.-),asthemaximum amount in 1983 provided by law (see Law No. 42/82) was £500.-, which was increased in 1984 by Law No. 62/84 to 718 2$ 3 C.L.R. Federated Agencies v. L' ssol M' lity Stylianides J. £1,000.-. Law'No. 111/85 left it at £1,000.-. For all the afore reasons this recourse fails and is dismissed with costs. Recourse dismissed with costs. 719