clr/1989/1989_3A_687.pdf

(1970)3 C.L.R. 118, Pernarosv.Republic

(1975)3C.L.R.175, 20 C Carayiannis v.Republic

(1980)3 C.L.R.39, Tricomitis v.Republic

(1985)3 C.LR. 2328, 687 "I Aphroditi Ltd"v.Republic

(1989)Eteha Pyrion Aphrodite Ltd. v.Republic(I9SS)3C.L.R.

1. Recourse. Recourseagainsttherefusal oftherespondenttogivespecial 5 protection totheCyprus IndustryofSafetyMatches. S. MamantopoulosforL Papaphiiippou.for theApplicants. ST.Ioannidou(Mrs),Counsel of the Republic B, for the 10 Respondent. Cur. adv. vult. KOURRIS,J. read the following judgment. By the present 15 appeal applicantsprayasfollows:A. Declaration of the Court that theact and/or decisionof the respondents contained in their letter dated 21.10.1986 wherebytheyrefused theapplication togive 20 special protection to the Cyprus Industry of Safety Matchesisnull anddevoidofanylegal effect; B. Alternatively, declaration of the Court that the respondents failed to decide on the lawful claim of the 25 applicants which was accompanied by new material, contrary to Article 29 of the Constitution and that everythingwhichwasnotdoneoughttohavebeendone. Theapplicantsaretheonlymanufacturers ofsafety matches 30 in Cyprus andtheyhavebeen inthebusinesssince
2. The Government, since their establishment gave them protection through import controls, tariffs and also exempted them from import duties of the rawmaterials used for themanufacture of their products. The Government, through the Ministry of 35 Commerce and Industry still affords them a degree of protection,buttheyfeelaggrievedwiththedegreeofprotection given to them and petitioned the Ministry of Commerce and Industry on several occasions asking it to impose stricter control on the importation of foreign manufactured safety 40 matches and to certain types of lighters. They based their representations on a declining market and corresponding 688 3C.L.R. "I Aphroditi Ltd"v.Republic Kourris, J. increase ofthe salesof their competitors whoarethe importers anddistributors of foreign manufactured safety matches. On the other hand, their competitors were also dissatisfied 5 with Government policy and they complained that the protection given to the applicants wasexcessive and unjustified inthe circumstances. The Minister of Commerce and Industry examined the 10 complaints of the applicants and enquired into the necessityof changing their policy and imposing stricter controls on the importation of foreign manufactured safety matches. They concluded that the introduction of more restrictions on the importation offoreign manufactured safety matches,wasnotin 15 the publicinterest. In reachingthisconclusion theyhave taken intoconsideration theeffect ofdamagingthetradingrelationsof Cyprus with other European countries and they thought that it couldcreate problems with the implementation of the Customs agreement of Cyprus with the European Economic 20 Community. On 21.10.1986, the Minister of Commerce and industry communicated to the applicant his decision not to change the Government policy and also informed them of the reasons for it. 25 Applicants challenge the decision of the Minister that the economic interest ofthecountry pleadsagainst the introduction of more restrictions in the importation of safety matches. It is the case for the applicants that the Minister made a wrong assessment with regard to the needs of the Cyprus economy in 30 refusing their application for achangeof policy. At present the applicants enjoy protection through import controls as to quantity of importation of foreign made safety matches, the imposition ofimport dutiesontheimportation offoreign safety matches and exemption from payment of import duties of the 35 raw material usedby applicants, namely, matchsticks. Learned counsel for the respondents justified, in her address to the Court,the soundness of Government policy andshe also contended that the decision lacks executory character and itis, 40 therefore, not justiciable. Shesaid that administrative action is justiciable and proper subject for review by the Courts but not administrative policy. 689 Kourris, J. ' · ! Aphroditi Ltd" v. Republic

(1989)Learned counsel for theapplicants maintained that refusal to changeGovernment policy affects the interest ofapplicants ina way entitling them to protect them by recourse under Article 146.1oftheConstitution. Ftissettled that administrative policy cannot as such be made the subject of judicial review under 5 Article 146.1of the Constitution. (Savvidou v.The Republic

(1970)3 C.L.R. 1 IS;Pernaros v.The Republic

(1975)3C.L.R. 175; C Carayiannis v. The Republic

(1980)3 C.L.R. 39: Tricomitis v.The Republic

(1985)3C.L.R.232S). 10 In the case of Eteria Pyrion Aphrodite Ltd. v. The Republic of Cyprus

(1988)3C.L.R. 1555which dealt with the same issue,basedon identical facts asthe present case.Pikis.J. at p. 1557said as follows:15 •'Only the implementation of administrative policy resulting in the issuance of an executory administrative act. founded thereon, can be made the subject of judicial action. For its policies, as distinct from its actions, the executive is only politically accountable. The subject decision isnothing otherthan the expression of government policy to adhere to the regime of existing control of imports in an area of great interest to the public. The inaction of the Minister and failure in particular to 25 change existing regulation of imports is not justiciable. The law,namely,Import ControlRegulations(Amendment)Law 1967(Law 7/67) does not cast an obligation on the Minister to act upon the motion of any party affected by existing regulations. Whattheapplicants areinessencechallengingis 30 theomission oftheMinistertoalterexistingimport controls for the protection of local industry. He had no statutory obligation to act. The subject decision isnothing other than the expression of administrative policy to maintain the existing legal regime. Assuchit cannot be madethe subject 35 ofjudicial review underArt. 146." With duerespect, Iagreeandadopt thereasoning of PikisJ. and Ilikewise find that the subject decision is an expression of Government policyanditisnotjusticiableanditisnot aproper 40 subject for review bythe Courts. Consequently,the recourseis dismissed for lack of executory character ofits subject matter. 690 20 3C.L.R. "I Aphroditi Ltd"v.Republic Kourris, J. Bearing in mind that the applicants tested their claim in Eteria Pyrion v. The Republic (supra), and bearing in mind alsothat they havenot appealed against that decision, andthey nevertheless proceeded with the hearing of this recourse which raisedthesameissues,intheexerciseofmydiscretion.Idecided to awardcosts against them,to beassessed bythe Registrar. Recoursedismissedwith costs. 691