(1989)1989 August 10 [SAWIDtS.JJ INTHE MATTER OF ARTICLE 146 Oh THE CONSTITUTION VASSOS ELIADES LIMITED. Applicant. ν THE REPUBLICOF CYPRUS.THROUGH THE MINISTER OF COMMERCE AND INDUSTRY. Respondents (Gi\c Λο. 830/87) Importation ot good* — Requirement ol permit — Refusal ot permit — Decisiondullyrc<isonedandreached, follow ing dueinquiry— Recourse dismissed. B> means ol this recourse theapplicant challenges thedecision ol the respondent.uhcrcb\ the latter refused togrant to theapplicant a license to import into Cyprus 6000 pieces of glassware lamp covers -screw neck spheres. Λ-»the Court reached theconclusion that the decision was reached alter due inquiry anduas duK reasoned andas.noothergrounds for annulment were put forward, the Court dismissed the recourse 5 10 Recourse dismissed. \o orderfor costs. Oiscs reterrcd to 15 Sophoclides & Co Ltd v.Republic(I9S6) 3 CLR 1302. Imputes Agencies Ltd. ν Republic
(1970)3 CLR 361 Recourse. 20 Recourse against the decision of the respondent refusing the 924 3 C.L.R. Vassos Eliades Ltd v. Republic grant of a licence to the applicant to import into Cyprus 6.000 pieces otglassware lamp covers - screw neck spheres. Chr TriantatyJIides, tor the Applicant 5 A. Vassihades, Counsel ot the Republic B, for the Respondent Cur. adv. vult. 10 SAWIDES, J read the following judgment Applicant by this recourse challenges the decision of the respondent dated 5th August. 1987, refusing thegrant of a licence to it to import intoCyprus 6,000pieces otglasswarelampcovers - screw neck 15 spheres (γλόμπους). The legal grounds on which the recourse is based are the following: 20 1 The sub judice decision was taken in abuse of power. 2 Thesubjudice decision contravenes theprovisions ofthe relevant laws and/or regulations. 25
- The decision was taken without due inquiry.
- The sub judice decision is not duly reasoned. The tacts of the case are bneflv as follows: 30 The applicant is a company ot limited liability engaged in trade 35 40 Respondent relying on s.3 ot the Imports (Regulation) Law
- (Law 49/62) as amended by Law 7/67 issued an order published in Supplement No3 to the official Gazette ot the Republic dated 26th July,
- under Notification No.204 whereby the importation ot glassware lamp covers tailing within customs classification 70 14 was placed under control and as such for its importation an import hcence was required Applicant submitted an application to the respondent dated 925 Sawides, J. Vassos Eliades Ltd v. Republic
(1989)23rdJune, 1987.fortheimportationof6.000piecesofglassware lamp covers, screw neck spheres, from Czechoslovakia. The respondent by his decision communicated to the applicant on the 10th August, 19S7, refused same for the reason, as explainedtotheapplicant,ofprotection oflocalindustryinthis 5 field. In reachinghisdecision accordingtothefacts set out inthe opposition the respondent bore in mind a policy decision for theprotection oflocal industryinglasswaretaken atameeting 10 which took place on the 24th January. 1986, and which was attended, inter alia,bytherepresentatives ofthetradeunions, glassmanufacturers andothersinvolvedintheimport trade,at which it wasagreed that when an application issubmitted for import it should be accompanied by the proforma invoice of 15 the seller as well as written offers from local manufacturers obtainedbytheapplicantandthat importpermitsshouldnotbe granted so long as the local manufacturers would be in a position to satisfy the demand both concerning quantity, quality andmodel,aslongastheoffer doesnot exceedby 15% 20 the C.I.F. value of the imported goods. On the basis of such policytherespondent receivedoffers from local manufacturers for thesupply ofgoods similar tothesamplesubmitted bythe applicant at the price of "0.30cent per piece asagainst "0.308 thecost of thegoodssought tobeimported, afactor whichthe 25 respondent hadtobear inmindinconsideringtheapplication. Learned counsel for applicant byhiswritten addressargued that there was a serious discrepancy between the contentsof the decision communicated by the applicant and that 30 mentioned in the facts set out in the opposition and attached thereon as appendix 3.in that, the decision communicated to the applicants is brief and does not embody any reasons whereas in the one attached to the opposition additional reasons are mentioned. 35 It was his submission that the reasoning mentioned in the opposition was an afterthought and it was advanced for the purpose of curing a defective reasoning which was mentioned in the refusal of the application as communicated to the 40 applicant. 926 3C.L.R. Vassos Eliades Ltd v.Republic Sawides, J. He further contended that the respondent did not carry out a proper inquiry into the issues involved and in fact he applied the general policy decision dated 24th January, 1986, without exercising properlv his discretion. 5 Finally, he contended that the regulation empowering the respondent to take a decision as the sub judice one does not obligehimto follow apolicy of prohibition of imports but only enables him to regulate them. The respondent, counsel 10 submitted, had inthe present casechosen to apply hispowerin a manner most strict for the applicant, namely, that of complete refusal without giving any explanation for adopting such course. 15 Learned counsel for the respondent, on the other hand, submitted that the reasons given by the respondent and communicated to applicant are clear and adequate. As stated inhisletter, the reason ofhisrefusal wastheprotection of local industry. Nevertheless, if it is found that such reasoning is not 20 sufficient it may be supplemented by the contents of the file. As to the discrepancies appearing on the face of the decision communicated to the applicant and the one attached to the opposition, counsel explained that the first isthe decision with its reasoning, as communicated to the applicant whilst the 25 second contains also the steps of the procedure which was followed in reaching the sub judice decision. In the circumstances of the present cased, learned counsel submitted, a due inquiry wascarried out by the respondent and 30 the decision taken was reasonably open to him. He went further to argue the constitutionality of the relevant law and regulations which however was completely superfluous and irrelevant in the present case in view of the fact that learned counsel for applicant didnot raise the issue of constitutionality 35 ofthe relevant provisions. The question of constitutionality of the relevant law and regulations has been considered by this Court in Sophoclides & Co.Ltd. v.Republic
(1986)3 C.L.R. 1302 at pp.1311 - 1316. 40 Sub section
(1)of section 3 of Law 49/62, as set out in section 2 of Law 7/67 by which it was replaced, provides as follows: 927 Sawides, J, Vassos Eliades Ltd v. Republic
(1989)"Ο Υπουργός δύναται, οσάκις καθίσταταιαναγκαίον εν τωδημοσίωσυμφέρονταόπωςπεριορισθήκαιρυθμισθή η εισαγωγή εμπορευμάτων ίναενθαρρυνθή ητοπικήπαρα γωγή και βιομηχανία,βελτιωθή το εμπορι,χόν ισοζύγιον, τηρηθώσιν αι διεθνείς υποχρεώσεις ήαναπτυχθή ηοίκο- 5 νομία της Δημοκρατίας,διά Διατάγματος δημοσιευομέ νου εν τηεπισήμω εφημερίδιτης Δημοκρατίας,να περιορίζηκαιρυθμίζη τηνεισαγωγήντωνεντωΔιατάγματικα θοριζομένωνεμπορευμάτων." 10 ("Whenever it becomes necessary in the public interest to restrict and regulate the importation of goods for the encouragement of local production and industry, the improvement of the balance of trade, compliance with international obligations or the development of the 15 economy of the Republic, the Minister may, by Order published intheofficial Gazetteof theRepublic, restrict and regulate the importation of the soods specified in the Order.") By virtue of the above powers which were vested in the Minister of Commerce and Industry, the Minister issued an orderpublished intheofficial Gazetteof theRepublic of20.1.83 under No.7 restricting and regulating the import of certain goods set out intheSchedule therein included,for thereason as 25 stated therein that "it has become necessary in the public interest torestrict andregulate theimportation ofgoods forthe purposes mentioned in sub section
(1)of section 3 of the Imports (Regulation) Law." 20 30 By Notification published in the official Gazette of 26.7.1985 under Notification 204 the First Schedule of the Order was amended by the addition of other goods amongst which under item 70.14 glasswarelamp covers. 35 In a modern society it is often found desirable to subject specified activities to some form of Governmental control. As stated in Impalex Agencies Ltd. v. The Republic
(1970)3 C.L.R. 361 at p.372, "The purposes of such controls willvary. Sometimes a control is imposed for the purpose of collecting 40 revenue; sometimes the type of activity may be such that it is desirable inthepublic interest torestrict thenumber of persons 928 3 C.L.R. Vassos Eliades Ltd v. Republic Sawides, J. who exercise it.- In practice, one of the commonnest methods whereby controls can be imposed isthe licence " In the present case the power of the respondent to impose 5 restrictions for the protection of local industry has not been seriously contested.The question which posesfor consideration is whether in the circumstances of the present case the respondent rightly exercised his discretion in refusing the applicant's application. 10 From the material before me it appears that a policy had been agreed and followed, long before the sub judice decision, concerning theimponation ofglasswaregoodsunder whichthe respondent, before granting or refusing an application for the 15 imponation of goods of such nature should be satisfied as to whether goods of the same nature, quantity and quality could be secured from the local market at competitive prices,which policy wasfollowed inthe present case,the respondent having carried out an inquiry from local manufacturers who offered to 20 supply similar goods at alower price. The contention of learned counsel for applicant that the sub judice decision is not duly reasoned is untenable. In the reply tothe applicant the reasons are clearly stated though in abrief 25 form. They are directed to the protection of local industry. Such reasons are in any event sufficiently supplemented bythe material inthe file which isbefore me. I am satisfied that the respondent exercised his discretion 30 properly in the public interest i.e."for the protection of the interest both ofthelocal manufacturers ofsimilargoodsandthe purchases at large and that the sub judice decision was reasonably open to him. 35 For the aforesaid reasons this recourse fails and ishereby dismissed andthe subjudice decision is affirmed. In the circumstances Imake no order for costs. 40 Recourse dismissed. No orderas tocosts. 929