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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Κυπριακή νομολογία στην οποία κάνει αναφορά η απόφαση αυτή:
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(1989) 3A CLR 924
1989 August 10
[SAVVIDES. J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
VASSOS ELIADES LIMITED,
Applicant,
v.
THE REPUBLIC OF CYPRUS, THROUGH THE MINISTER OF
COMMERCE AND INDUSTRY,
Respondents.
(Case No. 830/87)
Importation of goods - Requirement of permit - Refusal of permit - Decision dully reasoned and reached, following due inquiry - Recourse dismissed.
By means of this recourse the applicant challenges the decision of the respondent, whereby the latter refused to grant to the applicant a license to import into Cyprus 6.000 pieces of glassware lamp covers - screw neck spheres. As the Court reached the conclusion that the decision was reached after due inquiry and was duly reasoned and as, no other grounds for annulment were put forward, the Court dismissed the recourse.
Recourse dismissed. No order for costs.
Cases referred to:
Sophoclides& Co.Ltd. v. Republic (1986) 3 C.L.R. 1302,
Impalex Agencies Ltd. v. Republic (1970) 3 CL.R. 361.
Recourse.
Recourse against the decision of the respondent refusing thegrant of a licence to the applicant to import into Cyprus 6.000 pieces of glassware lamp covers - screw neck spheres.
Chr. Triantafyllides, for the Applicant.
A. Vassiliades, Counsel of the Republic B. for the Respondent.
Cur.adv. vult.
SAVVIDES, J. read the following judgment. Applicant by this recourse challenges the decision of the respondent dated 5th August, 1987, refusing the grant of a licence to it to import into Cyprus 6,000 pieces of glassware lamp covers. - screw neck spheres (γλόμπους).
The legal grounds on which the recourse is based are the following:
1. The sub judice decision was taken in abuse of power.
2. The sub judice decision contravenes the provisions of the relevant laws and/or regulations.
3. The decision was taken without due inquiry;
4. The sub judice decision is not duly reasoned.
The facts of the case are briefly as follows:
The applicant is a company of limited liability engaged in trade.
Respondent relying on s.3 of the Imports (Regulation) Law 1962, (Law 49/62) as amended by Law 7/67 issued an order published in Supplement No.3 to the official Gazette of the Republic dated 26th July, 1985, under Notification No.204 whereby the importation of glassware lamp covers falling within customs classification 70.14 was placed under control and as such for its importation an import licence was required.
Applicant submitted an application to the respondent dated23rd June, 1987, for the importation of 6,000 pieces of glassware lamp covers, screw neck spheres from Czechoslovakia. The respondent by his decision communicated to the applicant on the 10th August, 1987, refused same for the reason, as explained to the applicant, of protection of local industry in this field.
In reaching his decision according to the facts set out in the opposition the respondent bore in mind a policy decision for the protection of local industry in glassware taken at a meeting which took place on the 24th January, 1986, and which was attended, inter alia, by the representatives of the trade unions, glass manufacturers and others involved in the import trade, at which it was agreed that when an application is submitted for import it should be accompanied by the proforma invoice of the seller as well as written offers from local manufacturers obtained by the applicant and that import permits should not be granted so long as the local manufacturers would be in a position to satisfy the demand both concerning quantity, quality and model, as long as the offer does not exceed by 15% the C.I.F. value of the imported goods. On the basis of such policy the respondent received offers from local manufacturers for the supply of goods similar to the sample submitted by the applicant at the price of "0.30 cent per piece as against "0.308 the cost of the goods sought to be imported, a factor which the respondent had to bear in mind in considering the application.
Learned counsel for applicant by his written address argued that there was a serious discrepancy between the contents of the decision communicated by the applicant and that 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.
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 applicant.
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 properly his discretion.
Finally, he contended that the regulation empowering the respondent to take a decision as the sub judice one does not oblige him to follow a policy of prohibition of imports but only enables him to regulate them. The respondent, counsel submitted, had in the present case chosen to apply his power in a manner most strict for the applicant, namely, that of complete refusal without giving any explanation for adopting such course.
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 in his letter, the reason of his refusal was the protection of local industry. Nevertheless, if it is found that such reasoning is not 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 is the decision with its reasoning, as communicated to the applicant whilst the 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 was carried out by the respondent and 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 did not raise the issue of constitutionality of the 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.
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:
"Ο Υπουργός δύναται, οσάκις καθίσταται αναγκαίον εν τω δημοσίω συμφέροντι όπως περιορισθή και ρυθμισθή η εισαγωγή εμπορευμάτων ίνα ενθαρρυνθή η τοπική παραγωγή και βιομηχανία, βελτιωθή το εμπορικόν ισοζύγιον, τηρηθώσιν αι διεθνείς υποχρεώσεις ή αναπτυχθή ή οικονομία της Δημοκρατίας, διά Διατάγματος δημοσιευομένου εν τη επισήμω εφημερίδι της Δημοκρατίας, να περιορίζη και ρυθμίζη την εισαγωγήν των εν τω Διατάγματι καθοριζομένων εμπορευμάτων."
("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 economy of the Republic, the Minister may, by Order published in the official Gazette of the Republic, restrict and regulate the importation of the goods specified in the Order.")
By virtue of the above powers which were vested in the Minister of Commerce and Industry, the Minister issued an order published in the official Gazette of the Republic of 20.1.83 under No.7 restricting and regulating the import of certain goods set out in the Schedule therein included, for the reason as stated therein that "it has become necessary in the public interest to restrict and regulate the importation of goods for the purposes mentioned in sub section (1) of section 3 of the Imports (Regulation) Law."
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 glassware lamp covers.
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 will vary. Sometimes a control is imposed for the purpose of collecting revenue; sometimes the type of activity may be such that it is desirable in the public interest to restrict the number of personswho exercise it.. In practice, one of the commonnest methods whereby controls can be imposed is the licence.."
In the present case the power of the respondent to impose restrictions for the protection of local industry has not been seriously contested. The question which poses for consideration is whether in the circumstances of the present case the respondent rightly exercised his discretion in refusing the applicant's application.
From the material before me it appears that a policy had been agreed and followed, long before the sub judice decision, concerning the importation of glassware goods under which the respondent, before granting or refusing an application for the importation 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 was followed in the present case, the respondent having carried out an inquiry from local manufacturers who offered to supply similar goods at a lower price.
The contention of learned counsel for applicant that the sub judice decision is not duly reasoned is untenable. In the reply to the applicant the reasons are clearly stated though in a brief form. They are directed to the protection of local industry. Such reasons are in any event sufficiently supplemented by the material in the file which is before me.
I am satisfied that the respondent exercised his discretion properly in the public interest i.e. for the protection of the interest both of the local manufacturers of similar goods and the purchases at large and that the sub judice decision was reasonably open to him.
For the aforesaid reasons this recourse fails and is hereby dismissed and the sub judice decision is affirmed.
In the circumstances I make no order for costs.
Recourse dismissed. No order as
to costs.