Executive preparatory acts are inadmissible under Art 146, but applying salary laws creates actionable executory acts.

[*478] 1970 May 30

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Demetrios Philippou and others,

Applicants,

and

The Republic of Cyprus, through

1. The Council of Ministers,

2. The Ministry of Finance,

Respondents.

(Cases 74/69, 75/69, 76/69, 77/69, 78/69, 84/69, 85/69).

Public Officers -Revision of salaries - Effected by the Public Officers (Revision of Salaries and Salary Scales)

Law, 1968 (Law 106/68) and the Police, Firefighting Services and Prisons (Revision of Salaries) Law, 1969 (Law 2/69) - Recourse -

Decision on Preliminary Legal Issues.

Administrative and Constitutional Law - Recourse for annulment - Executive action preparatory to the legislative process and action directly related to the exercise of legislative powers - Cannot become the subject-matter of a recourse under Article 146 of the Constitution - Action taken by Respondent No. 1 such as was necessary for introducing legislation.

Administrative Law - Executory or administrative act - When it may produce a legal situation so as to be an act of an executory nature, and liable to be made the subject-matter of a recourse for annulment - An act made by application of legal provisions, even without exercising any administrative discretion, can properly be attacked by recourse for annulment - Application of legislative provisions may lead to recourses testing validity of such provisions, in connection with principle of equality - Act of Respondent 2 in applying to the case of each individual applicant the respective provisions of laws 106/68 or 2/69 (supra) has resulted in executory acts which could properly be attacked by recourses.

Equality - Principle of equality - It entails not only equality of treatment by the administration, but, also equality of treatment by the legislature. [*479]

L. Clerides, for the Applicants in Cases 74/69-78/69.

D. Papachrysostomou, for the Applicant, in Case 84/69.

L. Clerides with L. Georghiades, (Mrs.), for the Applicant in Case 85/69.

K. Talarides, Senior Counsel of the Republic, for the Respondents.

DECISION ON PRELIMINARY LEGAL ISSUES

The following decision was delivered by:

TRIANTAFYILIDES, J.: These seven cases were heard together regarding preliminary objections, taken by counsel for respondents, to the effect that the matters complained of by the applicants could not be brought before this Court by means of recourses made under Article 146 of the Constitution.

In all these cases except one - 85/69

- the Republic is proceeded against through the Council of Ministers and the Ministry of Finance; in Case 85/69 only the latter organ appears in the description of the respondent.

The complaint of the applicants, as it appears from the motions of relief in their recourses, is, in essence, that, during the revisions of salaries which were effected by means of the Public Officers (Revision of Salaries and Salary Scales) Law, 1968 (Law 106/68) - affecting the applicants in Cases 84/69 and 85/69 - and by means of the Police, Firefighting Services and Prisons (Revision of Salaries) Law, 1969 (Law 2/69) - affecting the applicants in Cases 74/69, 75/69, 76/69, 77/69 and 78/69 - they were granted [*480] salary scales, which as compared with the salary scales granted to other officers occupying comparable posts, render the applicants victims of unequal treatment, contrary to Articles 6 and 28 of the Constitution; there is, also, the contention that rights of the applicants, safeguarded under Article 192 of the Constitution, have been infringed, in the sense that the applicants are all persons who were in the public service at the

time of the coming into existence of the Republic, in 1960, and that the said Article protects them against such changes in

their terms and conditions of service as would be found to be discriminatory.

These recourses have not been made

against the aforesaid enactments as such, but they were made - except Case 85/69 - against the failure of the Council

of Ministers to grant to the applicants the salary scales to which they claim to be entitled to; and all of them complain, too, against acts or omissions of the Ministry of Finance, due to which they were, allegedly, deprived of their proper emoluments.

From the material at present before the Court it appears that the action taken by the Council of Ministers was such as was necessary for introducing the afore-mentioned legislation; and that the action taken in each instance by the Ministry of Finance amounted to the application of the appropriate legislative provision to the case of each particular applicant. [*481]

Learned counsel for the respondents has argued that, in the circumstances, the said action of the Ministry of Finance was not of an executory nature, in that it did not create, in itself, any legal situation through the exercise of any executive or administrative authority; and, therefore, there could be made no recourse in respect thereof under Article 146; furthermore, he had submitted that the relevant action of the Council of Ministers could not be attacked by way of recourse under Article 146, because it was directly related to the exercise of legislative power.

I have no hesitation in agreeing fully with the latter submission of counsel for the respondents, and in so far as these recourses are aimed at anything done by the Council of Ministers they have to be dismissed as not being possible under Article 146.

It is well settled that executive action which is preparatory to the legislative process cannot become the subject-matter of a recourse under Article 146. This was clearly stated, as far back as _1961, in Papaphilippou and The Republic, 1 R.S.C.C. 62 (see, too, Odent on Contentieux Administratif, 2nd ed. p. 214 and Traité de Contentieux Administratif by Auby and Drago, 1962, vol. I, p. 81).

What I cannot agree with is the contention of counsel for the respondents that because the action taken by the Ministry of Finance, in the case of each one of the applicants, was taken in application of the relevant [*482] legislation, such action does not possess executory nature, so that it can be challenged under Article 146.

An executory or administrative act may produce a legal situation, so as to be an act of an executory nature, and liable to be made the subject-matter of a recourse for annulment (as under our Article 146) either because it is the product of the exercise of a relevant discretionary power or because it is made in the course of the application of a legal provision without any administrative discretion having to be exercised; in the latter instance the making of the act, on a decision by the administration that a particular legal provision is applicable to an individual case, does create a legal situation regarding such case (see Stasinopoulos on the Law of Administrative Acts, 1951, p. 27, Kyriacopoullos on Greek Administrative law, 4th ed., vol. II pp. 339-340 and Conclusions from the Jurisprudence of the Greek Council of State 1929-1959 p. 164.)

There are, indeed, many cases to be found in our law reports, and in the law reports of countries where there exist jurisdictions such as that under Article 146, in which acts made by application of legal provisions, and without the exercise of any administrative discretion, were properly attacked by recourse for annulment; and through such a process the constitutionality of the legislation on which they were based was tested. [*483]

In my opinion, the action of the Ministry of Finance in applying to the case of each individual applicant the respective provisions of Laws 106/68 or 2/69 has resulted in executory acts which could properly be attacked by the present recourses.

A very similar precedent is recourse 2080(50), decided by the Greek Council of State, in which there was examined, inter alia, in relation to Article 3 of the then in force Greek Constitution, which safeguarded the principle of equality, the constitutionality of legislation revising the salary scales of public officers, including judicial officers; that recourse having been made, as in the present cases, against computations of emoluments under the said legislation. Also, useful reference may be made to other similar cases decided by the Greek Council of State, such as cases 736(53), 737(53) and 1283(60) (in Zacharopoulos Digest of Cases of the Council of State, 1953-1960, part II, p. 329, para. 726, p. 330, para. 738).

That the application of legislative provisions may lead to recourses testing the validity of such provisions, in connection with the principle of equality, can be readily seen from the cases referred to by Svolos and Vlachos at pp. 194-195 of vol. A of their treatise on the Constitution of Greece (1954).

Because, as stated in the said treatise (at p. 187) the principle of equality entails not only equality of [*484] treatment by the administration but, also, equality of treatment by the legislature; and in this respect it is useful to refer, also, to Sgouritsas on Constitutional Law (1966) vol. B, part(b), p. 184; actually, our own Article 28(1) leaves no room for doubt that this is, indeed, so.

In the light of the foregoing, these recourses have to fail in so far as they complain of anything done by the Council of Ministers, and this organ has to be struck off from the title of the proceedings; but they have to proceed to a hearing regarding the action of the Ministry of Finance taken in relation to each one of the applicants under the relevant to his case legislative provision.

There could, of course, be no possibility of the applicants being entitled to complain by their recourses of any omission, either on the part of the Council of Ministers or on the part of the Ministry of Finance. The Council of Ministers has taken definite decisions with a view to introducing the relevant laws - and such decisions are in any case, as stated earlier, outside the ambit of the jurisdiction under Article 146 - and the Ministry of Finance has acted in the course of the application of such Laws; so no question of any omission could arise. [*485]

Though the applicants have succeeded in ensuring a hearing, about their complaints, by means of the present recourses, I must make it clear that in this decision I should not be taken as indicating any view about the validity or not of the claims of the applicants; moreover, I would like to draw the parties’ attention, for the sake of guidance, to the judgments in Fekkas and The Electricity Authority (1968, 4 J.S.C. 459) and in Matsis and The Republic (1969,

5 J.S.C. 683) where the question of reconciling reasonable classifications with the right of equality has been gone into at length by this Court.

Lastly, regarding the possibility of Article 192 of the Constitution being taken as safeguarding for public officers prospects of advancement in the future, I think it would be useful, for guidance again, to refer the parties to the case of Shener and The Republic (3 R.S.C.Co 138).

Order accordingly.