Only a person affected by an enforceable act of the administration can bring an action against the act.
Article 146.2
‘An action may be brought by any person who, by reason of a decision, act or omission, has been directly affected by a decision, act or omission, has an interest of his or her own, whether as an individual or as a member of a community.’
The conditions laid down in the article are :
- The applicant must have an interest in the subject-matter of the act. Therefore, the applicant must have an interest in the annulment of an act that is put up for judicial review separate and distinct from the interest of the public in the matter.
- The interest must be direct.
- The interest must exist at the time the decision is made and must continue to exist at the time of the judicial proceedings and the issuance of the decision.
- The interest must be adversely affected at the time the decision or act is taken or the omission occurs. If it is not, i.e. if the act will not affect it in any way, the action is inadmissible. He must have, the interest, a legal basis emanating from the law from his legal rights. The applicant has the burden of proving that he has a legitimate interest in challenging an act.
The interest can be material or moral. The moral interest is not related to the moral order or to the applicant’s sensitivities but to his or her particular relationship to the subject of the decision and its consequences for him or her.
(Sergei Georgiou and Others, Panagios and Others – Republic (1997) 3 AD 81 ).
For the interest to be legitimate, it must not have arisen from the applicant’s own unlawful acts. (Improvement Board of Strovolos -v-Republic (1983) Here the refusal of the Strovolos Improvement Board to enforce a decision of the Ministry was unlawful and it was not legal to appeal against the decision of the Mayor to issue the permit.
Declared interest
The interest must be assessed at the time of the decision. The likelihood of being affected in the future does not apply unless the harm or affectation relates to a definite (not theoretical) interest that is certain to occur at a future date. Thus it was held that the applicant had an interest in challenging an act that would affect his future career in the civil service.
A direct interest is an interest which directly concerns the person of the applicant. In Efthymios Ierodiaconou etc -v- Republic 3RSCC, it was held that a member of the Church of the True Orthodox Christians of Cyprus could not challenge the administration’s failure to issue a passport to the “Bishop of Kition” of that church.
Nor does a company have a legitimate interest in challenging the administration’s refusal to grant a residence permit to a foreigner who is a director of the company.
( Salem and another -v- Republic (1986) 3 CLR 1191)
A decision of the Council of Ministers determining the right of graduates of a private secondary school to participate in the entrance examinations of the University of Cyprus and the Higher and Higher Educational Centres of Greece may be challenged not only by the graduates themselves but also by private secondary schools because the decision affects their own standing in the educational system of Cyprus. G.C. School and Others v Republic (1993) 3 AAD 170).
On the contrary, the students’ parents have no interest.
Also, architects who have denounced colleagues in the ETEK committed disciplinary offences cannot challenge the decision by which they were discharged (Ula Miki Zebula-n- ETEK Rev. Appeal 1470 dd. 28-5-99).
Staff:
It is the legal interest that is personal to the Applicant. In order to challenge an appointment of a person to a position, the person must also have applied for the position ( Papapetrou and the Republic 2RSCC61).
A decision affecting the official status of the applicant gives him the right to challenge it (Petrakis Panayides -v- Republic (1973) 3 CLR 378).
(Such as seniority within the hierarchy of the department in which he serves).
In order to challenge the appointment or promotion of someone to a post one must be qualified to claim the post (Neofytou-v- Republic (1964) CLR 280).
But there is a legitimate interest if the possession or otherwise of the qualifications is the main issue raised in the appeal ( Iona-v- Republic (1989) 3 CLR 1775).
A decision by the competent authority to withdraw a proposal to fill a post does not affect the legitimate interest of the candidate unless the procedure has progressed to such a point that it can reasonably be regarded as a frustration of the appointment ( Matouka-v- Republic (1986) 3 CLR 1465)
( Zachariades -v- Republic (1984) 3CLR 1193).
Legitimate Interest and the Environment
The issue of legitimate interest takes on particular dimensions in relation to the environment. In Greece, Article 24 of the Constitution essentially incorporates the principle of “sustainable development” by identifying it with human dignity and the national interest.
Moreover, the Council of State has an extensive and extremely interesting case law. The tendency of the Council of State is to expand the number of persons who are entitled to bring an application for annulment for the protection of the environment. The same is not true of the Supreme Court of Cyprus, despite the path paved by Judge C. Pikis since the 1980s was left without a follow-up.
See Simonis and onother -v- Improvement Board of Latsia (1984) CLR 109, although there is insistence on the requirements of Article 146 2 of the Constitution.
See also Pantelouris -v- Council of Ministers (1985) 3 CLR 852 and Community of Towers and others -v- Republic (1991) 4 AAD 3498,3510,3511, where the foundation of environmental protection in Articles 7 and 9 of the Constitution.
Legitimate interest of public authorities and legal persons
In principle, a public authority does not have a legitimate interest in challenging an act or omission of another public authority.
The administration cannot be fragmented and take action against its own acts.
However, a legal person governed by public law, such as a semi-public body or a local authority, may challenge an act or omission of administrative authorities and the central administration which affects its functioning in order to protect its interests and powers.
(The Improvement Board of Strovolos -v- R (1981) 3CLR 434) .
Legal persons such as associations, guilds may challenge an act which concerns them and also acts which affect the interests of the whole or a substantial part of the members if the protection of the interests of the members falls within the purposes of the associations.
(Cyprus Police Association -n- Republic par. 20/89, 65/85, 14/2/91).
The PASYDY considered that it could not challenge an act which did not affect all its members but was favourable to women and prejudicial to men.
(PASYDY -v- (1978)3CLR 27)
In Improvement Board of Strovolos -v- Republic (1981) 3CLR (1981) 3CLR it was held that a legal person of public interest or a local government body may challenge an act or omission of administrative authorities of the central administration which affect their functioning and to protect their interests.
In the case Community of Pyrgon and Others – v Republic (1991) 4 AAD 3498 which concerned more generally the interest of local authorities in relation to decisions of the Central Administration which affect their area it was noted that :
“….local authorities have an interest in the urban planning of their area if an adverse effect on the natural environment, seen as it is to be shaped over time, results. This is an interest inherent in the nature of their mission and is therefore legitimate”.
The need to demonstrate the existence of this legitimate interest remains in each specific case.
Grounds preventing the creation of a legitimate interest.
A person does not have a legal interest in challenging an act adopted in accordance with his or her application or which he or she has caused or consented to. Also a person cannot challenge an act that he has accepted.
But the acceptance must be free and unconditional and must not have taken place under pressure to assemble negative consequences for the applicant. The applicant has a legitimate interest in challenging his enlistment in the National Guard despite having enlisted in the National Guard because his enlistment was not voluntary.
Vrahimis -v- E(1985) 3CLR 2057
Also where he has accepted a deed with reservation of rights.
Ioannides -v- R (1979) 3CLR 679
In disciplinary proceedings the admission by the Applicant of the charges deprives him of a legal interest in challenging his conviction.
Roussos, et al -v- Republic (1990) 3 AAD 1271.
The admission of the act may be inferred from various actions of the Applicant. It consists of acceptance of the act or acceptance by the Petitioner of a sum of money and compensation in exchange for the withdrawal of the action.
Republic -v- Loucas and others (1984) 3CLR 241.
Unconditional payment by the applicant of the tax imposed constitutes acceptance of the act of the Assessing Officer and deprives him of the opportunity to challenge the act.
The legitimate interest is also lost on objective grounds. When the act which is the subject of the appeal ceases to exist, or when the death of the applicant occurs and the interest is personal.
