(1987) 3 CLR 2047
[*2047] 1987 January 24
[TRIANTAFYLLIDES, P.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
THE CYPRUS PHASSOURI PLANTATIONS CO LTD.
Applicant.
v.
THE ORGANIZATION OF AGRICULTURAL INSURANCE.
Respondent.
(Case No. 276/81).
ARCHANGELOS DOMAIN LTD.
Applicant.
v.
THE REPUBLIC OF CYPRUS. THROUGH
1. THE COUNCIL OF MINISTERS.
2. THE ORGANIZATION OF AGRICULTURAL INSURANCE.
Respondents.
(Case No. 370/81).
The Agricultural Insurance Law 19/77 as amended sections 15. 16 and 17 -- They are not repugnant to or inconsistent with Articles 23. 24.25. 26. 28 and 30 of the Constitution.
Constitutional Law - Taxation - Tax not of a universal nature based on reasonable classifications - Not inconsistent with Arts. 24 and 28 of the Constitution.
Constitutional Law - Right to property - Constitution. Art. 23-Deprivation of money by reason of taxation - Not inconsistent with Art. 23.
Constitutional Law - Right to practice a profession - Constitution. Art. 25 -Does not protect against indirect interference with such a right.[*2048]
Constitutional Law - Right to make a contract - Constitution, Art. 26 - The Agricultural Insurance Law 19/77, sections 15, 16.17-Not contrary to Art. 26.
Constitutional Law- Right to have access to Courts - Constitution, Art.30- The Agricultural Insurance Law 19/77, sections 15, l6and 1 7-Not contrary to Art. 30.
The Agricultural Insurance Law 19/77 - The premiums payable thereunder - They are in the nature of tax.
The applicants who are engaged in the production for sale of table grapes challenge. In effect, the imposition on them of the obligation to pay «insurance premiums» in respect of table grapes of the 1981 crop at the rate of 2.5 mills pre oke (or of 2 mils per kilo).
The sub judice decisions were taken in virtue of Agricultural Insurance Law. (Law 19/77).as amended. The Agricultural Insurance Regulations.1977 and the Order of the Council of Ministers dated 5.5.78. Counsel for the applicants have contended that sections 15. 16 and 17 of Law 19/77 are unconstitutional as contravening Articles 23. 24. 25. 26. 28 and 30 of the Constitution.
They have submitted further that the aforesaid insurance premium of 2 mils per kilo is arbitrary and unreasonable4nd that the decision by means of which it was fixed is not duly reasoned.
Held dismissing the recourse (1) The contributions in question are in the nature of a tax. In the sense of Article 24(2) of the Constitution; and the fact that such tax is not of a universal nature does not offend against the principle of equality which is safeguarded by Articles 24(1) and 28 of the Constitution because its imposition is based on a reasonable in the light of all relevant considerations classification.
(2) When a tax, duty or rate is not otherwise unconstitutional it cannot be treated as contravening the provisions of Article 23 of the Constitution merely because it results in deprivation of money for the purpose of such tax, duty or rate.
(3) Article 25 protects against direct and not also indirect interference with the rights safeguarded by it.
(4) The application of the relevant legislative provisions does not; in fact entail entering into a contract in the sense in which the notion of entering into a contract is safeguarded by Article 26.1 of the Constitution.
(5) The contention that the law in question denies applicants right to have access to the Court in order to challenge the obligation to be an insured[*2049]person is wholly unfounded because the applicants have filed under Article 146 of the Constitution their present recourse by means of which all their contentions are being determined.
(6) The applicants on whom the burden lay have failed to persuade the Court that the fixing of such premiums at 2.5 mils per oke (or 2 mils perkilo) is arbitrary and unreasonable.
Recourse dismissed.
No order as to costs.
Cases referred to:
Lanitis Farm Ltd. and another v. The Republic (1982) 3 C.L.R. 124:
Constantinides v. The Electricity Authority of C.L.R. 798:
Re HjiKyriakos ans Sons Ltd. 5 R. S. C. C. 22:
The Republic v. Demetriades (1977) 3 C.L.R. 213:
Ioannides v. The Republic (199) 3 C.L. R. 295:
Antoniades v. The Republic (1979) 3 C.L.R. 641:
PASYDY v. The Municipality of Nicosia (1978) 3 C.L.R. 117.
Ambrosia Oils v. The Republic (1984) 3 C.L.R. 943:
Psaras v. The Republic (1968) 3 C.L. R. 353:
Antoniades v. The Republic (1979) 3 C.L. R. 641:
Apostolou v. The Republic (1984) 3 C.L.R. 509:
Frangou v. The Greek Communal Chamber (1966) 3 C.L.R. 201:
Chimonides v. Maglis (1967) 1 C.L. R. 125:
Saba. Kypris Co. v. The Republic (1980) 3 C.L. R. 149:
The Republic v. Menelou (1982) 3 C.L.R. 419:
Aloupas v. National Bank of Greece (1983) 1 C.L.R. 55.
Decision 1457/55 of Greek Council State.
Recourses.
Recourses against the decision of the respondents to impose on applicants the obligation to pay insurance premiums I respect of table grapes of the 1981 crop at the rate of 2.5 mils per oke.
G. Cacoyiannis, for applicants in Case No. 276/81.
G. Triantafyllides, for applicant in Case NO. 370/81.
S. Matsas, for the respondents.
Cur. adv. vult.[*2050]
TRIANTAFYLLIDES P. read the following judgment. By means of the present recourses, which were heard together in view of their nature, the applicants challenge, in effect, the imposition on them of the obligation to pay «insurance premiums» in respect of table grapes of the 1981 crop, at the rate of 2.5 mils per oke (or of 2 mils per kilo).
The applicants are companies engaged in agriculture and amongst their activities is the production for sale at the local market and for export abroad of table grapes and of grapes suitable for wine making.
By means of section 4 of the Agricultural Insurance Law, 1977 (Law 19/77), there was set up the Organization of Agricultural Insurance which functions under the supervision of the State and exercises the powers entrusted to it by the said Law.
By virtue of section 15 of Law 19/77 all persons in Cyprus engaged in agriculture are considered as insured persons for the purposes of this Law and are bound to pay to the Organization, as provided in section 17 of the Law, monetary contributions by way of insurance premiums in respect of their agricultural crops
By a proviso to section 21 of Law 19/77, which was added by section 2 of the Agricultural Insurance (Amendment) (No. 2) Law, 1980 (Law 26/80), the export by any person of any insured agricultural crop is prohibited unless the appropriate authority is satisfied, by a certificate of the respondent Organization, that the insurance premiums have been paid.
The premiums payable by the applicants in respect of their crops were fixed in accordance with the Agricultural Insurance Regulations 1977, which were made under section 33 of Law 19/ 77 (see No. 167 in the Third Supplement, Part, I, to the Official Gazette of 29 July 1977).
The Council of Ministers, acting under section 16 of Law 19/77, has specified by an Order made on 5 May 1978 (see No. 80 in the Third Supplement to the Official Gazette) the agricultural crops which are compulsorily insurable for the purposes of Law 19/77 and in such crops are included table grapes and grapes suitable for wine making.
The validity of the aforementioned Order of the Council of Ministers was challenged by means of recourses Nos. 276/78 and[*2051]277/78 which were dismissed by a judgment delivered by my …… judge A. Loizou J. (see Lanitis Farm and another v. The Republic, (1982) 3 C.L.R. 124) on the ground that such Order is of a regulatory nature and legislative content and, therefore, it could not be made directly the subject-matter of a recourse under Article 146.1 of the Constitution.
Counsel for the applicants have contended that sections 15, 16 and 17 of Law 19/77 are unconstitutional as contravening Articles 23, 24, 25, 26, 28 and 30 of the Constitution.
They have submitted further that the aforesaid insurance premium of 2 mils per kilo is arbitrary and unreasonable and that the decision by means of which it was fixed is not duly reasoned.
Before proceeding further it may be noted that the object of agricultural insurance is, in section 3 of Law 19/77, stated to be the promotion of the national economy and the welfare of those occupied in. agriculture; and by section 2 of Law 19/77 the insurance premiums are defined as being the monetary contributions payable by those insured to the Organization.
As regards the nature of such contributions I have duly considered the submissions of counsel for the parties and, bearing in mind the approach adopted by our Supreme Court in, inter alia, Constantinides v. The Electricity Authority of Cyprus, (1982) 3 C;L.R. 798, 805-807, I have reached the conclusion that they are contributions in the nature of a tax, in the sense of Article 24(2) of the Constitution; and the fact that such tax is not of a universal nature does not, in my opinion, offend against the principle of equality which is safeguarded by Articles 24(1) and 28 of the Constitution because its imposition is based, on a reasonable, in the light of all relevant considerations, classification (see, inter alia, in this respect, In re Hji Kyriakos and Sons Ltd., 5 R.S.C.C. 22, The Republic v. Demetriades, (1977) 3 C.L.R. 213, Ioannides v. The Republic, (1979) 3 C.L.R. 295, and Antoniades v. The Republic, (1979) 3 C.L.R. 641, as well as the Decision 1457/1955 of the Council of State in Greece).
It has been further submitted by counsel for the applicants that the imposition of the sub judice compulsory insurance scheme, which involves the compulsory payment of money by way of insurance premiums contravenes Article 23 of the Constitution in that the applicants are deprived of this money which they have to pay as insurance premiums:[*2052]
In PASYDY v. The Municipality of Nicosia. (1978)3 C.L.R. 117. 138, there was stated that when a tax, duty or rate is not otherwise unconstitutional it cannot be treated as contravening the provisions f Article 23 of the Constitution merely because it results in deprivation of money for the purpose of such tax, duty or rate, because otherwise Article 23 of the Constitution would render Art. 24.1 of the Constitution devoid of any effect whatsoever.
The same approach was adopted in Ambrosia Oils v. The Republic, (1984) 3 C.L.R. 943, 948, where it was stated that Article 23 does not come into play in cases concerning imposition of taxes, duties, or rates of any kind, when such imposition comes within the provisions of Article 24 of the Constitution.
As I have already found that the provisions of Law 19/77 do not offend against Article 24 of the Constitution I have to find that the payment of money by the applicants by way of insurance premiums does not offend against Article 23 of the Constitution.
Another submission put forward by counsel for the applicants was that the compulsory insurance scheme in question interferes with the right to practice any profession or to carry on any occupation, trade or business which is safeguarded byArticle25 of the Constitution:
It has been held on a number of occasions that Article 25 protects against direct and not, also, indirect interference with the rights safeguarded by it (see, inter alia, in this respect, Psaras v. The Republic, (1968)3 C.L.R.353, 364, Antoniades v. The Republic, (1979) 3 C.L.R.641, 659 Apostolou v. The Republic, (1984)3 C.L,R. 509, 524 and the Ambrosia, case, supra 948). Consequently, I am of the opinion that since the imposition on the applicants of the duty to pay the insurance premiums in question. does not interfere directly with their rights under Article 25 of the Constitution such Article is not contravened by the sub judice insurance scheme.
I come, next to the applicants’ contention that their compulsory participation, in the agricultural insurance schemes in question constitutes an imposed obligation to enter into a contract of insurance, in a manner violating their right which, is safeguarded by Article 26 of the Constitution:[*2053]
….. the ….. case law such as Frangou v. The Greek …. munal Chamber (1966) 3 C.L.R. 201, 209. Chimonides v. Manglis. (1967) 1 C.L.R. 125, Psaras v. The Republic (1968) 3 C.L.R. 353. 364. Saba. Kypris & Co. v. The Republic, (1980) 3 C.L.R. 149. l60TheRepublicv. Menelaou, (1982)3C.L.R. 419 and Aloupas v. National Bank of Greece, (1983)1 C.L.R. 55, 1am of the opinion that the right safeguarded under Article 26.1 of the Constitution. as explained in the said case-law, has not been infringed by the sub judice compulsory insurance scheme because the application of the relevant legislative provisions does not, in fact, entail entering into a contract, in the sense in which the notion of entering into a contract 1s safeguarded by Article 26.1 of the Constitution. In my view for the purposes of this insurance scheme the applicants are not forced to enter into any contract at all because they are made to participate in a scheme which is of statutory, and not of a contractual nature.
Counsel for the applicants complained, also, that neither in Law 19/77 nor in the relevant Regulations is there any provision enabling an insured person to challenge by Court proceedings his obligation to be an insured person under such Law or .hi obligation to pay a particular insurance premium and therefore the applicants, as insured persons, are being denied access to Court a manner contrary to Article 3.0 of the Constitution.
I find this contention of counsel to be wholly unfound I because the applicants have filed under Article 146 of the Constitution their present recourse by means of which all their contentions regarding the alleged unconstitutionality, or otherwise invalidity, of Law 19/77 and the Regulations made thereunder, as well as any complaints about the validity of the mode of the application of such Law and Regulations, are being determined.
Lastly, as regards the complaint of the applicants about the particular insurance premiums which they have to pay I am of the view that the applicants on whom the burden lay, have failed to persuade me that the fixing of such premiums at 2.5 mils per oke (or 2 mils per kilo) is af…..rdry and unreasonable so that they might succeed in their recourses on this ground.
In the result these recourses fail and are dismissed accordingly; but without any order as to costs.
Recourse dismissed.
No order as to costs.
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