Administrative Law Section

Administrative Law constitutes one of the most important areas of law. It concerns the legal framework that applies to public authorities and regulates their organization, operation and auditing, in situations where the State performs acts of administrative governance, and, therefore is a fundamental component of democratic governance in accordance with the rule of law. The provisions of Article 146 of the Constitution of the Republic of Cyprus (the Constitution), prescribes the principles of administrative review in the Cypriot legal order, as well as judicial control over administrative acts.

Administrative acts are subject to judicial review, which comprises a crucial element in administrative law generally. Judicial review emerges directly out of the explicit provisions of Article 146 of the Constitution and the relevant case law of the Cypriot courts, which is mainly based on continental law principles, Given the fact that the said Article has been drafted as per Continental Law principles. as applied in Continental jurisdictions found mainly in Greece and France, being a primary source of Administrative Law.

It should be noted that, principles which have been formulated over the years through the relevant case law, have been codified in the law regarding the General Principles Administrative Law of 1999 (Law No. 158(I)/1999, as amended). Law 158(I)/1999, presents a supplementary legal framework, codifying the general principles of administrative law as formulated by the case law of the Supreme Court’s in its jurisdiction under Article 146 of the Constitution. At all times, the judicial precedent of the Court remains the basic source of Cypriot Administrative Law.

A significant milestone in the formation of Cypriot Administrative Law was the general restructuring and reformation of administrative justice, which took place through the law amending the relevant provisions of the Constitution, referred to as the Eighth Amendment of the Constitution, as well as the enactment of a new legislation regarding the formation of two new first-instance Administrative Courts, which were established through the enactment of the Establishment and Operation of the Administrative Court Law of 2015 (Law No. 130(I)/2015) and through the enactment of the Establishment and Operation of the Administrative Court of International Protection Law of 2018 (Law 73(I)/2018).

The Law regarding the Eight Amendment of the Constitution (L.131(I)/2015), also amended Article 146 of the Constitution in order to allow any first-instance recourses to be tried by the newly formed Administrative Courts, which were formed through Law 130(I) of 2015 and Law 73(I) of 2018, after the provisions of the said law entered into force.

Therefore, the two Administrative Courts are now competent to decide first instance administrative recourses, whilst the Supreme Court has exclusive competence to hear and decide appeals against the decisions of the two Administrative Courts.

GENERAL PRINCIPLES

I. PRINCIPLE OF LEGALITY

Any public authority should not act arbitrarily or capriciously, as its actions and decisions are prescribed and confined by law.

A. Crucial Legal Status:

The legality of an administrative act is judged on the basis of the relevant legal framework that was in force at the time of the issuance of the administrative act, albeit such framework may have been amended at the time of the recourse claim/application. The amended legal framework that was applicable at the time of submission of the application is taken into consideration under exceptional circumstances, in cases where the public authority has shown unjustified delay in relation to the examination of the application.

B. Compliance With the Legal Procedure:

During the exercise of its discretional power, the public authority is obliged to follow the relevant procedures, as those are prescribed by law.

C. Retroactivity of the Administrative Acts:

Administrative acts cannot have a retroactive effect. This rule may not apply under exceptional circumstances, as outlined in the cases below:
a) When the law explicitly allows the retroactive effect of an administrative act.

b) When the administrative act is issued in order for the Administration to comply with an annulment decision of the Supreme Court.

c) When the administrative act revokes another illegal act of the Administration.

d) When the retroactive effect is required by the nature of the administrative act.

e) When the retroactive effect is required in order to rectify an injustice against a citizen because of an omission of the Administration.

A public authority must be competent in substance, place and time, and such competency must be assigned to the relevant authority by law, and cannot be exercised by another public authority.

Furthermore, when the law assigns a right to exercise competence to a public authority, such authority cannot, in whole or in part, transfer such power to another authority without an explicit provision in the law enabling such transfer to take place (Delegatus non potest delegare).

E. Collective Administrative Authority:

In order of a collective administrative authority to be legally constituted, it must be composed from all the persons determined by law. All meetings should be held by the authority in its lawful composition, and any members of such committee should be summoned in accordance with the provisions of the enabling law and in adherence to all relevant deadlines. Additionally, all discussions and final decisions must be taken by the same members of the collective authority.

Additionally, for a collective authority to meet legally, there needs to be a quorum comprised with the minimum number of persons required by law.

II. PRINCIPLE OF EQUALITY

The Principle of Equality imposes to the Administration the same or uniform treatment of all citizens standing under the same or similar conditions. The equal treatment of unequals is as unacceptable as the unequal treatment of equals, while equality is not recognized in the event of unlawful acts and/or omissions.

III. LAWFUL EXERCISE OF DISCRETIONARY POWER

The discretionary power of the Administration must always be prescribed and confined by law and must always be exercised after the relevant authority has duly examined all the relevant facts, without manifest errors with regards to the factual details of the case.

If the administrative authority has pursued an objective which has not been prescribed by law, or it has acted outside the confines of its discretionary powers, such acts constitute an abuse of power.

IV. REASONING OF ADMINISTRATIVE ACTS

Administrative acts and especially any acts based on the discretionary power of the administration must be duly justified and reasoned. The reasoning must be clear and not general or ubiquitous, while it must also refer to all the facts on which the decision is based on, the pursued objective of the administration and the applicable legal framework applied.

Furthermore, when an administrative act is based on the principle of public interest, such principle should be explicitly and unambiguously justified, with reference to the particular facts of the case, which the relevant administrative authority considered and based its decision on.

V. PRINCIPLES OF NATURAL JUSTICE

The Administration must, in every case, act fairly and just (fair play in action). The principles in relation to Natural Justice, concern the principle that every administrative authority participating in the formulation of an administrative act must act impartially, avoiding situations of self-review or self-assessment.

The right of a fair hearing is granted, except in cases where the law strictly provides otherwise, to every person affected by the issuance of a disciplinary act or which adverse.




VI. PRINCIPLES OF GOOD ADMINISTRATION

When exercising their discretional powers, administrative authorities must act lawfully and fairly, in order to avoid inadequate and unjust decisions when applying the provisions of the law. The principles listed below must be applied:

A) Principle of Good Faith:

Administrative authorities are not allowed to act capriciously or in bad faith, which may lead to deceit or cause suffering to a citizen, or lead to the loss of a citizen’s trust towards public administration.

B) Principle of Proportionality:

Proportionality requires that there is a balance between an administrative measure that pursues a particular objective and the consequences of that measure on the rights of a citizen.

When a public authority is called to choose between two or more measures which equally satisfy to the same objective, the authority must choose the measure which is less adverse for the citizen.

Administrative authorities may not revoke any decision after reasonable time has passed from the point of its issuance, even if such decision is unlawful, provided that such decision has created favorable legal rights to a citizen. What constitutes reasonable time should be assessed on an individual basis and according to the facts and the specific circumstances of each case.