Crown Copyright ©
Lord Justice Pill :
1.The proceedings in this jurisdiction arise out of orders made by Master
Eyre on 21 October 2005. Master Eyre ordered that judgments dated
9 November 2004 and 19 April 2005 of the Nicosia District Court in the
Republic of Cyprus be registered in and be declared enforceable by the
Queen's Bench Division of the High Court of Justice pursuant to Council
Regulation (EC) No. 44/2001 ("the Regulation") of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters. The order related to land in the village of
Lapithos in the district of Kyrenia in Cyprus and required the immediate
demolition of the villa, pool and fencing on the property and delivery to
Mr Meletios Apostolides ("the appellant") of the free possession of the
property. Orders for damages and costs were also made.
2.The Republic of Cyprus came into being as an independent sovereign
state in 1960. However, earlier difficulties between the Greek and the
Turkish Cypriot communities on the island persisted. In July 1974, the
army of the Turkish Republic invaded the north of the island and set up an
administration for that part of the island its forces occupied. The Turkish
Republic of Northern Cyprus ("TRNC") was declared in 1983. It has not
been recognised by any state apart from Turkey. Nothing in the present
judgment can be taken to indicate an acceptance of or a comment upon
the legitimacy of TRNC. The entity has a President, Mr Mehmet Ali Talat.
The disputed land is in that part of Cyprus controlled by the Turkish
Cypriot administration and not, therefore, within the area over which the
Government of the Republic of Cyprus exercises effective control and
where Nicosia District Court is situated.
3.The respondents to the judgments, Mr David Orams and Mrs Linda
Orams ("the respondents"), appealed against the registration. They had
unsuccessfully tried to have the judgments set aside in the Cypriot courts.
By order dated 6 September 2006, Jack J allowed the appeal and set
aside the registration of the two judgments. He granted permission to
appeal to the Court of Appeal. By order dated 26 June 2007, this court
referred to the European Court of Justice ("ECJ"), for a ruling on the
issues raised, five questions being specified in the schedule to the order.
Three of these are now relevant:
"1. In this question,
othe term "the Government-controlled area" refers to the area of the
Republic of Cyprus over which the Government of the Republic of Cyprus
exercises effective control; and
othe term "the northern area" refers to the area of the Republic of Cyprus
over which the Government of the Republic of Cyprus does not exercise
effective control.
Does the suspension of the application of the acquis communautaire
in the northern area by Article 1(1) of Protocol No 10 of the Act of
Accession 2003 of Cyprus to the EU preclude a Member State Court from
recognising and enforcing a judgment given by a Court of the Republic of
Cyprus sitting in the Government-controlled area relating to land in the
northern area, when such recognition and enforcement is sought under
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial
matters (OJ 2001, L 12, p.1) ("Regulation 44/2001"), which is part of the
acquis communautaire?
2. Does Article 35(1) of Regulation 44/2001 entitle or bind a Member
State court to refuse recognition and enforcement of a judgment given
by the Courts of another Member State concerning land in an area of the
latter Member State over which the Government of that Member State
does not exercise effective control? In particular, does such a judgment
conflict with Article 22 of Regulation 44/2001?
3. Can a judgment of a Member State court, sitting in an area of that
State over which the Government of that State does exercise effective
control, in respect of land in that State in an area over which the
Government of that State does not exercise effective control, be denied
recognition or enforcement under Article 34(1) of Regulation 44/2001 on
the grounds that as a practical matter the judgment cannot be enforced
where the land is situated, although the judgment is enforceable in the
Government-controlled area of the Member State?"
4.Following oral hearings before the ECJ, Advocate General Kokott
delivered an opinion on 18 December 2008 and on 28 April 2009, the
Court (Grand Chamber) gave judgment (Case C-420/07). The court ruled
on the three questions posed:
"1. The suspension of the application of the acquis communautaire in
those areas of the Republic of Cyprus in which the Government of that
Member State does not exercise effective control, provided for by Article
1(1) of Protocol No. 10 on Cyprus to the Act concerning the conditions
of accession [to the European Union of states including the Republic of
Cyprus] and the adjustments to the Treaties on which the European Union
is founded, does not preclude the application of Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters to a
judgment which is given by a Cypriot court sitting in the area of the
island effectively controlled by the Cypriot Government, but concerns land
situated in areas not so controlled.
2. Article 35(1) of Regulation No 44/2001 does not authorise the court
of a Member State to refuse recognition or enforcement of a judgment
given by the courts of another Member State concerning land situated in
an area of the latter State over which its Government does not exercise
effective control.
3. The fact that a judgment given by the courts of a Member State,
concerning land situated in an area of that State over which its
Government does not exercise effective control, cannot, as a practical
matter, be enforced where the land is situated does not constitute a
ground for refusal of recognition or enforcement under Article 34(1) of
Regulation No 44/2001 and it does not mean that such a judgment is
unenforceable for the purposes of Article 38(1) of that regulation."
5.The case returns to this court to decide the appeal from the judgment
of Jack J, applying the ECJ's answers to the questions. The answers to the
questions are such that, subject to the further issues raised in this court,
the appeal should be allowed and the orders of Master Eyre registering
and declaring enforceable the Cypriot judgments reinstated.
6.The respondents have raised two issues for determination:
(I) The public policy issue: whether the judgment should be denied
enforcement on the basis of public policy or whether further appropriate
questions should be referred to the ECJ under article 234EC [Lisbon,
article 267]. They rely on article 34(1) of the Regulation:
"A judgment shall not be recognised:
1. If such recognition is manifestly contrary to public policy in the Member
State in which recognition is sought."
(II) The apparent bias issue: whether the ruling of the ECJ is affected by
apparent bias of Judge Skouris, President of the Court, and if so whether
in the circumstances the question of apparent bias should be referred to
the ECJ under article 234EC and/or whether the ECJ should be requested
to reconsider the questions posed by the Court of Appeal on 26 June
2007.
Issue I
Public policy
7.On the adoption of the constitution of the Republic of Cyprus, a Treaty
of Guarantee, which came into force on 16 August 1960, was made
between the Republic of the one part and Greece, Turkey and the United
Kingdom of the other part. Article I provided:
"The Republic of Cyprus undertakes to ensure the maintenance of its
independence, territorial integrity and security, as well as respect for its
Constitution.
It undertakes not to participate, in whole or in part, in any political
or economic union with any State whatsoever. It accordingly declares
prohibited any activity likely to promote, directly or indirectly, either union
with any other State or partition of the Island. "
8.Article II provided:
"Greece, Turkey and the United Kingdom, taking note of the undertakings
of the Republic of Cyprus set out in Article I of the present Treaty,
recognise and guarantee the independence, territorial integrity and
security of the Republic of Cyprus, and also the state of affairs established
by the Basic Articles of its Constitution.
Greece, Turkey and the United Kingdom likewise undertake to prohibit,
so far as concerns them, any activity aimed at promoting, directly or
indirectly, either union of Cyprus with any other State or partition of the
Island."
9.By a Treaty between the same parties on the same date, arrangements
were made for two areas in Cyprus, described as Sovereign Base Areas,
to remain under the sovereignty of the United Kingdom. Nothing in this
appeal turns on that provision. The Treaty also provided, in article 5, that
"the Republic of Cyprus shall secure to everyone within its jurisdiction
human rights and fundamental freedoms comparable to those set out in
[the European Convention on Human Rights] ("the Convention").
10.Along with other states, the Republic of Cyprus acceded to the
European Union, to which the United Kingdom and Greece already
belonged, in May 2004. Protocol No. 10 to the Treaty of Accession made
express provision for those areas of the Republic of Cyprus in which its
Government does not exercise effective control. It provides:
"1. The application of the acquis shall be suspended in those areas of the
Republic of Cyprus in which the Government of the Republic of Cyprus
does not exercise effective control.
2. The Council, acting unanimously on the basis of a proposal from the
Commission, shall decide on the withdrawal of the suspension referred to
in paragraph 1."
11.The ECJ, at paragraph 34, described Protocol 10 as a transitional
derogation, based on the exceptional situation prevailing in Cyprus, from
the general principle that the provisions of Community law apply ab initio
and in toto to a new Member State. A derogation must be interpreted
restrictively and "must be limited to what is absolutely necessary in order
to obtain its objective" (paragraph 35).
12.As recorded by the ECJ at paragraphs 18 and following of its
judgment, the disputed land belonged to the appellant's family which
had occupied it until the 1974 invasion. As members of the Greek
Cypriot community, they were forced to abandon their house and take up
residence in the area of the island effectively controlled by the Cypriot
Government. The respondents, who are UK citizens, claimed to have
purchased the land in 2002 in good faith from a third party who had
acquired it from the Turkish Cypriot authorities. They built a villa on the
land and frequently occupied it as their holiday home.
13.The first issue, it was submitted, while considered by the Advocate
General in her Opinion, was not considered by the ECJ, and advisedly so
in the absence of a question directed to the issue. The Advocate General,
while making observations in regard to the issue did at the same time
underline, at paragraph 105, that it was not the subject-matter of the
reference for a preliminary hearing. The issue should now be referred, the
respondents submitted.
14.Consideration was given to second references and to the status
of opinions of Advocates General in Regina v Minister of Agriculture,
Fisheries and Food ex parte SP Anastasiou (Pissouri) Limited [2001]
UKHL 71. Issues were raised on the marking of citrus fruits imported
from outside the Community, some issues arising having already been
considered by the ECJ. Further issues arose in the domestic courts. Lord
Slynn, with whom Lord Steyn agreed in a constitution of three, stated, at
paragraph 34:
"Since we are not agreed on the proper interpretation of item 16.1, and
in view of the importance of the issue under items 16.2 - 16.4 to the
Minister and to others, it seems to me that, regrettable though a further
reference to the European Court is, it is necessary in order for the House
to give judgment to decide these questions. Accordingly as the final
national Court in respect of these issues the House is bound to refer them
to the European Court, pursuant to article 234 of the Treaty."
The appellant of course highlights the failure of the respondents, if there
was merit in the present submission, to request a reference when the
case was last before this court.
15.Referring, however, to an issue with which the court did not deal, Lord
Slynn stated, at paragraph 23:
"It seems to me that where the national Court finds a closely reasoned
opinion of the Advocate-General and does not consider that the opinion is
clearly wrong, it should attach considerable weight to it in the absence of
an indication by the Court that the Court disagrees."
Submissions by respondents and interveners
16.In support of their public policy submission, the respondents relied
on the first and fifth recitals to Protocol 10. In recital 1, Member States
reaffirm "their commitment to a comprehensive settlement of the Cyprus
question, consistent with relevant United Nations Security Council
Resolutions, and their strong support for the efforts of the United Nations
Secretary General to that end". In recital 5, the parties state their desire
"that the accession of Cyprus to the European Union shall benefit all
Cypriot citizens and promote civil peace and reconciliation".
17.For the respondents, Mr Green QC submitted that the public policy
issue had been argued in detail before the ECJ but the ECJ had made
no ruling on it. The issue is of the utmost importance because it is at
the heart of the peace process in Cyprus. Moreover, there are tens of
thousands of foreign owners of property in northern Cyprus, who derive
the title they claim from the Turkish Cypriot authorities there. Many
British people are affected as demonstrated by the intervention of the
British Residents' Society of Cyprus ("BRS") in these proceedings. Many
nationals of other Member States of the Union are also affected.
18.Reliance was placed on the statement of the Advocate General at
paragraph 109:
"In this case, however, the Commission does not contend that the
judgment whose enforcement is sought infringes fundamental rights.
In its view, the issue is instead the requirements of international policy
regarding the Cyprus problem. Those requirements have to a certain
extent acquired legally binding status in so far as they have become
established in United Nations Security Council resolutions. That applies,
for example, to the obligation on States to refrain from any action which
might exacerbate the Cyprus conflict."
19.With the leave of the court, Mr Green submitted a chronology which
sets out the Security Council Resolutions on which he relies. These
include Resolution 1250 (29 June 1999) which amongst other things
expressed the view "that both sides have legitimate concerns that should
be addressed through comprehensive negotiations covering all relevant
issues" (paragraph 5) and called upon the two [community] leaders "to
give their full support to such a comprehensive negotiation, under the
auspices of the Secretary General" (paragraph 7).
20.The Security Council by Resolution 1251 of 29 June 1999:
"10. Reaffirms that the status quo is unacceptable and that negotiations
on a final political solution to the Cyprus problem have been at an
impasse for too long;
11. Reaffirms its position that a Cyprus settlement must be based on a
State of Cyprus with a single sovereignty and international personality
and a single citizenship, with its independence and territorial integrity
safeguarded, and comprising two politically equal communities as
described in the relevant Security Council resolutions, in a bi-communal
and bi-zonal federation, and that such a settlement must exclude union
in whole or in part with any other country or any form of partition or
secession;
13. Reiterates its support for the efforts of the United Nations and others
concerned to promote the holding of bi-communal events so as to build
cooperation, trust and mutual respect between the two communities, and
calls upon the Turkish-Cypriot leadership to resume such activities."
That Resolution was expressly reaffirmed in Resolution 1789 of 14
December 2007 which also "reaffirms that the status quo is unacceptable,
that time is not on the side of a settlement, and that negotiations to
reunify the Island have been at an impasse for too long".
21.Pursuant to the earlier Resolutions, the Secretary General, Mr Kofi
Annan, was instructed to prepare a plan for submission to the parties
to the dispute. On 31 March 2004, the final version of the Annan Plan
was published. It provided, in article 10, that "the claims of persons who
were dispossessed of their properties by events prior to the entry into
force of this Agreement shall be resolved in a comprehensive manner
in accordance with international law, respect for the individual rights of
dispossessed owners and current users, and the principle of bi-zonality".
It proposed detailed arrangements for the exercise of property rights,
by way of reinstatement or compensation, and provided that property
claims should be received and administered by an independent, impartial
Property Board. While the majority of Turkish Cypriots approved the plan
it was rejected by the Greek Cypriots, in a separate referendum, 76%
voting against.
22.Mr Green relied on the respondents' submissions to the ECJ in which
they asserted (and the general effect of the figures is not for present
purposes disputed) that Greek Cypriots claimed title to 78% of the
property in the northern area and Turkish Cypriots claimed title to about
21% of the property in the area controlled by the Government. There are
said to be almost 10,000 British citizens residing in northern Cyprus. Mr
Annan reported, in May 2005:
"On the island, the benefits of the EU membership of Cyprus are
becoming manifest. However, in the area of property, it has opened
up new fronts of litigation and acrimony. Already, hundreds of Greek
Cypriot claims against Turkey for the loss of property rights in the north
are pending before the European Court of Human Rights in Strasbourg,
France. Additionally, in 2005, Greek Cypriots approached courts in
the south for EU arrest warrants against foreigners buying or selling
Greek Cypriot property in the north. In this regard, Turkish Cypriot
authorities have warned that they will arrest and detain those attempting
to serve court summonses. The prospect of an increase of litigation in
property cases on either side poses a serious threat to people-to-people
relationships and to the reconciliation process. Property rights continue
to be an extremely sensitive issue on both sides and it is widely believed
that only a comprehensive settlement of the Cyprus problem can bring
closure to the property issue. "
Private individuals should not be allowed to use the courts of Member
States as a mechanism to further their political objectives, it was
submitted.
23.Mr Green also drew attention to and relied on the submissions of the
Commission to the ECJ under the heading 'International Public Policy':
"However, the recognition of judgments from Courts of the Republic of
Cyprus relating to properties lying in the areas where the Government
does not exercise effective control may raise another, and very
exceptional, ground of international public policy."
The submissions continued:
"110. Although the present situation does not come under the traditional
concept of public policy under Regulation 44/2001, the Commission does
not exclude that Article 34(1) could be interpreted as allowing to invoke
such a ground of international public policy. Indeed, the words "public
policy in the Member State" are open to an interpretation, where grounds
of international public policy are invoked that form part of the Member
State's public policy as well. In other words, a public policy ground cannot
lose its eligibility under Article 34(1) just because it is shared by all the
other EU Member States as well.
. . . .
112. Where the Member States are, however, subject to the same
international public policy ground by virtue of their membership in the
European Union and the United Nations, the possible conflicts between
different public policies in several Member States does not arise. Hence,
it would not run contrary to the object and purpose of Article 34(1) to
include public policy grounds which are essentially of an international
character and shared by all EU Member States. The Commission does
therefore not exclude that the courts of a Member State could consider
that granting recognition and enforcement to judgments of Cypriot courts
with respect to property for which, at the request of the European Court
of Human Rights, a mechanism for restitution or compensation has been
created might jeopardize the efforts towards restoring civil peace and
reconciliation on the island and eventually a comprehensive settlement of
the Cyprus problem.
113. It would, in any event, be for the national judge to decide whether,
in the light of the facts of the case at hand, recognition and enforcement
of a specific judgment given in another Member State would be, in
the terms of Article 34(1) of the Regulation, 'manifestly contrary' to
international public policy.
114. Such a public policy ground would remain very exceptional and
would therefore not undermine the general Community interest in the
free flow of judgments under Regulation 44/2001. If this Court was to
enter into the third question, the public policy ground in this case could be
intrinsically linked to the extraordinary de facto situation in Cyprus.
115. In sum, the Commission proposes to the Court to respond to the
third question as follows:
A judgment of a Cypriot court, in respect of land in that State in an area
over which the Government of that State does not exercise effective
control, cannot be denied recognition of enforcement under Article 34(1)
of the Regulation on the ground that claims cannot be enforced where
the land is situated. Judgments relating to such land can, however, be
exceptionally refused recognition and enforcement if such recognition is
manifestly contrary to international public policy."
24.While Mr Green relied on paragraph 109 of the Advocate General's
opinion as demonstrating a willingness to introduce the "requirements
of international policy" into the assessment, he accepted that the
subsequent reasoning of the Advocate General was against him. Having
raised the issue, the Advocate General has not grappled with it and
has presented a one sided picture, it was submitted. I say at once that
I do not accept that the epithets "odd" and "curious" attached by the
respondents to the opinion of the Advocate General are apposite.
25.As applied, the judgment of the ECJ created an asymmetrical situation,
it was submitted. Persons in the position of the appellant can obtain
judgments in their favour from the courts of the Republic of Cyprus
whereas Turkish Cypriots claiming title within the area controlled by the
Cypriot Government cannot do so. Expert evidence on Cypriot law was
not called but reference was made to the decision of the Cyprus Supreme
Court in Ali Kamil & Ors v Ministry of Interior acting as the "Custodian" for
Protection of Turkish Cypriot Property, (Case No.133/2005), 19 January
2007. In that case, a Turkish Cypriot had abandoned land in that part of
Cyprus now under the control of the government. The Supreme Court
noted that the immovable property in question had been transferred to
the administration of a Custodian in accordance with a law of 1991. The
Custodian has accepted arrangements for payment of compensation to
property owners in the case of compulsory acquisitions but this has been
paid into a special account and any payment to claimants is suspended,
the court stated, so long as the abnormal situation in the Republic arising
from the Turkish occupation continues. The Court concluded:
"But it has also been decided that the Turkish Cypriot property owners
and their heirs do not have the right to use their properties under the
control of the Custodian. So long as the abnormal situation arising
from the Turkish occupation continues, they can be prevented from
exercising any kind of right to such properties without permission from
the Custodian."
The alleged lack of symmetry is relied on as revealing the delicate state of
relations between the two communities in Cyprus.
26.In Hesperides Hotels v Aegean Turkish Holidays [1978] QB 205, the
courts in this jurisdiction declined to exercise an original jurisdiction in the
northern part of Cyprus. In a judgment with which Scarman LJ agreed,
Roskill LJ stated, at page 227A:
"The position in Cyprus, both on the Greek and on the Turkish side, is at
the present juncture evolutionary and continues to evolve and develop.
Delicate international negotiations have taken place and are about to
continue. In those circumstances, for an English court to arrogate to itself
the right at this juncture to determine questions of the right to possession
of land in Cyprus by entertaining an action for conspiracy to trespass is
something which in my view it ought not to do. Even if I am wrong in
the view that the Moçambique [British South Africa Co v Companhia de
Moçambique [1893] AC 602] principle applies, and even if I thought that
our courts had jurisdiction and therefore a discretion whether or not to
grant the injunction sought, in accordance with the principles recently laid
down by the House of Lords in American Cyanamid v Ethicon Ltd. [1975]
A.C. 396, I would not hesitate in the existing circumstances to exercise
my discretion against granting the injunction sought."
(On appeal to the House of Lords [1979] AC 508, the Moçambique
principle was upheld).
27.Lord Denning MR put it more broadly. He stated, at page 222F:
"Underlying this case is a divergence of view between two autonomous
administrations in Cyprus. The northern administration sets itself up as
an administration entitled to pass laws requisitioning this property. The
southern administration denies the claim and says that the requisitioning
was unlawful. It is not the province of these courts to resolve such a
dispute. It is a dispute which should be settled by negotiation between
the two administrations, aided, we hope, by intermediaries of goodwill. It
is indeed, we hope, being settled at this very moment by negotiations in
Vienna. If a settlement is reached it should deal with all questions relating
to the taking of property, compensation and so forth. But, whether
it is settled or not, it is not for these courts to decide between these
conflicting views. The dispute, in my view, is not justiciable here. The
action should be struck out as not sustainable. I would allow the appeal
accordingly."
The political sensitivities were fully acknowledged in this court, Mr Green
submitted, and, by a parity of reasoning, it will be contrary to public
policy in England and Wales to enforce the Cypriot judgment.
28.Mr Green relied on a recent statement from the President of TRNC.
Mr Mehmet Ali Talat stressed the need to find a balance between the
conflicting interests of the dispossessed owners and the current users
and to devise a set of criteria which will satisfy both. The property issue
always has been, and continues to be, one of the core issues of the
Cyprus problem. It can be tackled satisfactorily only at the negotiating
table in the context of a comprehensive settlement, he wrote. The timing
of the judgment of the ECJ he considers to be "most unfortunate". It has
ignored the political problem in Cyprus and the negotiations over many
years. "It is essential that all the parties interested in the settlement of
the Cyprus problem refrain from taking steps that would cast a shadow
over the negotiating table and undermine the process".
29.To enforce the Cypriot judgment, Mr Green submitted, would be to
prejudice peace negotiations and is thereby contrary to public policy in
England and Wales which, reflecting UN Security Council Resolutions,
does not permit the process to be prejudiced in this way. That is the
beginning and end of the case, he submitted. Nothing should be done in
this jurisdiction in relation to property disputes in Cyprus which might
prejudice the negotiations. Problems arising from the litigation in Cyprus
demonstrate the prejudice to the peace process and exacerbation of
tension which may result from a recognition of Cypriot judgments in this
jurisdiction, it was submitted.
30.The BRS is an association of British nationals who live as residents
in northern Cyprus. They have been given permission to intervene, by
way of written submissions in this court, and these have been prepared
by Professor Stefan Talmon. He made the submission that the relevant
Cypriot judgments are in breach of customary international law rules
on state jurisdiction. The Regulation does not, by virtue of customary
international law, apply to judgments of the courts of the Republic of
Cyprus concerning immovable property situated in northern Cyprus.
It was submitted that customary international law is a part of EU law
and the Regulation must be interpreted, and its scope of application
determined, in accordance with principles of customary international law.
31.The Republic of Cyprus, having sovereignty over the whole of Cyprus,
does not exercise jurisdiction in the north. Territorial control is not an
essential requirement of sovereignty but may be an essential requirement
for the exercise of certain rights derived from sovereignty such as
jurisdiction, it was submitted. The rule that a sovereign state enjoys
prescriptive and enforcement jurisdiction with regard to all matters within
its territory does not apply when the state's territory is under the effective
control of a secessionist authority or an occupying power. The TRNC, as
de facto authority in northern Cyprus, is competent, under customary
international law to exercise prescriptive and enforcement jurisdiction
in all matters under its effective control, including immovable property
situated in northern Cyprus. Decisions of the courts of the Republic of
Cyprus purporting to exercise jurisdiction there are not susceptible to
enforcement in the United Kingdom.
32.Reliance is placed on Oppenheim's International Law, 9th Edition:
"Rebels who have been recognised as a de facto Government will for that
reason be accepted as having powers of government administration in the
area under their control . . . "
Judgments of the ECJ and Opinion of the Advocate General
33.When analysing the third question before it, the ECJ considered the
effect of article 34(1) of the Regulation. It was recalled, at paragraph 55,
that article 34 must be interpreted strictly as it constitutes an obstacle to
the attainment of one of the fundamental objectives of the Regulation.
The court stated, at paragraph 57, that it was required to review the
limits within which the courts of a Member State may have recourse to
the concept of public policy for the purpose of refusing recognition of a
judgment. The court of the state in which enforcement is sought cannot
review the accuracy of the findings of law or fact made by the court of
the state of origin (paragraph 58). I note that recital 16 to the Regulation
refers to "mutual trust in the administration of justice in the Community".
34.The court added, at paragraph 59:
"Recourse to the public-policy clause in Article 34(1) of Regulation No
44/2001 can be envisaged only where recognition or enforcement of
the judgment given in another Member State would be at variance
to an unacceptable degree with the legal order of the State in which
enforcement is sought inasmuch as it would infringe a fundamental
principle. In order for the prohibition of any review of the foreign
judgment as to its substance to be observed, the infringement would have
to constitute a manifest breach of a rule of law regarded as essential in
the legal order of the State in which enforcement is sought or of a right
recognised as being fundamental within that legal order."
At paragraph 61, the court stated:
". . . the referring court [that is the Court of Appeal] has not referred to
any fundamental principle within the legal order of the United Kingdom
which the recognition or enforcement of the judgments in question would
be liable to infringe."
Accordingly, the court concluded, refusal to recognise the judgments
would not be justified under article 34(1).
35.In stating those propositions, the court relied on the decision of the
ECJ in Krombach [2000] ECR I-1935. The case turned on article 27(1) of
the Convention on Jurisdiction and the Enforcement of Judgments in Civil
and Commercial Matters (1968) which is in similar terms to article 34(1)
of the Regulation. A national court asked the ECJ how the term "public
policy in the state in which recognition is sought" should be interpreted
and whether, in relation to the public policy clause, the court of the
state in which enforcement is sought can take into account the fact that
the court of the state of origin refused to allow a defendant to have his
defence presented unless he appeared in person. The court stated, at
paragraph 37:
"In order for the prohibition of any review of the foreign judgment as to
its substance to be observed, the infringement would have to constitute a
manifest breach of a rule of law regarded as essential in the legal order of
the State in which enforcement is sought or of a right recognised as being
fundamental within that legal order".
36.The ECJ in the present case considered article 34(1) in the context
of a possible infringement of a fundamental principle of the legal order
of the state in which enforcement is sought, in the United Kingdom, that
is a manifest breach of a right recognised as being fundamental within
that legal order. The court did not consider the aspect of public policy
now invoked by the respondents, an obligation not to prejudice a peace
process instituted and encouraged by the international community. The
question was raised before the Court. The Advocate General stated, at
paragraph 101:
"The respondents submit that the recognition and enforcement of the
District Court of Nicosia's judgment may contravene 'international public
policy' by undermining the efforts of the international community to find a
solution to the Cyprus problem."
37.That aspect of the case was considered by the Advocate General in her
Opinion. I have already cited paragraph 109 where its possible relevance
was noted, by reference to submissions of the Commission.
38.The analysis of the issue by the Advocate General is distinctly
unfavourable to the respondents' case. She stated, at paragraph 45:
"It is certainly true that the Security Council has repeatedly called for the
preservation of peace in Cyprus and of the country's territorial integrity.
In that context, the international community has also made calls to refrain
from any action which might exacerbate the conflict. However, it is not
possible to infer from those rather general appeals any obligation to
refrain from recognising judgments of Greek Cypriot courts which relate
to claims to ownership of land in the Turkish Cypriot area.
46. Moreover, it is by no means clear that, taken overall, the application
of the regulation exacerbates the Cyprus conflict. It may equally well have
the opposite effect and promote the normalisation of economic relations.
It is precisely because the line between the two areas of Cyprus has been
opened up for the movement of goods and persons that it is possible to
envisage many different legal relationships in which the recognition and
enforcement in other Member States of judgments given by courts of the
Republic of Cyprus and the application of the rules on jurisdiction in the
regulation are also of interest to parties residing in the northern area."
39.When considering the first question, the Advocate General concluded,
at paragraph 48:
"The application of the regulation cannot be made dependent on such
complex political assessments. That would be contrary to the principle of
legal certainty, respect for which is one of the objects of the regulation."
40.On the possible requirements of international public policy in relation
to national public policy, the Advocate General stated these conclusions:
"110. The preservation of peace and the restoration of the territorial
integrity of Cyprus are certainly noble causes. However, whether those
goals can be regarded as a 'rule of law regarded as essential in the legal
order of the State in which enforcement is sought or of a right recognised
as being fundamental within that legal order' within the meaning of the
Krombach case-law is extremely doubtful.
111. As already observed, however, the requirements and appeals
contained in the Security Council resolutions on Cyprus are in any case
much too general to permit the inference of a specific obligation not
to recognise any judgment given by a court of the Republic of Cyprus
relating to property rights in land situated in northern Cyprus. Apart from
that, it is also by no means clear whether recognition of the judgment
in the present context would be beneficial or detrimental to solving the
Cyprus problem and whether it is even necessary for the protection of the
fundamental rights of Mr Apostolides.
112. The answer to the third question must therefore be that a court of a
Member State may not refuse recognition and enforcement of a judgment
on the basis of the public policy proviso in Article 34(1) of Regulation
No 44/2001 because the judgment, although formally enforceable in the
State where it was given, cannot be enforced there for factual reasons."
41.In relation to the judgment of the ECJ, Mr Green submitted that,
because the issue has not been considered by the court itself, a further
question or questions should be referred to the court. The Advocate
General had noted, at paragraph 102, that the referring court itself did
not consider any such ground for refusing recognition and enforcement
in the United Kingdom and that, in principle, the court is bound by
the subject matter of the reference for a preliminary ruling. That was
particularly true, it was submitted, with regard to the interpretation of an
article such as article 34(1) of the Regulation because, as the Advocate
General stated at paragraph 103, "it is a matter for the Member States to
determine according to their own conception what public policy requires".
The ECJ does leave open, at paragraph 62, the possibility of a reference
on the basis that this court may identify a "fundamental principle" in
the domestic legal order which is infringed by enforcing a judgment of a
Cypriot court. This court should now fill the gap by referring the question,
Mr Green submitted.
42.In Loizidou v Turkey (Application No.15318/89) 18 December 1996,
the European Court of Human Rights ("ECtHR"), sitting as a Grand
Chamber, considered the position of a Cypriot national displaced from the
northern part of Cyprus and claiming to own land there. By a majority
of 11 votes to 6, it was held that the denial of access to the applicant's
property and consequent loss of control thereof was imputable to Turkey.
By the same majority it was held that there had been a breach by the
Turkish Government of article 1 of Protocol 1 to the Convention.
43.The majority of the Grand Chamber stated, at paragraph 46:
"Accordingly, the applicant cannot be deemed to have lost title to her
property as a result of Article 159 of the 1985 Constitution of the "TRNC".
No other facts entailing loss of title to the applicant's properties have
been advanced by the Turkish Government nor found by the Court. In
this context the Court notes that the legitimate Government of Cyprus
have consistently asserted their position that Greek Cypriot owners of
immovable property in the northern part of Cyprus such as the applicant
have retained their title and should be allowed to resume free use of their
possessions, whilst the applicant obviously has taken a similar stance."
44.At paragraph 64, the majority stated:
"Apart from a passing reference to the doctrine of necessity as a
justification for the acts of the "TRNC" and to the fact that property rights
were the subject of intercommunal talks, the Turkish Government have
not sought to make submissions justifying the above interference with the
applicant's property rights which is imputable to Turkey.
It has not, however, been explained how the need to rehouse displaced
Turkish Cypriot refugees in the years following the Turkish intervention in
the island in 1974 could justify the complete negation of the applicant's
property rights in the form of a total and continuous denial of access and
a purported expropriation without compensation.
Nor can the fact that property rights were the subject of intercommunal
talks involving both communities in Cyprus provide a justification for this
situation under the Convention.
In such circumstances, the Court concludes that there has been and
continues to be a breach of Article 1 of Protocol No. 1."
45.There are many similar applications by Greek Cypriots before the
ECtHR. Thus the ECtHR has reaffirmed the title of those dispossessed
by the Turkish authorities. That is not a promising context in which to
argue that public policy in this jurisdiction requires that the judgments of
legitimate courts in the Republic should not be enforced.
Submissions of appellant
46.For the appellant, Mr Beazley QC, first submitted that it would be
unacceptable to refer to the ECJ a question that could have been posed
but was not suggested at the time of the earlier reference. Further, had
the ECJ seen merit in the point, which was fully argued before them,
they would have considered it. The ECJ would not have been prepared
to permit registration of a judgment which was contrary to international
public policy.
47.There is no evidence, Mr Beazley submitted, that the appellant
obtained judgments in the Cypriot courts in order to promote or support a
political cause. He wanted his land back. I accept that submission.
48.The Republic of Cyprus is a Member State of the European Union, the
whole of the Island having acceded. Under article 22 of the Regulation,
the courts of the Member State in which immovable property or tenancies
of immovable property is situated shall have exclusive jurisdiction. The
northern part of the Island is not a separate state for the purposes of
the Regulation, or indeed for any other purpose. Under article 35 of the
Regulation, the jurisdiction of the court of the Member State of origin may
not be reviewed and the test of public policy referred to in article 34(1)
may not be applied to the rules relating to jurisdiction. The ECJ held, at
paragraph 51:
"In the case in the main proceedings, it is common ground that the land is
situated in the territory of the Republic of Cyprus and that, therefore, the
rule of jurisdiction laid down in Article 22(1) of Regulation No 44/2001 has
been observed. The fact that the land is situated in the northern area may
possibly have an effect on the domestic jurisdiction of the Cypriot courts,
but cannot have any effect for the purposes of that regulation."
49.On the merits of the issue, Mr Beazley submitted that the reasoning
of the Advocate General was correct. As the Advocate General stated,
it was in any event far from clear that registration of the judgment
would exacerbate the situation in Cyprus. To fail to enforce it would be
to permit and encourage further sales of land in the north of Cyprus
notwithstanding the title there of Greek Cypriots, it was submitted.
50.The independence, territorial integrity and security of the Republic of
Cyprus was recognised and indeed guaranteed by the United Kingdom in
the Treaty of Guarantee of 1960. Moreover, by a succession of Security
Council Resolutions, consistently reaffirmed, all states are called upon
"to respect the sovereignty, independence, territorial integrity and non-
alignment of the Republic of Cyprus" (Resolution 541 of 18 November
1983).
51.While the ECJ did not deal specifically with the requirements of
"international policy" in the context of "public policy in the Member
State" its reference, at paragraph 62, to "the absence of a fundamental
principle in the legal order of the United Kingdom which the recognition
or enforcement of the judgments concerned would be liable to infringe"
demonstrates its awareness of the need for respect for such fundamental
principles in deciding whether to approve registration and enforcement.
To extend such respect to making a decision on enforcement subject to
concepts of international public policy, inevitably nebulous in a context
such as the present, and their impact on public policy in the United
Kingdom would not, in the present context, be acceptable. The application
of the rule of law must be predictable and cannot depend on a judicial
assessment of the impact upon its relations with other states or the
welfare of other states of a decision in a Member State to enforce a
judgment, it was submitted.
52.Mr Beazley submitted that reliance on the submissions of the
Commission, cited at paragraph 23 of this judgment, to the ECJ is
misplaced. Those submissions were not accepted by the Advocate General
or by the court. Moreover, they are hedged about with qualifications.
The Commission merely "does not exclude" that article 34(1) could be
interpreted as allowing invocation of international public policy. Nor does
the Commission "exclude" the possibility that the courts of a Member
State could consider the issue. Such a public policy ground would remain
"very exceptional" and it would be for the national judge to decide
whether recognition would be "manifestly contrary" to international
public policy. In relation to the last of those submissions (Commission
submissions paragraph 113), I add the comment that article 34(1) would
require the judge also to decide whether that international public policy is
manifestly contrary to public policy in the Member State.
53.The circumstances in which an English court will not enforce a
judgment on the ground that it is contrary to international law are
extremely narrow (Kuwait Airways Corpn v Iraqi Airways Co (Nos. 4 & 5)
[2002] 2 AC 883). The claimants sought delivery up of aircraft held by
the defendants following a resolution by the Iraq Revolutionary Command
Council ("RCC"), during Iraq's occupation of Kuwait, transferring the
property to the defendants.
54.The House of Lords decided that the resolution of the RCC was of a
character that involved "flagrant violations of rules of international law
of fundamental importance" (paragraph 20). Lord Nicholls of Birkenhead
stated, at paragraph 26:
"This is not to say an English court is disabled from ever taking
cognisance of international law or from ever considering whether a
violation of international law has occurred. In appropriate circumstances
it is legitimate for an English court to have regard to the content of
international law in deciding whether to recognise a foreign law. Lord
Wilberforce himself accepted this in the Buttes case, ([1982] AC 888)
at page 931D. Nor does the 'non-justiciable' principle mean that the
judiciary must shut their eyes to a breach of an established principle
of international law committed by one state against another when
the breach is plain and, indeed, acknowledged. In such a case the
adjudication problems confronting the English court in the Buttes litigation
do not arise. The standard being applied by the court is clear and
manageable, and the outcome not in doubt. That is the present case."
Lord Steyn analysed the situation, at paragraph 114, and attached
importance to United Kingdom obligations under Security Council
Resolutions. It is not suggested that clear-cut rules of international law
require non-recognition in the present case. The submission is that the
climate for a political settlement would be impaired by action recognising
Cypriot judgments.
55.As to enforcement of judgments of the courts of a Member State, the
respondents cannot expect symmetry, it was submitted. The recognition
accorded to judgments in the Member State known as the Republic of
Cyprus cannot be reciprocated for decisions of the non-recognised entity
in the north or in decisions affecting its residents.
Conclusions on Issue I
56.As to the BRS submissions, the acknowledged powers of de facto
authorities under customary international law in my judgment add
nothing in the present context to the submissions made on behalf of the
respondents. The ECJ made its ruling in full awareness of the "practical
matters" involved in Cyprus. In so far as the submissions challenge the
judgment of the ECJ, they are doomed to failure. In so far as they rely
on customary international law in a policy context, they add nothing. The
objections to enforcement are not enhanced by reliance on customary
international law rather than resolutions of the Security Council and
actions of the Secretary General. Invoking customary international law
notions of powers of de facto authorities does not in this context override
or impinge either upon the legitimacy of the judgment of the ECJ or
the duties of United Kingdom courts in relation to article 34(1) of the
Regulation.
57.I return to the respondents' case. Counsel for the respondents have
both described the judgment of the ECJ as "thin". I do not agree. With
respect, it deals clearly and cogently with the questions put to the court.
In my judgment, this is far from being a case in which this court can take
any of the steps required to make good the respondents' case and to
decline to register the Cypriot judgments.
58.The respondents need to identify a principle of international public
policy which courts in the United Kingdom, acting of course judicially,
would recognise as requiring a conclusion that the enforcement of the
Cypriot judgments would be manifestly contrary to public policy in the
United Kingdom. I accept that there is an international consensus that
every encouragement should be given to achieving a peaceful settlement
of the long standing disputes in Cyprus and that the UN Security Council
has strongly supported efforts to achieve a settlement.
59.To proceed from that acceptance to accepting a proposition that United
Kingdom courts should treat it as manifestly contrary to public policy in
the United Kingdom to enforce the obligation under Community law to
register judgments of courts in Cyprus is a very large step. Courts are
concerned to uphold the rule of law and to do so consistently and the
court would need to assess the issues arising in the Cypriot dispute, the
merits of the political issues, both national and international, involved and
their impact on public policy in the United Kingdom. Save in exceptional
circumstances, that is not a function which courts can or should perform.
This is not a case, and is not suggested to be a case, in which plain
breaches of international law have been committed by the Republic of
Cyprus such that the decisions of its courts ought not to be enforced
in the United Kingdom. The notion of international public policy is a
much more nebulous one. International support for attempts to achieve
a settlement in Cyprus do not convert into an obligation on a United
Kingdom court to assess whether a decision of the court does or does not
support the peace process.
60.Even if, contrary to my view as to the function of the court, an
assessment were to be made, it is far from clear, as the Advocate General
recognised in her opinion, whether enforcement of the judgments
of a Cypriot court does or does not encourage the peace process. It
can cogently be argued that a refusal to recognise the lawfully made
judgments of a court in a lawfully constituted state which is a member of
the European Union would be to inflame the situation.
61.Further, the court would need to have regard to international
obligations of the United Kingdom. Security Council Resolutions, while
urging negotiations and settlement and stressing the importance and
delicacy of property issues (as does the government of the United
Kingdom), have consistently required respect for the territorial integrity
of the Republic of Cyprus under a single sovereignty. That must include
respect for the courts as the judicial arm of the sovereign state. Quite
apart from Security Council Resolutions, the United Kingdom has an
obligation under the Treaty of Guarantee to recognise and guarantee the
independence, territorial integrity and security of the Republic of Cyprus.
A United Kingdom court assessing international public policy would need
to respect these instruments and the obligations they impose on the
United Kingdom government.
62.Accordingly, the importance of the peace process in Cyprus would
need to be balanced against other international public policy concepts,
the requirement for mutual trust in the administration of justice in the
community and, perhaps more fundamentally, the subsisting obligation of
the United Kingdom, under the Treaty of Guarantee and under successive
resolutions of the Security Council which have called upon all states
to respect that "sovereignty, independence and territorial integrity". If
domestic courts were forced to make a judgment on what international
public policy requires or where the political balance of interest rests, those
obligations cannot be ignored and point towards enforcing judgments of
the courts of Cyprus.
63.There is no fundamental principle within the legal order of the United
Kingdom which the recognition and enforcement of the judgments in
question would be liable to infringe. If a further question were to be
referred to the ECJ, it is inconceivable that the court would direct the
United Kingdom as to what is "manifestly contrary" to its public policy.
Nor do I consider it to be a real possibility that the ECJ, as a judicial body,
would identify and define, in the present context and for the purposes of
article 34(1), a principle or principles of international public policy which
national courts would be obliged to consider when deciding whether to
recognise judgments of another state of the Union.
64.I respectfully agree with the opinion of the Advocate General
on this issue, clearly expressed at paragraphs 45, 46, 48, 110 and
111 (paragraphs 35 to 37 above). Considerable weight should in the
circumstances be given to that Opinion. The answer to the respondents'
submission is clear and it fails. I add that the ECJ, having stated at
paragraph 37 in Krombach in 2000 what approach is to be adopted, I do
not find it at all surprising that the court was not, on the earlier occasion,
invited to refer the present issue to the ECJ.
65.In his judgment, which I have read in draft, Lloyd LJ has set out the
substantive part of a letter of 20 July 2009 from the Minister of State at
the Foreign and Commonwealth Office on the issues in Cyprus. I agree
with Lloyd LJ's analysis of the contents of the letter. However, even if
the United Kingdom government were to express a view to the court,
first, that its policy was to attach absolute priority to not prejudicing
negotiations, and, secondly, that enforcing the Cypriot judgments would
create such prejudice, the court would be required to follow the procedure
considered in the preceding paragraphs of this judgment when making
its decision on article 34(1). The government cannot dictate to the court
what public policy in the United Kingdom, as that expression is used in an
international instrument such as the Regulation, is, and thereby direct the
court not to enforce the judgments.
66.Public policy, as contemplated in the Regulation, cannot be determined
by the current thinking of the government of the day as to what is an
expedient foreign policy. To allow that would itself be a breach of a rule of
law essential in the legal order of the United Kingdom (Krombach). There
is no sign whatever that the government has attempted or would attempt
to do that.
Issue II
Apparent Bias
67.The respondents submit that there should be a further reference to the
ECJ on the question of bias. It was submitted that the presiding judge in
the Grand Chamber which determined the case, Judge V Skouris, who is
also President of the Court ("the President"), should have recused himself.
It was submitted that the case should be referred and the ECJ invited to
answer the question whether its President should have recused himself
and whether the earlier questions should be re-determined.
68.The submission is based on contacts which occurred between the
President and Cypriot representatives before and during the court's
consideration of the case. The narrative which follows is taken from a
chronology submitted by the respondents at a late stage and to the
admission of much of which the appellant objected. Without necessarily
accepting all the detail, I would for present purposes assume that the
narrative is accurate.
69.It is not alleged that the President was biased; the allegation is that
the contacts created an appearance of bias such that the President should
have recused himself. It is acknowledged that there can be no objection
on the basis of the President's Greek nationality, notwithstanding the
close relations which exist between Greece and the Republic of Cyprus.
70.The facts relied on must be considered, it was submitted, in the
context of the acute political sensitivity of the issue before the ECJ.
Context, submitted Ms Booth QC for the respondents, is everything.
In anticipation of the Republic of Cyprus's accession to the Union, the
President, as President of the court, on 15 October 2003, received
a Cypriot delegation including the Minister of Foreign Affairs and
the Ambassador of the Republic of Cyprus to the Grand Duchy of
Luxembourg, on an official visit to Luxembourg. The delegation included
judges of the Supreme Court of Cyprus.
71.In early May 2005, the President, together with other ECJ judges,
Advocates General and the Registrar visited Cyprus. On 7 May 2005,
the President and other members of the court attended a dinner given
by the President of Cyprus. At the dinner, the President of Cyprus made
a speech in which, according to an agency report, he criticised aspects
of the Annan Plan and said that the Hellenic population of Cyprus had
rejected it because it did not genuinely seek the reunification of Cyprus.
72.The President made another visit to Cyprus on 1 November 2006.
At the Presidential Palace, the President of Cyprus conferred on him the
Makarios III Grand Cross. According to the Cyprus news agency report,
the award was conferred on the President, "due to his strong and sincere
feelings towards Cyprus and its people". The President of the Republic
is said to have praised the President of the court for "his contribution to
the protection of international and European law and for his support to
Cyprus". Since ultimately it is the appearance that counts, the perception
of the intention of the grantor of the award is relevant, it was submitted.
73.Oral submissions in this case were made to the ECJ on 16 September
2008. On 28 February 2009, the President made an official visit to
Cyprus, with the Cypriot judge in the Court of First Instance, to attend
a conference organised by the University of Cyprus. In the course of the
visit, the President met the President of the House of Representatives and
a member of the Legal Affairs Committee of the Cypriot Parliament. It was
reported that the hosts had informed the President about the workings
of Parliament, its legislative authority, and the harmonisation of domestic
laws with European laws.
74.On 13 March 2009, a delegation of MPs from the Legal Affairs
Committee of the Cypriot Parliament visited the ECJ and met the
President and the Cypriot judge. The judgment of the court was delivered
on 28 April 2009.
75.It was submitted that a rational, reasonable and objective observer
would be convinced that the award to the President created a public
connection or affinity between the President and Cyprus. By accepting the
honour, the President allowed himself to be associated publicly with the
comments made by the President of Cyprus on 1 November 2006. The
observer would have concluded that the President's close ties with the
Republic of Cyprus created an insuperable problem. The high status of the
judge involved imposed high duties upon him. Political statements made
on that occasion, it was submitted, flow into the facts and issues involved
in the case.
76.The President should have recused himself from the beginning, it was
submitted. The subsequent meetings could have reinforced the apparent
connection between the President and the Republic of Cyprus in a way
that would be seen to be capable of exerting an influence on his approach
to the case. Even if earlier contacts were acceptable, there should have
been none between the oral hearings and the delivery of judgment.
77.Ms Booth referred to the Bangalore Principles of Judicial Conduct
prepared in November 2002 and endorsed by the UN Human Rights
Committee in April 2003. The statement of principles has had an
important influence on domestic codes, including that for England
and Wales. At paragraph 3.1, it requires judges to ensure that their
conduct "is above reproach in the view of a reasonable observer" and,
at paragraph 3.2, that justice must not merely be done but must also
be seen to be done. Acceptance of an honour by a judge is permitted
provided it "might not reasonably be perceived as intended to influence
the judge in the performance of judicial duties or otherwise give rise to an
appearance of bias" (paragraph 4.16).
78.In a commentary on the principles, prepared by an expert group, it is
stated at paragraph 38(d):
"A practice whereby the Minster of Justice awards, or recommends the
award, of an honour to a judge for his or her judicial activity, violates
the principle of judicial independence. . . . on the other hand, the award
to a judge of a civil honour by, or on the recommendation of, a body
established as independent of the government of the day may not be
regarded as inappropriate, depending on the circumstances."
79.That principle has only a very limited application when, in the case
of an international court, a judge is honoured by another state. The
honour will almost invariably be conferred by the Head of State, as in the
present case, and distinctions between executive and judicial honours in a
domestic setting have little relevance.
80.The ECJ's own Code of Conduct, which entered into force on 1 October
2007, provided:
"Article 2
Integrity
Members shall not accept gifts of any kind which might call into question
their independence.
Article 3
Impartiality
Members shall avoid any situation which may give rise to a conflict of
interest."
The Statute of the ECJ, dated March 2008, provides, at article 18, that a
party may not apply for a change in the composition of the court on the
ground of the nationality of a judge.
81.On 23 June 2008, the ECtHR adopted a resolution on judicial ethics
which followed the same approach as the Code. Resolution II provides
that judges must avoid any "situation that may be reasonably perceived
as giving rise to a conflict of interest".
82.A similar issue arose, in very different circumstances, in joined cases
C-341/06P and C-342/06P Chronopost [2008] ECR 1-4777, 1 July 2008,
considered by the Grand Chamber. The court considered proceedings
before the Court of First Instance. The court held, at paragraph 47
that if a challenge to impartiality is made, and is not manifestly devoid
of merit, "the Court of Justice is obliged to check the correctness of
the composition of the formation of the Court of First Instance which
delivered the judgment t under appeal". It must be regarded "as involving
a matter of public policy which must be raised by the court of its own
motion" (paragraph 48).
83.At paragraph 54, the court stated:
"Second, there are two aspects to the requirement of impartiality: (i) the
members of the tribunal themselves must be subjectively impartial, that
is, none of its members must show bias or personal prejudice, there being
a presumption of personal impartiality in the absence of evidence to the
contrary; and (ii) the tribunal must be objectively impartial, that is to say,
it must offer guarantees sufficient to exclude any legitimate doubt in this
respect."
84.In a domestic context, the position of the fair-minded and informed
observer was considered by Lord Hope of Craighead in Helow v Secretary
of State for the Home Department [2008] 1WLR 2416, at paragraph 3:
"Then there is the attribute that the observer is 'informed'. It makes the
point that, before she takes a balanced approach to any information she
is given, she will take the trouble to inform herself on all matters that are
relevant. She is the sort of person who takes the trouble to read the text
of an article as well as the headlines. She is able to put whatever she has
read or seen into its overall social, political or geographical context. She
is fair-minded, so she will appreciate that the context forms an important
part of the material which she must consider before passing judgment."
85.In Helow, Lord Mance considered the relevance of the receipt by the
judge of controversial information. On the facts of that case, he stated, at
paragraph 55, that the recipient "was in no way endorsing or associating
herself with statements of the character presently in issue". The words
and conduct were not so extreme that the recipient might be expected to
dissociate herself by resignation.
86.Information obtained on behalf of the appellant shows that the
previous President of the ECJ, Judge Iglesias, received decorations from
a number of states and that, amongst the present membership, the
President is not alone in having honours conferred on him by states other
than his own, though those awarded have been few in number. Courtesy
visits to the ECJ have been made by distinguished delegations from other
Member States and non-Member States in recent years including a visit,
on 11 April 2005, by a delegation from Turkey, welcomed by the President
and Registrar.
87.No question of waiver arose, it was submitted, because the
respondents were unaware of the President's contacts with Cyprus. As
soon as they were aware, representations were made and there was no
response to them from the court. While the claimed lack of awareness is
surprising, given the high profile of the case, I would for present purposes
accept, without deciding the point, that there was no waiver.
Conclusions on Issue II
88.I stress that no suggestion is made of actual bias. I accept that
members of a court need also to avoid an appearance of bias. In my
judgment, there is no appearance of bias in this case. The context
is a court created by Member States of the European Union to which
their courts can refer questions for elucidation of Union law. Judges are
appointed by Member States on the basis of nationality. Mutual trust
exists in the administration of justice in the community (recital 16 to the
Regulation) and, even when Member States are in dispute, no objection to
the presence of a judge can be taken on the ground of nationality (article
18 of the statute).
89.Judges, and the states from which they come, will inevitably have
closer links with some Member States than with others. No appearance
of bias is created by the presence in the court hearing the case, even as
President, of a judge from a state known to have close relations with the
state the decisions of whose courts are the subject of debate.
90.As President of the court, the President can be expected to wish to
promote knowledge of the court and its workings in Member States,
and in particular new Member States. Making official visits and receiving
visiting delegations is a valuable and appropriate part of the office of
President. That approach is likely to be reciprocated by Member States,
including new Member States. Further, any commendation of the Republic
of Cyprus in the presence of the President must be seen in the context of
numerous international instruments calling for respect for its territorial
integrity and independence. In that context, commendation is of the
sovereign entity as a whole.
91.In my judgment, no appearance of bias arises from the visit of the
President, together with other judges, to Cyprus in May 2005. It was
aptly stated in the ECJ press release that "The Court of Justice maintains
continuous relations with the supreme institutions of the Member States
and this visit is taking place within that context". No appearance of bias
arises from the political nature of a speech said to have been made by
the President of Cyprus during the visit. There is no suggestion that
the President adopted or approved the sentiments expressed. The
same applies to the President of Cyprus's speech when the honour was
conferred on the President in November 2006. The reasonable informed
observer would have no fears that the remarks might influence the
President or other judges in their judicial capacity. Nor does the fact that
the honour was conferred by a Head of State, rather than by a head of
the judiciary, create a fear that the President might be influenced in his
judicial capacity. Such honours will normally be conferred by the Head of
State and concern based on a distinction between executive and judicial
honours (Bangalore 38(d)) has little relevance.
92.The purpose of the President's visit to Cyprus in February 2009 was
to attend a conference organised by the University of Cyprus. Neither
his presence, nor the company he kept, creates an appearance of bias
in the President of the judicial organ of the Union which is concerned to
promote in Member States of the Union understanding of its role. His
meeting, in March 2009, with a delegation of Cypriot MPs to discuss the
role of the court does not demonstrate an attempt by the delegation to
influence the President, still less does it create an appearance that he
may be influenced by the delegation. It was the role of the court that was
under discussion and not political issues or particular cases.
93.The present case was to be decided, and was decided, by a Grand
Chamber according to legal principles. The perception of the reasonable
and informed observer would be, as is my perception, that there was
no real possibility that the President would be influenced by the honour
he received or by his other contacts. The judgment of the court is in
no way tarnished by those contacts, considered either individually or
cumulatively. The judgment may be applied and no further reference is
appropriate.
Result
94.I would allow this appeal and reinstate the Orders of Master Eyre.
Lord Justice Lloyd :
Introduction
95.I agree with Pill LJ that Mr Apostolides' appeal should be allowed, and
Master Eyre's orders for the registration of the orders made in Cyprus
should be reinstated. I do not wish to add anything to what he has said
either on the question of apparent bias (except for one incidental point)
or in relation to the submissions made on behalf of the British Residents'
Society. I will add some observations of my own on the public policy issue
newly raised on behalf of Mr and Mrs Orams.
96.Council Regulation No 44/2001 is at the heart of this case in legal
terms. As is often the case, it is useful to bear in mind some of the
recitals in the preamble to the Regulation. One theme that emerges from
these is the need for rapid and simple procedures for the recognition and
enforcement of judgments. Thus recital (2) is as follows:
"(2) Certain differences between national rules governing jurisdiction
and recognition of judgments hamper the sound operation of the internal
market. Provisions to unify the rules of conflict of jurisdiction in civil and
commercial matters and to simplify the formalities with a view to rapid
and simple recognition and enforcement of judgments from Member
States bound by this Regulation are essential."
97.In turn, recitals (17) and (18) are as follows:
"(17) By virtue of the same principle of mutual trust, the procedure for
making enforceable in one Member State a judgment given in another
must be efficient and rapid. To that end, the declaration that a judgment
is enforceable should be issued virtually automatically after purely formal
checks of the documents supplied, without there being any possibility
for the court to raise of its own motion any of the grounds for non-
enforcement provided for by this Regulation.
(18) However, respect for the rights of the defence means that the
defendant should be able to appeal in an adversarial procedure, against
the declaration of enforceability, if he considers one of the grounds
for non-enforcement to be present. Redress procedures should also
be available to the claimant where his application for a declaration of
enforceability has been rejected."
98.Coming to the substantive provisions of the Regulation, Chapter III
deals with recognition and enforcement. Article 33.1 is as follows:
"A judgment given in a Member State shall be recognised in the other
Member States without any special procedure being required."
99.Article 34.1, on which the public policy argument raised on behalf of
the respondents turns, is as follows:
"A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member
State in which recognition is sought;"
100.Article 35 precludes any review of the jurisdiction of the court of
the member state of origin, subject to irrelevant exceptions. Article 36
prohibits any review of the substance of the foreign judgment, under any
circumstances.
101.The procedure for recognition and enforcement, in the first instance,
does not involve any participation by the party against whom the
judgment was given: see article 41. However, the decision to enforce
or recognise, or not, is appealable by either party under article 43. The
appeal to Jack J was brought under that provision. Article 44 allows for
the judgment on such a first appeal to "be contested only by the appeal
referred to in Annex IV". Annex IV allows, as regards the UK, "a single
further appeal on a point of law". Article 45 provides that the court with
which an appeal is lodged under article 43 or article 44 "shall refuse or
revoke a declaration of enforceability only on one of the grounds specified
in articles 34 and 35. It shall give its decision without delay."
102.The effect of article 44 is that the present appeal is final. A further
appeal to the Supreme Court of the United Kingdom is not permitted. On
behalf of Mr and Mrs Orams Mr Green relied on this fact in support of his
argument in favour of a second reference to the ECJ. He reminded us that
by article 267 of the Treaty on the Functioning of the European Union (the
Lisbon Treaty), equivalent to the former article 234, where a question
such as the present, concerning the interpretation of the Regulation, "is
raised in a case pending before a court or tribunal of a Member State
against whose decisions there is no judicial remedy under national law,
that court or tribunal shall bring the matter before the Court".
103.The ECJ in its judgment on the reference in the present case, at
paragraph 59, emphasised how restricted are the circumstances in which
a judgment can properly be denied recognition under article 34.1. The
paragraph is set out in the judgment of Pill LJ at paragraph 34.
104.In that passage the court relied in particular on its previous decision
in Krombach v Bamberski Case C-7/98, under the Brussels Convention,
previously in force, in which the court had referred to the purpose of the
Convention as being to facilitate, to the greatest possible extent, the free
movement of judgments by providing for a simple and rapid enforcement
procedure (paragraph 19). It also stressed that the provision which is now
article 34.1 "must be interpreted strictly inasmuch as it constitutes an
obstacle to the attainment of one of the fundamental objectives of the
Convention" (paragraph 21) so that recourse is to be had to this provision
only in exceptional cases. I do not need to repeat the further relevant
passages from that judgment to which Pill LJ has referred in paragraph
35.
105.It follows that, in order to succeed in their argument under
consideration, Mr and Mrs Orams must demonstrate that there is a
relevant rule of law regarded as essential in the legal order of the United
Kingdom or a relevant right recognised as being fundamental within that
legal order, and that the recognition and enforcement of the judgments
would constitute a manifest breach of that rule of law or that right.
106.In the light of that, it is instructive to consider the course of the
present proceedings. Mr and Mrs Orams appealed against Master Eyre's
orders on a number of grounds, but these did not in terms include any
reference to article 34.1 of the Regulation. They were successful in their
appeal, on two grounds. The first was that the effect of protocol 10 to the
Act of Accession, as regards the suspension of the acquis communautaire
in the northern part of Cyprus, was that the Regulation did not apply at
all "in relation to matters which relate to" the northern part of Cyprus, so
that Mr Apostolides could not rely on it to secure the recognition of his
judgments. The second arose from the circumstances in which service of
the original proceedings was effected and the time that was permitted for
entry of an appearance to the proceedings.
107.Mr Apostolides appealed to this court. Mr and Mrs Orams put in
a Respondent's Notice in which they sought to rely on two reasons,
additional to those upheld by the judge, for dismissing the appeal. Neither
of these was expressly based on article 34.1, but the first relied on the
proposition that the judgments were unenforceable, and when this was
later elaborated, it came to be formulated by reference to article 34.1.
The court referred questions to the ECJ, of which Pill LJ has set out the
first three, the third having a specific reference to article 34.1.
108.In their respective written submissions both Mr and Mrs Orams
and the European Commission mentioned a public policy such as is now
alleged. For Mr and Mrs Orams, after a passage describing the supposed
policy against recognition of unenforceable orders (paragraphs 5.9 to
5.14), a second ground of public policy was asserted which, it was said,
precluded enforcement in the present case, based on the protocol itself,
requiring the courts of member states to refrain from becoming embroiled
in the Cyprus dispute, and precluding litigants such as Mr Apostolides
from using the courts of member States "as a mechanism to further
their political objectives". The Commission, for its part, addressed such
a policy in a section of its written submissions (paragraphs 102 to 115)
from which Pill LJ has quoted the most material passages in his paragraph
23. As appears from paragraph 112, there cited, the proposition was put
forward in a somewhat tentative manner and formulated in rather general
terms, to the effect that allowing recognition of the judgment "might
jeopardize the efforts towards restoring civil peace and reconciliation
on the island and eventually a comprehensive settlement of the Cyprus
problem".
109.Advocate General Kokott referred to the argument for Mr and Mrs
Orams at her paragraph 43, and commented that it could not have the
effect of disapplying the Regulation whenever a judgment mentions the
northern area of Cyprus. At that stage she was addressing the first of
the referred questions. When she came to deal with the third question,
she noted the absence of any reference to this policy in the questions
referred by this court, and the absence of any participation by the UK
government in the proceedings, from which the court lacked reliable
information, whether from the court or from the government, as to
whether the supposed policy is to be regarded as part of the public policy
of the UK. In case the court wished to consider the point, despite the
absence of a referred question mentioning it, she offered her comments
on the point. In doing so she made a reference on which Mr Green relies,
at paragraph 109 (quoted by Pill LJ at paragraph 18), to "requirements
of international policy regarding the Cyprus problem" having "to a certain
extent acquired legally binding status" through UN Security Council
resolutions, and to an "obligation on States to refrain from any action
which might exacerbate the Cyprus conflict". However, in her conclusion
on the point, at paragraphs 110-111 (see Pill LJ's quotation at paragraph
40) she came down firmly against the idea that, even if there is such
a policy, it could amount to a sufficient reason not to recognise the
judgments in question.
110.The Court did not mention this suggested policy in its judgment.
111.Mr Green's position on this point was expressed succinctly at the start
of his submissions. He argued that there is substantial support for the
existence and relevance of such a public policy, and that it can be seen
in the written submissions of the Commission and in paragraph 109 of
the Advocate General's opinion. The policy would preclude recognition of
the judgment because that would exacerbate the conflict and make it the
more difficult to resolve by international and diplomatic negotiation. At
any rate, he argued, whether such a policy exists, and if it does what is
its effect, is a solid and respectable point, with substantial support. It was
argued on the first reference but was not decided by the court. It cannot
be said to be acte clair, such that there is no question of European law
arising. The question therefore needs to be referred and, because of the
finality of the appeal to the Court of Appeal, it must be referred.
112.Mr Green also submitted that, to the extent that there has been an
indication of the attitude to the UK Government on the question of policy,
it supports his contentions. He relied on a letter from Baroness Kinnock,
then Minister for Europe at the Foreign and Commonwealth Office, dated
20 July 2009. This appears to have been written in response to a letter
to the Prime Minister enclosing a petition on the question of property in
Northern Cyprus. Because Mr Green sought to place significant reliance
on the letter, whereas Mr Beazley suggested that it provided no support
for the existence of the suggested policy, it is convenient to set out the
substantive part of the letter in full:
"I appreciate the Turkish Cypriot community's deep concern regarding
the potential implications of the recent European Court of Justice ruling.
I understand that many Turkish Cypriots are worried that the case
may have a negative impact on both the Turkish Cypriot economy and
undermine the wider settlement process. It is not in the UK's interest to
see either of these possibilities realised.
However, whilst this case has potentially wide implications, it is neither
appropriate nor possible to prevent individuals seeking legal redress
through the courts. Now that the ECJ has ruled on the central points of EC
law, the matter reverts to the English Court of Appeal, which must decide
how to proceed, including on the question of public policy. It would not be
appropriate for Her Majesty's Government to seek to intervene in these
ongoing legal proceedings.
Her Majesty's Government remains committed to upholding the
established UN parameters for a settlement of a bi-zonal, bi-communal
federation based on political equality, as defined in the relevant Security
Council resolutions. This is why I believe that the complex issue of
property can only be fully resolved within the context of a comprehensive
settlement. Private legal proceedings are no substitute for a negotiated
solution, which balances the interests of both communities.
I was consequently reassured by the Greek Cypriot and Turkish Cypriot
leaders' statements after the ECJ ruling that they remained committed
to the negotiation process. Whatever the difficulties, it cannot be in the
interest of either community to let external events deflect them from the
negotiation process.
There now exists a unique opportunity to solve the Cyprus problem. With
political will and compromise on both sides, I believe the two leaders
can agree a settlement plan, which covers all aspects of the Cyprus
problem, including property. Such a settlement would remove the existing
uncertainty, generate important economic benefits and allow Turkish
Cypriots to take their rightful place as full EU citizens. The European
Union remains committed to this goal."
113.Mr Green stressed the last two sentences in the third paragraph
quoted above, as to the need for a comprehensive settlement in order
fully to resolve the complex issue of property, balancing the interests of
both communities, for which private legal proceedings are no substitute.
However, the letter does not say that private legal proceedings cannot or
should not be brought or pursued, and it maintains a careful neutrality
as to any issue arising in the current proceedings, concerned with
recognition and enforcement. The Government could have sought to
intervene, at this stage, just as it could have taken part as of right in
the proceedings before the ECJ. Plainly it did not, and does not intend
to do so. I agree with Mr Beazley's comment on this letter, namely
that it provides no support for the suggestion that the Government
regards it as a matter of public policy that no step should be taken which
would jeopardise the resolution of the overall problem. On the contrary,
while emphasising the Government's support for and commitment to
a comprehensive negotiated solution, it manifestly leaves open the
possibility of individual proceedings, regarding it as "neither appropriate
nor possible" to seek to prevent any such proceedings being brought or
pursued.
114.If, then, the UK Government does not provide any support for the
existence of a fundamental public policy such as Mr Green asserts, what
other reason is there for supposing that such a policy does exist, which
should preclude the enforcement of the Cypriot judgment in the UK?
115.Mr Green relies on the UN resolutions over the years, and the terms
of the tenth protocol itself. The most relevant provisions in the protocol
have been quoted by Pill LJ at paragraph 16. Mr Green submitted that it
is highly unusual for a European Union document of this kind to include
a reference such as that which appears in the first recital to the efforts
of the then UN Secretary General, Mr Annan, and that this showed
that particular significance was to be attached to the peace process of
which his efforts, summarised by Pill LJ at paragraph 21, represented a
significant part at that time.
116.Next, as already mentioned, he relied on the Advocate General's
observations in paragraph 109 of her opinion as regards the legally
binding status of the requirements of international policy regarding the
Cyprus problem, while arguing that the Advocate General had then turned
her back on that proposition, when she described it as extremely doubtful
whether the goals of the policy could be regarded as a fundamental policy
within the scope of article 34.1. For my part, I do not find the expression
of either of those opinions in any way surprising. On the one hand, UN
Security Council resolutions have a binding effect on members of the
UN. On the other, as such they operate at a high level of generality and
affect the policies of Governments on the international plane, and they
are not fit or suitable to be applied directly as part of the domestic law of
particular states. That is the point made at paragraph 111 of the Advocate
General's opinion. It also seems to me to be exemplified by the terms of
Baroness Kinnock's letter which I have already set out. That letter states
the Government's commitment, at the international level, to seeking a
comprehensive settlement, as the only sensible solution, but refrains from
suggesting any possible application of that aim and goal in relation to
individual private legal proceedings such as the present. In so doing, it is
consistent with an acceptance of this country's international obligations
arising from Security Council resolutions (as well, of course, as from the
Treaty of Guarantee, mentioned by Pill LJ), but also with the proposition
that the binding effect of the resolutions, just as of the Treaty, is limited
to the realm of international governmental action and does not have any
impact on private legal proceedings.
117.Mr Green argued that even the limited support afforded by the
Advocate General's opinion, at paragraph 109, favoured the view that
there is a serious question at issue which requires to be determined
by the ECJ. He also submitted that, as regards her conclusion on this
point, she disagreed with the submissions of the Commission and that
this disagreement supports the proposition that the point is arguable
and not acte clair. I do not accept that argument. The Commission did
raise the issue but in a tentative way ("does … not exclude", in paragraph
112) and without formulating any statement of the policy. It is also
noteworthy that, consistently with previous decisions of the court, the
Commission suggested that the decision whether enforcement would be
manifestly inconsistent with a relevant public policy was one which should
be taken by the national judge in the courts of the relevant member state
(paragraph 113). It is therefore all the more unfortunate that, although
all the relevant supporting material was at hand throughout, those then
advising Mr and Mrs Orams did not propose and assert such a policy at
the stage of the appeal to Jack J, which was the time when issues as
to the existence and terms of a relevant public policy, and its effect in
relation to the recognition or enforcement sought, were to be determined,
nor did it occur to the judge at that stage, nor to anyone concerned at the
stage of the first hearing in the Court of Appeal that there might be such
a policy and that it might be relevant to the case.
118.I have come to the same conclusion as that reached by Pill LJ on
this point. There is no public policy applicable in the UK to which the
recognition and enforcement of the judgment of the Cypriot court would
be manifestly contrary. I am able to accept that the Government of the
UK is bound by the relevant UN Security Council resolutions to do what it
can to assist in achieving a comprehensive settlement of the problem. A
public policy relevant to article 34.1 must, however, be far more concrete
and precise in its content and effect than the international obligation
which is involved in the present case. It seems to me that the Advocate
General's opinion deals with the matter correctly, and gives no support
for the contentions advanced on behalf of Mr and Mrs Orams. Even the
Commission's written submissions provide very little support for those
contentions, and what encouragement they may have given does not, in
my judgment, survive the Advocate General's opinion.
119.For those reasons, and for the reasons more fully expressed by
Pill LJ, I have come to the conclusion that there is no substance in the
argument that recognition and enforcement of the judgments would be
contrary to a public policy operating in the UK so as to be excluded under
article 34.1. The position is acte clair in favour of Mr Apostolides and a
further reference to the ECJ is neither necessary nor appropriate, even
though no further appeal is possible.
120.Mr Green submitted that, although no further appeal was possible
on the point under article 34.1 of the Regulation, the same might not be
true as regards the point concerning apparent bias. It is not necessary
to decide this, but I have some difficulty in seeing how there could be
a difference according to the nature of the point. The proceedings as a
whole arise under the Regulation. The Regulation allows a first appeal
(to the High Court) and a single further appeal on law. The appeal to this
court is that appeal. That being so, I do not see how there could be a
further appeal even if only on the apparent bias point.
121.The importance of this as regards this court is that it seems to me
that we are the final court for this purpose as well as for the points
arising directly under the terms of the Regulation, and at any rate that
we must proceed on the basis that a further appeal may not be possible.
Accordingly, if there is a point of European law which is not acte clair,
we must refer it to the ECJ on this aspect, as also under the Regulation.
However, I agree with Pill LJ, for the reasons that he gives, that there is
no such point, that no reference is necessary or appropriate on this point,
and that Mr Apostolides' appeal should be allowed without more.
Sir Paul Kennedy :
122.I agree that the appeal should be allowed for the reasons given by Pill
LJ.