The ECJ’s Judgment in Apostolides v. Orams encompasses a dual significance. On the one hand it extends jurisprudence on the interpretation of pivotal provisions of Regulation 44/2001, which are essential to the proper application of the European regime of ‘conflict of laws’, while on the other hand it also sheds generous light over the application of Community Law as regards the anomalous situation subsisting on the island of Cyprus. As is well-known, the status quo in Cyprus has been accommodated in primary Community Law for the purposes of the Republic’s accession to the EU by virtue of Protocol 10 to the respective Act of Accession, the provisions of which were among the Community Law elements that the ECJ embarked on interpreting in its said Judgment.

Professor Koutrakos’ editorial titled ‘Who wants to be a Pandora? The Court of Justice and the Cyprus Problem’ contains some scrutinizing comments over the Court’s cautious approach. At the same time, the said article can be seen as attributing to the Judgment a potential effect of operating to the detriment of the Turkish Cypriot community’s economy and even towards the same community’s willingness to participate constructively in the negotiation currently under way on the island. These two views cannot be reconciled, since the ECJ could not have been more cautious in its approach and any grievances on behalf of the Turkish Cypriot community can only be attributed to their (and Turkey’s) refusal to conform to the principles of International Law.

The Court could indeed not have been more cautious while at the same time preserving its role as ensuring high levels of interpretation and application of Community Law. Nevertheless, the Court’s duties and the Rule of Law can never be circumvented by any political process, whatever its prospects or results, as was the case with Cyprus’ accession to the EU just days following the ill-fated efforts for a solution in 2004. The Court’s duties are towards the Community and its competence emanates from the legal order established within it.

In Apostolides, it is evident that the Court, while providing definitive responses to the questions referred to it by the English Court of Appeal, applied a stringent interpretative approach and did not depart from a literal interpretation of the legal instruments examined as relevant. However, the ‘cautiousness’ of the ECJ in dealing with the issues before it, particularly when examining the provisions of Protocol 10, cannot be identified as being a departure from its usual teleological approach. Quite the contrary, the Court merely interpreted Article 1 of Protocol 10 in a manner which primarily sought to bring its effects in alignment with that instrument’s aims, namely the creation of legal certainty as the suspension of application of the acquis communitaire in the territory outside the control of the Government of the Republic of Cyprus. At the same time, the Court went a step further in upholding that the matter of control by the Cypriot Government of part of the Republic’s territory does not preclude the latter’s courts – i.e. the courts of the only valid Subject of International Law on the island – from exercising their jurisdiction and applying Community Law over land which is located in that territory.

The Court was correct to address the matter exclusively in the private sphere. The main proceedings in Apostolides v. Orams were commenced and pursued between individuals concerning a private dispute. The evolvements in proceedings before the European Court of Human Rights, referred to in the Commission’s submission and A-G Kokkot’s Opinion for the same case, were rightfully not taken into consideration by the ECJ as they concern claims against a State (Turkey) on behalf of individuals, for infringements of rights enshrined in the Convention upon which the ECHR derives its jurisdiction. Whether the ECHR shall eventually hold the ‘commission’ established in the occupied territories by Turkey to be an adequate and effective remedy in respect of the infringements of rights protected under the Convention, that should not be a matter connected to Apostolides’ claims for damages against the Orams couple for unlawful possession of land and the former’s claims for delivery up of and restoration to that land.

By justifying its approach through the autonomous Community interpretation of ‘civil and commercial matters’, as formulated in numerous cases in the past(1), the ECJ did not succumb to consider the irrelevant sphere entailed in the proceedings before the ECHR. Only in the case in which the Court would have concluded that the main proceedings could not fall under the ‘civil and commercial’ context – and would therefore fall outside the material scope of Regulation 44/2001 – would the ECHR jurisprudence regarding the Cyprus property issues become relevant in any way.

The Judgment should not be viewed as an addition to the ‘arsenal’ of the Greek Cypriots’ legal arguments. As with every other major legal advantage, the Greek Cypriot side cannot be reasonably expected to use such as the exclusive means of resolving one or more aspects of the unacceptable status quo in Cyprus. On the contrary, the Greek Cypriot side, despite its prominent legal supremacy when the two communities (or Turkey and Cyprus) are viewed in a confrontational context, has by its own political will elected to become engaged in a political process to resolve the Cyprus Question. This is undisputedly evidenced from the 1977 and the High-Level Agreement between President Makarios and Rauf Denktash to the latest negotiations between President Christofias and Mehmet-Ali Talat.

The Judgment upholds all previous case-law on crucial provisions of Regulation 44/2001. It cannot be characterised as including an intention to be detached from the political process, namely the negotiations commenced in October 2008 between the two communities on the island, which is either based on an effort not to upset balances or derives from the Court’s overcautious approach. Any view rendering the Judgment’s detachment from the political process in Cyprus as being an omission of the ECJ would certainly be disregarding the fact that law and politics should be kept apart in Cyprus, otherwise negotiations would never have commenced in the first place. In that context, the ECJ also exhibited the necessary ‘creationist’ approach in rendering its ruling. The Court remained silent on matters beyond its role and competence and handed down a crystal-clear Judgment that, when placed in the wider context, is unintentionally supportive of the political process, as it pinpoints the gigantic legal irregularities surviving in Cyprus, comprehensively unsolvable in any Court of Law.

(1)  See, eg, Case 814/79, Ruffer [1980] ECR 3807; Case C-266/01 Preservatrice fonciere TIARD [2003] ECR I-4867; Case C-292/05, Lechouritou and Others [2007] ECR I-1519).