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).

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Litigation, as a route for pursuing property rights, cannot but have highly political effects. This is not despite of litigation being a ‘detached’ process – it is exactly because the law is never politically neutral, more so in the case of Cyprus where the ‘law’ on both sides of the divide occupies a contested terrain. The impact of this lack of detachment in property litigation is starkly shown by the reception of cases like Tymvios v. Turkey that do not promote ‘the national cause’. Considering that a number of lawyers have already refused to represent litigants like Tymvios thus far, it would seem that some litigation routes are not actually pursuable in Cyprus. Ironically, this non-pursuability is also the best argument to counteract fears, relating to the Apostolides case, that Turkish-Cypriots living in Greek-Cypriot properties in the north might one day be sued in Republic of Cyprus courts. Would the courts be prepared to rule against somebody who has been uprooted from the south and in whose original property another Greek-Cypriot refugee now lives? And if not, where is the line of separation between that Turkish-Cypriot refugee and the Orams? Through the various shades of grey between these two extremes, my contention is that litigation becomes gradationally difficult to pursue.
And yet, whatever arguments may be posed to calm fears that Apostolides-like litigation will not pit Greek-Cypriot against Turkish-Cypriot in some future successor case, there are perceptible effects on the level of official politics as well as public perceptions. Thus, Talat’s threat to walk out of the negotiations might have remained a threat, may have even damaged his credibility in making threats, but it did in the meantime expose the fragility of a negotiation process that for the last year remains largely hidden from the media and the public, some claim for good reason. At the same time, it did little to calm fears felt by Turkish-Cypriots of various ‘grey’ statuses, including repatriating British-Turkish-Cypriots, Turkish-Cypriot second-home owners or second-hand property users, and so on.
It is my contention that the ‘hope’ in Pandora’s box that property litigation in Cyprus can never unlock is that individuals can attain legal solutions for peace that politics refuses. This is why, sadly, at the end of the Loizidou victory, and probably at the end of a favourable outcome in the Apostolides case, neither of the owners will enjoy, in a material sense, their right to enjoyment of their properties before a political agreement is reached.

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To describe the above context as fraught with problems is an understatement. It is in this context that the Grand Chamber of the Court of Justice rendered its judgment of April 28, 2009 in Apostolides (C-420/07). The central question was the following: is a judgment of a Cypriot court about property in the northern part of the island where the Republic of Cyprus does not exercise effective control enforceable by the courts of other Member States? The case was about land owned by the Orams, a couple of British citizens who had bought it in Kyrenia, the northern part of Cyprus. The original owner of the property was a Cypriot citizen who was forced to abandon it in 1974, following Turkey’s military intervention. Having obtained a judgment by a Cypriot court, confirmed on appeal by the Cypriot Supreme Court, Mr Apostolides sought to enforce it in the United Kingdom by relying upon Regulation 44/2001 on jurisdiction and the recognition of enforcement of judgments(2). The High Court’s decision to turn down his request was challenged by Mr Apostolides before the Court of Appeal which, then, made a reference to the Court of Justice. Whilst the whole of Cyprus has acceded to the European Union, Protocol No.10, which is annexed to the 2003 Accession Treaty, suspends in Art.1 the application of the acquis communautaire in those areas of the island where the Government of the Republic of Cyprus does not exercise effective control. What is the effect that this state of affairs has on the application of Regulation 44/201?

The Court points out the exceptional nature of the suspension of the acquis and the need for it to be interpreted strictly. It, then, states that the judgment whose recognition gave rise to the reference was given by a court sitting in the Government-controlled area, where the application of the acquis was not suspended. This was despite the fact that the judgments concerned land situated in the northern area: on the one hand, this does not nullify the obligation of courts in Member States to apply Regulation 44/2001 to judgments given by courts in the Government controlled area and, on the other hand, it does not mean that that Regulation should be applied in the northern area. Once the applicability of Regulation 44/2001 is affirmed, the Court deals with questions about its application by putting forward a similarly literal interpretation: the conditions for refusal of recognition by a national court of a judgment rendered by a court of another Member State should be interpreted strictly; Regulation 44/2001 does not enable national courts to refuse the enforceability of a judgment by a court of another Member State on the basis of practical difficulties about its execution; only the violation of a fundamental principle of the legal order of the United Kingdom by the Cypriot court would justify the refusal by the former to enforce the latter’s ruling. The tenor of the ruling in Apostolides is governed by a strict construction of Art.1 of Protocol 10 and Regulation 44/2001, and a distinct reluctance to depart from the literal interpretation of the wording of the above rules.

This approach also underpinned a series of previous judgments which the Court delivered on trade in products originating in the north part of Cyprus. In the Anastasiou litigation(3), the Community rules on the origin and phytosanitary documents accompanying produce originating in the northern part of Cyprus were interpreted strictly and applied almost mechanically(4). It is interesting that an institution which has often been reproached for engaging in a creative construction of EC law should be so keen to be as faithful as possible to the wording of the rules which it has been asked to interpret. However, the cautious approach adopted in Apostolides by no means renders the Court beyond controversy. On the one hand, there is a process for the settlement of property disputes in northern Cyprus set out by the administration in the area which has been deemed by the European Court on Human Rights to meet, in principle, the ECHR requirements about an adequate and effective remedy (5). Whilst this point was made by the Commission and addressed by A.G. Kokott, the Court did not mention that possibility at all, instead focusing on the nature of the dispute as between individuals. On the other hand, the judgment is seen in some quarters as complicating the negotiations between the two parties which commenced in October 2008, perhaps encouraging similar actions which might undermine the economy of north Cyprus or make the Turkish Cypriot community consider leaving the negotiating table(6).

The interpretation of the suspension of the acquis cannot be devoid of legal and political implications. And yet, an effort to address the above issues on the basis of a different interpretation of Protocol 10 and Regulation 44/2001 would have placed the Court at the very centre of a most controversial conflict. Therefore, the strictly literal interpretation of the relevant EC rules enabled Europe’s judges to respond to this type of political sensitivity by adopting as detached an approach as possible. To have responded to the reference in another way would have been tantamount to dealing with a box which Pandora herself would be loath to open.

(1) Regulation 866/2004 [2004] OJ L206/51. See N. Skoutaris, “The application of the acquis communautaire in the areas not under the effective control of the Republic of Cyprus: The Green Line Regulation” (2008) 45 C.M.L. Rev. 727.

(2) [2001] OJ L12/1.

(3) R. v Ministry of Agriculture, Fisheries and Food Ex p. SP Anastasiou (Pissouri) Ltd (Anastasiou I) (C- 432/92) [1994] E.C.R. I-3087; [1995] 1 C.M.L.R. 569; Anastasiou II (C-219/98) [2000] E.C.R. I-5241; [2000] 3 C.M.L.R. 339; Anastasiou III (C-140/02) [2003] E.C.R. I-10635.

(4) See P. Koutrakos, “Legal issues of EC-Cyprus Trade Relations” (2003) 52 I.C.L.Q. 489, and S. Laulh´e Shaelou, “The European Court of Justice and the Anastasiou Saga: Principles of Europeanisation through Economic Governance” (2007) 18 E.B.L.R. 619.

(5) Xenides-Arestis v Turkey (46347/99) (2007) 44 E.H.R.R. SE13 ECtHR, along with Demades v Turkey (16219/90), judgment of April 22, 2008, and Michaelidou et al v Turkey (161613/90), judgment of April 22, 2008.

(6) Financial Times, April 28, 2009.

This Editorial Article was first published in 34 E.L. REV. June (2009).

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