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Content Downloaded from Heinonline Citations: 48 ILM 788 2009 DATE DOWNLOADED: Tue Sep 28 16:09:54 2021 SOURCE: Content Downloaded from HeinOnline Citations: 48 I.L.M. 788 2009 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://hn3.giga-lib.com/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information INTRODUCTORY NOTE TO THE EUROPEAN COURT OF JUSTICE (GC): APOSTOLIDES V. ORAMS BY THOMAS D. GRANT* [April 28, 2009] +Cite as 48 ILM 788 (2009)+ Introduction With this judgment, the European Court of Justice ("ECJ") paves the way for enforcement in the United Kingdom of a Cypriot court judgment with respect to property owned (or occupied) in the part of Cyprus outside the effective control of the Government of the Republic of Cyprus. Regulation (EC) No. 44/2001 provides for the mutual recognition and enforcement of judgments in civil and commercial matters in European Union (EU) Member States. Since the accession of Cyprus to the EU on May 1, 2004, both the United Kingdom and Cyprus are Member States. However, the Act enumerating the specific conditions on which Cyprus would become a Member State suspended application of the acquis communautaire in "those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control." Very broadly speaking, although the case giving rise to ECJ proceedings is not a public law case but a private dispute between individuals,' Apostolides v. 0 rams is consistent with the international public policy determination that the purported creation of a Turkish Republic of Northern Cyprus (TRNC) is to be rejected as an unlawful and invalid act. The judgment also makes clear that national courts in the European legal order determine the scope of their own jurisdiction, and that their determinations in that regard are transportable, by way of mutual recognition and enforcement, to the courts of other EU Member States. Historical and Factual Background Civil strife began to disrupt public order in Cyprus not long after independence in 1960. The situation worsened in the early 1970s, and Turkey invaded the northern part of the island in 1974 on grounds that the Turkish community required protection in the face of escalating violence. The Security Council disapproved the invasion and referred to it as a threat to peace and security. 2Significant population transfers between the northern part of Cyprus and the territory that remained under the effective control of the Republic of Cyprus resulted in the near- total segregation of Greek Cypriots from Turkish Cypriots. Mr. Apostolides, like other Greek Cypriots leaving the north, vacated his property. In 1983, Turkish Cypriot authorities located in the part of Cyprus outside central government control declared independence of a 'Turkish Republic of Northern Cyprus' (TRNC). The Security Council called on States not to recognize any State in Cyprus other than the Republic of Cyprus. 3 In 2002, the Orams, a British married couple, purchased some of the land that Mr. Apostolides had left in the 1970s and built a vacation home. In the meantime, an attempt to settle the political dispute in Cyprus by establishing a new federal framework for the island failed when Greek Cypriot v*oters rejected the so-called Annan Plan in a referendum on April 14, 2004.~ Cyprus nevertheless was invited to accede to the European Union, Protocol 10 on Cyprus being attached to the Act of accession to reflect the reality that the Republic of Cyprus does not exercise effective control in the north. Notwithstanding the continued lack of a final settlement, one aspect of the status quo changed after the Orams' entered Cyprus: the movement of persons was liberalized between the part of Cyprus under effective control of the Republic and the northern area. 5 Apostolides visited the Orams' in northern Cyprus and eventually instituted proceedings against them in the district court of Nicosia-a court of the Republic of Cyprus. In the district court proceedings, Apostolides sought, inter alia, repossession of his land and removal of the Orams' vacation home. Issues concerning effectiveness of process arose, but the Republic of Cyprus court adopted judgments in favour of Apostolides. Of course, the court, like public authorities of the Republic in general, had no direct effective power in northern Cyprus. Apostolides instead sought to enforce the judgments in his favor in an English court. A Master of the High Court of Justice (England and Wales), Queens Bench Division, held that the Cypriot judgments were enforceable in England pursuant to Regulation (EC) No 44/2001.* The Orams' challenged the order, and the High Court set it aside. 7 Apostolides appealed, and the Court of Appeal (England and Wales) referred the matter to the EC!J. * Senior Research Fellow, Wolfson College, University of Cambridge; Senior Associate, Lauterpacht Centre for Interna- tional Law. 20091 2009] ~INTRODUCTORYNOTE TO THE EUROPEAN COURT OF JUSTICE (GC) AposToLIDESV. ORAMS78 789 The ECJ's Legal Approach The ECJ determined that the suspension of the application of the acquis communautaire in the north of the country did not preclude application of Regulation (EC) No 44/2001 to a judgment adopted by a Republic of Cyprus court seated in territory where the Republic did have control. The Court also held that no part of the Regulation authorized the court of a Member State to refuse recognition or enforcement of the Republic of Cyprus court's judgment. Finally, the Court found that the Orams' challenge based on defective service of process did not give English courts a basis to refuse recognition or enforcement. In determining that English courts have no basis to refuse recognition or enforcement of the Cypriot court judgment regarding a property dispute in the northern part of Cyprus, the ECJ' s judgment implicates several legal fields- the European Union legal order, the European human rights order, the court system of England and Wales, and general international law. The main legal question arising directly in Apostolides was whether Protocol 10, establishing that the acquis does not apply in the part of Cyprus outside the Republic's control, affects the Regulation on recognition and enforcement of judgments. The answer-that the derogation from the acquis, on the instant facts, does not affect the Regulation-may have interpretative value for future cases involving the same derogation and, possibly may be relevant to other territorial exemptions from EU law: the judgment would support parties 8 seeking restrictive interpretations of exceptions to or derogations from EC Treaty rules. The Effects of Apostolides The ECI's judgment also may be seen to affirm the procedural autonomy of national judicial institutions under EU law on the matter of jurisdiction. While the EU legal order does not extend to northern Cyprus, it is not for EU law to "allocate jurisdiction within the Member State concerned." 9 Under EU law, each Member State "determine~s] the organisation of its own courts." 10 In short, the Republic of Cyprus organizes its courts so as to give them jurisdiction over property claims arising out of northern Cyprus. Those courts exist in EU territory, and their judgments are enforceable-formally and effectively-in EU territory, even if certain remedies (e.g., restitution) may be frustrated because the disputed property is located in territory beyond effective state control. Considering, inter alia, the significant number of Cypriot property claims (approximately 1400), the European Court of Human Rights (ECtHR) in Xenides-Arestis v. Turkey had required a structural remedy in the northern part of Cyprus." An Immovable Property Commission was established by TRLNC authorities in December 2005 to receive property claims.'12 The ECtHR determined that this was an appropriate response. The European Commis- sion, in its submissions to the ECJ in Apostolides, suggested that the structural remedy, as adopted, acts to exclude civil claims over the same subject matter. The ECJ Advocate General rejected this line, noting that "certain provisions adopted by internationally non-recognised State entities can be regarded as valid so as to avoid 13 disadvantages for the population concerned," but such provisions do not have exclusionary effect over all litigation. The interests of the local population evidently are not absolute as against other interests protected within the European legal order. The courts of England and Wales are now afforded guidance as to several matters of EU law. There is a further effect of some practical interest from the standpoint of judicial economy: Apostolides well may attract further actions by Greek Cypriot claimants seeking to enforce Republic of Cyprus court judgments with respect to land disputes in the north. A considerable number of cases similar to Mr. Apostolides' against the Orams' have already been heard in the Nicosia district court and with similar results. As for general international law, it has been suggested that the principle set out by the International Court of Justice Namibia Advisory Opinion might have applied to protect investors in northern Cyprus. In Namibia, the international r6gime, under which no State was to recognize or assist South Africa's unlawful administration in South West Africa, was to be enforced in order to protect the interests, including the economic interests, of the inhabitants of the territory.'14 Thus, in one interpretation of the asserted principle, ordinary economic activity not especially connected with the unlawful effective situation would be permitted, so as to spare the inhabitants the privations of a more complete isolation. Some echo of the principle may be heard in Article 3(1) of Protocol 10, which provides that "I[nlothing in this Protocol shall preclude measures with a view to promoting the economic development" of northern Cyprus.
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