Meletis Apostolides v. David
Charles Orams & Linda Elizabeth Orams
A JUDGMENT OF A COURT IN THE
REPUBLIC OF CYPRUS MUST BE RECOGNISED AND ENFORCED BY THE OTHER MEMBER
STATES EVEN IF IT CONCERNS LAND SITUATED IN THE NORTHERN PART OF THE
ISLAND
The suspension of the
application of Community law in the areas where the Government of the
Republic of Cyprus does not exercise effective control and the fact that
the judgment cannot, as a practical matter, be enforced where the land is
situated do not preclude its recognition and enforcement in another Member
State.
Following the intervention of
Turkish troops in 1974 Cyprus was partitioned into two areas. The Republic
of Cyprus, which acceded to the European Union in 2004, has de facto
control only over the southern part of the island while, in the
northern part, the Turkish Republic of Northern Cyprus has been
established, which is not recognised by the international community with
the exception of Turkey. In those circumstances, the application of
Community law in the northern area of the Republic of Cyprus has been
suspended by a protocol annexed to the Act of Accession.
Mr Apostolides, a
Cypriot national, brought an appeal before the Court of Appeal (England
and Wales), in the course of a dispute between himself and a British
couple, the Orams, seeking the recognition and enforcement of two
judgments from a court in Nicosia. That court, sitting in the southern
part of Cyprus, ordered the Orams to vacate land situated in the northern
part of the island and to pay various sums. The Orams had purchased the
land from a third party in order to build a holiday home on it. According
to the findings of the Cypriot court, Mr Apostolides, whose family was
forced to leave the north of the island at the time of its partition, is
the rightful owner of the land. The first judgment, given in default of
appearance, was confirmed by another judgment ruling on an appeal brought
by the Orams.
The national
court referred to the Court of Justice a number of questions concerning
the interpretation and application of the Brussels I Regulation1.
It asks, in particular, whether the suspension of Community law in the
northern part of Cyprus and the fact that the land concerned is situated
in an area over which the Government of Cyprus does not exercise effective
control
1
Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
have an effect on
the recognition and enforcement of the judgment, in particular in relation
to the jurisdiction of the court of origin, the public policy of the
Member State in which recognition is sought and the enforceability of the
judgment. In addition, it asks whether the recognition or enforcement of a
default judgment may be refused, on account of the fact that the document
instituting proceedings was not served on the defendant in sufficient time
and in such a way as to enable him to arrange for his defence, where the
defendant was able to bring an appeal against that judgment.
First of all, the
Court declares that the suspension provided for in the Act of Accession of
Cyprus is limited to the application of Community law in the northern
area. However, the judgments concerned, whose recognition was sought by Mr
Apostolides, were given by a court sitting in the Government-controlled
area. The fact that those judgments concern land situated in the northern
area does not preclude that interpretation because, first, it does not
nullify the obligation to apply the regulation in the
Government-controlled area and, second, it does not mean that that
regulation must thereby be applied in the northern area. The Court
therefore concludes that the suspension of Community law in the northern
area provided for by the protocol annexed to the Act of Accession, does
not preclude the application of the Brussels I Regulation to a judgment
which is given by a Cypriot court sitting in the Government-controlled
area, but concerns land situated in the northern area.
Next, the Court
states, first, that the dispute at issue in the main proceedings falls
within the scope of the Brussels I Regulation and, second, that the fact
that the land concerned is situated in an area over which the Government
does not exercise effective control and, therefore, that the judgments
concerned cannot, as a practical matter, be enforced where the land is
situated does not preclude the recognition and enforcement of those
judgments in another Member State.
In that
connection, it is common ground that the land is situated in the territory
of the Republic of Cyprus and, therefore, the Cypriot court had
jurisdiction to decide the case since the relevant provision of the
Brussels I Regulation relates to the international jurisdiction of the
Member States and not to their domestic jurisdiction.
The Court also
states, as regards the public policy of the Member State in which
recognition is sought, that a court of a Member State cannot, without
undermining the aim of the Brussels I Regulation, refuse recognition of a
judgment emanating from another Member State solely on the ground that it
considers that national or Community law was misapplied. The national
court may refuse recognition only where the error of law means that the
recognition or enforcement of the judgment is regarded as a manifest
breach of an essential rule of law in the legal order of the Member State
concerned. In the case in the main proceedings, 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.
Furthermore, as
regards the enforceability of the judgments concerned, the Court states
that the fact that Mr Apostolides might encounter difficulties in having
the judgments enforced cannot deprive them of their enforceability.
Therefore, that situation does not prevent the courts of another Member
State from declaring such judgments enforceable.
Lastly, the Court
states that the recognition or enforcement of a default judgment cannot be
refused where the defendant was able to commence proceedings to challenge
the default judgment and those proceedings enabled him to argue that he
had not been served with the document which instituted the proceedings or
with the equivalent document in sufficient time and in such a way as to
enable him to arrange for his defence. In the case in the main
proceedings, it is common ground that the Orams brought such proceedings.
Consequently, the recognition and enforcement of
the judgments of the Cypriot court cannot be refused in the United Kingdom
on that ground.
