R v The Minister of Agriculture and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POPPLEWELL |
| Judgment Date | 23 February 1994 |
| Judgment citation (vLex) | [1994] EWHC J0223-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 1132/93 |
| Date | 23 February 1994 |
[1994] EWHC J0223-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr Justice Popplewell
CO 1132/93
MR D VAUGHAN, QC and MR CLOUGH (instructed by Allen & Overy, London EC2V 6AD) appeared on behalf of the Applicants.
MR S RICHARDS (instructed by Treasury Solicitors for the Justices) appeared on behalf of the Respondent.
MR R MILLETT (instructed by Theodore Goddard, London EC1A 4EJ) appeared on behalf of the Intervenors, Cyprus Fruit and Vegetable (Cypfruvex) Enterprises Ltd and Cypfruvex (UK) Ltd.
24th February 1994
MR JUSTICE POPPLEWELLThis is an application made for the first time by Notice of Motion dated 18th February 1994 to enable two organisations (I use the word neutrally for the moment) to intervene in judicial review proceedings which have been referred to the European Court of Justice which is to be heard next Wednesday. To describe the application as late is to do an injustice to the word itself.
The parties concerned are as follows. The applications are by the Cyprus Fruit and Vegetable Enterprises Limited
("Cypfruvex") and by Cypfruvex (UK) Limited ("CUK"). The first is a body in the northern part of Cyprus. The latter is a company registered in the United Kingdom.
The proceedings in which they seek to intervene were proceedings brought by a number of companies incorporated in the Republic of Cyprus who carry on the business of export of fruit, specifically citrus fruit, and their products. The Respondents to the judicial review proceedings are the Minister of Agriculture Fisheries and Food referred to throughout as MAFF.
In order to import into the United Kingdom citrus products (and for the purpose of this judgment I am going to refer to all the products simply as citrus products although they encompass other products), it is necessary for movement certificates to be issued. They are called 'EUR1 certificates'. MAFF is responsible for supervising the import of the citrus products and ensuring that they have the requisite certificates. Because of the Turkish invasion of Cyprus, Cyprus is currently divided into two effective zones with a United Nations buffer between them, making commercial enterprises impossible, or certainly impractical, between the two.
The certificates issued by the Republic of Cyprus govern the importation of citrus products from the part over which they have control. Products from the northern part, over which Turkey appears to have control, also have certificates, but they are not certificates issued by the customs authority of the Republic of Cyprus.
The question which arises for determination in the judicial review proceedings (and it relates not only to EUR1 certificates but also to phytosanitary certificates) is the practice of MAFF of allowing citrus products produced in the northern part of Cyprus to be allowed into the United Kingdom with a customs certificate which is not the customs certificate of the Republic of Cyprus. Various devices (if that is the right word) are used by the Turkish authorities in relation to the customs stamp to avoid describing a certificate as coming from the Turkish Republic of Northern Cyprus. TRNC, as it is called, is the name given to the northern part of Cyprus.
In effect, the dispute is whether certificates issued by the TRNC are proper certificates in accordance with EEC directives and protocols thereto. In addition, in 1972 there was an agreement entered into establishing an association between the EEC and the Republic of Cyprus. The matter which is challenged, as I have already indicated in brief terms, is whether certificates emanating from the north comply with European directives.
The matter has been referred to the European Court. The questions which the European Court has been asked to answer are these:
"(1) Does Community law preclude a Member State from permitting the importation of citrus products or potatoes from Cyprus into that State where such importation is accompanied by EUR.1 movement certificates issued in the Turkish-occupied part of Cyprus and not by officials authorised by the Republic of Cyprus?
(2) Does Community law preclude a Member State from permitting the importation of citrus products (other than lemons) and potatoes from Cyprus into that State where such importation is accompanied by phytosanitary certificates issued in the Turkish-occupied part of Cyprus and not by officials duly authorised by the Republic of Cyprus?
(3) Would it make any difference to the answers to ( 1) or (2) above if it were established that it were in practice impossible for exporters from the Turkish-occupied part of Cyprus to obtain certification for their products from the ROC?"
The significance of the matter to the present parties who are seeking to intervene is that they are businesses which, so far as the Turkish body is concerned, export citrus products to the United Kingdom (and no doubt elsewhere), and the United Kingdom company is responsible for the importing. It is clear that if the European Court were to take the view that only a customs authority in the Republic of Cyprus could lawfully issue these certificates, great commercial damage would be done to the producers in the northern part of Cyprus. That is the background to the case.
Turkey invaded the northern part of Cyprus and set up a government there called the Turkish Republic of Northern Cyprus. That government has not been recognised by any other country save by Turkey itself. Although this country trades and has commercial dealings with the Turkish Republic of Northern Cyprus, it is apparent from all the documentation (to which it is not necessary to refer in any detail) that world opinion is against the establishment of the Turks in northern Cyprus.
The two bodies who seek to intervene are these. Cypfruvex is a company in the TRNC. It is owned 81% by the TRNC government, 16% by the Turkish Co-operative Central Bank and 3% by individual fruit growers. The documents before the Court show that it is a very substantial exporter of citrus products and contributes a substantial share of the export market relating to the TRNC. It is not necessary to set out the figures. The United Kingdom company is an English company and is a 100% subsidiary of Cypfruvex.
The history of these proceedings is very important. The chronology is helpfully set out in the skeleton argument of the Applicants in these judicial proceedings. On 30th June 1992 the Applicants in the judicial review proceedings (whom I shall call the Greek Applicants hereafter) sought leave to apply for judicial review. On 30th June 1992, after hearing counsel, Hutchison J gave leave to move for judicial review and ordered that there should be expedition, having been told that it was intended that there should be a reference to the European Court. In addition, he indicated that the notice of leave should be served on a number of named persons who might be interested.
On 10th July 1992 MAFF supplied the Greek Applicants with a list of UK importers from TRNC which included Cypfruvex (UK) Limited. On 10th July Cypfruvex (UK) Limited, together with a number of other UK importers, were notified about the application. That was pursuant to the Rules of Court, Order 53 rule 5(3):
"The notice of motion or summons must be served on all persons directly affected….."
Cypfruvex (UK) Limited were and have been represented by a distinguished firm of solicitors. Although throughout, from July 1992 until recently, they have been informed of the progress of the judicial review proceedings, they obviously took the stance (or their clients took the stance) that they did not wish to be a party to these proceedings.
The history thereafter can be very shortly stated. There was a notice to Cypfruvex (UK) that there was to be an application for a reference. The copy of the notice of motion was sent to them. There was a hearing of the application on 23rd November 1992. On 2nd December 1992 the matter was referred under Article 177 of the European Treaty with the result that pursuant to Order 114 the judicial review proceedings were stayed. In that reference, apart from the questions to which I have already referred, there were set out a number of matters which were agreed as facts. Thus, ever since December 1992 the matter has been awaiting the hearing before the European Court. As I have indicated, that is to take place next Wednesday.
During 1993 TRNC and the bank, through solicitors, were seeking to find out what the position was in relation to that reference. MAFF wrote to the solicitors for the TRNC in June 1993 setting out what the position was in relation to Europe. In December 1993 there was a new government elected in the TRNC. It was then decided that Cypfruvex should apply to intervene. The application for intervention, however, was not made immediately but was made on 19th February 1994.
Judicial review proceedings are dealt with urgently, as is well known. The provision of Order 53 is that applications shall be made promptly and within three months. One of the arguments to which I will refer in a moment on behalf of the Greek Applicants is that this application is not made
bona fides and is made at a late stage purely for political purposes. That there has been enormous delay and a palpable change of mind cannot be seriously disputed.
Mr Vaughan, QC on behalf of the Greek Applicants makes four submissions. The first submission is that there is no power in...
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