Apostolides v Orams
{{Use dmy dates|date=August 2014}}
{{Infobox European case
|court=ECJ
|SubmitDate=13 September
|SubmitYear=2007
|DecideDate=28 April
|DecideYear=2009
|FullName=Meletios Apostolides v David Charles Orams and Linda Elizabeth Orams
|CelexID=62007J0420
|CaseType=
|CaseNumber=C-420/07
|Chamber=Grand Chamber
|Nationality=Cyprus and United Kingdom
|Procedural=Court of Appeal (England), Civil Division, judgment of 19 June 2007 (2153/2007; A2/2006/2114)
|Ruling=1. The suspension of the application of the acquis communautaire in those areas of the Republic of Cyprus in which the Government of that Member State does not exercise effective control, provided for by Article 1(1) of Protocol No 10 on Cyprus to the Act concerning the conditions of accession [to the European Union] of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, does not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a Cypriot court sitting in the area of the island effectively controlled by the Cypriot Government, but concerns land situated in areas not so controlled.
2.Article 35(1) of Regulation No 44/2001 does not authorise the court of a Member State to refuse recognition or enforcement of a judgment given by the courts of another Member State concerning land situated in an area of the latter State over which its Government does not exercise effective control.
3. The fact that a judgment given by the courts of a Member State, concerning land situated in an area of that State over which its Government does not exercise effective control, cannot, as a practical matter, be enforced where the land is situated does not constitute a ground for refusal of recognition or enforcement under Article 34(1) of Regulation No 44/2001 and it does not mean that such a judgment is unenforceable for the purposes of Article 38(1) of that regulation.
4.The recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No 44/2001 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.
|JudgeRapporteur=Rosario Silva de Lapuerta
|JudgePresident=Vassilios Skouris
|Judge1=Peter Jann
|Judge2=Christiaan Timmermans
|Judge3= Allan Rosas
|Judge4= Koen Lenaerts
|Judge5= Marko Ilešič
|Judge6= Aindrias Ó Caoimh (barrister)|Aindrias Ó Caoimh
|Judge7= Jiří Malenovský
|Judge8= Ján Klučka
|Judge9= Uno Lõhmus
|Judge10=
|Judge11=
|Judge12=
|AdvocateGeneral=Juliane Kokott
|InstrumentsCited=
|LegislationAffecting=Interprets Regulation (EC) No 44/2001
Interprets Protocol No 10 on Cyprus of the 2003 Accession Treaty
|Keywords=
}}
Apostolides v Orams is a landmark legal case decided in the European Court of Justice on 28 April 2009.Veronika Gaertner, [http://conflictoflaws.net/2009/ecj-judgment-apostolides/ "ECJ Judgment: Apostolides", April 29, 2009] It concerned the right for Greek Cypriot refugees to reclaim land in northern Cyprus, displaced after the Turkish invasion of Cyprus in 1974. The case determined that although Cyprus does not exercise effective control in northern Cyprus, cases decided in its courts are applicable through European Union law.{{cite news | title= Greek Cypriots can reclaim land | date=28 April 2009 | url =http://news.bbc.co.uk/1/hi/world/europe/8022238.stm | work =BBC | accessdate = 29 April 2009 | archive-url= https://web.archive.org/web/20090429225056/http://news.bbc.co.uk/1/hi/world/europe/8022238.stm| archive-date= 29 April 2009 | url-status= live}}
Background to the case
In 1974, Meletios Apostolides, an architect, was displaced with his family from his property in Lapithos as a result of the partition of Cyprus which followed a Greek Cypriot coup and the subsequent Turkish invasion of Cyprus.
In 2002, David Charles and Linda Elizabeth Orams, from Hove, Sussex, England, invested £160,000 of their retirement fund to acquire the land from a third party and to construct a villa on the premises. The third party claimed to have acquired the property from the Turkish Republic of Northern Cyprus (TRNC), a de facto state which, to this day, has not been recognised by any state except the Republic of Turkey.{{cite web|url=http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Rechercher&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-420/07&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100 |title=Case C‑420/07 |accessdate=29 April 2009 |date=28 April 2009 |publisher=European Court of Justice }}{{cite news | first=Stephanie | last=Bodoni |author2=Simon Packard | title=U.K. Couple Must Demolish Cyprus Home, EU Court Says | date=28 April 2009 | url =https://www.bloomberg.com/apps/news?pid=20601102&sid=asoJPS9YV55g&refer=uk | work =Bloomberg L.P. | accessdate = 29 April 2009 }} The Orams used the property in northern Cyprus for vacations and maintained a separate property in the UK.
In 2003, the de facto administration of northern Cyprus eased crossing restrictions along the ceasefire line giving the opportunity to displaced Cypriots to visit their old properties. Meletios Apostolides visited his property and confirmed the construction of the house occupied by the Orams.
Legal proceeding in Cyprus
Meletios Apostolides took his case to the Nicosia District court,A French summary of the judgement of the Cypriot court (Eparchiako Dikastirio Lefkosias, case no. 9968/04, 19 April 2005, Apostolidis v. D. and L. Orams) is available in [http://www.curia.europa.eu/fr/coopju/apercu_reflets/common/recdoc/reflets/2006/reflets2006_1.pdf Reflets, Informations rapides sur les développements juridiques présentant un intérêt communautaire, Nº 1/2006, pages 15–16]. demanding that the Orams vacate his property. Northern Cyprus, although a de facto functioning entity, remains an unrecognised state internationally. Mr Apostolides' case centred on the argument that although following the Turkish invasion the government of Cyprus had lost effective control over the northern part of the island, its laws still applied even if these were not easily enforceable.
In November 2004, the Nicosia District Court ordered the Orams to:
- demolish the villa, swimming pool and fencing which they had erected on what the court regarded as Mr Apostolides' land
- deliver immediately to Mr Apostolides free possession of the land
- pay Mr Apostolides various sums by way of special damages and monthly rental charges (including interest) until the judgement was complied with
- refrain from continuing with the unlawful intervention on the land, whether personally or through their agents, and
- pay various sums in respect of the costs and expenses of the proceedings (with interest on those sums).
The Orams appealed this decision, which was heard at the supreme court of Cyprus. The appeal was dismissed.Supreme Court of Cyprus, [http://www.cylaw.org/cgi-bin/open.pl?file=apofaseis/aad/meros_1/2006/1-200612-121-05.htm DAVID CHARLES ORAMS κ.α ν. ΜΕΛΕΤΗΣ ΑΠΟΣΤΟΛΙΔΗΣ], Πολιτική Έφεση Αρ. 121/2005, 21 December 2006
Legal proceeding in England and Wales
Due to the island's division, the judgement reached by the Cypriot court was not directly enforceable, hence Mr Apostolides used EU regulations to have it registered and applied against the Orams' assets in the UK.{{cite news | first=Helena | last=Smith | title=Cherie Booth's role in Cyprus land dispute angers president | date=19 December 2005 | url =https://www.theguardian.com/uk/2005/dec/19/world.cyprus | work =The Guardian | accessdate = 29 April 2009 }} The procedure for the enforcement of judgements between Member States of the European Union is provided by Regulation No 44/2001.{{cite web|url=http://curia.europa.eu/common/recdoc/convention/en/c-textes/_2001R0044-textes.htm |title=Council Regulation (EC) No 44/2001 |accessdate=29 April 2009 |date=22 December 2000 |publisher=The Court of Justice of the European Communities | archive-url= https://web.archive.org/web/20090414092709/http://curia.europa.eu/common/recdoc/convention/en/c-textes/_2001R0044-textes.htm| archive-date= 14 April 2009 | url-status= live}} The Orams were represented in the English courts by Cherie Blair, an action criticised by the then president of Cyprus Tassos Papadopoulos. He argued that due to its political nature, the wife of a Prime Minister should not be involved in such a case.{{cite news | title=Cypriot anger at Cherie land case | date=17 December 2005 | url =http://news.bbc.co.uk/1/hi/uk/4538960.stm | work =BBC | accessdate = 29 April 2009 }}
File:Royal courts of justice.jpgIn September 2006, the High Court of Justice ruled in favour of the Orams.{{cite BAILII | litigants = Orams v. Apostolides | link = | country = | court = EWHC | division = QB | year = 2006 | num = 2226 | para = | eucase = | parallelcite = [2007] 1 WLR 241, [2007] 1 All ER (Comm) 1 | date = 6 September 2006 | courtname = High Court of Justice (Queen's Bench Division) | juris = }}, case no: QB/2005/PTA/0897. Mr Apostolides appealed the decision at the Court of Appeal which in turn referred the case to the European Court of Justice (ECJ), in Luxembourg.Veronika Gaertner, [http://conflictoflaws.net/2008/northern-cyprus-and-the-acquis-communautaire/ "Northern Cyprus and the Acquis Communautaire", February 23, 2008]Veronika Gaertner, [http://conflictoflaws.net/2008/ecj-ag-opinion-in-apostolides/ "ECJ: AG Opinion in “Apostolides”", December 20, 2008]{{cite web |url=http://www.holidaylettings.co.uk/resources/property-news/miscellaneous-and-celebrity-news/greek-cypriots-can-reclaim-land-possible-impact-on-holiday-home-owners/a-2-58-1690/ |title=Greek Cypriots can reclaim land – possible impact on holiday home owners |accessdate=8 May 2009 |date=29 April 2009 |publisher=Holiday Lettings |archive-url=https://web.archive.org/web/20090502204230/http://www.holidaylettings.co.uk/resources/property-news/miscellaneous-and-celebrity-news/greek-cypriots-can-reclaim-land-possible-impact-on-holiday-home-owners/a-2-58-1690 |archive-date=2 May 2009 |url-status=dead }}
The ECJ in turn ruled in favour of Mr Apostolides (see next section below).
The case was then returned to the Court of Appeal in England which decided in favour of Meletios Apostolides on 19 January 2010.{{cite BAILII | litigants = Apostolides v Orams & Ors | link = | country = | court = EWCA | division = Civ | year = 2010 | num = 9 | para = | eucase = | parallelcite = [2010] 1 All ER (Comm) 992, [2010] 4 EG 112, [2010] ILPr 20 | date = 19 January 2010 | courtname = | juris = }}; case No: A2/2006/2114 According to one of the judges of the Court of Appeal panel, under the current system, this decision is final and no further escalation is possible.Paragraph 102 of the Court of Appeal judgment (Lord Justice Lloyd): "The effect of article 44 [of Council Regulation [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF No 44/2001] is that the present appeal is final. A further appeal to the Supreme Court of the United Kingdom is not permitted."{{cite web|url=http://www.prnewswire.com/news-releases/judgment-of-the-uk-court-of-appeal-england-and-wales-civil-division-in-the-case-of-meletios-apostolides-v-david-charles-orams--linda-elizabeth-orams-january-19-2010-82802657.html |title=Judgment of the UK Court of Appeal (England and Wales) (Civil Division) in the Case of Meletios Apostolides V. David Charles Orams & Linda Elizabeth Orams January 19, 2010 |accessdate=29 January 2010 |publisher=PR newswire | archive-url= https://web.archive.org/web/20100212134843/http://www.prnewswire.com/news-releases/judgment-of-the-uk-court-of-appeal-england-and-wales-civil-division-in-the-case-of-meletios-apostolides-v-david-charles-orams--linda-elizabeth-orams-january-19-2010-82802657.html| archive-date= 12 February 2010 | url-status= live}}{{cite news | first=Suzi | last=Dixon | title=The end of a dream? | date=19 January 2010 | url =https://www.telegraph.co.uk/expat/expatnews/7029187/The-end-of-a-dream.html | work =The Daily Telegraph | accessdate = 22 January 2010 | archive-url= https://web.archive.org/web/20100122092305/http://www.telegraph.co.uk/expat/expatnews/7029187/The-end-of-a-dream.html| archive-date= 22 January 2010 | url-status= live}} However, the Orams tried to appeal to the Supreme Court of the United Kingdom.Simon Bahceli, [http://www.cyprus-mail.com/cyprus/orams-packing-hoping-stay-put/20100127 Orams packing up but hoping to stay put] {{webarchive |url=https://web.archive.org/web/20100130105355/http://www.cyprus-mail.com/cyprus/orams-packing-hoping-stay-put/20100127 |date=30 January 2010 }}, Cyprus Mail, 27 January 2010
On 26 March 2010, the U.K. Supreme Court refused permission for the Orams to take the case to appeal, effectively bringing it to a conclusion.[http://www.supremecourt.uk/docs/PTA-1003-1004.pdf Applications for permission to appeal, March/April 2010, case ID UKSC 2010/0032], U.K. Supreme Court. The Cyprus Mail reported that the Orams' had abandoned the property rather than demolish it.[http://www.cyprus-mail.com/cyprus/end-road-orams/20100401 "End of the road for the Orams"] {{webarchive |url=https://web.archive.org/web/20100909201646/http://www.cyprus-mail.com/cyprus/end-road-orams/20100401 |date=9 September 2010 }}, Cyprus Mail, 1 April 2010.
Legal proceeding in the EU
The case C-420/07, Apostolides v Orams, was heard by the Grand Chamber of the European Court of Justice in Luxembourg. A panel of judges ruled on 28 April 2009 that British courts were able to enforce the judicial decisions made in Cyprus, which uphold the property rights of Cypriots forced out during the invasion.{{cite news | first=Bruno | last=Waterfield | title=Landmark court ruling means Britons could be forced to return homes in northern Cyprus | date=29 April 2009 | url =https://www.telegraph.co.uk/news/worldnews/europe/cyprus/5242294/Landmark-court-ruling-means-Britons-could-be-forced-to-return-homes-in-northern-Cyprus.html | work =The Daily Telegraph | accessdate = 29 April 2009 | archive-url= https://web.archive.org/web/20090502122054/http://www.telegraph.co.uk/news/worldnews/europe/cyprus/5242294/Landmark-court-ruling-means-Britons-could-be-forced-to-return-homes-in-Northern-Cyprus.html| archive-date= 2 May 2009 | url-status= dead}}
Implications
The case has been described as a landmark test case as it sets a precedent for other Cypriots (primarily Greek Cypriot refugees) to bring similar actions to court.
Both the British High Commission in Cyprus{{cite web|url=http://ukincyprus.fco.gov.uk/en/help-for-british-nationals/living-in-cyprus/buying-property |title=Buying property |accessdate=29 April 2009 |publisher=British High Commission |archive-url=https://web.archive.org/web/20090412083022/http://ukincyprus.fco.gov.uk/en/help-for-british-nationals/living-in-cyprus/buying-property |archive-date=12 April 2009 |url-status=dead |df=dmy }} and the Foreign and Commonwealth Office have issued warnings regarding the purchase of property in northern Cyprus.{{cite web|url=http://www.fco.gov.uk/en/travelling-and-living-overseas/travel-advice-by-country/europe/cyprus?ta=general&pg=7 |title=Purchasing Property |accessdate=29 April 2009 |publisher=Foreign and Commonwealth Office |archive-url=https://web.archive.org/web/20090520044626/http://www.fco.gov.uk/en/travelling-and-living-overseas/travel-advice-by-country/europe/cyprus?ta=general&pg=7 |archive-date=20 May 2009 |url-status=dead |df=dmy }}
Following the final ruling by the Court of Appeal in England, Meletios Apostolides' lawyer Constantis Candounas stated that he was considering similar lawsuits against foreign tourists using hotels in the TRNC that were owned by Greek Cypriots previous to the partition of Cyprus.{{cite news | title=Northern Cyprus hotel visitors may be sued | date=22 January 2010 | publisher=Reuters | url=http://www.gulf-times.com/site/topics/article.asp?cu_no=2&item_no=338532&version=1&template_id=39&parent_id=21 | work=Gulf Times | accessdate=22 January 2010 | archive-url=https://web.archive.org/web/20110606025240/http://www.gulf-times.com/site/topics/article.asp?cu_no=2&item_no=338532&version=1&template_id=39&parent_id=21 | archive-date=6 June 2011 | url-status=dead }}