“1. In this question, - the term “the Government-controlled area” refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus exercises effective control; and - the term “the northern area” refers to the area of the Republic of Cyprus over which the Government of the Republic of Cyprus does not exercise effective control. Does the suspension of the application of the acquis communautaire in the northern area by Article 1(1) of Protocol No 10 of the Act of Accession 2003 of Cyprus to the EU preclude a Member State Court from recognising and enforcing a judgment given by a Court of the Republic of Cyprus sitting in the Government-controlled area relating to land in the northern area, when such recognition and enforcement is sought under Council Regulation (EC) No 44/2001 of22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001, L 12, p.1) (“Regulation 44/2001”), which is part of the acquis communautaire? 2. Does Article 35(1) of Regulation 44/2001 entitle or bind a Member State court to refuse recognition and enforcement of a judgment given by the Courts of another Member State concerning land in an area of the latter Member State over which the Government of that Member State does not exercise effective control? In particular, does such a judgment conflict with Article 22 of Regulation 44/2001? 3. Can a judgment of a Member State court, sitting in an area of that State over which the Government of that State does exercise effective control, in respect of land in that State in an area over which the Government of that State does not exercise effective control, be denied recognition or enforcement under Article 34(1) of Regulation 44/2001 on the grounds that as a practical matter the judgment cannot be enforced where the land is situated, although the judgment is enforceable in the Government-controlled area of the Member State?”
“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 states including the Republic of Cyprus] 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 of22 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.”
“The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution. It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited any activity likely to promote, directly or indirectly, either union with any other State or partition of the Island. ”
“Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article I of the present Treaty, recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution. Greece, Turkey and the United Kingdom likewise undertake to prohibit, so far as concerns them, any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island.”
“1. The application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 2. The Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the withdrawal of the suspension referred to in paragraph 1.”
“Since we are not agreed on the proper interpretation of item 16.1, and in view of the importance of the issue under items 16.2 - 16.4 to the Minister and to others, it seems to me that, regrettable though a further reference to the European Court is, it is necessary in order for the House to give judgment to decide these questions. Accordingly as the final national Court in respect of these issues the House is bound to refer them to the European Court, pursuant to article 234 of the Treaty.”
“It seems to me that where the national Court finds a closely reasoned opinion of the Advocate-General and does not consider that the opinion is clearly wrong, it should attach considerable weight to it in the absence of an indication by the Court that the Court disagrees.”
“In this case, however, the Commission does not contend that the judgment whose enforcement is sought infringes fundamental rights. In its view, the issue is instead the requirements of international policy regarding the Cyprus problem. Those requirements have to a certain extent acquired legally binding status in so far as they have become established in United Nations Security Council resolutions. That applies, for example, to the obligation on States to refrain from any action which might exacerbate the Cyprus conflict.”
“10. Reaffirms that the status quo is unacceptable and that negotiations on a final political solution to the Cyprus problem have been at an impasse for too long; 11. Reaffirms its position that a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising two politically equal communities as described in the relevant Security Council resolutions, in a bi-communal and bi-zonal federation, and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession; 13. Reiterates its support for the efforts of the United Nations and others concerned to promote the holding of bi-communal events so as to build cooperation, trust and mutual respect between the two communities, and calls upon the Turkish-Cypriot leadership to resume such activities.”
“On the island, the benefits of the EU membership of Cyprus are becoming manifest. However, in the area of property, it has opened up new fronts of litigation and acrimony. Already, hundreds of Greek Cypriot claims against Turkey for the loss of property rights in the north are pending before the European Court of Human Rights in Strasbourg, France. Additionally, in 2005, Greek Cypriots approached courts in the south for EU arrest warrants against foreigners buying or selling Greek Cypriot property in the north. In this regard, Turkish Cypriot authorities have warned that they will arrest and detain those attempting to serve court summonses. The prospect of an increase of litigation in property cases on either side poses a serious threat to people-to-people relationships and to the reconciliation process. Property rights continue to be an extremely sensitive issue on both sides and it is widely believed that only a comprehensive settlement of the Cyprus problem can bring closure to the property issue. ”
“However, the recognition of judgments from Courts of the Republic of Cyprus relating to properties lying in the areas where the Government does not exercise effective control may raise another, and very exceptional, ground of international public policy.”
“110. Although the present situation does not come under the traditional concept of public policy under Regulation 44/2001, the Commission does not exclude that Article 34(1) could be interpreted as allowing to invoke such a ground of international public policy. Indeed, the words “public policy in the Member State” are open to an interpretation, where grounds of international public policy are invoked that form part of the Member State’s public policy as well. In other words, a public policy ground cannot lose its eligibility under Article 34(1) just because it is shared by all the other EU Member States as well. . . . . 112. Where the Member States are, however, subject to the same international public policy ground by virtue of their membership in the European Union and the United Nations, the possible conflicts between different public policies in several Member States does not arise. Hence, it would not run contrary to the object and purpose of Article 34(1) to include public policy grounds which are essentially of an international character and shared by all EU Member States. The Commission does therefore not exclude that the courts of a Member State could consider that granting recognition and enforcement to judgments of Cypriot courts with respect to property for which, at the request of the European Court of Human Rights, a mechanism for restitution or compensation has been created might jeopardize the efforts towards restoring civil peace and reconciliation on the island and eventually a comprehensive settlement of the Cyprus problem. 113. It would, in any event, be for the national judge to decide whether, in the light of the facts of the case at hand, recognition and enforcement of a specific judgment given in another Member State would be, in the terms of Article 34(1) of the Regulation, ‘manifestly contrary’ to international public policy. 114. Such a public policy ground would remain very exceptional and would therefore not undermine the general Community interest in the free flow of judgments under Regulation 44/2001. If this Court was to enter into the third question, the public policy ground in this case could be intrinsically linked to the extraordinary de facto situation in Cyprus. 115. In sum, the Commission proposes to the Court to respond to the third question as follows: A judgment of a Cypriot court, in respect of land in that State in an area over which the Government of that State does not exercise effective control, cannot be denied recognition of enforcement under Article 34(1) of the Regulation on the ground that claims cannot be enforced where the land is situated. Judgments relating to such land can, however, be exceptionally refused recognition and enforcement if such recognition is manifestly contrary to international public policy.” . . . . A judgment of a Cypriot court, in respect of land in that State in an area over which the Government of that State does not exercise effective control, cannot be denied recognition of enforcement under Article 34(1) of the Regulation on the ground that claims cannot be enforced where the land is situated. Judgments relating to such land can, however, be exceptionally refused recognition and enforcement if such recognition is manifestly contrary to international public policy.”
“But it has also been decided that the Turkish Cypriot property owners and their heirs do not have the right to use their properties under the control of the Custodian. So long as the abnormal situation arising from the Turkish occupation continues, they can be prevented from exercising any kind of right to such properties without permission from the Custodian.”
“Underlying this case is a divergence of view between two autonomous administrations in Cyprus. The northern administration sets itself up as an administration entitled to pass laws requisitioning this property. The southern administration denies the claim and says that the requisitioning was unlawful. It is not the province of these courts to resolve such a dispute. It is a dispute which should be settled by negotiation between the two administrations, aided, we hope, by intermediaries of goodwill. It is indeed, we hope, being settled at this very moment by negotiations in Vienna. If a settlement is reached it should deal with all questions relating to the taking of property, compensation and so forth. But, whether it is settled or not, it is not for these courts to decide between these conflicting views. The dispute, in my view, is not justiciable here. The action should be struck out as not sustainable. I would allow the appeal accordingly.”
“Rebels who have been recognised as a de facto Government will for that reason be accepted as having powers of government administration in the area under their control . . . ”
“Recourse to the public-policy clause in Article 34(1) of Regulation No 44/2001 can be envisaged only where recognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it would infringe a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order.”
“. . . the referring court [that is 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.”
“The respondents submit that the recognition and enforcement of the District Court of Nicosia’s judgment may contravene ‘international public policy’ by undermining the efforts of the international community to find a solution to the Cyprus problem.”
“It is certainly true that the Security Council has repeatedly called for the preservation of peace in Cyprus and of the country’s territorial integrity. In that context, the international community has also made calls to refrain from any action which might exacerbate the conflict. However, it is not possible to infer from those rather general appeals any obligation to refrain from recognising judgments of Greek Cypriot courts which relate to claims to ownership of land in the Turkish Cypriot area. 46. Moreover, it is by no means clear that, taken overall, the application of the regulation exacerbates the Cyprus conflict. It may equally well have the opposite effect and promote the normalisation of economic relations. It is precisely because the line between the two areas of Cyprus has been opened up for the movement of goods and persons that it is possible to envisage many different legal relationships in which the recognition and enforcement in other Member States of judgments given by courts of the Republic of Cyprus and the application of the rules on jurisdiction in the regulation are also of interest to parties residing in the northern area.”
“The application of the regulation cannot be made dependent on such complex political assessments. That would be contrary to the principle of legal certainty, respect for which is one of the objects of the regulation.”
“110. The preservation of peace and the restoration of the territorial integrity of Cyprus are certainly noble causes. However, whether those goals can be regarded as a ‘rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order’ within the meaning of the Krombach case-law is extremely doubtful. 111. As already observed, however, the requirements and appeals contained in the Security Council resolutions on Cyprus are in any case much too general to permit the inference of a specific obligation not to recognise any judgment given by a court of the Republic of Cyprus relating to property rights in land situated in northern Cyprus. Apart from that, it is also by no means clear whether recognition of the judgment in the present context would be beneficial or detrimental to solving the Cyprus problem and whether it is even necessary for the protection of the fundamental rights of Mr Apostolides. 112. The answer to the third question must therefore be that a court of a Member State may not refuse recognition and enforcement of a judgment on the basis of the public policy proviso in Article 34(1) of Regulation No 44/2001 because the judgment, although formally enforceable in the State where it was given, cannot be enforced there for factual reasons.”
“Accordingly, the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of the "TRNC". No other facts entailing loss of title to the applicant’s properties have been advanced by the Turkish Government nor found by the Court. In this context the Court notes that the legitimate Government of Cyprus have consistently asserted their position that Greek Cypriot owners of immovable property in the northern part of Cyprus such as the applicant have retained their title and should be allowed to resume free use of their possessions, whilst the applicant obviously has taken a similar stance.”
“Apart from a passing reference to the doctrine of necessity as a justification for the acts of the "TRNC" and to the fact that property rights were the subject of intercommunal talks, the Turkish Government have not sought to make submissions justifying the above interference with the applicant’s property rights which is imputable to Turkey. It has not, however, been explained how the need to rehouse displaced Turkish Cypriot refugees in the years following the Turkish intervention in the island in 1974 could justify the complete negation of the applicant’s property rights in the form of a total and continuous denial of access and a purported expropriation without compensation. Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention. In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.”
“In the case in the main proceedings, it is common ground that the land is situated in the territory of the Republic of Cyprus and that, therefore, the rule of jurisdiction laid down in Article 22(1) of Regulation No 44/2001 has been observed. The fact that the land is situated in the northern area may possibly have an effect on the domestic jurisdiction of the Cypriot courts, but cannot have any effect for the purposes of that regulation.”
“This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, ([1982] AC 888 ) at page 931D. Nor does the 'non-justiciable' principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case.”
“A practice whereby the Minster of Justice awards, or recommends the award, of an honour to a judge for his or her judicial activity, violates the principle of judicial independence. . . . on the other hand, the award to a judge of a civil honour by, or on the recommendation of, a body established as independent of the government of the day may not be regarded as inappropriate, depending on the circumstances.”
“Article 2 Integrity Members shall not accept gifts of any kind which might call into question their independence. Article 3 Impartiality Members shall avoid any situation which may give rise to a conflict of interest.”
“Second, there are two aspects to the requirement of impartiality: (i) the members of the tribunal themselves must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary; and (ii) the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect.”
“Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”
“(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential.”
“(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. (18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.”
“A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”
“A judgment shall not be recognised: 1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;”
“I appreciate the Turkish Cypriot community’s deep concern regarding the potential implications of the recent European Court of Justice ruling. I understand that many Turkish Cypriots are worried that the case may have a negative impact on both the Turkish Cypriot economy and undermine the wider settlement process. It is not in the UK’s interest to see either of these possibilities realised. However, whilst this case has potentially wide implications, it is neither appropriate nor possible to prevent individuals seeking legal redress through the courts. Now that the ECJ has ruled on the central points of EC law, the matter reverts to the English Court of Appeal, which must decide how to proceed, including on the question of public policy. It would not be appropriate for Her Majesty’s Government to seek to intervene in these ongoing legal proceedings. Her Majesty’s Government remains committed to upholding the established UN parameters for a settlement of a bi-zonal, bi-communal federation based on political equality, as defined in the relevant Security Council resolutions. This is why I believe that the complex issue of property can only be fully resolved within the context of a comprehensive settlement. Private legal proceedings are no substitute for a negotiated solution, which balances the interests of both communities. I was consequently reassured by the Greek Cypriot and Turkish Cypriot leaders’ statements after the ECJ ruling that they remained committed to the negotiation process. Whatever the difficulties, it cannot be in the interest of either community to let external events deflect them from the negotiation process. There now exists a unique opportunity to solve the Cyprus problem. With political will and compromise on both sides, I believe the two leaders can agree a settlement plan, which covers all aspects of the Cyprus problem, including property. Such a settlement would remove the existing uncertainty, generate important economic benefits and allow Turkish Cypriots to take their rightful place as full EU citizens. The European Union remains committed to this goal.”