Σύμφωνα με το άρθρο 17 (1) του Περί Αστικών Αδικημάτων Νόμου Κεφ.148 δυσφήμιση είναι όταν οποιοδήποτε πρόσωπο ισχυρίζεται ή διαδίδει οποιαδήποτε φύσης δημοσίευμα, με έντυπο, γραπτό, ζωγραφιά, ομοίωμα, χειρονομίες, λόγια ή άλλους ήχους ή με κάθε άλλο μέσο οποιασδήποτε φύσης, το οποίο αποδίδει σε άλλο πρόσωπο, έγκλημα ή αποδίδει σε άλλο πρόσωπο ανάρμοστη συμπεριφορά σε δημόσια θέση ή εκ φύσεως τείνει στο να βλάψει ή να επηρεάσει με δυσμένεια την υπόληψη άλλου προσώπου στο επάγγελμα, επιτήδευμα, εργασία, απασχόληση ή την θέση του ή ενδέχεται να εκθέσει άλλο πρόσωπο σε γενικό μίσος, περιφρόνηση ή χλεύη, και τέλος ενδέχεται να προκαλέσει την αποστροφή ή αποφυγή οποιουδήποτε προσώπου από άλλους
Υπάρχουν δυο μορφές δυσφήμισης, ο λίβελλος όπου η δυσφημιστική δήλωση είναι μια πιο μόνιμη, οριστική ή ορατή μορφή όπως γραπτό κείμενο, φωτογραφία, εικόνα και σχήματα και είναι αγώγιμος χωρίς τη ύπαρξη ειδικής ζημιάς. Η δεύτερη μορφή δυσφήμησης είναι η συκοφαντία η οποία γίνεται με λόγια ή με άλλη παροδική, είτε ορατή είτε ακουστική όπως χειρονομίες και δεν χρειάζεται ειδική ζημιά για να είναι αγώγιμο αδίκημα εκτός εάν σκοπεύει (για παράδειγμα) να βλάψει την υπόληψη του ενάγοντα ή του αποδίδει κάποιο έγκλημα, τότε απαιτείται ειδική ζημιά.
Βασική αρχή της δυσφήμισης είναι ότι η δυσφημιστική δήλωση πρέπει να καταστεί γνωστή σε οποιονδήποτε πρόσωπο ή πρόσωπα άλλα από το άτομο που δυσφημείται. Ωστόσο, εάν το άτομο που δυσφημείται δεν αντιληφθεί το νόημα της δήλωσης και ότι αναφέρεται σε αυτόν τότε δεν στοιχειοθετείτε το αδίκημα της δυσφήμισης. Το βάρος απόδειξης το φέρει ο ενάγοντας για να αποδείξει ότι η δημοσίευση έγινε κακόπιστα. Εάν ο ενάγοντας καταφέρει να αποδείξει ότι στοιχειοθετείτε η δυσφήμιση, τότε ο εναγόμενος υποχρεούται να διαθέσει στον ενάγοντα αποζημίωση για δυσφήμιση εκτός εάν εκδοθεί απόφαση από το Δικαστήριο που δεν προνοεί οποιαδήποτε θεραπεία για την ζημία που υπέστη ο ενάγοντας.
Σε περίπτωση που ο ενάγοντας είναι νομικό πρόσωπο τότε το αδίκημα της δυσφήμησης δεν είναι αγώγιμο από μόνο του αλλά το νομικό πρόσωπο θα πρέπει να αποδείξει ότι ως αποτέλεσμα της δυσφήμησης έχει υποστεί ειδική ζημία ή ότι έχει πληγεί η αξιοπιστία και η υπόληψη του σε σχέση με την διεξαγωγή των εμπορικών ή άλλων δραστηριοτήτων του.
Ο σκοπός των αποζημιώσεων είναι να επαναφέρει το θύμα στην κατάσταση που βρισκόταν πριν την αδικοπραξία. Η αποζημίωση μπορεί να είναι σε μορφή ειδικής, γενικής ή επαυξημένης αποζημίωσης. Οι ειδικές ζημιές αποτελούν οικονομικές απώλειες που αποτιμούνται σε χρήματα. Ακολούθως, οι γενικές αποζημιώσεις αφορούν την ζημιά που υπέστη η υπόληψη του θύματος, για παράδειγμα η θέση του ενάγοντα στην κοινωνία. Σε περίπτωση που ο ενάγοντας απαιτεί και γενικές αποζημιώσεις τότε εναπόκειται στο Δικαστήριο να καθορίσει τη ζημιά στη φήμη και υπόληψη του ενάγοντα υπό τη μορφή χρηματικής αποζημίωσης.
Ακολούθως, οι επαυξανόμενες αποζημιώσεις συμβαίνουν σε περιπτώσεις όπου υπάρχει έλλειψη απολογίας και επανάληψη της συκοφαντικής δυσφήμισης από τον εναγόμενο και γενικά εξαρτούνται από την συμπεριφορά του εναγόμενου από την στιγμή την δημοσίευσης μέχρι και την έκδοση της απόφασης.
Επιπρόσθετα, οι αποζημιώσεις εξαρτούνται από τα επιβαρυντικά και/ή τα ελαφρυντικά στοιχεία μιας υπόθεσης. Επιβαρυντικά στοιχεία, τα οποία επηρεάζουν στη αύξηση του ποσού που θα επιδικαστεί ως αποζημίωση, αποτελούν η συνέχιση της δυσφήμησης και η κακόβουλη συμπεριφορά του εναγόμενου. Στον αντίποδα, τα ελαφρυντικά στοιχεία, τα οποία μπορούν να ληφθούν υπόψη από το Δικαστήριο για την επιδίκαση χαμηλότερου ποσού ως αποζημίωση δεν είναι εφικτό να χρησιμοποιούνται και ως υπεράσπιση. Περιπτώσεις ελαφρυντικών στοιχείων είναι η απολογία του εναγόμενου πριν ή το γρηγορότερο δυνατόν μετά την έναρξη της αγωγής, εάν έχει δοθεί ήδη αποζημίωση, εάν ο ενάγων ήταν ήδη κακής υπόληψης πριν το δημοσίευμα, εάν ο ενάγοντας είχε προκαλέσει τον εναγόμενο και υπήρχε αθώα διανομή.
Όσον αφορά το αστικό αδίκημα της δυσφήμισης ο Περί Αστικών Αδικημάτων Νόμος καθορίζει διάφορες υπερασπίσεις τις οποίες μπορεί να χρησιμοποιήσει ο εναγόμενος για να αμφισβητήσει τους ισχυρισμούς του ενάγοντα. Η πρώτη περίπτωση εφαρμόζεται όταν το δημοσίευμα για το οποίο γίνεται λόγος είναι αληθές. Η υπεράσπιση της αλήθειας πρέπει να αποδειχθεί, ότι δηλαδή, ο ισχυρισμός είναι βασικά αληθείς παρόλο που κάποιοι επιμέρους ισχυρισμοί πιθανόν να μην ανταποκρίνονται στην πραγματικότητα. Δεύτερον όταν το δημοσίευμα για το οποίο έγινε η αγωγή ήταν έντιμο σχόλιο για θέμα δημοσίου συμφέροντος. Σε αυτή την περίπτωση το δημοσίευμα θα πρέπει να αποτελεί σχόλιο επί γεγονότων και όχι δήλωση γεγονότων. Θα πρέπει επομένως να αποδειχθεί ότι υπάρχει πραγματική βάση για το σχόλιο και ότι αφορά ζήτημα δημοσίου συμφέροντος. Τα γεγονότα στα οποία βασίζεται το σχόλιο πρέπει να είναι ακριβή. Επιπλέον είναι θεμελιωμένο ότι το σχόλιο πρέπει να είναι δίκαιο και πρέπει να βασίζεται σε γεγονότα που αναφέρονται στο επίδικο δημοσίευμα.
Περαιτέρω ως υπεράσπιση μπορεί να προβληθεί το γεγονός ότι η δυσφήμιση έγινε χωρίς πρόθεση. Η δυσφήμιση για να θεωρείτε ότι είναι χωρίς πρόθεση πρέπει να γίνεται προσφορά για επανόρθωση το ταχύτερο δυνατό μετά που το πρόσωπο που προβαίνει στη δυσφήμιση έλαβε γνώση ότι πιθανόν το δημοσίευμα να ήταν δυσφημιστικό.
Τέλος είναι ορθό να λεχθεί ότι το δικαίωμα της ελευθερίας του λόγου και της έκφρασης είναι συνταγματικά κατοχυρωμένο και απόλυτα σεβαστό. Η ελευθερία αυτή όμως, πρέπει να εναρμονίζεται και με τα άλλα ανθρώπινα δικαιώματα που επίσης προστατεύει το Σύνταγμα, όπως είναι η τιμή και η υπόληψη των άλλων, για αυτό πρέπει η οποιαδήποτε δημοσίευση να γίνεται με πολλή προσοχή.
Στις 15 Ιουλίου 2022 δημοσιεύθηκε στην Επίσημη Εφημερίδα της Δημοκρατίας και απέκτησε ισχύ ο Νόμος που Προβλέπει για την Προώθηση και Ενθάρρυνση της Χρήσης των Ανανεώσιμων Πηγών Ενέργειας, 107(Ι)/2022 («ο Νόμος 107(Ι)/2022»). Μια πολύ σημαντική νομοθεσία η οποία σκοπό έχει τη μερική εναρμόνιση της Κυπριακής Δημοκρατίας με την Ευρωπαϊκή Οδηγία του Ευρωπαϊκού Κοινοβουλίου και του Συμβουλίου της 11ης Δεκεμβρίου 2018 («η Οδηγία») και κατ’ επέκταση με τη σθεναρώς και αποφασιστικώς δεδηλωμένη πολιτική της Ένωσης για την επείγουσα κλιματική αλλαγή η οποία μπορεί να επιτευχθεί μόνο μέσω της μείωσης εκπομπών αερίου του θερμοκηπίου, δράση η οποία βεβαίως δεν θα μπορούσε να υλοποιηθεί χωρίς την προώθηση της χρήσης ενέργειας από ανανεώσιμες πηγές.
(Η ενέργεια από ανανεώσιμες μη ορυκτές πηγές είναι η αιολική, ηλιακή (ηλιακή θερμική και ηλιακή φωτοβολταϊκή) γεωθερμική ενέργεια, ενέργεια του περιβάλλοντος, παλιρροϊκή, κυματική και λοιπές μορφές ενέργειας των ωκεανών, υδροηλεκτρική, από βιομάζα, ενέργεια από τα εκλυόμενα στους χώρους υγειονομικής ταφής αέρια, από τα αέρια που παράγονται σε σταθμούς επεξεργασίας λυμάτων και τα βιοαέρια).
Η Οδηγία θεσπίστηκε με σκοπό την αναθεώρηση προς τα πάνω του στόχου που είχε αρχικώς τεθεί με την Οδηγία 2009/28/ΕΕ εν σχέση με το ποσοστό παραγωγής ενέργειας εντός της Ένωσης από ανανεώσιμες πηγές, από το είκοσι (20%) μέχρι το 2020 στο τριάντα δύο (32%) μέχρι το 2030. Η Οδηγία κατοχυρώνει κοινές αρχές και κανόνες μεταξύ των κρατών μελών που αποσκοπούν στην αφαίρεση των όποιων εμποδίων, στην παροχή επενδυτικών κινήτρων και στη μείωση του κόστους αξιοποίησης τεχνολογιών που παράγουν ενέργεια από ανανεώσιμες πηγές, ενθαρρύνοντας παράλληλα τη συμμετοχή, και ενδυναμώνοντας το ρόλο, των πολιτών, των καταναλωτών και των επιχειρήσεων στην πρωτοβουλία για τη μετάβαση στην πράσινη ενέργεια και την κλιματική αλλαγή.
Ο Νόμος 107(Ι)/2022, ο οποίος παρά τη σημαντικότητα του θεσπίστηκε και ενσωματώθηκε στο εθνικό δίκαιο μετά από πολλές πιέσεις και εν τέλει διαδικασία επί παραβάσει από την Ευρωπαϊκή Επιτροπή, έχει καταργήσει τους περί της Προώθησης και Ενθάρρυνσης της Χρήσης των Ανανεώσιμων Πηγών Ενέργειας Νόμους του 2013 έως 2018 και αποσκοπεί, μεταξύ άλλων, σε συμμόρφωση με την Οδηγία:
- Στη θέσπιση ενός κοινού πλαισίου με τα άλλα κράτη μέλη για την προώθηση της ενέργειας από ανανεώσιμες πηγές, ορίζοντας ένα δεσμευτικό ενωσιακό στόχο για το συνολικό μερίδιο ενέργειας από ανανεώσιμες πηγές στην ακαθάριστη τελική κατανάλωσης ενέργειας της Ένωσης μέχρι το 2030, στο τριάντα δύο (32%) αφήνοντας περιθώριο μεταβολής του ποσοστού αυτού βάσει αποφάσεων της Ένωσης.
- Στη θέσπιση κανόνων για τη χρηµατοδοτική στήριξη της ηλεκτρικής ενέργειας που παράγεται από ανανεώσιµες πηγές, για την αυτοκατανάλωση παρόµοιας ηλεκτρικής ενέργειας, για τη χρήση ενέργειας από ανανεώσιµες πηγές στους τοµείς θέρµανσης, ψύξης και µεταφορών, για την περιφερειακή συνεργασία µεταξύ της ∆ηµοκρατίας και των κρατών µελών και µεταξύ της ∆ηµοκρατίας και τρίτων χωρών, για τις εγγυήσεις προέλευσης, για τις διοικητικές διαδικασίες και για την πληροφόρηση και την κατάρτιση.
- Σύσταση σημείου επαφής (one-stop-centre) για καθοδήγηση, πληροφόρηση και διευκόλυνση των πολιτών, καταναλωτών και επιχειρήσεων κατά τις διαδικασίες αδειοδότησης έργων ΑΠΕ.
- Απλοποίηση και επιτάχυνση των διαδικασιών αδειοδότησης έργων ΑΠΕ, καθώς και υποχρέωση για ολοκλήρωση των διαδικασιών εντός συγκεκριμένων χρονοδιαγραμμάτων.
- Ενδυνάμωση του ρόλου και της συμμετοχής των πολιτών σε θέματα ΑΠΕ, εισάγοντας πρόνοιες αναφορικά με τη στήριξη της ιδιοκατανάλωσης ηλεκτρικής ενέργειας από ΑΠΕ και τη λειτουργία κοινοτήτων ανανεώσιμης ενέργειας, στα πλαίσια των οποίων πολίτες, μικρομεσαίες επιχειρήσεις και τοπικές αρχές, δύναται να συμμετέχουν από κοινού στην ανάπτυξη και εκμετάλλευση έργων ΑΠΕ, αποφέροντας οικονομικά, κοινωνικά και περιβαλλοντικά οφέλη στην κοινότητά τους.
- Ορίζει ότι το μερίδιο ενέργειας από ανανεώσιμες πηγές στην ακαθάριστη τελική κατανάλωση ενέργειας στη ∆ηµοκρατία από την 1η Ιανουαρίου 2021 και µετέπειτα δεν θα πρέπει να είναι µικρότερο από δεκατρία τοις εκατό (13%).
- Εξουσιοδοτεί το Υπουργικό Συμβούλιο, κατόπιν εισήγησης από την Υπουργό Ενέργειας, Εμπορίου και Βιομηχανίας, να εκδίδει καθεστώτα στήριξης που στοχεύουν στην ενθάρρυνση της χρήσης ανανεώσιμων πηγών ενέργειας.
Πρόκειται για ένα πολύ σοβαρό νομοθέτημα, η σημαντικότητα του οποίου αντικατοπτρίζεται στη σημασία που δίδει η Ευρωπαϊκή Ένωση στη κλιματική αλλαγή και στη μετάβαση στην πράσινη ανάπτυξη και προσφάτως στην απεξάρτηση της Ευρώπης από το Ρωσικό φυσικό αέριο. Ο τομέας των ανανεώσιμων πηγών ενέργειας με βεβαιότητα θα καταλάβει μεγάλο και σημαντικό μερίδιο στο χαρτοφυλάκιο του Υπουργείου Ενέργειας, Εμπορίου και Βιομηχανίας, τα επόμενα χρόνια, ενώ αναμένεται να προσελκύσει σημαντικές επενδύσεις, τόσο εγχώριες όσο και από ξένους επενδυτές, έχοντας ως δεδομένο ότι η Κύπρος θα πρέπει μέχρι το 2030 να αυξήσει την παραγωγή ενέργειας από ανανεώσιμες πηγές, από το δεκατρία με δεκατέσσερα τοις εκατό (13%-14%) περίπου που βρίσκεται σήμερα στο τριάντα τοις εκατό (32%), ποσοστό που ενδεχομένως να αυξηθεί σύντομα, δεδομένης της πρότασης που υπόβαλε η Ευρωπαϊκή Επιτροπή το Μάιο του 2022 για αύξηση του ποσοστού αυτού στο σαράντα πέντε τοις εκατό (45%).
Domesticated and Stray Animals: Obligations and Prohibitions
It is commonly known that a very high percentage of the island’s population adopts and owns domesticated animals, while even those who do not own any, come into contact with stray animals on a daily basis. In this regard, although interacting with animals, domesticated or not, is a part of everyone’s daily routine, few of us are aware of the relevant laws and regulations regarding the possession, guarding, protection and general treatment of animals.
The basic legislation that regulates this issue is the Law on Protection and Welfare of Animals (Law 46 (I) / 1994), the provisions of which will be referred to in a concise manner below.
Obligations
– Animals should always be handled in a way that best suits their physiological and ethological needs.
– A person who owns, possesses or guards an animal must ensure its health and well-being.
– A person who owns, possesses or guards an animal must provide food, water, care and shelter suitable for its species or category.
– Any animal transportation must be carried out in such a way that the animals are protected from unnecessary suffering and injury.
– Necessary operations on an animal should be performed exclusively by a veterinarian. If the operation is expected to cause pain to the animal, general or local anesthesia should be given to the animal, unless contraindicated therapeutically.
– The urgent put down of the animal due to illness, injury, old age, rage or other justified circumstances, must be done in a way that causes the least possible suffering or strain.
Prohibitions
– It is forbidden for any person to cause pain, suffering, injury or fear to any animal.
– It is forbidden to ingest or administer poison or any other harmful substance to any animal.
– It is forbidden to put any animal in a state of horrible death in any way.
– It is forbidden to organize competitions between animals or with animals during which the animals are abused or killed.
– It is forbidden to use animals for exhibitions, advertisements, film production or other similar purposes if they cause pain injury or suffering.
– It is forbidden to release or abandon an animal that is under human care in order to get rid of it.
– Hard work and training of the animal that reaches the limits of torture is prohibited.
– It is forbidden to tie up a dog or cat, except for temporary tie up in a public place.
– It is forbidden to keep, isolate or restrict a dog or cat on a terrace or a balcony.
As far as the penalties for violating the provisions of this Law are concerned, a first conviction carries a prison sentence of up to 1 year and/or a fine of up to €10,000, while a second or subsequent conviction carries a prison sentence of up to 2 years and/or a of up to €20,000.
The amount and severity of the fines was one of the most notable changes of the amending law L.175 (I) / 2020, since the maximum fine was increased from £1,000 and £2,000 to €10,000 and €20,000. Such an obvious increase in fines shows the elevating importance of animals in the Cypriot society, as well as the reduced tolerance of the Republic of Cyprus in crimes that concern them.
The Law
The Cyprus law on the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure 164(I)/2020 (the “Law”) came into force on 27 November 2020, implementing the EU Directive 2016/943 (the “Directive”). The main aim of the Directive is to harmonise the law within the European Union on the protection against the misappropriation of know-how and business information (trade secrets), so that companies can exploit and share such trade secrets with their business partners across the European Union, turning their innovative ideas into new business opportunities.
What is a “trade secret” and who is considered to be a “trade secret holder”?
A “trade secret” means information that meets all of the following requirements:
a) it is secret in the sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
b) it has commercial value because it is secret;
c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
A “trade secret holder” means any natural or legal person lawfully controlling a trade secret.
When is an acquisition, use and disclosure of trade secrets considered to be lawful?
The acquisition of a trade secret shall be considered lawful when the trade secret is obtained by any of the following means:
a) independent discovery or creation;
b) observation, study, disassembly or testing of a product or object that has been made available to the public or that is lawfully in the possession of the acquirer of the information who is free from any legally valid duty to limit the acquisition of the trade secret;
c) exercise of the right of workers or workers’ representatives to information and consultation in accordance with Union law and national laws and practices
d) any other practice which, under the circumstances, is in conformity with honest commercial practices
The acquisition, use or disclosure of a trade secret shall be considered lawful to the extent that such acquisition, use or disclosure is required or allowed by the EU or national law.
When is an acquisition, use and disclosure of trade secrets considered to be unlawful?
The acquisition of a trade secret without the consent of the trade secret holder shall be considered unlawful, whenever carried out by:
a) unauthorised access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
b) any other conduct which, under the circumstances, is considered contrary to honest commercial practices.
The use or disclosure of a trade secret shall be considered unlawful whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions:
a) having acquired the trade secret unlawfully;
b) being in breach of a confidentiality agreement or any other duty not to disclose the trade secret;
c) being in breach of a contractual or any other duty to limit the use of the trade secret.
The acquisition, use or disclosure of a trade secret shall also be considered unlawful whenever a person, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully.
What measures may be taken in case of a violation?
The court, at the request of the trade secret holder, can order any of the following provisional and precautionary measures against the alleged infringer:
a) The cessation of or, as the case may be, the prohibition of the use or disclosure of the trade secret on a provisional basis;
b) The prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes;
c) The seizure or delivery up of the suspected infringing goods, so as to prevent their entry into, or circulation on, the market.
Moreover, according to the Law, the court can -as an alternative to the measures listed above- upon the request of the injured party, order an infringer who knew or ought to have known that he, she or it was engaging in unlawful acquisition, use or disclosure of a trade secret, to pay the trade secret holder damages appropriate to the actual prejudice suffered as a result of the unlawful acquisition, use or disclosure of the trade secret.
Why is the law on trade secrets important?
The Law especially strengthens the position of start-up companies that own trade secrets by increasing legal certainty, in particular with respect to cross-border cooperation or trade; facilitating the enforcement of rights throughout Europe; enabling them to protect their know how and business information without the need of meeting the standards of an intellectual property rights regime.
Introduction
The extent of property rights with regards to an apartment, and the obligations of the owner thereof in respect of the jointly-owned multi-storey building of which the apartment constitutes a unit, are matters which concern a great number of citizens in the course of their participation in the co-ownership of the building, particularly over the last few years in light of the rapid growth in the construction of multi-storey buildings in and around urban areas.
From our professional experience it would appear, however, -and this is something we can confidently attest to- that, not a lot of apartment owners will take the time to research and identify their rights and obligations in the jointly-owned building, prior to the purchase of an apartment.
The present article seeks to provide the reader with the basic knowledge which every owner or interested purchaser of an apartment should possess in order to safeguard his rights, as well the knowledge that must be possessed by the members of management committees in the exercise of the legal responsibilities, powers and obligations they undertake for the administration of a multi-storey building.
The relevant legislative instrument on the matter is the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 (hereinafter the “Law”), and more specifically, sections 38A – 38ΛΒ thereof.
Structures considered as jointly-owned
A building is deemed to be jointly-owned, if it comprises of at least five units, notwithstanding that the building itself may be owned by a single person. Whether a building which fulfils the said condition shall be characterised and registered as a jointly-owned building in the land registry, is not a matter for its owner or owners to decide, but rather a legal obligation. Conversely, a building comprising of two and up to four units, is not automatically considered as a jointly-owned building, although it may be so registered in the land registry at the election of its unit owners.
Jointly-Owned Building – Nature of Ownership
The form of horizontal ownership of immovable property created by undivided co-ownership of a jointly-owned building (being the legal terminology used to characterise a building comprising of numerous floors and units – in other words a multi-storey building) is idiosyncratic and dual in nature.
On the one hand it is idiosyncratic as it deviates from the principle of immovable property law enshrined in the latin phrase ‘superficies solo cedit’, meaning that anything situated above the land’s surface belongs to the owner thereof (section 5 of the Law) and has at its core the horizontal division of the building and not of the land. The plot of land on which a jointly-owned building is erected continues to be the subject of undivided co-ownership between apartment owners in perpetuity, depending on the percentage of the share held by each apartment owner in the jointly-owned building, while the provisions of the Law pertaining to the division of ownership of a plot of land owned in undivided ideal shares – which provide for the vertical division of the plot, the right of pre-emption or option afforded to a co-owner for the purchase of a share in the undivided immovable property being for sale etc – are not applicable in the case of a jointly-owned building.
On the other hand, it is dual in nature in that it confers upon the owner of an apartment comprising a unit of the jointly-owned building, exclusive and absolute ownership of the private unit in respect of which he holds a separate title deed, and also undivided, ideal and proportionate share in the jointly-owned property, which is determined by the owner of the plot on which the jointly-owned building is erected (usually a land development company), depending on the value of the unit relative to the total value of all units in the jointly-owned property.
Apartment – Nature of Ownership and Area
Each apartment or unit in a jointly-owned building, belongs to, is occupied and enjoyed by, the owner thereof as private property, in respect of which a separate certificate of registration of immovable property (title deed) is issued following its registration, in the land registry, which includes the details of the unit (usually including, the parking space or spaces and the storage area corresponding to each unit, and the area thereof etc), any limited jointly-owned property exclusively allocated as part of private property (for example roof for the creation of a roof garden or swimming pool), the share in the jointly-owned property corresponding to the unit, as well as the joint rights of co-owners in relation to the jointly-owned building.
The area of an apartment, consists of the covered area surrounded by the apartment’s exterior walls, including covered and uncovered verandas. Common walls between adjoining apartments or between an apartment and the jointly-owned property, are evenly distributed between them. The caselaw of the Supreme Court repeats the provisions of the Law and expressly asserts the position that the exterior walls of an apartment, constitute jointly-owned property and, as such, fall under the administration (but not ownership) of the management committee of the building. For instance, according to caselaw, the installation of a smokestack on the exterior walls of a building, does not constitute trespass on the property of the apartments on the walls of which it was installed. Such an installation would, however, constitute trespass on the jointly-owned property, if it was placed without the previous approval of the management committee, and it would be up to the management committee to commence legal proceedings in case of non-compliance, for the purpose of obtaining the necessary court orders for the trespass to stop.
Each apartment owner may carry out amendments, additions or repairs to his unit without the approval of the management committee or of the other co-owners, provided that the said works shall not in any way affect the functionality or enjoyment of the jointly-owned property by the co-owners thereof, and shall not infringe the rights of the owner of any other apartment.
Jointly-owned property – Rights of Co-owners
Whilst the jointly-owned property is administered by a management committee, it belongs to, is occupied and enjoyed by, all apartment owners in undivided ideal shares. In this respect, any act by the management committee or by a co-owner, pursuant to which the expulsion or exclusion of another co-owner of his property is sought, or the deprivation of his right to occupy his property, constitutes a trespass in his jointly-owned property rights, giving rise to a cause of action against the wrongdoers. The installation of a smokestack on the exterior wall of a multi-storey building was held not to be equivalent to expulsion or deprivation of a right to occupy property. On the contrary however, the installation of stakes on a pavement in a manner as to obstruct the free passage of a co-owner to the building’s parking area, was deemed to be a violation of the said private rights of a co-owner to a multi-storey building, thereby recognising that the latter had a cause of action as against the trespassing co-owner. Of course, in such a case, the management committee in its capacity as the administrator of the jointly-owned property, would also have a cause of action since the trespass would occur on jointly-owned property.
The insurance of a jointly-owned building against the risk of fire, thunder and earthquake is imposed and mandated by law. The responsibility for insuring the jointly-owned building rests with the management committee which decides for the insurance amount in relation to the value of the building’s replacing in case of total loss. In respect of the jointly-owned property’s insurance against any other risk (in addition to the ones referred to hereinabove) the consent of a simple majority of its owners is required, that is a percentage in excess of fifty per cent (50%).
Jointly-owned property – Regulation and Management of its Affairs
It is well known that the regulation and administration of the affairs and matters of a jointly-owned building, fall within the scope of the responsibility and duties of the management committee, the election of which is mandated by the Law.
The control, operation, administration, management and use of the jointly-owned property as well as the relationships between the apartment owners and their rights and obligations in respect of the jointly-owned building, are governed and regulated by regulations which may be registered in the land registry.
Template regulations for the management and regulation of the affairs of jointly-owned buildings are contained in the Law, which apply automatically and are regarded as registered in respect of jointly-owned buildings not having registered custom regulations. In most cases, management committees elect to adopt the template regulations which are included in the Law since the said regulations are quite comprehensive and detailed with regards to the regulation of the affairs of the jointly-owned building, and in so doing, avoid engaging in a time consuming and burdensome process of discussing and drafting custom regulations. The regulations of a jointly-owned building may be amended, revised, replaced or repealed, by a decision of at least seventy-five per cent (75%) of apartment owners.
Management committee – Election
The first management committee of a jointly-owned building is elected, and the number of its members determined, at the first annual general meeting of apartment owners of the jointly-owned building. With regards to the manner of calling of the first general meeting in the absence of a management committee, (since its composition is determined at the first general meeting), the Law does not provide express guidance. Nevertheless, the Law allows for the appointment of a stand-in or temporary management committee, if so requested by the apartment owners who applied for the registration of the jointly-owned building (the number of owners required for such an application is not prescribed in the Law). It is submitted, that this may be the most legally sound and appropriate process for convening and attending the first general meeting for the purpose of electing the first management committee.
In practice, however, the convening of the first owners’ general meeting, which must take place within three (3) months from the date of registration of the jointly-owned building to the land registry in accordance with the template regulations, is arranged and coordinated by the land development company which constructed the building, or by the first owners thereof following an understanding to this end between them or with the assistance and guidance provided by external consultants (such as lawyers or companies offering building administration services etc). At this juncture, the care and diligence which must be exercised by the persons taking the initiative to convene the general meeting cannot be overstated, since the unlawful convening or calling of a general meeting, may result in the invalidation from the outset of the appointment of the management committee and of the actions or decisions taken by the management committee following its appointment. It therefore follows that it is imperative that apartment owners be provided with sound advice and guidance in respect of the actions which they must undertake for the calling and convening of the general meeting.
Management committee – Legal status and task
In the course of managing and regulating the affairs and matters concerning the jointly-owned building, the management committee, which constitutes a body recognised by Law, always acts on behalf, and for the benefit of the owners of the apartments comprising the jointly-owned building, having extensive responsibilities the scope of which is determined by the Law and the regulations concerning the regulation and management of the jointly-owned building.
The main objective, mission and obligation of the management committee is to control, operate, administer and manage the jointly-owned property, taking decisions and doing any deeds or acts which are necessary for the purpose of ensuring conformity with the provisions of the Law and of the regulations governing the management and operation of the jointly-owned building.
Management committee – Powers, responsibilities and obligations
The management committee has the power to bring a claim against any owner, occupant or third person in respect of matters or issues regarding the jointly-owned property, including cases relating to the causing harm or damage to the jointly-owned property, or in respect of overdue contributions towards common expenses owed by an owner. The management committee also possesses the power to enter into contracts in respect of any matter relating to the maintenance and management of the jointly-owned property. In the context of its obligations, the management committee must implement measures and ensure that the jointly-owned property remains in good and functional condition, undertaking the maintenance thereof and of any part, component, fixture or fitting thereof, as well as to enter into an insurance contract for the benefit of the jointly-owned building with a licensed insurance company.
Additionally, the management committee may establish and maintain a fund, which is, in the management committee’s opinion, sufficient for the purpose of covering the expenses relating to the control, operation, management and administration of the jointly-owned property for the payment of insurance premia and for the performance of the responsibilities, duties and obligations of the management committee. The fund maintained by the management committee, is financed by the apartment owners, usually in the form of monthly contributions imposed by the management committee.
Management committee – Management of expenses and owners’ contributions
One of the most important issues arising in the context of the management of jointly-owned buildings, relates both to the obligation of owners to make financial contributions towards covering the necessary expenses regarding the jointly-owned property for the security, maintenance, repair, restoration and management thereof, and to the extent of the said obligation.
It should be noted from the outset, that the proportion of each owner’s share in such expenses, is determined on the basis of the area occupied by each apartment. As has been recognised by caselaw, the obligation of an owner to contribute towards the necessary expenses pertaining to the management of the jointly-owned building in general is absolute and DOES NOT cease to exist nor is it extinguished merely because the expenses in question relate to services or facilities of the jointly-owned building not being used or enjoyed by an owner. To take an example, the owner of a ground floor shop is not released from the obligation to contribute to the maintenance of the building’s elevator, notwithstanding the fact that the elevator is not being used by the said owner or by his customers. In addition, all owners of a building complex being entitled to use a swimming pool located within the building complex, are under an obligation to contribute towards the expenses regarding the maintenance of the swimming pool, despite the fact that they may not, in fact, be using it. Conversely, in the case of co-owners not having a right to use the swimming pool, or in the case of a swimming pool which has been constructed illegally, the owners are under no obligation to make contributions.
The obligation of an apartment owner to contribute towards the necessary expenses regarding the jointly-owned building, continues to apply even in the case where the apartment is occupied and used by a third person, residing in the apartment. Importantly, the fact that an apartment remains unused or vacant for any period of time, does not absolve the owner of the said apartment from the responsibility to comply with every obligation emanating from the regulations governing the regulation and management of the affairs of the jointly-owned building, including contributing towards necessary expenses.
Management committees should be especially cautious when taking decisions resulting in the creation of expenses for the performance of construction works in the jointly-owned building. This is attributable to the fact that not all expenses concerning the maintenance or restoration of the jointly-owned building are recoverable from apartment owners. Any such expenses should be necessary for the maintenance, repair or restoration of the jointly-owned building. For instance, the construction of a swimming pool would not constitute a necessary expense for the purposes determined by the Law.
Similarly, the cost for the performance of refurbishment works in the jointly-owned building in such manner as to satisfy the aesthetic preferences of certain owners, would not be considered as necessary for the purposes of maintenance, repair or restoration of the jointly-owned building.
Management committee – Administration of common areas
A matter which often arises and relates to the administration and management, by the management committee, of common external or underground areas within the jointly-owned building, which, in most cases, are being used as parking spaces, also falls within the same context pertaining to the powers vested in management committees. The issue that arises relates to cases where there are no pre-determined parking spaces assigned for each apartment (this is especially prevalent in old apartment buildings) or where there is additional open space which the owners or occupants of the jointly-owned building are using as parking space for additional vehicles either of themselves or of their guests. In such a case, whilst the management committee does have the power to regulate the manner in which the available open space comprising part of the jointly-owned building under its administration shall be utilised by owners or occupants, the terms of use that shall be imposed must strike a balance between the rights of the owners and must not, under any circumstances, have the effect of limiting, or intervening with the exercise of, the property rights in the jointly-owned building, that all owners without exception are entitled to enjoy, whilst they must not be more favourable for certain owners to the detriment of the remaining owners and be proportional to the purpose they are seeking to attain. Ideally, and by way of advise to management committees, such terms which may potentially affect the enjoyment or interests of co-owners -and the imposition of which cannot be safely assumed as falling within the powers of the management committee- would be preferrable and safer to be incorporated in the regulations of the jointly-owned building by means of a special amendment, following a decision to this end of 75% of the owners.
Management committee – Term and Financial Reporting
The term in office of the management committee extends to about one year; more specifically its duration spans between the annual general meeting at which it was elected, until the following annual general meeting during which a new management committee is elected. It is worth noting that the annual general meeting of the owners of the jointly-owned building is convened once every year and in any event, within fourteen (14) months from the previous annual general meeting. The decisions of the management committee are taken by a simple majority, whilst the president of the administration of the management committee does not hold a casting vote.
The management committee is under an obligation to maintain statements of income and expenditure and submit them, together with all receipts and supporting documentation, before the annual general meeting of the jointly-owned building for approval. The statements of income and expenditure are subject to inspection by any owner who submits a request to this end, provided that he does so within a reasonable time.
Property Management Companies
In accordance with the template regulations governing the administration and operation of jointly-owned buildings, the management committee may employee persons or representatives and pay to them reasonable remuneration, as the management committee shall deem necessary. It is on the basis of this regulation that, especially in the last few years, management committees resort to the appointment of property management companies, which possess both the experience as well as the means and requisite personnel to enable them to manage the affairs of a jointly-owned building in a more organised, efficient and effective manner.
In certain cases, a false impression or understanding is created among apartment owners, that property management companies essentially replace the management committee in the control, management and administration of the jointly-owned building. In this respect, it ought to be stressed that, property management companies ONLY act as service providers and representatives of the management committee and the extent of the powers vested in them, is exclusively derived from the agreement they have entered into with the management committee. For example, property management companies have no power to bring a claim against an owner of an apartment who has not paid his respective contribution to the jointly-owned building’s fixed fund. This power as well as the right to the cause of action, is solely and exclusively vested in the management committee. In other words, any act undertaken by a property management company, is done for and on behalf of management committee under the instructions of which it operates.
Opinions and Suggestions
To sum up, we are of the opinion that the legislation relating to jointly-owned buildings must be reviewed and updated, having regard to the obvious increase in citizens seeking housing and accommodation in apartments and apartment buildings, many of which now comprise of multiple storeys and a plethora of apartments.
A crucial matter that warrants legislative regulation relates to the stricter supervision of management committees and/or companies providing property management services, for the purpose of ensuring that -in exercising their duties, powers and responsibilities- they conform with and/or act diligently towards the faithful observance of, the building’s regulations, particularly, for the purpose of confirming the structural safety and integrity of the building for the avoidance of accidents, and additionally, towards ensuring that the contributions of owners are not subject to mismanagement or abuse. Yet another matter of grave significance which requires legislative intervention, is the omission or intentional avoidance of payment, by certain owners, of their contributions towards covering the expenses of the jointly-owned property, who often seek to exploit to their advantage, either the fact that they are residing abroad, or the fact that the resources of management committees may not always be sufficient to cover the expenses associated with the commencement of legal proceedings against any such owner etc. Management committees would like to see the Law containing provisions allowing for the imposition of effective enforcement measures on the owner or owners refusing or omitting to pay their corresponding contribution without justification, such as conferring on the Management committee the power to restrict, via the Land Registry, the right of the owner or owners refusing or omitting to pay their corresponding contribution without justification, to dispose of their apartment unless and until all outstanding contributions pertaining to the said apartment are settled in full. Unfortunately, however, at this moment in time, Management committees cannot rely on any legislative provisions to this end.
Suggestions for the updating and improvement of the legislative framework governing jointly-owned buildings are as frequent as they are interminable. Whilst this is an issue that warrants the kind of meticulous analysis that falls outside the scope of this article, our intention is to offer our views on the subject in subsequent articles.
Introduction:
Greece and Turkey, the two Aegean Sea neighbours, have a long tradition of confrontational relations. From the mid-1950s to the present, the two countries have been involved in a series of conflicts, some of which have escalated into major crises that have taken them to the verge of war. The main point of contention between the Greek and Turkish governments is the Aegean Sea. These problems are not only unresolved, but they also contribute to the region’s ongoing instability and tense atmosphere. Several resolution efforts were made in previous years but failed. The purpose of this article is to identify the relevant law governing the areas of conflicts and to propose a possible solution.
The essence of the problem is such that the two sides have fundamentally different perspectives concerning the Aegean. It should be acknowledged that Turkey has not signed up to the Convention on the Continental Shelf nor the superseding United Nation Convention on the Law of the Sea (UNCLOS), both of which Greece has signed and ratified. Turkey identified the inability of the UNCLOS to properly resolve exceptional geographical circumstances and the prohibition of reservations as reasons for its non-participation in the LOSC in a letter to the UN Secretary-General. The main reason Turkey refused to sign was the dispute with Greece over Aegean Sea delimitation issues. Turkey is one of the 16 countries which have not signed or ratified the Convention. Turkey believes that Greece regards the Aegean as a Greek sea and that Greece is trying to undermine Turkish security by controlling the Aegean disregarding Turkey’s rights and interests in the Aegean. On the other hand, Greece is arguing that UNCLOS Articles are binding to non-signatory countries.
Considering that the aim is to review the Aegean maritime disputes on the basis of international law, it is necessary to examine the relevant law regulating the maritime areas.
UNCLOS – Articles of Interest
Territorial Sea
The expansion of territorial waters, it has become a contentious issue. Article 3, s.2 of UNCLOS states that:
“Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention”.
In relation to Article 3, Greece has expressed its intention to extend its territorial waters to 12 nautical miles in the Aegean sea, applying this article. However, until this day Greece retains a 6 nautical mile territorial sea due to the dispute with Turkey. The expansion of nautical miles from Greece could intensify the conflict with turkey and further destabilise the Eastern Mediterranean region.
On the other hand, the Turkish point of view is that because of the large number of Greek Islands, 12 miles of territorial waters will convert the Aegean into a Greek lake. Turkey argues that it will be locked out of the Aegean and confined to its own territorial waters as a result of this. Turkey also claims that Greece should not be allowed to expand its territorial waters in the Aegean Sea to 12nm and that doing so would result in a casus belli (cause of war).
The central issue in the Aegean Sea territorial sea dispute is whether international law requires a certain limit for specific areas in special geographical areas, and if so, what implications does this have for the Aegean Sea.
Continental Shelf
The term continental shelf is used as referring to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.
However, the criterion of ‘exploitability’ was highly criticised as being “unsatisfactory” and it was gradually rendered obsolete as a result of technical advancements. As a result, it was replaced by the more precise “width” criterion in Article 76(1) LOSC for determining the continental shelf’s outer limit. In the absence of a delimitation agreement, the Aegean continental shelf has been another point of conflict between Turkey and Greece. The issue of the Continental Shelf has strained ties between Turkey and Greece in the past. Greece has requested the United Nations Security Council and the International Court of Justice (ICJ) with the following outcomes:
1) In Resolution 395, adopted on August 25, 1976, the United Nations Security Council urged Turkey and Greece to do everything possible to de-escalate tensions in the Aegean and urged them to resume direct talks to resolve their differences.
2) It urged them to ensure that these negotiations end in mutually satisfactory solutions. In a ruling issued on September 11, 1976, the International Court of Justice designated the Aegean continental shelf outside the territorial waters of the two coastal states as “areas in dispute” for which both Turkey and Greece seek exploration and exploitation rights.
Article 83 (1) of the Convention, as a result, is a compromise that states:
“The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement based on international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” Despite the differences in content, Article 83 does not introduce a new concept. However, any prospect of agreement or resolution has failed so far.
Regime of Islands
UNCLOS Article 121 states,
“Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.”
For Greece, international law, particularly UNCLOS grants the islands the right to exercise sovereignty over their continental shelf and stipulates that the continental shelf between two countries must be established on a median line basis. As a result, each of the Aegean Sea’s islands has its own continental shelf, and the median line can be used to describe the border with Turkey. For Turkey, the Greek islands do not have rights to exert jurisdiction on the continental shelf, as they are located on the Turkish continental shelf.
Maritime Boundary Delimitation
Maritime delimitation is one of the most important, although contentious, topics in maritime law. The East Mediterranean states took a leading role in the debate, citing the narrowness of the regional sea, as well as the uncertainty surrounding the relevant methods and factors to be considered, as significant obstacles to maritime delimitation. During UNCLOS III, arduous talks on maritime delimitation took place, and the East Med states found themselves in opposing interests. The limited extent of territorial sea delimitation, as well as the lower resource probabilities, made the median/equidistance line approach easier to apply. This is expressed in Article 15 LOSC and is part of customary international law. The doctrine of equitable principles is the fundamental norm of customary international law governing maritime boundary delimitation by agreement, in accordance with equitable principles, taking account of all relevant circumstances, so as to arrive at an equitable result.
Given the critical role of delimitation in maritime activities, including hydrocarbon operations, maritime boundary delimitation has been one of the most important topics for the East Med states. Greece and Cyprus supported the median/equidistance line because they saw it as the best way to ensure that their interests were properly protected. In contrast, against the scenery of the Aegean dispute, Turkey called for the equitable principles approach in order to take advantage of its long coastline and lessen the effect of islands.
Conclusion
Noting that the different positions were leading nowhere, Greece submitted the issue to the ICJ in August 1976, but Turkey refused to recognize the jurisdiction of the Court, which in the end declared itself incompetent. Since then, the maritime issue has remained and has been aggravated by territorial arguments.
As mentioned above, Turkey did not ratify UNCLOS and is a constant objector. In later articles it will be discussed whether an objector country as Turkey is bounded by UNLCOS and it will be analysed whether International law can propose a possible resolution or to have a mediating role in order to reach an agreement.
Α. Introduction
Cyprus is not itself a party to the International Convention Relating to the Arrest of Sea-Going Ships 1952; however, the Administration of Justice Act of 1956 (AJA)[1], which ratifies the Convention, applies to Cyprus[2]. Under Cypriot law, maritime liens enjoy advantages over all other permitted actions in rem (statutory liens), at the time of creation of the lien, in priority and in the enforceability of the security. In addition, statutory liens have no priority over mortgages.[3] The significance of a maritime lien is that it enables the Court or its appointees to arrest and seize the vessel in satisfaction of the claims against her. Cyprus courts follow the English case The Bold Buccleugh[4], which recognises as maritime liens salvage, bottomry, master and seafarers’ wages, disbursements and liabilities, and damage done by a vessel. The arrest of a ship is only possible in the case of an action in rem (however, the possibility of securing a Mareva injunction for freezing of assets, including a vessel, is also available). Thus, the filing of an action in rem is a prerequisite for such an arrest. The court has wide discretion to order the arrest of the vessel if it is satisfied that the plaintiff is eligible for arrest.
Similarly, the arrest of a sister ship is applicable in Cyprus by means of Section 3(4) of the AJA. However, the concept of ‘associated ship arrest’ is not recognised under Cyprus law.
Β. Arrest of vessel for contracts relating to the sale and purchase of a ship
It is not possible to arrest a vessel for contracts relating to the sale and purchase of a ship, unless the circumstances of a case give rise to a claim to the possession or ownership of a ship or to the ownership of a share therein (under clause 1(1)(a) of AJA which applies in Cyprus under the Courts of Justice Law 1960 (Law No. 14/1960)). Also, while section 30 of the Merchant Shipping (Registration of Ships, Sales and Mortgages) Laws of 1963 to 2005 (Law No. 45/1963 as amended) provide for the right of an ‘interested person’, to apply to the Supreme Court, in its Admiralty Jurisdiction, for the issuance of the order prohibiting any dealing with a ship or any share therein if it thinks fit under the given circumstances, the case law of the Supreme Court has ruled out the buyer of a ship from the definition of the ‘interested person’.
C. Arrest of vessel by bunker supplier
It is possible for a bunker supplier (whether physical and/or contractual) to arrest a vessel for a claim relating to bunkers supplied by them to that vessel. In the admiralty case No. 32/2014 between (1) Interbunker Management Ltd, and (2) Novoil Ltd v m/v ‘BARIS’,
The court issued an arrest warrant against the defendant’s vessel which was anchored in the port of Larnaca, Cyprus. The claim of the plaintiffs related to the supply of bunkers to the defendant’s vessel, and the arrest warrant was issued upon filing an ex parte application at the Supreme Court of Cyprus.
D. Procedures of ship arrest
Rule 50 of the Rules of the Supreme Court in its admiralty jurisdiction (RSC)[5] allows any party to apply to the court for the issue of a warrant for the arrest of property (i.e., for the arrest of ship or cargo), at the time of, or at any time after, the issuance of the writ of summons (but not without the submission of a writ of summons) in an action in rem. The application must be accompanied by an affidavit containing the particulars prescribed in the RSC, including the nature of the claim, that the aid of the court is required, the national character of the ship and that, to the best of the deponent’s belief, no owner or part owner of the ship was domiciled in Cyprus at the time the necessaries were supplied or the work was carried out. However, the judge has the discretion to issue an arrest warrant even if the affidavit does not contain all the prescribed particulars.
The arrest warrant shall be served by the marshal of the court in the same manner as prescribed by the Rules for the service of a writ of summons in an action in rem. For instance, if the arrest warrant is to be served upon a ship, or upon cargo, freight or other property that is on board a ship, the warrant shall be considered as duly served if an office copy of it is attached to a conspicuous part of the ship, including a mast. If the cargo, freight or other property is not on board the ship, an office copy must be attached to some portion of the cargo or property.
The RSC vest the power and discretion on the judge to issue provisional arrest orders, notwithstanding that no notice of the application has been given to the ship or the shipowner, on such terms as to the furnishing of security as shall appear to the judge to be having regard to the circumstances of the matter in question (Rule 205). In practice, almost invariably the judge will order the arresting party to provide security in the form of a bank guarantee from a Cyprus bank, the aim of which is to cover the costs of the marshall and to compensate the shipowner for loss he or she may have suffered due to the detainment of the ship, acknowledging the concept of wrongful arrest. However, the security of the arresting party shall not be seized in all cases where the provisional arrest order is finally set aside as unjustified. The arresting party’s guarantee may be claimed only in the event of wrongful arrest, which was so unwarrantably brought that it rather implies malice or gross negligence.
At the time the arrest warrant is issued, the judge will determine the amount of the security that the shipowner or other opposing party may deposit to the court for the arrested ship to be released, taking into account the level of the claim. The ship may be released by an order of the judge upon a written application and provided that the security originally set by the judge is deposited to the court.
Any person desiring to prevent the arrest or the release of any property under arrest or the payment of any moneys out of court may, by a written application to the Registrar of the Admiralty Court, cause a caveat against any such action or procedure and the court or judge will not proceed to issue the requested order without notice to the caveator, unless the judge deems that special circumstances have been presented that render it desirable or necessary to make such order without notice to the caveator, upon such terms as may seem fit to the judge. The caveat shall not remain in force for more than three months from the date of being entered, unless extended by further applications.[6]
Almost invariably at the time an arrest warrant is issued, the ship is located within the territorial waters of Cyprus,[7] either anchored in the port area or anchorage or berthed in one of the ports controlled by the Cyprus government (i.e., the ship must not be berthed in any of the ports that have been illegally occupied by the Turkish administration since Turkey’s invasion of Cyprus in 1974). An arrest warrant against a ship may be issued even if, at the time the warrant is issued, the ship is located outside the territorial waters of Cyprus. However, in this case, the arrest warrant will not be able to be served unless the ship heads within the territorial waters. In such instance, the arresting party must see that the warrant will be adequately timetabled so that it does not expire before served on the ship.
The Supreme Court has recognised the option of a party to the admiralty proceedings to seek the ‘arrest’ of a ship by using the Mareva injunction mechanism under Section 32 of the Courts of Justice Law of 1960 (Law No. 14/1960). However, the Court stressed that the power of the Court to issue such an injunction must be exercised only on the premise that the ship is within the jurisdiction of the court or, in other words, within the territorial waters controlled by the Cyprus government.
The issuance of an arrest warrant, based on Section 50 of the RSC or by way of a Mareva injunction, as security for court proceedings (not arbitration proceedings) pending in another jurisdiction is plausible pursuant to the provisions of Regulation (EU) No. 1215/2012 and, in particular, Section 35 of the Regulation, provided that the ship is within the jurisdiction of the court.[8]
In Nationwide Shipping Inc v. The Ship ‘Athena’,[9] the Supreme Court, by adopting an extract from the judgment given in the English case The ‘Vasso’ (formerly ‘Andria’),[10] held that the Admiralty Court has no jurisdiction to issue an arrest warrant in an action in rem for the purpose of providing security for an award that may be made in arbitration proceedings. However, it seems that the extract from the English judgment extends to other proceedings as the court in The ‘Vasso’ case stressed that the purpose of the exercise of the Admiralty Court’s jurisdiction to arrest a ship is to provide security in respect of the action in rem before it and not for any other purpose. In The Ship ‘Athena’ case, the Court did not consider the application of Regulation (EU) No. 1215/2012, which, of course, prevails over any domestic law and, therefore, confers the jurisdiction to the Admiralty Court to issue provisional measures and orders for matters adjudicated on their merits in other European jurisdictions.
E. Dsclosure obligations in court proceedings
Whilst the Judge always has the discretion to ask, out of its own motion, the parties in the litigation to proceed with disclosure of documents or facts, the Cyprus Admiralty Jurisdiction Order of 1893 (the Order), contains varied provisions which a party in a litigation may utilise to cause such disclosure.
More precisely, the disclosure of documents in an admiralty action is governed by sections 93 and 98 of the Order which constitutes the authoritative regulatory framework governing the admiralty procedure before the Supreme Court in its Admiralty Jurisdiction. In particular, section 93 of the Order provides that ‘the Court or Judge may, on the application of any party to an action and without notice to any other party, order that any other party shall make discovery, by affidavit, of all documents which are in the possession or power relating to any matter in question therein’. A similar ex officio power is vested to the Court or Judge without the motion of any party.
Rule 91 of the Order, empowers any party who is desirous to obtain the answers of the adverse party on any matters material to the issue, to apply to the Court or Judge for leave to administer interrogatories to the adverse parties to be answered on oath within such time as the Judge may direct. It is apparent that the administration of interrogatories by any party lies exclusively in the discretion of the Judge who pays regard on whether the interrogatories are material to the issue in litigation and on whether it is appropriate and convenient to grant the requested leave based on the applicable circumstances. Interrogatories which are intended to elicit admission of facts which may be adduced to the Court at the hearing or which are, or are expected to be, within the applicant’s sphere of knowledge are doomed to rejection.
The Court or Judge may, on the application of any party in the litigation and without notice to the adverse party, order the discovery, by affidavit, of all documents which the other party has in his possession or power relating to any matter in question. Any documents not contained in the affidavit of discovery cannot be put in evidence, unless with the leave of the Court or Judge (Rules 93–95). Also, a party to an action may serve upon any other adverse party a notice to produce, for inspection, any document in his possession or power relating to any matter in question and if the party so served with the production notice omits or refuses to comply with the notice, an order from the Court or Judge to this effect may be sought (Rules 95–100).
Moreover, in an action for damage by collision, the parties are procedurally obligated to file in the Court a statement with certain particulars (the so-called Preliminary Acts) outlined in the Order, relating to the circumstances of the collision. The Preliminary Acts must be sealed up and signed by the parties and must be filed by the plaintiff within one week from the issue of the writ and by the defendant at any time before the time fixed by the writ of summons for the appearance of the parties before the Court.
F. Electronic discovery and preservation of evidence
The Order does not currently contain provisions for, and the Admiralty Court practice in general does not currently permit, the electronic discovery and preservation of evidence. The Cyprus Government has recently established a Deputy Ministry of Research, Innovation and Digital Policy with the mission, inter alia, to develop and implement policies in information technologies and e-government in the public sector, including the justice system. Hence, it is expected that e-procedures, including the e-discovery and preservation of evidence, will soon be a reality in Cypriot justice system.
G. Court orders for sale of a vessel
An arrested ship, cargo or other property may be appraised and sold by order of the court or judge, either before (pendente lite) or after the final judgment. In such case, the judge will appoint the marshal of the court or any other person to appraise the property under arrest (in practice, the court appoints the marshal in almost all cases) and to proceed with its sale at auction (the sale procedure adopted in most cases). Nonetheless, the judge may allow the sale of the ship by private sale if he or she deems this fit and provided that all parties in the litigation acquiesce.[11]
The proceeds from the sale of a ship are paid into the court and, upon an application by any judgment creditor, will be distributed to all judgment creditors who claimed a share of the proceeds, in order of priority. In Cyprus, the priorities have been determined by case law and no guidance is found in the RSC or in any other law or procedural rules applying in Cyprus. Detailed analysis of the order of priorities is outside the scope of this chapter. In general terms, however, governmental fees, including the costs and expenses of the marshal, take priority over any other claims, and maritime liens take priority over statutory liens, while statutory liens have no priority over mortgages.
Author: Zacharias L. Kapsis
FOOTNOTES:
[1] The Administration of Justice Act of 1956 (AJA) defines the admiralty jurisdiction of the Supreme Court of Cyprus.
[2] By virtue of its Constitution and by Articles 19 and 29 of the Courts of Justice Law of 1960 (Law No. 14/1960).
[3] As seen in Nordic Bank PLC v. The Ship ‘Seagull’ (1989) 1 CLR 420.
[4] The Bold Buccleuch (1851) 7 Moo PC 267.
[5] The Rules of the Supreme Court in its admiralty jurisdiction are stated in the Schedule of the Cyprus Admiralty Jurisdiction Order 1893, which regulates the procedure and rules before the Supreme Court.
[6] Rules 65–73 of the RSC.
[7] The Republic of Cyprus, pursuant to the United Nations Convention on the Law of the Sea 1982 (UNCLOS), as well as the Territorial Sea Law of 1964 (Law No. 45/1964), has a territorial sea, the breadth of which extends to 12 nautical miles from the baselines. The geographical coordinates and the relevant map of the Cypriot baselines were submitted to the Secretary General of the United Nations on 3 May 1993. In the territorial sea, the Republic of Cyprus exercises full sovereignty and applies all related domestic laws, in line with UNCLOS provisions. Furthermore, according to the Regulation of Innocent Passage of Ships through the Territorial Waters Law of 2011 (Law No. 28(I)/2011), as well as UNCLOS, every foreign ship, whether merchant or warship, has the right of innocent passage through the territorial sea of the Republic of Cyprus, without encroaching upon its sovereignty and without a prior licence.
[8] The Commerzbank Aktiengesellschaft v. The Ship ‘Tour 2’, Admiralty Action No. 2/2018, 25 May 2018 is relevant.
[9] [2012] 1C JSC 2343.
[10] [1984] Lloyd’s Law Reports 235.
[11] Rules 74–77 of the RSC.
We participate at Cityscape Egypt from 22 to 25 September.
Visit us at booth 4.B05
- THE LAW
The Council of Europe has introduced Directive 2018/822, as regards the mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements, which constitutes the sixth amendment (“DAC6”) to Directive 2011/16, on administrative cooperation in the field of taxation.
DAC6 has been transposed into Cyprus law through the amendment of the Law on Administrative Cooperation in the Field of Taxation of 2012 (the “Law”), enacted on 31 March 2021.
DAC6 aims to enhance transparency in the field of taxation and fight against aggressive tax planning.
- BASIC PRINCIPLES
- Who?
The obligation to report to the Tax Department rests with the Intermediaries and under specific circumstances with the Relevant Taxpayers.
The Intermediaries are defined as any person that designs, markets, organises or makes available for implementation or manages the implementation of a reportable cross-border arrangement and any person that, having regard to the relevant facts, circumstances and expertise, knows or could be reasonably expected to know that they have undertaken to provide, directly or by means of other persons, aid, assistance or advice with respect to designing, marketing, organising, making available for implementation or managing the implementation of a reportable cross-border arrangement.
For a person to be considered as an Intermediary, at least one of the below conditions must apply:
a) be resident for tax purposes in an EU Member State (“Member State”);
b) have a permanent establishment in a Member State through which the services with respect to the arrangement are provided;
c) be incorporated in, or governed by the laws of, a Member State;
d) be registered with a professional association related to legal, taxation or consultancy services in a Member State.
The Relevant Taxpayer is defined as any person to whom a reportable cross-border arrangement is made available for implementation, or who is ready to implement a reportable cross-border arrangement or has implemented the first step of such an arrangement. It is important to note, that the obligation to report rests with the Relevant Taxpayer when the Intermediary is waived from the reporting obligation, or when there is no Intermediary.
- What?
The Intermediaries or the Relevant Taxpayers are obliged to report information on “reportable cross-border transactions”.
“Cross-border arrangements” are defined as the arrangements that concern either more than one Member State or a Member State and a third country, when at least one of the following conditions are met:
a) not all of the participants in the arrangement are resident for tax purposes in the same jurisdiction;
b) one or more of the participants in the arrangement is simultaneously resident for tax purposes in more than one jurisdiction;
c) one or more of the participants in the arrangement carries on a business in another jurisdiction through a permanent establishment situated in that jurisdiction and the arrangement forms part or the whole of the business of that permanent establishment;
d) one or more of the participants in the arrangement carries on an activity in another jurisdiction without being resident for tax purposes or creating a permanent establishment situated in that jurisdiction;
e) such arrangement has a possible impact on the automatic exchange of information or the identification of beneficial ownership.
“Reportable cross-border transactions” are defined as any cross-border arrangement that contains at least one of the “hallmarks” included in Appendix IV of the Law. Under some circumstances, the “main benefit test” should also apply for a cross-border transaction to be reportable. The main benefit test is satisfied if it can be established that the main benefit or one of the main benefits which, having regard to all relevant facts and circumstances, a person may reasonably expect to derive from an arrangement is the obtaining of a tax advantage.
The hallmarks are divided into the below five categories:
i) Generic hallmarks linked to the main benefit test: focuses on general characteristics that can be found in tax avoidance schemes and planning, such as confidentiality clauses in relation to tax arrangements, remuneration linked to tax savings. The main benefit test should also apply.
ii) Specific hallmarks linked to the main benefit test: focuses on characteristics that are an indication that the tax benefit is the objective of the transaction, such as obtaining a loss making company, income to capital conversion. The main benefit test should also apply.
iii) Specific hallmarks related to cross-border transactions: focuses on cross-border transfers and payments. The main benefit test should apply in certain circumstances.
iv) Specific hallmarks concerning automatic exchange of information and beneficial ownership: focuses on arrangements that undermine the transparency requirements.
v) Specific hallmarks concerning transfer pricing: focuses on intragroup transfers and arrangements that contain uncertain pricing.
The information to be provided to the Tax Authority shall contain the following, as applicable:
a) the identification of Intermediaries and Relevant Taxpayers, including their name, date and place of birth (in the case of an individual), residence for tax purposes, TIN and, where appropriate, the persons that are associated enterprises to the Relevant Taxpayer;
b) details of the hallmarks that make the cross-border arrangement reportable;
c) a summary of the content of the reportable cross-border arrangement, including a reference to the name by which it is commonly known, if any, and a description in abstract terms of the relevant business activities or arrangements, without leading to the disclosure of a commercial, industrial or professional secret or of a commercial process, or of information the disclosure of which would be contrary to public policy;
d) the date on which the first step in implementing the reportable cross-border arrangement has been made or will be made;
e) details of the national provisions that form the basis of the reportable cross-border arrangement;
f) the value of the reportable cross-border arrangement;
g) the identification of the Member State of the Relevant Taxpayer(s) and any other Member States which are likely to be concerned by the reportable cross-border arrangement;
h) the identification of any other person in a Member State likely to be affected by the reportable cross-border arrangement, indicating to which Member States such person is linked.
- When?
The reportable information should be provided to Tax Authorities within 30 days beginning:
a) on the day after the reportable cross-border arrangement is made available for implementation; or
b) on the day after the reportable cross-border arrangement is ready for implementation; or
c) when the first step in the implementation of the reportable cross-border arrangement has been made, whichever occurs first.
The Intermediaries that, having regard to the relevant facts, circumstances and expertise, know or could be reasonably expected to know that they have undertaken to provide, directly or by means of other persons, aid, assistance or advice with respect to designing, marketing, organising, making available for implementation or managing the implementation of a reportable cross-border arrangement, shall also be required to file information within 30 days beginning on the day after they provided, directly or by means of other persons, aid, assistance or advice.
The Tax Department has released an announcement informing the public that there will be no imposition of administrative fines for overdue submission of DAC6 information that will be submitted until the 30th of September 2021, in the following cases:
a) Reportable cross-border arrangements that have been made between 25 June 2018 and 30 June 2020 and had to be submitted by 28 February 2021.
b) Reportable cross-border arrangements that had been made between 1 July 2020 and 31 December 2020 and had to be submitted by 31 January 2021.
c) Reportable cross-border arrangements made between 1 January 2021 and 31 August 2021, that had to be submitted within 30 days from the date they were made available for implementation or were ready for implementation or the first step in the implementation has been made, whichever occurred first.
d) Reportable cross-border arrangements for which secondary Intermediaries provided aid, assistance or advice, between 1 January 2021 and 31 August 2021 and had to submit information within 30 days beginning on the day after they provided aid, assistance or advice.
The Model of United Nations (MUN) is a competition organized by the International Festival Career (ICF) in Rome, dedicated to the world of diplomacy, the United Nations and International Organizations.
ICF originated from the family of the RomeMUN one of the biggest and most prestigious UN simulations in Europe. Since its foundation in 2016, the festival greeted more than 7,700 students from 91 countries to the “Eternal City” of Rome.
Participants of the diplomatic simulation had the opportunity to prove themselves against MUNers from all over the world, representing their state while using the tools of bilateral and multilateral diplomacy in order to attain the approval of resolutions and have them pass in their favor.
We are delighted and proud to announce that our Trainee Lawyer Mrs Eleni C. Louca has won the “Best Delegate Award” (1st prize), representing the delegation of Canada.
The competition this year had approximately 30 participants/delegates from all around the world.
Mrs Eleni C. Louca had the opportunity, during this competition to gain and expand several skill which, amongst other, include the following :
- Public Speaking, thanks to the number of official speeches delegates must give during the MUN;
- The ability to draft official, international documents like position papers and resolutions of the United Nations;
- Teamwork and team building by having to work in groups with other delegates to find common solutions;
- Leadership skills, guiding blocks of nations who share a common position;
- Research skills, during the preparatory phase before the conference and during the days of the conference;
- Adapting in a multicultural environment given the vast diversity of participants coming from about 100 different countries around the world.
A. Karitzis & Associates LLC is seeking to recruit a Receptionist/Office Administrator (full time) for their Limassol Office.
Qualifications and Experience:
- University degree or diploma or other recognized title in Secretarial or related field.
- At least one year of experience, working in a relevant position.
- Very good knowledge of English and Greek.
- Very good knowledge of PC and MSOffice programs.
- Multi-tasking, communication, administrative, organizational and management skills.
- Character integrity, professionalism, conscientiousness, responsibility and reliability.
Duties:
- Answering calls, taking messages and handling (inward / outward) correspondence.
- Arranging and coordinating appointments and greeting clients / associates.
- Providing assistance to the Management with regards to operational tasks of the Firm.
- General organization of the Firm.
All interested candidates should submit their CV to the email following email address: careers@karitzis.com
All applications will be treated as strictly confidential.
A. Karitzis & Associates L.L.C is an Equal Opportunities Employer.
I. Amendment of Cyprus AML Law
The Cyprus Parliament has approved on 18 February 2021 an amendment to the Prevention and Suppression of Money Laundering and Terrorist Financing Law 188 (I) 2017 (the “AML Law”), which has been issued in the Official Gazette on 23 February 2021 and has therefore become effective. The amended AML Law implements the EU Directive 2018/843 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (the “5th AML EU Directive”).
II. Introduction of the Crypto Asset Services Providers in Cyprus AML Law
One of the key changes introduced by the amended AML Law is the introduction of the notion of “Crypto Assets Service Providers” which are included in the definition of “Obliged Entities” (entities that are obliged to abide by the AML Law) and are defined as the persons that provide one of the below services:
(a) exchange between crypto assets and fiat currencies;
(b) exchange between crypto assets;
(c) management and/or transfer and/or retention and/or safekeeping, including custodianship, of crypto assets or cryptographic keys or means enabling control over crypto assets;
(d) offering and/or selling crypto assets, including the initial public offering; and
(e) participation and/or provision of financial services related to the distribution, offering and/or sale of crypto assets, including the initial public offering.
The amended AML Law defines “Crypto Assets” as a digital representation of value, that is neither issued nor guaranteed by a central bank or public authority, is not necessarily connected with a legally established currency and does not have the legal status of currency or money, but is accepted by persons as a means of transaction or investment, may be transferred, stored or traded electronically and is not:
(a) fiat currency, or;
(b) electronic money, or;
(c) financial instruments as defined in n Part III of the First Appendix of the Law on the Provision of Investment Services and Activities and Regulated Markets.
The Cyprus Securities and Exchange Commission (“CySec”) has been appointed as the supervising authority for the purpose of supervising the compliance of Crypto Asset Service Providers with the AML Law; issuing directions in relation to their obligations and imposing sanctions in case of infringement. The Crypto Asset Service Providers that offer services from or in Cyprus must be registered in a registry to be kept by CySec and will be entitled to such registration on the condition that they fulfil the relevant requirements as included in the directions to be issued by CySec.
III. European Union
On a European level, the European Commission has issued on 20 September 2020 the proposal for a Regulation on Markets in Crypto Assets (“MiCA Regulation”) which sets out a regime that regulates issuers of Crypto Assets and providers of crypto asset services, including exchanges, custodians, and firms providing investment type services in respect of crypto-assets and its scope is limited to crypto assets that do not qualify as financial instruments.
The proposal for the MiCA Regulation forms part of a broader package of measures that falls under the Commission’s Digital Finance Strategy, whose aim is to further enable and support the potential of digital finance in terms of innovation and competition while mitigating the risks. The Commission’s Digital Finance Strategy also includes a legislative proposal for a pilot regime to test distributed ledger technology (“DLT”) market infrastructure solutions for the trading and settlement of financial instruments, which would apply to crypto assets qualifying as financial instruments.
IV. The future of the crypto assets industry
The changes to the AML Law constitute the first legislative act towards the creation of a regulatory framework in Cyrus for the crypto assets industry and is considered as a great step for its development in Cyprus. More changes are expected on a national and European level, which are highly anticipated by the relevant stakeholders, considering the importance of legal certainly and a clear regulatory regime in this industry.
