The composition of collective bodies exercising administrative functions on behalf of national and local government and associated entities, and the serious adverse consequences of ignoring the relevant requirements, have been recurring themes in recent cases in the Administrative Court.
A recent case concerned the legality of a tender for the development of a new €200 million-plus marina in Paphos. The tender for the project was first announced in 2007 and originally awarded to one of the three bidding consortia, but the two unsuccessful bidders successfully challenged the award on the grounds that the winning developer had used inside information. In 2015 the contract was awarded to one of the unsuccessful bidders, the Poseidon Grand Marina of Paphos consortium, subject to it demonstrating its ability to meet the requisite financial criteria. Following many months of negotiation, the Marina Management Committee, which was responsible for implementing the marina project, decided that Poseidon was unable to meet the financial criteria and awarded the contract to Pafilia Property Development Limited, the other initially unsuccessful bidder.
Poseidon challenged the Marina Management Committee's award in the administrative court. Examining the committee's composition at its sessions up to and including the final meeting during which the contested decision was taken, the administrative court concluded that it had been defective for numerous reasons, including:
- the unjustified absence of key officers;
- failure to record the reason for the absence of specific members in the relevant minutes; and
- failure to record any steps taken to inform the absentees of the matters previously discussed in their absence so that they could legally and effectively participate in subsequent meetings, particularly the meeting at which the contested decision had been taken.
The court decision was based on the well-established principle that the decision-making process of any collective body regarding a specific matter:
- must be consistent from beginning to end; and
- requires the presence of the same members of the body in order to ensure that all members are aware of and able to evaluate all factors which come to light during the process.
If this process extends to more than one meeting, the composition of the collective organ must remain unchanged at all of its relevant meetings. If there is any change in composition through the presence of a member who did not take part in an earlier meeting on the matter, the organ cannot take a valid decision at its final meeting, unless the whole process is fully repeated ab initio, so that the consideration of the matter can be regarded as having begun and ended at the final meeting.
In addition, the court considered the consequences of the fact that disqualified individuals had participated in Council of Ministers' meetings which had appointed the Marina Management Committee and subsequently replaced certain members. It noted that the government spokesperson and the deputy minister had been present at those meetings, despite the fact that the Supreme Court had repeatedly judged in other cases that their presence had been unlawful and had annulled the decisions taken in their presence. The administrative court concluded that the presence of the individuals concerned at the Council of Ministers' meetings which decided on the appointment and replacement of the Marina Management Committee members made the composition of those meetings unlawful and invalidated any decisions taken at them.
The administrative court also held that, regrettable as the delays to a public interest project such as the marina project may be, the courts could not disregard the fundamental public policy issues which had arisen.
Originally published by International Law Office.
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