Kuwait Court of Cassation principle number 482

Summary: - A general regulatory decision. The period for challenging it begins on the date of its publication in the Official Gazette. Individual decisions issued in application thereof that affect individual legal positions. The period for challenging them is 60 days from the date of their publication, notification to the person concerned, or that person’s acquisition of certain knowledge thereof. - Established certain knowledge of the challenged decision and the bringing of the action after the passage of 60 days therefrom. Its implication. Its inadmissibility. This is not affected by the erroneous legal statements contained in the judgment. - No person may be compelled to join an association or trade union. Article 43 of the Constitution. - Issuance of a decision regulating the conditions to be followed by persons wishing to practise human medicine and dentistry in Kuwait pursuant to Law 23 of 19620 concerning the Practice of Human Medicine and Dentistry and Law No. 25 of 1960 concerning the Practice of Pharmacy, and the provision in Article 2 of the first Law that physicians and pharmacists shall not be entered in the registers for practising the profession until completion of the procedures for their admission as members of the Kuwait Medical Association and submission of a document evidencing this from the said Association, and the continuation of this decision under the operation of Law 25 of 1981 concerning the Practice of Human Medicine, Dentistry and Auxiliary Professions. Its implication. Requiring membership of this Association for anyone wishing to practise any of the foregoing professions as a condition thereof. The judgment’s departure from this view and its ruling admitting the application to annul the challenged decision on the ground that a challenge against it is not subject to a time limit. Vitiates it by contravention of the law and error in its application. Rule: It is established that, although the court of merits, by virtue of its authority to ascertain and understand the facts of the case, may identify the true nature of the contested administrative decision according to the elements upon which it was based—competence, form, purpose, cause and subject matter—which must be present for it to be lawful, or determine that it was issued as a legally non-existent decision if the defect affecting it was so grave as to reduce it to non-existence, in that it was issued by a non-administrative authority or by an administrative authority other than the one entrusted by the legislature with issuing it, the condition for this is that it base its ruling on reasonable grounds having an established basis in the case papers and leading to the conclusion it reached. It is also established that the period for challenging a general regulatory decision begins on the date of its publication in the Official Gazette, and that, for individual decisions issued in application thereof that affect individual legal positions, the period for challenging them runs from the date of their publication or notification to the person concerned. The person concerned’s acquisition of certain knowledge of the decision takes the place of publication or notification. Article (7) of Decree-Law No. 20 of 1981 establishing a circuit at the Court of First Instance to hear administrative disputes fixed this period at 60 days from the date of publication or notification or the establishment of the person concerned’s certain knowledge thereof. That being so, it is established that the challenged Minister of Health Decision No. 60 of 1965 was applied to the respondent when he submitted an application to join the Kuwait Medical Association and signed the papers for joining it on 12/2/2009, as one of the necessary conditions for appointment to a position at the Ministry of Health. He therefore acquired certain knowledge of the challenged decision on that date, and was accordingly required to bring his action challenging it within the 60 days following that certain knowledge. Since he brought it on 17/6/2013, he brought it after expiry of the legally prescribed period. This is not affected by the erroneous legal statements in the judgment’s reasons declaring this decision legally non-existent, whether for contravening Article 43 of the Constitution or for contravening the provisions of the law. To the extent necessary to determine the present ground of challenge concerning the true nature of the decision and the procedural form of the action, Article 43 of the Constitution, providing that no person may be compelled to join any association or trade union, means that a person has freedom of choice, by his own will, between joining an association or trade union or not joining it, and enjoying its membership with the rights it entails, including practising the profession. Decision No. 60 of 1965 was issued regulating the conditions to be followed by persons wishing to practise medicine or pharmacy pursuant to Law No. 23 of 1960 concerning the Practice of Human Medicine and Dentistry in Kuwait and Law No. 25 of 1960 concerning the Practice of Pharmacy in Kuwait, until Law No. 25 of 1981 concerning the Practice of Human Medicine, Dentistry and Their Auxiliary Professions was issued. Article 3 thereof delegated to the Minister of Health the determination of the conditions necessary for practising the profession for those subject to its provisions. Whereas the aforementioned Minister of Health Decision No. 60 of 1965 provided in Article 2 that: "Physicians and pharmacists shall not be entered in the registers referred to in the preceding Article until completion of the procedures for their admission as members of the Kuwait Medical Association and submission of a document evidencing this from the aforementioned Association," this decision remained in existence under the operation of this latter Law. This entails requiring membership of this Association for anyone wishing to practise any of the professions regulated by the Law as one of the necessary conditions for practising the profession for which he seeks authorization. Since the challenged judgment departed from this view in ruling to admit the application to annul the challenged decision on the ground that a challenge against it was not subject to a time limit, it is vitiated by contravention of the law and error in its application, requiring its partial cassation in this regard without any need to examine the remaining grounds of appeal.