S.C. ANTARES TRANSPORT S.A. AND
S.C. TRANSROBY S.R.L. v. ROMANIA
(Application no. 27227/08)
15 December 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of S.C. Antares Transport S.A. and S.C. Transroby S.R.L. v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Paulo Pinto de Albuquerque,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 24 November 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 27227/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 June 2008 by S.C. Antares Transport S.A. (“the first applicant”) and S.C. Transroby S.R.L. (“the second applicant”), both Romanian commercial companies located in Râmnicu-Vâlcea.
2. The applicants were represented by Mr A. Nicolae, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
3. The applicants alleged under Article 1 of Protocol No. 1 to the Convention that the loss of their transport licences amounted to an unjustified deprivation of possessions.
4. On 25 October 2013 the above-mentioned complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants are commercial companies authorised to provide services in the area of passenger transport. They are located in Râmnicu-Vâlcea.
A. Background to the case
6. On 23 September 2004 Vâlcea County Council adopted a decision which set out a programme of passenger transport for the local area for a period of three years. Within the programme, the Drăgăşani - Băbeni - Râmnicu-Vâlcea route was considered as an individual route. Following a public tender, an association consisting of two companies was granted a licence to transport passengers along that route.
7. On 15 April 2005 Vâlcea County Council modified its previous decision and adopted a new programme of passenger transport for a period of three years, covering 2005 to 2008. Within the new programme, the Drăgăşani - Băbeni - Râmnicu-Vâlcea route was grouped together with six other routes. Another public tender took place, and the applicant companies submitted a tender for the group. They subsequently received licences to operate public transportation services for the seven routes in the group.
B. Annulment of the Vâlcea County Council decision of 15 April 2005
8. On 24 May 2005 one of the two companies which lost their licence for the Drăgăşani - Băbeni - Râmnicu-Vâlcea route asked the courts to annul Vâlcea County Council’s decision of 15 April 2005, and to oblige the local authorities to adopt a new decision in which the route in question could again be considered as an individual route.
9. The first applicant company requested (and was granted) leave to intervene in the proceedings in order to defend its own interests. Through its submissions, the applicant company argued that the decision adopted by the council on 15 April 2005 was in accordance with the law, and asked the Argeş County Court to dismiss the action.
10. On 13 February 2006 the Argeş County Court held that, by grouping routes together, the county council had acted arbitrarily and had limited access for other competitors in the public transport market. The court considered that the routes had been grouped together without any economic or geographical considerations. The court therefore ordered the county council to re-analyse route no. 047 (the Drăgăşani - Băbeni - Râmnicu-Vâlcea route), and to proceed to a new public tender of the route as an individual route. The court used the following terms:
“We consider that, by grouping together these routes, the creation of a monopoly on the road transport market was encouraged, thereby breaching the principles of free competition.
In conclusion, the court holds that it is necessary to partially revoke decision no. 63/15.04.2005 on the approval of the programme for passenger transport... for the period 2005 to 2008 in respect of offer 27, group of routes no. 11, route no. 047 Drăgăşani- Băbeni- Râmnicu-Vâlcea.
Considering that ... Order no. 1842/2001 was repealed by Order no. 1987/2005 ..., it follows that the defendant should re-analyse route 047 Drăgăşani-Băbeni-Râmnicu-Vâlcea as an individual route in view of these legal provisions and, taking into account the results, proceed to a new public tender.”
11. The first applicant company lodged an appeal on points of law (recurs) against this judgment, arguing that the plaintiff had not proved the existence of a legitimate interest for its request, and that the partial annulment of a public tender would be unlawful.
12. On 28 June 2006 the Piteşti Court of Appeal rejected the first applicant company’s appeal on points of law with final effect. The court explained that there were preconditions imposed by law which had to be fulfilled before a decision to group together certain transport routes could be taken by a local authority. Bearing in mind that in the current case those requirements had not been observed, the lower court had correctly annulled the administrative decision in question in the context of the request before it, namely in respect of route no. 047. The Court of Appeal explained that the lower court had ordered the county council to conduct an analysis of whether or not route no. 047 might be grouped together with other routes, in compliance with the legal provisions in force. Lastly, the court held that non-compliance with those obligations would give those whose interests had been negatively affected the right to request reparation for any consequent damage.
13. On 6 July 2006 Vâlcea County Council adopted a new decision; modifying the programme of public transport for the period 2005-08 by putting out to public tender all seven routes from group no. 11 as individual routes. Consequently, on 26 July 2006 the applicant companies received a letter from the Romanian Traffic Authority (Autoritatea Rutieră Română) informing them that they had to hand over their licences for the entire group of seven routes within thirty days of the final decision in a new public tender.
14. On 15 June 2007 the new public tender was organised for the seven routes in question. The applicant companies did not participate.
C. Court proceedings lodged by the applicant companies
1. Request for the annulment of the Vâlcea County Council decision of 6 July 2006
15. On 2 October 2006 the applicant companies lodged administrative proceedings requesting the annulment of the decision made by Vâlcea County Council on 6 July 2006. They argued that the Argeş County Court, by its judgment of 13 February 2006, had ordered the analysis as an individual route of only one route out of the group of seven. They further alleged that, by withdrawing their licences for the remaining six routes and organising a new public tender for all of the routes in the group, the authorities had acted unlawfully.
16. On 23 January 2007 the Vâlcea County Court rejected the applicant companies’ complaint. The court held that the contested decision had been adopted in accordance with the judgment of 13 February 2006, but also in compliance with new regulations adopted by the Ministry of Transport; regulations which no longer provided for the possibility of grouping routes together for economic or geographic purposes.
17. The applicant companies’ appeal on points of law against that judgment was rejected with final effect by the Timişoara Court of Appeal on 6 December 2007. The Court of Appeal considered that the lower court had made a correct analysis of the facts.
18. The president of the panel of three judges added a separate dissenting opinion to the judgment on the appeal on points of law. He considered that, by adopting the decision of 6 July 2006, Vâlcea County Council had not properly enforced the judgment of 13 February 2006, and had therefore breached the applicant companies’ right to property guaranteed by Article 1 of Protocol No. 1 to the Convention. The judge explained that the applicant companies had participated in a public tender, and had won the right to exploit the group of seven routes in question. Although the county council had been ordered by final judgment to re-analyse only one of the routes above as an individual route, they had adopted without any legal basis a new decision which considered all of the routes individually.
2. Request for the annulment of the decision made by the Romanian Traffic Authority to withdraw the applicant companies’ licences
19. On 5 October 2006 the first applicant company requested before the administrative court the annulment of the Romanian Traffic Authority’s decision of 26 July 2006 to withdraw its licences for the entire group of routes. The first applicant company also requested that the enforcement of that decision be suspended pending the delivery of a final judgment in the case.
20. The first applicant company argued that the contested decision prevented it and its associate (the second applicant company) from participating in the next public tender for the same route. The applicant companies further argued that the withdrawal of their licences had not been in compliance with Article 65 of Order no. 1987/2005, which set out the grounds on which licences could be withdrawn.
21. On 18 December 2006 the Piteşti Court of Appeal rejected the action as submitted by the first applicant company. The court held that the applicant had not proved the alleged damage caused by the decision of the Romanian Traffic Authority, since it could participate in the new tender. In addition, there was no proof that the applicant company would be prevented from participating in the new tender. The court further explained that, should the applicant company consider itself prejudiced by the administrative act which was in dispute, it could request damages from those responsible for any consequent loss.
22. The first applicant company lodged an appeal on points of law against that judgment. It alleged that the licences for the entire group of routes could not be lawfully withdrawn, since not all of them had been annulled by a court judgment. The first applicant company argued that, in accordance with Article 66 of Order no. 1987/2005, a company whose licence for a certain route had been withdrawn could not participate in a new tender for the same route.
23. On 25 April 2007 the High Court of Cassation and Justice decided to allow the first applicant company’s request, and partially annulled the decision of the Romanian Traffic Authority, which was upheld only in respect of the licence for route no. 047. The High Court considered that the licences held by the applicant company for the other six routes of offer 27, group no. 11 constituted “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention, and that there was no reason to order their remittal through an administrative act.
II. RELEVANT DOMESTIC LAW AND PRACTICE
“(1) Anyone whose rights or legitimate interests have been breached by a public authority through an administrative act...may request before the administrative courts the annulment of the act in question, the recognition of the right or the legitimate interest in issue, and reparation for the damage caused.”
25. In a decision issued on 19 February 2009 the Cluj Court of Appeal explained the practice of the domestic courts with respect to requests for compensation for the damage caused by an administrative decision (Decision no. 716 of 19 February 2009, Decizii relevante 2009, trimestrul 1, www.curteadeapelcluj.ro). The Cluj Court of Appeal stated as follows:
“From the text of the Constitution and of Law no. 554/2004 it results that in order to request pecuniary compensation from a state authority three cumulative conditions must be fulfilled: the existence of a damage; the existence of an unlawful administrative decision; a causality link between the unlawful administrative decision, annulled by the courts, and the damage incurred by the plaintiff.”
26. Ministry of Transport Order no. 1987 of 2005, which regulates road transport services, came into force on 5 December 2005 and replaced Order no. 1842 of 2001 in its entirety. In accordance with Order no. 1987 of 2005, route licences are issued by the Romanian Traffic Authority following public tenders organised by county councils. The relevant provisions read as follows:
“A local office of the Romanian Traffic Authority may withdraw a route licence upon:
a) the transport operator ceasing to operate;
b) the transport licence being withdrawn;
c) the transport operator no longer having capacity to transport, or the number of vehicles required for the route;
d) the conditions of contract set at the time of the tender for the licence being breached more than 10 times;
e) [the licence] being obtained by the provision of false documents or information;
f) [the licence] being given to another transport operator for that operator’s use;
g) the conditions upon which the licence was granted no longer being fulfilled.”
“(1) In the event of a route licence being withdrawn, the transport operator shall be notified by the local office of the Traffic Authority, and shall be obliged to continue its activity on the route in question for a period of up to 30 days following the date of the next public tender. ...
(4) The transport operator whose route licence has been withdrawn cannot participate in the next public tender for the same route.”
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
27. The applicants complained that the withdrawal of their transport licences for the remaining six routes in the group had been unlawful, and in breach of their right to peaceful enjoyment of their possessions as provided in Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
28. The Government submitted that the applicants had failed to exhaust all the effective domestic remedies. Firstly, they alleged that the second applicant, S.C. Transroby S.R.L., had not been part of the domestic proceedings finalised with the judgment of the High Court of Cassation and Justice of 25 April 2007. Secondly, the Government contended that the applicant companies have failed to lodge a court action for damages against the national authorities for the annulment of the Vâlcea County Council’s decision of 15 April 2005.
29. The applicants contested these arguments. They explained that a request for damages would have been ineffective, since the county council’s decision of 6 July 2006 (which was the basis of the withdrawal of their licences for all seven routes) was found to be in accordance with the law in the final judgment issued by the Timişoara Court of Appeal on 6 December 2007.
30. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for breaches alleged to have taken place. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Akdivar and Others v. Turkey, 16 September 1996, § 65-67, Reports of Judgments and Decisions 1996-IV and Pyrantienė v. Lithuania, no. 45092/07, § 26, 12 November 2013).
31. An applicant who has made use of a remedy that is apparently effective and sufficient cannot also be required to have tried others that were available but probably no more likely to be successful (see Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Asinskis v. Latvia, no. 45744/08, § 50, 21 December 2010 and Bajić v. Croatia, no. 41108/10, § 74, 13 November 2012).
32. As regards the Government’s argument that the second applicant had not been part of the domestic proceedings finalised with the judgment of the High Court of Cassation and Justice of 25 April 2007, the Court observes that the two applicants together had contested before the domestic courts the local authorities’ decision based on which their licences had been withdrawn. Their complaint had been rejected with final effect by the Timişoara Court of Appeal on 6 December 2007.
33. In respect of the Government’s second argument, the Court notes that the subject matter of the present case is the withdrawal - as a result of the Vâlcea County Council’s decision of 6 July 2006 - of six licences to operate public transport services on a group of routes. Therefore, a court action for damages for the annulment of the Vâlcea County Council’s decision of 15 April 2005 would not have been a remedy for the applicants’ specific complaint in the current case.
34. In view of the above, the Court dismisses the Government’s objection that the applicants failed to exhaust domestic remedies.
35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
36. The applicant companies submitted that they had legally acquired licences which enabled them to provide passenger transport services on a group of seven routes for a period of three years. From this activity they expected an important economic gain. They made an investment plan, contracted a bank loan and adopted certain decisions concerning the organisation of their business expecting that their activity would last at least for three years. They further argued that, in breach of a court judgment ordering the local authorities to re-analyse the situation of only one of the routes in the group, their licences for the entire group of routes had been withdrawn for reasons depending entirely on the authorities’ fault. This situation had created significant loss for them and had breached their rights under Article 1 of Protocol No. 1 to the Convention
37. The Government submitted that the applicant companies’ licences had been withdrawn in accordance with the law, since the domestic courts had found that the conditions upon which the licences in dispute had been granted were no longer being fulfilled. Furthermore, the applicant companies had had the chance to put forward their complaints for thorough analysis by the courts. Lastly, the Government pointed out that the applicant companies had presented no valid reason as to why they had decided not to participate in the new tender organised on 15 June 2007.
2. The Court’s assessment
(a) Whether there has been an interference with the applicants’ possessions
38. The Court observes again that the subject matter of the present case is the withdrawal of six licences to operate public transport services on a group of routes licences which were held jointly by the two applicant companies.
39. In the light of the Court’s case-law, the withdrawal of a licence to carry on business activities amounts to an interference with the right to peaceful enjoyment of possessions enshrined in Article 1 of Protocol No. 1 (see Bimer S.A. v. Moldova, no. 15084/03, § 49, 10 July 2007, and Vékony v. Hungary, no. 65681/13, § 29, 13 January 2015).
40. In the present case, the Court notes that there has been no formal expropriation of any assets of the applicant companies, and that it has not been argued by the applicant companies that the withdrawal of the licences in question made it impossible for them to continue their business operations. It therefore considers that, to the extent that any loss of business suffered by the applicant companies resulted from the withdrawal of the licences in question, this interference with their possessions amounts rather to a measure of “control of the use” of property, which falls to be examined under the second paragraph of Article 1 of Protocol No. 1, than a de facto “deprivation of possessions” (see Tre Traktörer AB v. Sweden, 7 July 1989, § 55, Series A no. 159, and Malik v. the United Kingdom, no. 23780/08, §§ 88-89, 13 March 2012).
(b) Lawfulness and purpose of the interference
41. The Court reiterates that an essential condition in order for an interference to be deemed compatible with Article 1 of Protocol No. 1, is that it should be lawful, it should pursue a legitimate public interest and must also be proportionate to the aim pursued (see Bimer S.A., cited above, § 52).
42. The Court notes the parties’ diverging positions on the lawfulness and the aim of the interference. Regarding this issue, the Court has frequently held that it is primarily for the national authorities, most notably the courts, to interpret and apply domestic law (see, among many other authorities, Tre Traktörer AB, cited above, § 58; Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 52, Series A no. 222; and Bimer S.A., cited above, § 58).
43. In the current case, the Court considers that the relevant interference was due to Vâlcea County Council’s decision of 6 July 2006. According to the applicant companies, this decision failed to correctly enforce the judgment issued on 28 June 2006 by the Piteşti Court of Appeal. However, the lawfulness of the county council’s decision of 6 July 2006 was thoroughly analysed by the domestic courts, which found with final effect on 6 December 2007, that the local authorities had correctly applied the judgment of 28 June 2006, and had acted in accordance with the legal provisions in force at the relevant time (see paragraphs 16 and 17 above). The domestic courts therefore confirmed that the applicant companies’ licences had been withdrawn for the legitimate purpose of eliminating the effects of a decision taken by the local authorities in breach of the rules of free market competition, namely, the purpose mentioned in the judgment of 28 June 2006. The Court therefore sees no reason to depart from the findings of the domestic courts, and considers that the interference was “lawful” and pursued an important public interest.
(c) Proportionality of the interference
44. The Court reiterates that the aim of Article 1 of Protocol No. 1 is to achieve a fair balance between the demands of the general interest of the community and the requirements of the individual’s fundamental rights, and that this concern to achieve a balance also applies to the second paragraph of Article 1 of the Protocol. There must, therefore, be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Vékony, cited above, § 32). A proper balance between the general interest and the individual’s rights will not be found if the person concerned has had to bear an individual and excessive burden (see, for example, Ian Edgar (Liverpool) Limited v. the United Kingdom, no. 37683/97, 25 January 2000, and Lohuis and Others v. the Netherlands, no. 37265/10, § 56, 30 April 2013).
45. In the present case, the Court notes that it was not disputed between the parties that the applicants had not been found to be in any breach of the law. This fact was confirmed with final effect by the Timişoara Court of Appeal in its judgment of 6 December 2007.
46. The Court further notes that the applicants were able to contest before the courts the authorities’ decision based on which their licences had been withdrawn, as provided by the law on administrative disputes. On this point, the Court recalls that it is true that Article 1 of Protocol No. 1 contains no explicit procedural requirements and the absence of judicial review does not amount, in itself, to a violation of that provision; nevertheless, it implies that any interference with the peaceful enjoyment of possessions must be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Capital Bank AD v. Bulgaria, no. 49429/99, § 134, ECHR 2005-XII (extracts)). In the current case, the domestic courts agreed that the withdrawal of the applicants’ licences was made necessary by a previous court order as well as by legislative changes which intervened in the meantime. However, in analysing the applicants’ complaint both the Vâlcea County Court and the Timişoara Court of Appeal had failed to establish any fault on the authorities’ side. Consequently, the applicants’ situation was not remedied in any way by the domestic courts.
47. Further on, the applicants submitted - and this was not refuted by the Government - that the withdrawal of the licences reduced their business and caused them significant losses.
48. Although it is true that the interference with the applicant’s possessions was a control of use rather than a deprivation of possessions, such that the case-law on compensation for deprivations is not directly applicable, a disproportionate and arbitrary control measure does not satisfy the requirements of protection of possession under Article 1 of Protocol No. 1 (see Vékony, cited above, § 35). Moreover, the Court already held in a number of cases that mistakes or errors by State authorities should serve to the benefit of those affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Pyrantienė, cited above, § 70, and Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011).
49. In view of the above principles, the Court finds it noteworthy that the applicants’ licences were withdrawn without compensation (contrast Pinnacle Meat Processors Company and 8 Others v. the United Kingdom (dec.), no. 33298/96, 21 October 1998; and Ian Edgar (Liverpool) Ltd v. the United Kingdom (dec.), no. 37683/97, ECHR 2000-I). The Court observes that the Romanian law and practice on administrative disputes provided for the possibility to request compensation only for administrative decisions which had been declared unlawful (see paragraphs 24 and 25 above). Having in mind that in the current case the domestic courts have decided that the administrative decision which caused the withdrawal of the applicants’ licences had been lawful an eventual action for damages would have had no prospects of success.
50. The Government also argued that the applicants could have participated in the new tender organised by the local authorities for the seven routes in question. The Court notes that in accordance with the relevant legislation in force at the time, the companies who had their licences withdrawn could no longer participate in tenders for the same licences (see paragraph 26 above). Therefore, the applicants did not have a realistic prospect that they would have been allowed to participate in the tender and, hence, to continue the activity authorised by the licences under dispute.
51. The foregoing considerations are sufficient to enable the Court to conclude that the applicants had to suffer an excessive individual burden due to the control measure.
There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
52. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
53. The first applicant claimed 2.101.361,02 Romanian lei (RON, 472,789 euros (EUR)) in respect of pecuniary damage. The second applicant claimed RON 120.308,39 (EUR 27,069) in respect of pecuniary damage. The amounts claimed represent the applicants’ global estimate for lost business based on accounting reports of their activity during the previous year before the withdrawal of their licences. The applicants did not claim non-pecuniary damage.
54. The Government contested these amounts and submitted they were purely speculative.
55. In the circumstances, the Court considers that the question of the application of Article 41 is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court). Accordingly, the Court reserves this question and invites the Government and the applicants to submit, within six months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, their written observations on the amount of damages to be awarded to the applicants.
B. Costs and expenses
56. The applicants did not claim any costs or expenses. Accordingly, the Court does not make any award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds that the question of the application of Article 41 is not ready for decision, and accordingly:
(a) reserves the said question;
(b) invites the Government and the applicants to submit, within six months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, their written observations on the amount of damages to be awarded to the applicants and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 15 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos András Sajó