CASE OF S.C.
ANTARES TRANSPORT S.A. AND
S.C. TRANSROBY S.R.L. v. ROMANIA
(Application no. 27227/08)
30 May 2017
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:
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Georges Ravarani, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 9 May 2017,
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 company”) and S.C. Transroby S.R.L. (“the second applicant company”), both Romanian commercial companies located in Râmnicu-Vâlcea.
2. In a judgment delivered on 15 December 2015 (“the principal judgment”), the Court held that the applicant companies had suffered an excessive individual burden due to the withdrawal of their transport licences in breach of Article 1 of Protocol No. 1 to the Convention (see S.C. Antares Transport S.A. and S.C. Transroby S.R.L. v. Romania, no. 27227/08, § 51, 15 December 2015). More specifically, the applicant companies had held licences for the provision of public transport services on a group of seven routes for the period 2005-2008. In reply to a complaint submitted by another company, on 13 February 2006 the Argeş County Court had ordered the local authorities to evaluate the possibility of one route (route no. 047) being separated from the group and offered for tender as an individual route. In the enforcement of that judgment, the local authorities had decided to separate all the routes, and the applicant companies’ licences for all seven routes had been withdrawn. The Court held that these licences, with the exception of the licence for route no. 047 which was not the subject of the applicant companies’ complaint before it, had been withdrawn by the domestic authorities through no fault of the applicant companies, without any compensation being offered, in disregard of the guarantees set forth by Article 1 of Protocol No. 1 to the Convention.
3. Under Article 41 of the Convention the first applicant company sought just satisfaction in the sum of 2,101,361.02 Romanian lei (ROL-472,789 euros (EUR)) in respect of pecuniary damage. The second applicant company claimed ROL 120,308.39 (EUR 27,069) in respect of pecuniary damage.
4. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant company to submit, within six months from the date on which the judgment became final, their written observations on that issue, and in particular to notify the Court of any agreement they might reach (ibid., § 55, and point 3 of the operative provisions).
5. The applicant companies and the Government each filed observations.
6. 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.”
A. Pecuniary damage
1. The parties’ submissions
7. The applicant companies submitted that the withdrawal of the group of seven licences one year before the end of their validity period had caused them a significant loss of profit. In addition, their future activities had also been affected, in that they had been prevented from winning further tenders for route no. 047 because they could not acquire the necessary experience to operate on this route. The first applicant company claimed a total amount of ROL 8,433,075 (EUR 1,894,817) in respect of pecuniary damage. The second applicant company claimed RON 120,308.39 (EUR 27,069) in respect of pecuniary damage.
8. In support of their allegations, the applicant companies submitted an accounting report drafted in August 2016. According to the report, the lost profit for the remaining period of validity of the licence for route no. 047 (from 15 July 2007 to 30 June 2008) amounted to ROL 995,230 (EUR 223,617). The basis for that finding was the profits earned by the first applicant company in the previous year on route no. 047. The amount of future earnings lost as a result of the applicant companies’ exclusion from future tenders for route no. 047 was calculated on the same basis and found to amount to ROL 2,925,246 (EUR 657,270) for the period between July 2008 and June 2013, and ROL 1,841,001 (EUR 413,652) for the period between July 2013 and 15 December 2015, the date the principal judgment was issued.
9. The Government argued that the report submitted by the applicant companies was not accurate, as its basis was incorrect, since the principal judgment had not concerned route no. 047.
2. The Court’s assessment
10. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore, as far as possible, the situation existing before the breach (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 19, ECHR 2001-I).
11. The Contracting States that are parties to a case are, in principle, free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States to secure the rights and freedoms guaranteed under Article 1 of the Convention. If the nature of the breach allows restitutio in integrum, it is for the respondent State to implement it. If, however, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B, and Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 80, ECHR 2014).
12. There must be a clear causal connection between the damage claimed by an applicant and a violation of the Convention. In appropriate cases, this may include compensation in respect of loss of earnings (see, among other authorities, Barberŕ, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, § 16-20, Series A no. 285-C, and Kurić, cited above, § 81).
13. A precise calculation of the sums necessary to make complete reparation (restitutio in integrum) in respect of pecuniary losses suffered by an applicant may be prevented by the inherently uncertain character of the damage flowing from a violation. An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved, the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary losses, which it is necessary to award each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (see Kurić, cited above, § 82).
14. The Court further notes that where a loss of earnings (lucrum cessans) is alleged, it must be conclusively established and must not be based on mere conjecture or probability (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 219, ECHR 2012).
15. Turning to the current case, the Court notes that the principal judgment concerned the withdrawal of six licences which the applicant companies had retained following the judgment of the Argeş County Court of 13 February 2006 (see paragraphs 15 and 38 of the principal judgment). The Court observes however that the applicant companies submitted an evaluation of the pecuniary damage they had allegedly suffered due to the loss of their licence for a route which was not the subject of the principal judgment. Furthermore, they failed to explain the relationship between that evaluation and the damage suffered due to the withdrawal of their licences for the other six routes.
16. In view of the above, the Court considers that the applicant companies have not provided sufficient evidence to establish a connection between these claims and the breach found in the principal judgment.
17. Therefore, the Court rejects these claims.
B. Costs and expenses
18. The applicant companies did not claim any costs or expenses. Accordingly, the Court is not called to make any award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Dismisses the applicant companies’ claim for just satisfaction.
Done in English, and notified in writing on 30 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Ganna
Deputy Registrar President