FOURTH SECTION
DECISION
Application no. 44367/13
Judit ANGYAL against Hungary
and 12 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appendix,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent at the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 11 September 2012 the Parliament enacted Act no. CXXXIV of 2012 on the Repression of Smoking of the Youth and on Tobacco Retail. The Act was published on 24 September 2012. According to the Act, tobacco retail was to become a State monopoly (exercised through a State-owned company, ND Nemzeti Dohánykereskedelmi Nonprofit Zrt), and tobacco retailers would become authorised through a concession tender, advertised on 15 December 2012. Entities or persons previously engaged in tobacco retail had no privileges in the tender. Legal persons were not entitled to apply.
5. The applicants are persons or entities that had been active in the tobacco retail business for several years. As a consequence of the new legislation, none of them could continue business in tobacco retail after 15 July 2013.
COMPLAINT
6. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the effective removal of their tobacco retail licences without any realistic prospect to continue their businesses amounted to unjustified deprivations of possessions.
THE LAW
7. In view of the similarity between the cases in terms of the facts and the substantive issues raised by the applicants, the Court decides to order their joinder (Rule 42 § 1 of the Rules of Court).
8. The applicants complained that their legislative debarment from continuing their tobacco retail business amounted to unjustified deprivation of possessions. They relied on Article 1 of Protocol No. 1, which provides 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.
A. The parties’ submissions
1. The Government
9. The Government contested the applicants’ complaints. They argued that in six applications (Angyal v. Hungary (no. 44367/13), Kovács v. Hungary (no. 75660/13), Szivar Bt. and Others v. Hungary (no. 65572/13), Elite Tabak Kft. and Others v. Hungary (no. 53417/13), Ba.Be.Ki. Kft. v. Hungary (no. 44369/13) and Keszi Pékség Bt. v. Hungary (no. 44371/13)) none of the applicants or, in the case of applicant companies, none of their owners had applied for a tobacco retail concession in or after 2013. In the remaining seven applications (Márki-Nagy Kft. v. Hungary (no. 69983/13), 67P Bt. v. Hungary (no. 70515/13), Szender és Társa Kft. v. Hungary (no. 615/14), Bi-To Kft. v. Hungary (no. 44662/13), Carmen Bt. v. Hungary (no. 63919/13), Hős 11 Kft. v. Hungary (no. 44663/13) and Fetjare Bt. v. Hungary (no. 3836/14)) the owners of the applicant companies who had applied for a tobacco retail concession were not parties to the present proceedings.
10. The Government argued that in the case of the applicants who – or whose owners – had not applied for tobacco retail concessions, it had been their own business decisions to give up tobacco retail activities under the new statutory conditions. The Government noted that the Court had not doubted the legitimacy of the aims pursued by Act no. CXXXIV of 2012. The applicants were not willing to comply with the new rules and decided not to seek “renewals” of their tobacco retail licences under the new regime. Consequently, they were no victims of the interference which was found to be a violation of Article 1 of Protocol No. 1 to the Convention under the well-established case-law of the Court. Therefore, the applications are to be rejected as incompatible ratione personae with the provisions of the Convention.
2. The applicants
11. The applicants did not contest the Government’s allegations on the facts. None of them submitted that they, or in case of applicant companies, their owners had applied for a tobacco retail concession under the new legislation. However, they argued that since they had run retail shops of a mixed commercial profile, under Act no. CXXXIV of 2012 they would have been required to write off their non-tobacco related stock (because only a limited choice of goods is authorised in tobacco retail shops under the new regime), had they been awarded a new licence. For the same reason, they would have lost a considerable part of their turnover. Moreover, they found it futile and humiliating to apply for a concession. The tender procedure, as held by the Court earlier, appeared to be devoid of elementary transparency or any possibility of legal remedies (see Vékony v. Hungary, no. 65681/13, § 34, 13 January 2015). In sum, they argued that their applications could not be rejected as incompatible ratione personae with the provisions of the Convention.
B. The Court’s assessment
12. The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue (see, among other authorities, Vatan v. Russia, no. 47978/99, § 48, 7 October 2004). In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicants and the harm which they consider they have sustained on account of the alleged violation (see, among other authorities, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004‑III, with further references).
13. In the present case, the applicants have not refuted the Government’s submission according to which they, or in case of applicant companies their owners, had not applied for tobacco retail concessions which was the statutory prerequisite for continuing such retail after 15 July 2013. In the case of Vékony v. Hungary, the Court considered that the applicant, who was not the holder of the previous excise licence, had victim status on account of non-acquisition of the new license requested by him, which produced a sufficiently direct link between him and the harm perceived (see Vékony, cited above, § 21).
14. The Court notes that in Vékony the Government’s position that the impugned legislation served the purpose of combatting underage smoking, an aim being in accordance with the general interest of the community, was not called into question (see Vékony, cited above, § 34). Moreover, in the assessment as to the burden placed on the previous license holders – including the obligation to narrow down the list of products and to find appropriate retail premises if winning the tender – against the general interest of the community, that is, public health considerations, the Court held that States enjoyed a wide margin of appreciation (see Vékony, cited above, § 35).
15. It transpires from the aforementioned elements that in such cases it is not the applicants’ mere debarment from continuing tobacco retail business that alone constitutes a violation of the Convention. Rather, such a violation is compounded of the debarment and the non-renewal of an applicant’s tobacco retail license within the new regime. It is these two elements together that constitute a measure of control of use of property (see Vékony, cited above, § 30). The Court further emphasises that the applicants or the owners of the applicant companies themselves decided not to run for the retail concession. The primary reason for that was their reluctance to comply with the new requirements, in particular, narrowing down the list of their products (see paragraph 11 above).
16. The Court observes that the applicants, who or whose owners had not applied for a new tobacco retail concession, had not been affected by any aspects of the concession tender process. That process which, in the Court’s view, appeared to be on the verge of arbitrariness (see Vékony, cited above, § 36), was the primary subject of the scrutiny in the Vékony case and, in essence, led to the violation that was found by the Court in that case.
17. In the present case, however, the applicants did not sustain any grievance on account of a frustrated attempt to acquire concessions. This element alone enables the Court to conclude that they cannot claim to be victims of the violation alleged. It follows that the applications are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 26 July 2018.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
44367/13
05/07/2013
Judit ANGYAL
06/01/1972
Budapest
György MAGYAR
44369/13
05/07/2013
BA.BE.KI. KFT
BA.BE.KI. KFT
Dunaújváros
György MAGYAR
44371/13
05/07/2013
KESZI PÉKSÉG BT
KESZI PÉKSÉG BT
Tiszakeszi
György MAGYAR
44662/13
04/07/2013
BI-TO KFT
BI-TO KFT
Fót
György MAGYAR
44663/13
05/07/2013
HŐS 11 KFT
HŐS 11 KFT
Mende
György MAGYAR
53417/13
12/08/2013
ELITE TABAK KFT
ELITE TABAK KFT
Budapest
Ervin BALOG
20/11/1969
Budapest
Dia HÓDI
02/01/1967
Budapest
Tibor BIHARY
63919/13
26/09/2013
CARMEN BT
CARMEN BT
Siófok
György MAGYAR
65572/13
11/10/2013
SZIVAR BT
SZIVAR BT
Budapest
Katalin SZABÓNÉ SZABADOS
14/06/1955
Budapest
Gábor SZABÓ
03/10/1954
Budapest
Péter András SZABÓ
07/04/1987
Budapest
Zsuzsanna KOVÁCS
18/11/1952
Budapest
Zsuzsanna VINCZE
15/03/1979
Budapest
Andrásné TOTH
05/02/1959
Szentendre
Adina Lilla TOTH
08/01/1991
Szentendre
Tibor BIHARY
69983/13
31/10/2013
MÁRKI-NAGY KFT
MÁRKI-NAGY KFT
Budapest
György MAGYAR
70515/13
31/10/2013
67P BT
67P BT
Dunaújváros
György MAGYAR
75660/13
27/11/2013
Judit KOVÁCS
10/03/1964
Kazincbarcika
György MAGYAR
615/14
17/12/2013
SZENDER ÉS TÁRSA KFT
SZENDER ÉS TÁRSA KFT
Székesfehérvár
György MAGYAR
3836/14
30/12/2013
FETJARE BT
FETJARE BT
Nagykanizsa
György MAGYAR
Full & Egal Universal Law Academy