FIRST SECTION
DECISION
Application no. 50019/18
DESCAMA S.R.L. IN LIQUIDAZIONE
against Italy
The European Court of Human Rights (First Section), sitting on 12 September 2024 as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 50019/18) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 October 2018 by Descama S.r.l. in liquidazione a limited liability company with its registered seat in Bergamo (“the applicant”), represented by Mr M. Sica, a lawyer practising in Milan;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the expropriation of the applicant company’s land and the subsequent award of compensation based on the agricultural value of the land.
2. Company C. was the owner of a large plot of land in the municipality of Cazzago S. Martino.
3. The land was included in the 1990 quarry plan (piano cave) of the Brescia Province for the extraction of sand and gravel. The plan was subsequently amended in 1999, excluding the land of company C.
4. In December 2003, a project was adopted for the construction of a high‑speed railway, which entailed an expropriation-aimed restraint on the land of company C. This restraint, which had a duration of five years, was subsequently renewed for another five years.
5. In November 2004, a new quarry plan was adopted, which included the land owned by company C. in the extraction area no. 14 (ambito territoriale estrattivo; hereinafter “ATEg14”). Subsequent land development plans, adopted in 2007 and 2010, confirmed the land’s designation for extraction activities.
6. On 19 March 2008, the applicant company incorporated company C., thus becoming the owner of a plot of land measuring 170,060 square metres.
7. In March 2013, company R.F.I. – the company delegated by the State to manage the national rail network – authorised its general contractor, the Cepav Due Consortium (“the Consortium”), to take immediate possession of the applicant company’s land. On 29 April 2013, the Consortium took physical possession of 32,678 square metres of the applicant company’s land, offering compensation amounting to 232,506.05 euros (EUR).
8. Since the applicant company refused, the determination of compensation was entrusted to a panel of three experts. By a report dated 11 June 2014, the experts considered that land included in an extraction area had a significantly higher value than agricultural land, since the owners had an expectation of exploiting that land as a quarry. They therefore determined its market value at EUR 155 per square metre and calculated the compensation due to the applicants to over EUR 10 million (including compensation for the deprivation of land, for the loss of value of the remaining land and for the occupation).
9. On 15 December 2014, company R.F.I. issued the expropriation order, which concerned 32,603 square metres of the applicant company’s land. The certificates subsequently issued by the municipality stated that, at that time, the applicant company’s land was both designated for extraction activities as part of ATEg14 and affected by the railway project.
10. The Consortium contested the land valuation before the Brescia Court of Appeal, which ordered a new valuation. By a report dated 7 August 2015, the expert proposed two alternative valuations. If the land was considered as a quarry, its value would amount to about EUR 116 per square metre, resulting in an overall compensation of EUR 10,398,021.22; if, on the contrary, it was considered as agricultural, its value would amount to EUR 15 per square metre, resulting in an overall compensation of EUR 1,449,522.27. Both total sums included compensation for the deprivation of land, for the loss of value of the remaining land and for the occupation.
11. By judgment of 10 February 2016, the Brescia Court of Appeal considered that the land should be valued as agricultural. It noted, in particular, that in 2003, when the expropriation procedure began, the land was not included in a quarry plan and could therefore not be exploited for excavation activities; as to the subsequent inclusions in quarry plans, they were in contrast with the railway project, which prevailed as it had been adopted already in 2003, and could therefore not be taken into account; additionally, they had not indicated any specific volume of materials that could be extracted from that land.
As a consequence, the Court of Appeal relied on the value of EUR 15 per square metre of land and awarded the applicant company the overall amount of EUR 1,034,540.82 (including compensation for the deprivation of land, for the loss of value of the remaining land – to a lesser extent than that proposed by the expert – and for the occupation).
12. The applicant company appealed to the Court of Cassation which, on 18 April 2018, upheld the lower court’s conclusions.
13. The applicant company complained, under Article 1 of Protocol No. 1 to the Convention, of an insufficient amount of compensation which did not reflect the land’s market value at the time of the expropriation. It argued, in particular, that the land should have been valued as a quarry. It further complained under Article 6 of the Convention of a legislative interference with pending proceedings and of a breach of the principle of equality of arms.
THE COURT’S ASSESSMENT
14. The Court recalls its general principles according to which compensation for the expropriation must be calculated based on the property’s value on the date on which ownership thereof was lost (see Guiso‑Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, § 103, 22 December 2009). The Court has also clarified that, in the absence of any concrete expectation of development prior to the expropriation, it is not appropriate to rely solely on the applicant’s view that the land had potential for development; what is relevant is whether the applicant had a concrete legitimate expectation to obtain compensation on the basis of the land being valued as developable (see Maria Azzopardi v. Malta, no. 22008/20, §§ 62‑63, 9 June 2022).
15. In the present case, the applicant company argued that the land should have been valued as a quarry, based both on its physical characteristics and of its designation for excavation activities.
16. The Court is therefore called upon to assess whether, at the time of the expropriation in 2014, the applicant company had a legitimate expectation that the land would be valued as a quarry.
17. In this respect, the Court notes first of all that, before the expropriation procedure began in 2003, the land was not included in a quarry plan, which according to domestic law was a necessary precondition for its exploitation (see paragraph 3 above). At the time, therefore, no expectation of exploiting the land as a quarry could arise.
18. As to the subsequent developments and, in particular, to the reinsertion of the land in the 2004 quarry plan and its designation for excavation activities in subsequent planning instruments, the Court does not consider that they conferred upon the applicant company a legitimate expectation of exploiting the land as a quarry for the following reasons.
19. Firstly, the domestic courts found that such designations were ineffective, as they conflicted with the previous expropriation-aimed restraints deriving from the railway project (see paragraph 4 above). As a consequence, the domestic courts concluded that, at the moment of the expropriation in 2014, the land could not be exploited as a quarry (see paragraphs 11 and 12 above).
20. In this respect, the Court recalls that it is not its task to take the place of the domestic courts; in principle, it will not intervene unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable (see, for example, Malliakou and Others v. Greece, no. 78005/11, § 65, 8 November 2018). This is all the more so in a domain as complex and difficult as that of urban planning, in which the domestic authorities enjoy a wide margin of appreciation (see, among others, Maria Azzopardi, cited above, § 55).
21. Secondly, the Court considers relevant whether the applicant company, on acquiring the property, knew or should have reasonably known about the restrictions on it (see, mutatis mutandis, Łącz v. Poland (dec.), no. 22665/02, 23 June 2009).
22. In the present case, the applicant company acquired the land in 2008 by incorporating the previous owner. At that time, it must have been aware – despite the inclusion of the land in ATEg14 – that part of it was concerned by the railway project adopted in 2003 and that as a consequence it could not be exploited as a quarry, due to the expropriation-aimed restraints on the land. Although the applicant company does not provide any information in this respect, it may be presumed that such circumstances were taken into consideration in the valuation of the incorporated company.
23. In these circumstances, the Court concludes that the applicant company cannot claim to have had a legitimate expectation of exploiting the land as a quarry. It follows that the valuation of the land based on its agricultural character was not without a reasonable foundation.
24. Having said that, the Court notes that the applicant company did not provide any other element suggesting that, taking into account the impossibility of using the land as a quarry, the amount awarded by the domestic courts did not have a reasonable relationship with the market value of the land.
25. Consequently, it concludes that this complaint is manifestly ill-founded.
26. As to the additional complaints raised by the applicant company under Article 6 of the Convention (see paragraph 13 above), the Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
27. It follows that the application as a whole must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 3 October 2024.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President