Published on 6 May 2024
FOURTH SECTION
Application no. 3989/21
DORIPESCO S.A. against Romania
and 2 other applications
(see list appended)
communicated on 16 April 2024
SUBJECT MATTER OF THE CASES
The applications concern the alleged interferences with the peaceful enjoyment of the applicant companies’ possessions due to the recovery orders issued, five years after the initial payment of compensations, against the applicant companies by the national administrative authorities, for amounts varying between 40 000 EUR (second applicant company) to 145 000 EUR (third applicant company). The recovery orders were motivated by a general error of interpretation of EU law made by the national administration, and which affected a large number of beneficiaries of the European Fisheries Fund 2007-2013, while no fault appears to have been imputed to the applicant companies.
Each of the applicant companies were the beneficiaries of compensations for the restrictions of their economic activity in the Fishery field (either in raising or harvesting fish in marine or freshwater ecosystems) generating losses of income. These restrictions had been imposed for the protection of the environment linked to “Natura 2000” protection areas (as defined by EU law and which are partially described in the judgements Karin Andersson and Others v. Sweden, no. 29878/09, § 33, 25 September 2014; O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, §§ 65-66, 7 June 2018; and Associations of Communally-owned Forestry Proprietors Porceni Pleșa and Piciorul Bătrân Banciu v. Romania, nos. 46201/16 and 47379/18, § 26, 28 November 2023). The compensations were made through the European Fisheries Fund 2007-2013[1]. The details regarding the applicant companies’ requests for compensations corresponding to the period of two years (2008 and 2009) are included in the appended table.
An error of interpretation of the applicable EU/EC regulations made by the national authorities had been identified during an audit from the European Commission, five years after the payments had been made. The administration then issued recovery decisions whose details are included in the appended table, although the general sum allotted by the Fund and the period were not exceeded. The applicant companies contested the recovery orders in front of the national jurisdictions.
By final decisions whose details are included in the appended table, the High Court of Cassation and Justice (“the HCCJ”) rejected the applicant companies’ requests for annulment against the administrative orders for recovery. In the cases of the first and second applicants a first favourable judgement of the court of appeal was overturned by the HCCJ. When allowing applicant companies’ review requests at first instance, the court of appeal mainly relied on the provisions of Article 5 § 3 of Commission Regulation (EU) no. 65/2011[2], according to which “[t]he repayment obligation [...] shall not apply if the payment was made by error of the competent authority or of another authority and if the error could not reasonably have been detected by the beneficiary”. These decisions were overturned by the HCCJ, which finally dismissed the applicants’ requests for annulment against the administrative orders for recovery, considering that “the fact that applicants had no fault had no relevance, nor [has relevance] Article 5 § 3 of Commission Regulation (EU) no. 65/2011”. However, in several other similar litigations, the HCCJ confirmed the court of appeal’s decisions annulling the administrative recovery orders.
Under Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 to the Convention, taken alone and combined with Article 14 of the Convention, the applicant companies complain about discriminatory interferences with their right to the peaceful enjoyment of possessions and about a breach of the principle of legal certainty and legitimate trust, given that it was established by the domestic courts that the error was made by the national administration, which attempted to correct it after a considerable amount of time (five years), and also due to the profound and persistent divergence of the judicial practice at the HCCJ level.
QUESTIONS TO THE PARTIES
1. Have the applicant companies had a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the HCCJ, in its decisions whose details are indicated in the appended table, conduct an in‑depth, thorough examination of the applicants’ arguments and give reasons for dismissing the latter’s complaints (see Pişkin v. Turkey, no. 33399/18, §§ 146‑51, 15 December 2020; Antică and Company “R” v. Romania, no. 26732/03, § 32, 2 March 2010; and Virgil Ionescu v. Romania, no. 53037/99, § 44, 28 June 2005)?
2. Have the applicant companies had a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in so far as similar actions before the HCCJ had different outcomes? In particular, was the principle of legal certainty, as developed in the Court’s case-law in the interpretation of Article 6 of the Convention (see and compare Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016, and Petrescu and Others v. Romania (dec.), nos. 31390/18 and 9 others, § 55, 7 March 2023), complied with by the domestic courts?
3. Having regard to the applicant companies’ claim that, according to EU law, they were exempted from the repayment obligation because the excess payment had been made by error of the competent authority, in the particular circumstances of the present cases, did the applicant companies have a “possession” within the meaning of Article 1 of Protocol No. 1?
4. In the affirmative, has there been an interference with the applicant companies’ right to the peaceful enjoyment of their possessions? Did it involve a deprivation of possessions, within the meaning of the Article 1 of Protocol No. 1? Was the interference lawful, did it pursue a legitimate aim in the public or general interest and was it proportionate to the aim pursued? Did it impose a disproportionate and excessive burden on the applicant companies (see, mutatis mutandis, Bélané Nagy v. Hungary [GC], no. 53080/13, §§ 72‑127, 13 December 2016)?
5. Has the alleged inconsistent approach taken by the HCCJ in the applicants’ case, as opposed to other similar cases, constituted an infringement of the applicants’ right to the peaceful enjoyment of their possessions protected by Article 1 of Protocol No. 1 to the Convention (see, mutatis mutandis, Tudor Tudor v. Romania, no. 21911/03, 24 March 2009, and Ştefănică and Others v. Romania, no. 38155/02, §§ 41-42, 2 November 2010)?
6. Have the applicant companies been subjected to discriminatory treatment contrary to Article 14 of the Convention taken in conjunction with Article 6 of the Convention and/or with Article 1 of Protocol No. 1, having regard to the fact that other claimants’ relevantly similar appeals before the HCCJ had a favourable outcome (see, mutatis mutandis, Ştefănică and Others, cited above, §§ 41‑42, and Driha v. Romania, no. 29556/02, § 38, 21 February 2008)?
APPENDIX
List of cases
No.
Appli-cation no.
Case name
Lodged on
Applicant company
Year of incorporation
Place of registration
Nationality
Represented by
Factual details, including amount of compensation to recover from the applicants
Final decision in domestic proceedings
1.
3989/21
Doripesco S.A. v. Romania
08/01/2021
DORIPESCO S.A.
1998
Halchiu
Romanian
Diana-Elena DRAGOMIR
The applicant received, in compensation, two payments of RON 376,170 (approx. EUR 75,000) each.
The national administration issued a decision to recover around EUR 75,000.
HCCJ’s decision of 27/06/2019
(served on 13/07/2020)
2.
19269/21
S.C. Mon-Al S.R.L. v. Romania
05/04/2021
S.C. MON-AL S.R.L.
1997
Babadag
Romanian
Cristian CRISTIAN
The applicant received, in compensation, RON 408,000 (approx. EUR 80,000).
The national administration issued a decision to recover around EUR 40,000.
HCCJ’s decision of 29/11/2019
(served on 08/10/2020)
3.
6872/22
Euro Fish S.R.L. v. Romania
25/01/2022
EURO FISH S.R.L.
1999
Tulcea
Romanian
Diana-Elena DRAGOMIR
The applicant received, in compensation, around EUR 290,000.
The national administration issued a decision to recover around EUR 145,000.
HCCJ’s decision of 07/07/2020
(served on 02/08/2021)
[1] See Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (OJ L 223, 15.8.2006, p. 1–44).
[2] See Commission Regulation (EU) No 65/2011 of 27 January 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1698/2005, as regards the implementation of control procedures as well as cross-compliance in respect of rural development support measures (OJ L 25, 28.1.2011, p. 8–23).