FANY PRESTĂRI SERVICII S.R.L. v. ROMANIA

FOURTH SECTION

DECISION

Application no. 26699/19
FANY PRESTĂRI SERVICII S.R.L.
against Romania

The European Court of Human Rights (Fourth Section), sitting on 21 January 2025 as a Committee composed of:

 Jolien Schukking, President,
 Anja Seibert-Fohr,
 Sebastian Răduleţu, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 26699/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 April 2019 by a Romanian company, Fany Prestări Servicii S.R.L. (“the applicant company”), which was registered in 1991, is based in Cluj-Napoca and was represented by Ms L. Cadar, its general manager residing in Cluj-Napoca;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the national courts’ decision to withdraw the applicant company’s transport licence and their alleged failure to hand down compatible final judgments, in alleged violation of Article 1 of Protocol No. 1 to the Convention and of Article 6 of the Convention.

2.  By decision no. 424 of 23 December 2013, following a public tender, the Cluj County Council granted the applicant company a licence to run a passenger transport service on three routes. The holder of the licence was authorised to operate on those routes from 1 January 2014 to 30 June 2019. The applicant company started operating accordingly.

3.  By a final judgment of 10 February 2016, the Cluj Court of Appeal allowed a challenge lodged by the Cluj Prefect’s Office on 10 March 2014 against decision no. 424. It set aside the decision, and invalidated the corresponding licence, on the grounds that owing to an administrative error by the authorities the public tender had been conducted unlawfully.

4.  Following a new public tender that was organised as a consequence of the above-mentioned judgment, by decision no. 88 of 23 April 2016, the county council granted the applicant company a fresh licence for the three routes.

5.  By a final judgment of 20 September 2018, the Court of Appeal allowed a challenge against decision no. 88 – lodged on an unspecified date in 2016 by one of the applicant company’s competitors in the new tender. The court set aside the decision, and invalidated the corresponding licence, on the grounds that the new tender had been conducted unlawfully by the authorities. In particular, they had ignored the fact that the judgment of February 2016 (see paragraph 3 above) had invalidated the 2013 licence (see paragraph 2 above) with retroactive effect and had used incorrect information when assessing one of the criteria that had been essential for establishing the successful bidder for the new tender.

6.  Following a third public tender that was organised in November 2018, the county council granted the transport licence for the three routes (see paragraph 2 above) to the applicant company’s competitor referred to in paragraph 5 above. The competitor in question was authorised to operate on the routes from 1 December 2018 to 30 June 2019. Nonetheless, on 31 December 2018 that authorisation was extended until 2 December 2019 by Law no. 328 on amendments to transport legislation.

7.  On 3 March 2019 an accountant produced an expert report commissioned by the applicant company, which concluded that the applicant company had lost 1,143,252 Romanian lei (an estimated 230,030 euros) in profit between 1 December 2018 and 2 December 2019 on account of the withdrawal of its licence. The loss of profit was calculated on the basis of the profit made by the applicant company from operating the licence between 1 May 2016 and 31 November 2018.

8.  The applicant company complained under Article 1 of Protocol No. 1 to the Convention that the withdrawal of its licence for the three routes (see paragraphs 2 and 5-6 above) and the subsequent loss of profit that it could have earned from operating those routes from 1 December 2018 to 2 December 2019 constituted a violation of its right to the peaceful enjoyment of its possessions. It also complained under Article 6 of the Convention that the final judgments of the Court of Appeal of February 2016 and September 2018 (see paragraphs 3 and 5 above) were incompatible with each other – thereby violating the principle of legal certainty – because the former judgment, unlike the latter, had placed greater weight on a formal interpretation of the law than on the interests of the parties to the proceedings.

THE COURT’S ASSESSMENT

9.  The general principles as to whether a person has a “possession” or a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 were set out in Kopecký v. Slovakia ([GC], no. 44912/98, §§ 35 and 45-52, ECHR 2004-IX), Anheuser-Busch Inc. v. Portugal ([GC], no. 73049/01, §§ 62-65, ECHR 2007-I) and BCR Banca pentru Locuinţe S.A. v. Romania ((dec.), no. 4558/20, §§ 129-30, 5 December 2023).

10.  The applicant company was granted the transport licence after it had taken part in public tenders organised by the relevant national authorities to that effect.

11.  None of the evidence in the case file suggests that at the time of its application to participate in the public tenders, the applicant company was unaware (i) that the lawfulness of the tenders and ultimately of the decisions granting the licence could be challenged in court by the authorities and by the other participants in the tenders within a statutory time-limit and could be invalidated with retroactive effect (ex tunc) (see paragraph 5 above) if they were found to be unlawful or (ii) that the relevant legislation in force at the time contained no provisions that could have led it to believe that it or its business were impervious to the consequences of successful challenges. Indeed, the applicant company has not denied that the challenges brought against the public tenders and the corresponding decisions in question (see paragraphs 3 and 5 above) were provided for by law and complied with the above-mentioned statutory time-limit. Also, it has not pointed to any legal provisions that could have potentially made its business impervious to the consequences of successful challenges.

12.  Therefore, the applicant company must have been aware that all its operations and gains related to the licence and, ultimately, its ability to continue operating its business on the routes in question and to receive the related advantages depended on the lawfulness of the public tenders and of the decisions granting the relevant licence, in the absence of which the income generated by its business could have been affected with immediate effect (ex nunc) (see paragraphs 6-7 above).

13.  Moreover, the applicant company could and should have foreseen that in the event that its licence was invalidated, the company would lose its right to operate and would be forced to participate in a new public tender in order to obtain a fresh licence.

14.  In its judgments against the applicant company, the Court of Appeal found that the public tenders in which the applicant company had participated and ultimately the licence itself were unlawful because of mistakes made by the authorities when conducting the tenders (see paragraphs 3 and 5 above). The applicant company challenged those findings. The Court of Appeal examined its arguments in this regard by taking into account the legitimate interests of all the parties involved in the tenders and dismissed them on the merits by providing reasons which do not appear arbitrary or manifestly unreasonable.

15.  The Court reiterates that it is sensitive to the subsidiary nature of its role and that, where there is no evidence of arbitrariness, it cannot act as a court of fourth instance and review the choices of the domestic courts concerning the interpretation of legal provisions and the inconsistencies that may result, nor intervene, even where there have been – as alleged by the applicant company in paragraph 8 above – conflicting court decisions. Therefore, even though the interpretation made by the relevant domestic courts was unfavourable to the applicant company, the effects of such an interpretation cannot be regarded, in itself, as incompatible with the Convention (see BCR Banca pentru Locuinţe S.A., cited above, § 137).

16.  In the light of the above, it could not be said that, in the particular circumstances of the case, the applicant company could have expected that its presumed entitlement to the licence and, ultimately, its ability to continue running its business and enjoying the corresponding advantages could not be called into question or was sufficiently established to be regarded as an “asset” within the meaning of Article 1 of Protocol No. 1 to the Convention.

17.  As to the applicant company’s alleged loss of profit from 1 December 2018 to 2 December 2019 (see paragraph 7 above), the Court reiterates that future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see Anheuser-Busch Inc., cited above, § 64). The income claimed by the applicants has not actually been earned. Neither can it be argued that it was definitely payable given the findings of the Court of Appeal’s judgment of 20 September 2018 on the retroactive effect of the judgment of 10 February 2016 (see paragraph 5 above).

18.  Accordingly, the Court finds that the applicant company did not have a legitimate expectation in respect of its claim under Article 1 of Protocol No. 1 to the Convention. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

19.  The Court has examined the complaint submitted by the applicant company under Article 6 of the Convention (see paragraph 8 above). However, having regard to all the material in its possession and to its findings in paragraphs 14-15 above, and in so far as it falls within its jurisdiction, the Court finds that the complaint in question does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 February 2025.

 Simeon Petrovski Jolien Schukking
 Deputy Registrar President