FOURTH SECTION
DECISION
Application no. 74819/13
József FAZEKAS
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 9 October 2018 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 20 November 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr József Fazekas, is a Hungarian national, who was born in 1958 and lives in Monor. He was represented before the Court by Mr G. Magyar, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, from 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 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 applicant ran a tobacco shop in Monor. He applied for tobacco retail concession on 4 February 2013. His tender was unsuccessful; he could not continue his business in tobacco retail after 15 July 2013.
6. Subsequently, the applicant’s wife was granted a tobacco retail concession under which she has been operating her business in Monorierdő since 13 May 2014.
COMPLAINT
7. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the effective removal of his tobacco retail licences without any realistic prospect to continue his businesses amounted to unjustified deprivation of possessions.
THE LAW
8. The Government submitted that the applicant’s wife, residing and operating her business at the same address as the applicant, was meanwhile granted a new tobacco retail concession. Therefore, the applicant’s complaint should be declared manifestly ill-founded because the applicant continues to enjoy the profits of tobacco retail within the family business.
9. The applicant did not contest the fact that his wife was granted a tobacco retail concession under which she has been operating her business since 13 May 2014. He argued, however, that this had not affected the fact that he had been deprived of his possession by the impugned legislation, making him impossible to continue his business.
10. In Vékony v. Hungary (no. 65681/13, 13 January 2015) the Court examined the complaint of the applicant whose mother had operated a grocery store where tobacco products were sold. As a consequence of the impugned law the applicant’s mother lost her tobacco retail licence. Although the applicant applied for a new tobacco retail concession, he was unable to obtain one under the new rules. The Court held that although formally speaking the previous holder of the excise licence had been the applicant’s mother, that licence had been benefiting their family enterprise and therefore the applicant’s complaint could not be rejected as incompatible ratione personae (see, Vékony, cited above, § 21).
11. In the present case, the Court notes that ten months after the discontinuation of his business, the applicant’s wife was granted a new tobacco license and she could thus continue running the family business. Her shop has been operating ever since. As all family members participating in the family business may benefit from the family enterprise and the license of one of the members (see, mutatis mutandis, Vékony, cited above, § 21), the applicant in the present case can continue to obtain profits of tobacco retail through his wife’s new tobacco retail concession. Under these circumstances, the Court considers that the applicant cannot claim to have suffered an excessive individual burden as a result of the measures complained of.
It follows that the application must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 November 2018.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
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