FOURTH SECTION
DECISION
Application no. 42556/13
FIN.CO.GE.RO SpA
against Romania
The European Court of Human Rights (Fourth Section), sitting on 1 December 2016 as a Committee composed of:
Vincent A. De Gaetano, President,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on the date indicated in the appended table,
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, FIN.CO.GE.RO SpA, is an Italian private company, registered on 23 March 1987 in Italy. Its application was lodged on 11 June 2013. The company was represented before the Court by Mr T. Hasotti, a lawyer practising in Constanţa. The Romanian Government (“the Government”) are represented by their Agent, Mrs Catrinel Brumar, of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 15 June 2000 the Constanţa Municipality and FIN.CO.GE.RO SpA have signed two concession contracts, for two plots of land, respectively.
4. By final decision of 27 May 2004, Constanţa County Court imposed on the Municipality the obligation to hand over to the applicant company the two plots of land and to perform certain public infrastructure works on the plots of land, namely to build access ways. In case the municipality failed to do so, the court authorised the applicant to execute the works at the expense of the Municipality.
5. In so far as the works had not been carried out, the applicant asked the courts to authorise it to carry them out at the expense of the Municipality. By decision of 18 January 2011, the court allowed the applicant’s request. The works started in April 2010 and were continued until 30 November 2010, at a total cost of EUR 14,255,558.817.
6. The applicant initiated enforcement proceedings, requesting the payment of the amount spent to carry out the public infrastructure work. On 28 June 2012, while accepting to pay the entire amount, the Constanţa Municipality requested to be granted a grace period, namely until 2013, and to be allowed to pay the amount in twenty annual installments. The request was dismissed by judgment of 16 July 2012 by the District Court of Constanţa. The Municipality appealed. By final judgment of 13 December 2012 the Constanţa Court of Appeal partially allowed the request, granting a grace period until 2013 and allowing that the payment be made by fifteen equal installments annually, starting with 2013.
7. Three installments of approximately EUR 900,000 per year had been paid on 19 December 2013, 4 December 2014 and 21 December 2015.
B. Relevant domestic law
8. The relevant domestic legal provisions and procedures concerning the enforcement of final judgments against State authorities are described in the leading case of Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania (nos. 2699/03 and 43597/07 §§ 36-40, 7 January 2014).
COMPLAINTS
9. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, about the unreasonably delayed enforcement of the judgment of 27 May 2004 of Constanţa County Court.
10. Referring to Article 6 § 1, the applicant further complained of other aspects related to the fairness of the proceedings finalized by the decision of 13 December 2012, as well as to the fact that no second appeal could be lodged against the above-mentioned final decision, in breach of Article 13 of the Convention.
THE LAW
A. Complaints under Article 6 § 1 and Article 1 of Protocol No. 1 regarding non-enforcement
11. The applicant complained of the unreasonably delayed enforcement of the judgment of 27 May 2004 of Constanta County Court. It relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
12. The Government mentioned that the authorities have never refused to enforce the court decision in question. They however argued that the payment by instalments was the only solution to ensure the full payment of the amount, an immediate full payment being susceptible to cause a significant fiscal imbalance in the local budget.
13. The Court notes that the extension of the payment schedule for a period of fifteen years was allowed by the domestic court in the public interest, namely in order to safeguard the budgetary balance between expenditure and revenue. The Court further notes that the Romanian authorities have shown diligence in enforcing the final judgment of 13 December 2012 (see paragraph 7 above).
14. In view of the above and having regard to the particular context of the case, namely the amount to be paid and the domestic authorities’ assessment as to the impact of an immediate payment of the total amount, the Court considers that the decision taken by the national authorities struck a fair balance between the applicant’s rights to see the outstanding judgment enforced within a reasonable delay and the public interest at stake (see, mutatis mutandis, Dumitru and others v. Romania (dec.), no. 57265/08, §§ 44-51, 4 September 2012, and Mihăieş v. Romania and Senteş v. Romania (dec.), nos. 44232/11 and 44605/11, §§ 19-21, 6 December 2011).
15. It follows that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Remaining complaints
16. The applicant further complained of the unfairness of the proceedings, under Article 6 § 1 of the Convention, as well as of the impossibility to introduce a second appeal to challenge the decision of 13 December 2012, claiming a breach of Article 13 of the Convention.
17. Having carefully considered the applicant’s submissions in the light of all material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
18. It follows that this part of the application is also manifestly ill‑founded and must be rejected 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 20 December 2016.
Hasan BakırcıVincent A. De Gaetano
Deputy RegistrarPresident
APPENDIX
Application raising complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1
(non-enforcement or delayed enforcement of domestic decisions)
Application no.
Date of introduction
Applicant name
Representative name and location
Relevant domestic decision
Start date of non-enforcement period
End date of non-enforcement period Length of enforcement proceedings
42556/13
11/06/2013
FIN.CO.GE.RO SpA
Hașotti Și Asociații
Constanța
Constanța County Court, 27/05/2004
Constanța Court of Appeal, 13/12/2012
23/05/2006
13/12/2012
pending
More than 10 years, 1 month and 21 days
pending
More than 3 years, 7 months and 1 day
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