THIRD SECTION
DECISION
Application no. 51550/07
LAWYER PARTNERS a.s.
against Slovakia
The European Court of Human Rights (Third Section), sitting on 8 October 2013 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 16 November 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Lawyer Partners a.s., is a private limited company with its registered office in Bratislava. The application on its behalf was lodged by Mr D. Paľko and Mr M. Morong, the chairman and vice-chairman of its managing board. It was represented before the Court by Mr J. Fridrich, a lawyer practising in Bratislava.
The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Contracts between the applicant company and Slovak Radio, and the ensuing proceedings
3. The applicant company was successful in a public tender concerning the recovery of unpaid broadcast receiver licence fees. On that basis it concluded a framework contract with Slovak Radio, a public-law institution, on 15 July 2005. Slovak Radio undertook to transfer to the applicant company the right to claim unpaid broadcast receiver licence fees, including the late-payment fees which persons in default were liable to pay under the Broadcast Receiver Licences Act 1995. Prior to the transfer, the validity of the claims was to be confirmed by an audit. In return for that transfer the applicant company undertook to pay 100% of the nominal value of the unpaid broadcast receiver licence fees to Slovak Radio.
4. The contract excluded the liability of Slovak Radio for the enforceability of the debts transferred to the applicant company.
5. The contract further entitled each of the parties to withdraw, unless they reached a new agreement, in the event of a change in the statutory framework governing broadcast receiver licence fees, or a judicial decision modifying its interpretation to the extent that such change disabled or substantially impaired the performance of the contract by the parties.
6. On 20 September 2005 and 27 January 2006 the applicant company and Slovak Radio concluded two implementation contracts. Under those contracts the applicant company acquired the right to recover unpaid broadcast receiver licence fees, including late-payment fees, subject to payment to Slovak Radio of a sum totalling the equivalent of 3,510,478.98 euros (EUR). That sum corresponded to the nominal value of the unpaid broadcast receiver licence fees due to Slovak Radio. With reference to the database obtained from Slovak Radio, the applicant company indicated that the late-payment fees due totalled the equivalent of EUR 6,427,106,818.
7. The claims concerned 355,917 licences of which 334,687 related to natural persons. The relevant data were transmitted to the applicant company on CD-ROMs.
2. Arbitration judgment of 13 May 2008
8. In a judgment of 13 May 2008 an arbitrator ordered Slovak Radio to pay the equivalent of EUR 3,005,875 to the applicant company. That sum was to be increased by 9.5% per year from 24 October 2006 until payment. The judgment stated that that sum corresponded to the contractual fine agreed between the parties. It was due as a result of Slovak Radio’s failure to notify the debtors by registered mail of the transfer to the applicant company of its claims in respect of unpaid broadcast receiver licence fees. According to the judgment, at the relevant time Slovak Radio had been entitled to transfer to the applicant company its claims in respect of unpaid broadcast receiver licence fees. The Slovak Radio was further ordered to reimburse the applicant company’s costs amounting to EUR 251,696.18.
9. On 20 May 2008 Slovak Radio challenged the arbitration award before the ordinary courts. The applicant company applied to a court for enforcement of the arbitration award. On 17 June 2008 the Bratislava I District Court stayed the enforceability of the arbitration judgment at Slovak Radio’s request.
10. Both parties withdrew their applications in the context of a settlement agreement reached on 19 December 2008 under the conditions set out below.
3. Proceedings concerning the validity of the contracts
11. On 12 October 2006 and 7 May 2007, Slovak Radio challenged the validity of the contracts. Its representative argued that they had been concluded contrary to the relevant law.
12. On 20 October 2008 the Bratislava I District Court confirmed the validity of the three contracts in issue. Slovak Radio appealed. On 19 January 2009 the appeal court discontinued the proceedings as Slovak Radio had withdrawn its appeal in the context of the settlement agreement described below.
13. As a result, the District Court’s judgment of 20 October 2008 became final and enforceable.
4. Settlement agreement of 19 December 2008
14. On 19 December 2008 the applicant company and Slovak Radio concluded an agreement on the settlement of outstanding issues. It stated that the applicant company owed the equivalent of EUR 3,078,958 as the principal sum, plus unspecified additional sums, to Slovak Radio. That amount corresponded to the unpaid sums under the above-mentioned three contracts between the parties. Reference was further made to the sum which Slovak Radio owed the applicant company under the above-mentioned arbitration judgment.
15. The parties agreed to the extinguishment of their respective outstanding claims and obligations subject to the payment of 1 Slovak koruna (the equivalent of 0.03 EUR) by Slovak Radio to the applicant company.
16. In the agreement the parties accepted, among other things, that any mutual rights and obligations under the framework contract of 15 July 2005 in respect of which no claim had been made, or which had not yet been met by 19 December 2008, would cease to exist. The other rights and obligations would remain in force unless the settlement agreement provided otherwise.
17. The agreement further stated that it did not concern and in no way affected the rights and claims which Slovak Radio had transferred to the applicant company under the above-mentioned three contracts prior to the settlement. Slovak Radio acknowledged that the applicant company had become a creditor in respect of those claims.
18. In accordance with the settlement agreement, Slovak Radio withdrew its appeal against the District Court’s judgment of 20 October 2008 (see paragraph 12 above), as well its objection to the arbitration judgment of 13 May 2008. The applicant company withdrew its request for enforcement of the latter judgment.
5. Impact of subsequent legislative amendments on the performance of the applicant company’s rights under the contracts with Slovak Radio
19. In 2006 and 2007 the applicant company addressed notices to the debtors asking for payment of the broadcast receiver licence fees and outstanding late-payment fees. This gave rise to substantial public controversy as to the scope of the debtors’ obligations.
20. The issue had ample media coverage, which included examples of persons who had been asked to pay the equivalent of more than EUR 756,000 in late-payment fees in respect of unpaid licence fees totalling only the equivalent of EUR 44. The trustworthiness of the alleged debts, as well as the validity of the applicant company’s contracts with Slovak Radio, was also discussed.
21. The applicant company offered the debtors a settlement based on the payment of the licence fee due and a lump sum in respect of late payment fees. The lump sum corresponded to the equivalent of EUR 166 in respect of natural persons and EUR 498 in respect of legal persons. On 26 June 2007 the daily newspaper Pravda referred to a written comment by the applicant company’s representative according to which the applicant company had obtained the equivalent of EUR 2,135,170 from the debtors.
22. As a result of enactment of Article V of Law no. 309/2007 (see paragraphs 48-49 below), the applicant company lost the possibility of claiming the additional sums which the debtors had originally been required to pay for not paying the broadcast receiver licence fees on time.
23. On 3 September 2007 the applicant company complained to the Constitutional Court, with reference to Article 1 of Protocol No. 1 and its constitutional equivalent, that it had lost the possibility of claiming late payment fees in respect of unpaid broadcast receiver licence fees as a result of the enactment of Article V of Law no. 309/2007. In the reasons for its complaint the applicant company also cited the effect of Law no. 96/2006 on its property.
24. The Constitutional Court rejected the complaint on 14 February 2008. It held that the relevant amendment did not amount to a direct interference with the applicant company’s rights. In accordance with the established practice of the Constitutional Court, natural or legal persons lacked standing to initiate constitutional proceedings the purpose of which was to challenge the conformity of statutory provisions with the Constitution. The decision concluded that it was nevertheless open to the applicant company to apply for such proceedings to be brought by an authority with standing to do so, such as the Prosecutor General.
25. In the meantime, on 9 January 2008 the Public Defender of Rights informed the applicant company that he would not challenge the relevant provisions of the Broadcast Receiver Licences Act 1995 before the Constitutional Court.
26. On 1 April 2008 the applicant company requested the Prosecutor General to lodge an application with the Constitutional Court challenging the two above-mentioned amendments to the Broadcast Receiver Licences Act 1995. On 29 May 2008 the General Prosecutor’s Office replied that such proceedings could no longer be brought as the law in issue had been repealed with effect from 1 April 2008.
27. On 25 February 2010 the Bratislava IV District Court found that Slovak Television had breached the applicant company’s right to the protection of its good name and reputation. In particular, in a programme broadcast on 11 February 2006 the applicant company had been wrongly accused of unlawful actions in the context of claiming the sums under the above-mentioned contracts with Slovak Radio. The judgment stated that as a result the principal shareholder had withdrawn from the applicant company and that it had lost trustworthiness in the eyes of the public. The defendant was ordered to pay EUR 8,000 to the applicant company.
28. With reference to its accounts, the applicant company submitted that, by 30 September 2012, the overall costs and expenses it had incurred in ascertaining its rights under the above contracts with Slovak Radio totalled EUR 11,131,867.27. That sum comprised EUR 4,865,948.29 in respect of the company’s contractual obligations towards its various business partners, EUR 3,510,478.98, corresponding to the amount which the applicant company had undertaken to pay to Slovak Radio under the above-mentioned three contracts, EUR 950,000 which it had paid to a lawyer as a contractual fine, and EUR 1,805,440, corresponding to the costs of its two lawyers.
29. The applicant company further submitted that after the entry into force of Law no. 96/2006 (see paragraphs 46-47 below), and within the deadline laid down in it, namely between 21 February 2006 and 22 April 2006, 13,503 persons had availed themselves of the possibility of paying the broadcast receiver licence fees due. Those persons had thus avoided the obligation to pay the late-payment fees which they owed in respect of the preceding period. According to the applicant company, the amount of late‑payment fees which it had acquired the right to recover under the contracts with Slovak Radio was reduced by EUR 1,041,127 as a result.
30. Finally, the applicant company indicated that, by the time of the entry into force of Article V of Law no. 309/2007, 4,871 debtors had agreed to settle their case by paying the broadcast receiver fee due and a lump sum in respect of the late-payment fee, as proposed by the applicant company (see paragraph 21 above). The applicant company had thus collected the total of EUR 3,013,831.96, of which EUR 1,718,108.53 corresponded to the licence fees due and EUR 1,295,723.43 to the lump sums in respect of late-payment fees.
6. Recovery by the applicant company of the broadcast receiver licence fees
31. The applicant company started claiming the sums corresponding to unpaid broadcast receiver licence fees from the debtors individually.
32. Where the debtors refused to comply with their obligation the applicant company initiated lawsuits. In that context it encountered difficulties due to the refusal by the ordinary courts to accept its actions submitted in electronic form. In separate applications the Court established a breach of its right of access to a court on that account (see Lawyer Partners a.s. v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, §§ 49-56, ECHR 2009).
33. In a submission of 12 November 2012 the applicant company stated that it had recovered unpaid broadcast receiver licence fees from 139,082 debtors. It further indicated that it continued to experience difficulties in having its electronically lodged claims registered and processed by the ordinary courts despite the above-mentioned Court judgments and several Constitutional Court’s findings to the same effect.
B. Relevant domestic law
1. The Slovak Radio Act 2003
34. At the relevant time the position, tasks and activities of Slovak Radio were governed by the Slovak Radio Act 2003 (Law no. 619/2003).
35. In section 2 of that Act Slovak Radio is described as an independent public-law institution charged with providing a service to the public in the area of radio broadcasting, and a legal person with a registered office in Bratislava.
36. Section 4(1) provides that Slovak Radio carries out its duties in its own name and on its own account and with its own liability.
37. At the relevant time section 7 listed the Radio Broadcast Council, the Supervisory Commission and the Director General as the bodies of Slovak Radio. The Radio Broadcast Council comprised fifteen members who were elected by the National Council of the Slovak Republic (section 9). The Supervisory Commission comprised three members elected/appointed by the National Council, the President, and the Government respectively (section 16). The Director General was elected by the Radio Broadcast Council (section 18).
38. Pursuant to section 20(3), Slovak Radio administers its own means and public financial means as provided in the Broadcast Receiver Licences Act 1995.
39. Section 21(1) lists among the sources of Slovak Radio’s income payments for broadcast receiver licence fees, transfers from the State budget, and advertising payments.
2. The Broadcast Receiver Licences Act 1995
40. At the material time payment of broadcast receiver licence fees was governed by the Broadcast Receiver Licences Act 1995 (Law no. 212/1995). That Act was repealed with effect from 1 April 2008. The following provisions are relevant in the present case.
(a) Provisions in force at the time when the applicant company and Slovak Radio concluded the relevant contracts
41. Section 3(3) required persons liable to pay the broadcasting receiver licence fee to do so within the first fifteen days of each month.
42. Pursuant to section 4(a), the cost of a monthly radio broadcasting receiver licence was the equivalent of EUR 1.33 in respect of all radio receivers owned by an individual, EUR 1.33 in respect of each radio receiver owned by a legal person and EUR 0.67 in respect of all radio receivers owned by persons living on a pension.
43. Section 5(1) and (2) provided for the collection of radio broadcast receiver licence fees, including late-payment fees, by a legal person on the basis of a contract with Slovak Radio. Section 5(3), which became section 5(4) following the enactment of Law no. 96/2006 (see below), indicated that the fee collector was to keep a list of the licence-payers with all relevant data.
44. Section 9, in force until 20 February 2006, read:
“Late-payment fees
1. Where a broadcast receiver licence payer is more than two months behind with payments ... Slovak Radio shall ask him or her to pay a late-payment fee.
2. The late-payment fee under subsection 1 shall amount to [the equivalent of EUR 166] in respect of natural persons and [the equivalent of EUR 498] in respect of legal persons for each month of delay or part thereof and for each receiver in respect of which a broadcasting licence fee is due.
3. Where a broadcast receiver licence payer fails to pay the late-payment fee within one month of the notice to pay, ... Slovak Radio may claim the sum before a court.
4. Receipts from late-payment fees constitute income for Slovak Radio ...”
45. The above amounts for late-payment fees were incorporated into the Broadcast Receiver Licences Act 1995 when it took effect on 1 November 1995. They remained unchanged until the relevant provision lost effect.
(b) Amendments enacted with effect from 21 February 2006 (Law no. 96/2006)
46. Upon a motion by a Member of Parliament, the National Council amended the Broadcast Receiver Licences Act 1995 with effect from 21 February 2006. The explanatory report to the draft amendment indicates that its aim was to eliminate hardship resulting from the provisions concerning late payment fees. It stated that the fees were excessive and enforcement of their payment could place natural persons in severe hardship as the sums could amount, in some cases, to hundreds of thousands, or even several million, Slovakian korunas. It was therefore proposed, inter alia, “to reduce late-payment fees to an acceptable level, to make their amount commensurate with that of the broadcast receiver licence fees”.
47. The following provisions were enacted:
“Section 5 – The licence fee collector
...
3. Slovak Radio and Slovak Television are not entitled to sell their claims in respect of broadcast receiver licence payers, to use them as a bank caution or other guarantee, or to otherwise transfer them to third persons.
...
Section 9 – Late-payment interest
1. Where a broadcast receiver licence payer is more than four months behind with payment ... Slovak Radio shall ask him or her to pay late-payment interest.
2. The late-payment interest shall amount to twice the base interest rate of the National Bank of Slovakia applicable on the first day of delay in payment. It is to be charged in respect of each day of delay ... and in respect of each receiver for which payment is due.
3. Where a broadcast receiver licence payer fails to pay the late-payment interest within one month of the notice to pay, ... Slovak Radio may claim the sum before a court within six months of the delivery of the notice.
4. Receipts from late-payment interest constitute income for Slovak Radio ...
Section 10b
Section 9(2), as in force until the entry into force of this Law, shall not be applied in respect of persons who have paid, within sixty days of the entry into force of this Law, all licence fees due for the period prior to the entry into force of this Law and for the payment of which they have been [duly] summonsed. Section 9(2), as in force until the entry into force of this Law, shall not be applied in respect of unpaid licence fees for the period after the entry into force of this Law where the broadcast receiver licence payers were not duly summonsed to pay the licence fees due prior to the entry into force of this Law.”
(c) Amendment enacted with effect from 12 July 2007 (Law no. 309/2007)
48. The following provision was added to the Broadcast Receiver Licences Act 1995 with effect from 12 July 2007:
“Section 10c
Section 9, as in force until 20 February 2006, shall not apply in respect of unpaid broadcast receiver licence fees due for the period up to 20 February 2006.”
49. Following a motion signed by twenty-one Members of Parliament, that amendment was incorporated, during its second reading, into the Government’s draft law amending the Health and Safety at Work Act 2006. It was adopted as Article V of Law no. 309/2007.
50. The adoption of the above amendment was preceded by a debate during which the view was expressed that it might be interpreted, subject to the validity of the contracts with Slovak Radio, as infringing the rights of the applicant company and engaging the liability of the State.
51. The majority of Members of Parliament accepted the argument that the situation resulting from the statutory provisions in force posed a threat to the situation of many families and that that consideration should prevail.
52. Law no. 309/2007 was published in the Collection of Laws on 12 July 2007. In accordance with Article VI, its Article V took effect on that date.
3. Law no. 350/1996
53. Law no. 350/1996 sets out rules for the functioning of the National Council of the Slovak Republic and its bodies.
54. Section 29(1) entitles Members of Parliament to propose, in the context of a deliberation, amendments or addenda to the matter under consideration. Such proposals must be submitted in writing.
55. Section 61(1) provides that details concerning the elaboration of laws and their form are to be set out according to law-making rules approved by a decision of the National Council.
4. The Law-Making Rules
56. The National Council adopted its Law-Making Rules on 18 December 1996.
57. Section 11(2) provides that in cases where, on an exceptional basis, several laws are to be amended by the adoption of a single new law, each amendment is to be enacted as a separate article of the newly adopted law.
COMPLAINT
58. The applicant company complained under Article 1 of Protocol No. 1 that owing to the legislative amendments it had lost the entitlement to recover fees for late payment of broadcast receiver licences which it had acquired under the contracts with Slovak Radio.
THE LAW
59. The applicant company complained that its right to peaceful enjoyment of its possessions had been breached owing to the above amendments of the Broadcast Receiver Licences Act 1995. It relied on Article 1 of Protocol No. 1 which provides as follows:
“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.”
A. The arguments of the parties
1. The Government
60. The Government firstly objected that the applicant company had failed to comply with the time-limit of six months laid down in Article 35 § 1 of the Convention. They considered that time-limit to have started running with the entry into force of Law no. 96/2006 on 21 February 2006. In the Government’s view, that amendment was at the origin of the alleged breach of the applicant company’s rights under Article 1 of Protocol No. 1 as it had reduced the late-payment interest and absolved the debtors from the obligation to pay the late-payment fees subject to payment, within sixty days, of the broadcasting licence fee. The subsequent amendment to the Broadcast Receiver Licences Act 1995 had been adopted with a view to merely eliminating differences in the interpretation and application of Law no. 96/2006.
61. The Government further argued that the applicant company’s complaint fell outside the scope of Article 1 of Protocol No. 1 for the following reasons. Firstly, the original statutory obligation to pay such excessive late-payment fees was questionable from the point of view of the principle of legal certainty. Secondly, it was questionable whether, in the absence of any explicit indication to that effect in the relevant law, Slovak Radio had been entitled to transfer the right to recover public-law fees to the applicant as a private-law company. Thirdly, in the settlement agreement of 19 December 2008 the applicant company and Slovak Radio had agreed to put an end to the framework contract of 15 July 2005. The parties had waived any further claims in respect of each other.
62. In any event, the applicant company’s complaint was manifestly ill‑founded. Law no. 309/2007 had been enacted in accordance with the applicable rules. Even assuming that there had been an interference with the applicant company’s rights under Article 1 of Protocol No. 1, it had, therefore, a legal basis.
63. The relevant amendments had been enacted with a view to eliminating the hardship resulting from the obligation to pay late-payment fees under the law previously in force. The sums due had been clearly excessive, as they had amounted, for each month of delay, to 125 (in the case of natural persons) or 375 (in the case of legal persons) times the amount of the broadcast receiver licence fee.
64. The obligation to pay such excessive late-payment fees had posed a threat to the financial situation of a large number of persons. There had been a particularly pressing need to address the issue. As to the overall expenses which the applicant claimed to have incurred, the Government considered them to be inadequately high. The Government concluding that a fair balance had been struck between the interests at stake.
2. The applicant company
65. The applicant company maintained that the enactment of Law no. 96/2006 and of Article V of Law no. 309/2007 constituted two separate interferences with its right under Article 1 of Protocol No. 1. The former had resulted in a continuing situation when the right to claim the late‑payment fees had formally still existed but the licence-payers had been given the possibility of avoiding the obligation to pay such fees by paying the licence fee. The latter had resulted in an absolute denial, with retroactive and continuing effect, of the applicant company’s right to recover the late‑payment fees which it had been entitled to collect under its contracts with Slovak Radio.
66. The applicant company argued that the applicable principles of law-making had been disregarded when Article V of Law no. 309/2007 had been adopted. In particular, that amendment had been proposed and adopted in the context of a debate on a totally unrelated piece of draft legislation bearing on health and safety at work.
67. There was no justification for the denial of the applicant company’s right to recover the sums due, with retroactive effect, as a result of the change in the relevant law. Such interference, which was contrary to the principle of legal certainty, imposed an excessive burden on the applicant without corresponding to any general interest.
68. In particular, the applicant pointed to the fact that the obligation to pay late-payment fees had been annulled, with retroactive effect, without any distinction as regards the amount due by the debtors, whether or not they had paid the licence fee due, or whether the debtors were natural or legal persons. The applicant company had obtained no compensation.
69. The annulment of the statutory obligation to pay late-payment fees had affected the willingness of the debtors to pay to the applicant company the licence fees due. Moreover, it could not be excluded that those debtors who had paid the late-payment fees prior to the enactment of Article V of Law no. 309/2007 would claim those sums back from the company.
B. The Court’s assessment
70. As to the compliance with the time-limit of six months laid down in Article 35 § 1 of the Convention, the Court notes that the scope of the claims which Slovak Radio transferred to the applicant company was affected by the enactment of both Law no. 96/2006 on 21 February 2006 and Article V of Law no. 309/2007 on 12 July 2007.
71. The former amendment absolved the debtors from the obligation to pay late-payment fees when they paid, within sixty days of the entry into force of Law no. 96/2006, all licence fees due for the period prior to the entry into force of that Act and for the payment of which they had been duly summonsed. It further excluded the application of section 9(2), as in force until the entry into force of that Law, in respect of unpaid licence fees for the period after the entry into force of Law no. 96/2006 where the broadcast receiver licence-payers had not been duly summonsed to pay the licence fee due prior to the entry into force of Law no. 96/2006.
72. It appears from the documents submitted that within the two-month time-limit laid down in Law no. 96/2006, approximately 13,500 persons took the opportunity to pay the broadcast receiver licence fee, and thus avoided the obligation to pay the late-payment fees in effect before 21 February 2006 (see paragraph 29 above). As a result, the scope of the claims which Slovak Radio had transferred to the applicant company was reduced to an extent which could be quantified upon the expiry of the two-month period, that is, by 21 April 2006.
73. Even assuming that the consequent reduction of the sum which the applicant was still entitled to claim from the debtors entailed the loss of a part of its “asset” falling under Article 1 of Protocol No. 1, the Court takes the view that it did not result in a continuing situation of deprivation of right (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 IX).
74. Since the impact of Law no. 96/2006 on the applicant’s right to claim the sums in issue was clear by 21 April 2006, the Court considers that it was on that day that the period of six months started running. However, the application was introduced on 16 November 2007, which was more than six months later.
75. The applicant’s attempts to obtain redress at the domestic level cannot affect the position since (i) the Constitutional Court, in accordance with its practice, lacked the power to examine the point in issue upon the applicant’s petition, (ii) the remedy for which the applicant applied to the General Prosecutor’s Office was no longer available, and (iii) the remedy applied to the Public Defender of Rights was within the discretionary powers of that authority.
76. Accordingly, the Court accepts the Government’s objection that the complaint in respect of the enactment of Law no. 96/2006 was submitted outside the time-limit of six months. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
77. As to the second amendment of the Broadcast Receiver Licences Act 1995, namely Article V of Law no. 309/2007, it was enacted with effect from 12 July 2007. The applicant’s complaint in respect of that amendment was thus introduced within the time-limit of six months laid down in Article 35 § 1 of the Convention.
78. With regard to this part of the application the question arises as to whether or not the applicant company’s pecuniary interest in respect of the claims which Slovak Radio had transferred to it constituted an “asset” attracting the guarantees of Article 1 of Protocol No. 1 (for a recapitulation of the general principles on the applicability of Article 1 of Protocol No. 1 see, among other references, Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII; or Kopecký [GC] cited above, §§ 35-52). However, the Court does not consider it necessary to determine that issue as it considers that this part of the application is in any event inadmissible for the reasons set out below.
79. The enactment of Article V of Law no. 309/2007 extinguished the claims for late-payment fees which the applicant company had acquired under the contracts with Slovak Radio and which it had until then had the right to assert under domestic law. The Court has examined cases where the applicants’ claims were extinguished pursuant to a legislative intervention falling under the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, for example, Smokovitis and Others v. Greece, no. 46356/99, § 33, 11 April 2002). It held that, in order to be compatible with the general rule of Article 1 of Protocol No. 1, an interference must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, for example, Beyeler [GC], cited above, §§ 108-114).
80. The alleged interference in the present case was based on statutory law, namely Article V of Law no. 309/2007. As to the applicant company’s objection concerning the alleged disregard for the rules on internal legislation, the Court notes that section 11(2) of the Law-Making Rules permitted, on an exceptional basis, several laws to be amended by a single piece of legislation subject to each amendment being amended as a separate article of the newly adopted law. Prior to its adoption, the amendment in issue was discussed and approved by the National Council. It became effective following its publication in the Collection of Laws. The Court therefore finds no reason to doubt the validity of the amendment in terms of the domestic law.
81. It has not been argued – and there is no indication that such was the case – that the legislative provision in issue fell short of the qualitative requirements, in particular those of the accessibility, precision and foreseeability of its effects (for further details see also Mullai and Others v. Albania, no. 9074/07, § 113, 23 March 2010, with further references). The alleged interference complained of was thus provided for by law, as required by Article 1 of Protocol No. 1.
82. An interference with the exercise of one’s right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 of Protocol No. 1 must also pursue an aim in the public interest (see Beyeler [GC], cited above, § 111). The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see Althoff and Others v. Germany, no. 5631/05, § 60, with further references).
83. In the present case the purpose of the amendment in issue was to eliminate what the majority of Members of Parliament considered to be the undesired and excessive effects of the law previously in force. In particular, the situation resulting from the obligation to pay late-payment fees had been found to pose a serious threat to the situation of many households (see paragraph 51 above). The other information before the Court confirms that such an assessment of the situation was not without reasonable foundation or inappropriate (see paragraph 20 above). The Court accepts that the legislative amendment in issue pursued, in the public interest, the legitimate aim of alleviating the excessive impact of the Broadcast Receiver Licences Act 1995 on a large number of persons.
84. Finally, an interference with a person’s right to the peaceful enjoyment of his or her possessions must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, for example, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 69, Series A no. 301 B; Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 69, ECHR 2002 IX; and Smokovitis and Others, cited above, § 34).
85. The Court has earlier acknowledged that, in principle and unless they are designed to influence the judicial determination of a dispute, the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws (see, for example, Stran Greek Refineries and Stratis Andreadis, cited above, § 67, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126, ECHR 2006 V, with further references). At the same time, the requisite balance between the means employed and the aim pursued will not be achieved if the person concerned has had to bear an individual and excessive burden (see Perdigão v. Portugal [GC], no. 24768/06, § 67, 16 November 2010).
86. In the present case the National Council, with a view to eliminating the negative effect of the Broadcast Receiver Licences Act 1995, annulled the obligation to pay late-payment fees which had applied to a large number of persons. It cannot be disregarded that the late payment fees were far from being commensurate with the amount of the licence fees themselves (see paragraphs 42, 44 and 46 above).
87. In this connection, the Court reiterates the importance of the principle of “good governance”. It requires that where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time and in an appropriate and above all consistent manner (for a recapitulation of the relevant case-law on this point see Rysovskyy v. Ukraine, no. 29979/04, §§ 70-71, 20 October 2011, with further references). The good governance principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. However, the need to correct an old “wrong” should not disproportionately interfere with a new right which has been acquired by a person relying on the legitimacy of the public authority’s action in good faith.
88. It is relevant that the sums which the applicant company acquired the right to recover had their origin in a law governing broadcast receiver licence fees, which were one of the sources of finance for Slovak Radio, a public-law institution. The Contracting States enjoy a wide margin of appreciation when deciding what kind of contributions are to be collected, and this extends to the assessment of the need for any modifications in the existing system of contributions. This is all the more relevant when, as in the present case, the impact of the law in force affects a large number of persons. It is also relevant that, at the material time, the Broadcast Receiver Licences Act 1995 provided that receipts from late-payment fees constituted income for Slovak Radio (see paragraph 44 above).
89. The framework contract excluded the liability of Slovak Radio for the enforceability of the debts transferred to the applicant company. The latter had to institute proceedings with a view to recovering the sums due from debtors who had proved unwilling to comply with their obligation. The contract further entitled each of the parties to withdraw, unless they reached a new agreement, in the event of a change in the statutory framework governing broadcast receiver licence fees, or a judicial decision modifying its interpretation. However, the withdrawal clause concerned a change in the statutory framework or judicial practice only to the extent that it disabled or substantially impaired the performance of the contract by the parties. It did not cover the situation which occurred in the present case, namely a change in the legal framework modifying the obligation of licence-payers to pay late-payment fees. When concluding the contracts with Slovak Radio, the applicant company must have been aware that it was taking on a certain business risk as to the prospects of recovering the claims transferred.
90. Prior to the enactment of Article V of Law no. 309/2007 the applicant company was able to recover a part of the sums owed by the debtors (see paragraphs 21, 29 and 30 above). While it is true that that amendment extinguished in their entirety the applicant company’s existing claims for late-payment fees, the applicant company retained its right to claim the broadcast receiver licence fees due. Furthermore, the contractual fine imposed on Slovak Radio (see paragraph 8 above) resulted in a substantial reduction in the amount which the applicant company had actually incurred in the context of the transaction.
91. In view of the above, and even assuming that Article 1 of Protocol No. 1 applies, the Court considers that the enactment of Article V of Law no. 309/2007, which had the consequence of extinguishing the applicant company’s claims for late-payment fees, was not disproportionate to the aim pursued.
92. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy