Communicated on 9 October 2017
SECOND SECTION
Application no. 54748/09
LONCA ORGANİZASYON ELEKTRONİK GIDA MEDYA YAYINCILIK SANAYİ VE TİCARET A.Ş.
against Turkey
lodged on 24 September 2009
SUBJECT MATTER OF THE CASE
The application concerns the proceedings initiated by the applicant company against Istanbul Gas Distribution Company (İstanbul Gaz Dağıtım San. ve Tic. A.Ş. – “İGDAŞ”), a utility company whose majority interest is owned by the Metropolitan Municipality of Istanbul, with which it signed a contract for the provision of mobile meter reading services. After the contract came to an end on 20 November 2003, İGDAŞ withheld the payment of the amounts for the works carried out by the applicant company in the last two months. On 28 September 2004 the applicant company requested the execution office to issue a payment order for those amounts together with interest running from 25 November 2003, the date of their maturity under the contract. İGDAŞ objected to the payment order on the grounds that the applicant had no unsettled outstanding claim. On 11 October 2004 the applicant brought an action seeking the cancellation of the objection. On 8 November 2007 the first-instance court held that İGDAŞ had no valid grounds to withhold the payment of the amounts due under the contract. Observing that İGDAŞ had made partial payments throughout the proceedings, it decided to lift the objection for the amount which remained unpaid. As regards interest, the court ruled that it should run from the date of the decision, but not on the dates the applicant company issued the payment order or brought the action since on those dates the applicant company’s claim had not yet become due. The applicant company appealed against the judgment arguing that the court should have taken into account the payments made by İGDAŞ, while the proceedings were pending, to determine the accrual date of interest. The Court of Cassation, without replying to the points raised by the applicant, dismissed
the appeal and the request for rectification and upheld the judgment on 20 April 2009.
The applicant company complains that the domestic courts’ refusal to award interest on the amounts unpaid by İGDAŞ running from the date of the lawsuit, despite the finding that İGDAŞ had no valid ground to withhold the amounts which had become due under the contract in the first place, constitutes a violation of the right to a fair trial. Under the same provision, the applicant further complains of the failure of the courts to take into account the applicant company’s right to interest on the partial payments made by İGDAŞ on separate dates during the proceedings.
QUESTIONS tO THE PARTIES
1. Did the Court of Cassation provide adequate reasoning, within the meaning of Article 6 § 1 of the Convention, when dismissing the applicant company’s appeal and the request for rectification? In particular, did the Court of Cassation provide an express and specific reply to the objections made by the applicant company against the first-instance court’s ruling on the accrual date of interest (see Ruiz Torija v. Spain, 9 December 1994, § 30, Series A no. 303‑A, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017)?
2. Can the applicant company’s claim to interest be considered as a legitimate expectation within the meaning of Article 1 of Protocol No. 1 (see, for example, Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004-IX)? If so, has there been a violation of the applicant company’s right to peaceful enjoyment of its possession on account of the domestic courts’ refusal to award interest on the amounts withheld by İGDAŞ running from the date of the lawsuit, having regard to the fact that the courts concluded that İGDAŞ no valid ground to withhold the payment of those amounts after the contract came to an end?
The parties are requested to submit sample decisions of the Court of Cassation regarding the determination of the date(s) from which late payment interest should run in proceedings for annulment of an objection made to a payment order where the claimant requested interest, with examples from actions brought to claim the amounts which became due under the contract but withheld by the other party.
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