Information Note on the Court’s case-law No. 107
April 2008
M SRL v. Moldova - 21151/04
Judgment 8.4.2008 [Section IV]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Withdrawal of an Internet service provider’s operating licences for purely formal breach of regulations: violation
Facts: The applicant company, a privately owned corporation and the largest Internet service provider in Moldova at the time, moved its headquarters in November 2002. The change was registered with the State registration chamber and the tax authorities were also informed. In May 2003 the applicant company applied to the national telecommunications regulatory authority (ANRTI) for an additional licence. However, although it gave its new address when making the application, the licence was issued with the old address. In September 2003 the applicant company and a number of other operators received a letter from the regulatory authority requiring them to pay an annual licence fee and provide details of their addresses within ten days or risk having their operating licences suspended. Although the applicant company subsequently attempted to rectify these omissions, the regulatory authority queried the information it had supplied and, without waiting for a response or imposing any period of suspension, declared its licences invalid. An amendment made to the regulations shortly afterwards meant that the applicant company was unable to apply for a new licence for a period of six months. It was unsuccessful in a challenge to the regulatory authority’s decision in the courts and ultimately was forced out of business. Of the more than 50 operators who were alleged not to have complied with the regulatory authority’s warning letter, the applicant company appears to have been the only one to have had its licence withdrawn, the others receiving a three-month suspension instead.
Law: Article 1 of Protocol No. 1 – The termination of the licences was a measure of control of use of property which fell to be examined under the second paragraph of Article 1 of Protocol No. 1. The central issue was the question of proportionality. As to the breach of the regulations by the applicant company, the Government had not indicated any concrete detriment caused by the failure to have its address modified in the text of the licences. The regulatory authority had been well aware of the change of address and had had no difficulty in contacting the applicant company. Other relevant authorities and clients had also been informed. There was no suspicion that the company had been seeking to evade its tax liabilities. Against that background, it was striking that the measure imposed was of such severity as to force what had been Moldova’s largest Internet service provider to wind up its business and sell all of its assets. For its part, the regulatory authority had failed to comply with its obligations as a public authority to act in good time, in an appropriate manner and with utmost consistency. Despite been apprised of the change of address it had issued the applicant company with a new licence indicating the old address, had acquiesced in the technical flaw in its licences, and had later led the applicant company mistakenly to believe that it could continue operating provided it furnished the requested information within a set period. The requisite procedural safeguards were also lacking, as the applicant company was given no opportunity to appear or explain its position before the regulatory authority and, in the appeal proceedings, the case was decided in its absence after its application for an adjournment was refused without explanation. Indeed, the domestic courts’ examination of the case had been unduly formalistic with no attempt being made to carry out a balancing exercise. Lastly, there was also evidence of discriminatory treatment in that the applicant company appeared to have been treated more severely than other companies in a similar position. In the light of the arbitrariness of the proceedings, the discriminatory treatment and the disproportionately harsh measure imposed, the authorities could not be said to have followed genuine and consistent policy considerations when invalidating the licences and had thus failed to strike the requisite fair balance.
Conclusion: violation (unanimously).
Article 41 – Not ready for decision.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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