MIOSOTIS TRANSPORT DI MAURI GIUSEPPE & C. S.N.C. v. ITALY

FIRST SECTION

DECISION

Application no. 40598/19
MIOSOTIS TRANSPORT DI MAURI GIUSEPPE & C. S.N.C.
against Italy

The European Court of Human Rights (First Section), sitting on 6 February 2025 as a Committee composed of:

 Erik Wennerström, President,
 Raffaele Sabato,
 Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 40598/19) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 July 2019 by an Italian company, Miosotis Transport di Mauri Giuseppe & C. S.n.c. (“the applicant company”), represented by Mr A.G. Lana and Mr F. Rosi, lawyers practising in Rome;

the decision to give notice of the complaint concerning Article 4 of Protocol No. 7 to the Convention to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The present application concerns an alleged violation of the ne bis in idem principle.

2.  The applicant company is a general partnership (società in nome collettivo) engaged in the transportation of goods and waste.

3.  Following investigations conducted by the forestry police, the shareholders of the applicant company were the subject of criminal proceedings, while the applicant company itself was the subject of civil proceedings.

4.  On 3 October 2007 the shareholders of the applicant company were charged with transporting waste to company S. with a view to reclassifying it on documents from “waste” to “secondary raw material” so that it could be treated by company E. without the authorisations required under Article 256 § 1 of Legislative Decree no. 152 of 3 April 2006 (Legislative Decree no. 152/2006) in conjunction with Articles 208, 210 and 216 of the same decree and the Ministerial Order of 5 February 1998.

5.  After determining that the shareholders of the applicant company had paid an immediate fine (oblazione), the Vigevano District Court discontinued the proceedings by judgment no. 456/08 of 2 December 2008, which became final on 16 January 2009.

6.  Between 22 and 29 March 2010 the municipality of Pavia issued seventeen administrative penalty orders (ordinanze ingiunzione) against several employees of the applicant company, charging them with transporting special non-dangerous waste from company S. to company E. without the relevant documentation required by Articles 193 § 1 and 258 § 4 of Legislative Decree no. 152/2006. Each order imposed an administrative penalty ranging from 2,015.49 to 28,015.49 euros (EUR), depending on the number of shipments referred to in each order. The applicant company was held jointly and severally liable.

7.  On 7 June 2021, by judgment no. 151/11, the Vigevano District Court dismissed an appeal by the applicant company against the administrative penalty orders.

8.  The first-instance judgment was upheld on 11 December 2015 by judgment no. 4757/15 of the Milan Court of Appeal, and on 22 January 2019 by judgment no. 1646/19 of the Court of Cassation.

9.  The applicant company alleged a violation of the ne bis in idem principle, as laid down in Article 4 of Protocol No. 7 to the Convention, with regard to the above-mentioned sets of proceedings. It considered that it had been subject to an administrative penalty even though it had already been subject to a criminal sanction.

THE COURT’S ASSESSMENT

10.  The parties disagreed as to the applicant company’s victim status, the “criminal” nature of the civil proceedings for the purposes of Article 4 of Protocol No. 7 and the exhaustion of domestic remedies.

11.  As regards, in particular, the lack of victim status, the Government argued that the prosecutor had brought charges in the criminal proceedings exclusively against the shareholders of the applicant company, and not against the applicant company itself. The applicant company pointed out that the shareholders had faced charges in the light of their role within the general partnership, a type of company in which the shareholders bear unlimited liability for the partnership’s conduct.

12.  The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 92, ECHR 2012).

13.  It also notes that there is no doubt that legal entities are entitled to the protection afforded by Article 4 of Protocol No. 7 and may therefore claim to be victims under that provision.

14.  The Court notes that, in the present case, only the applicant company and not its shareholders lodged an application with the Court.

15.  It also observes that criminal proceedings were only brought against the applicant company’s shareholders (see paragraph 4 above).

16.  Accordingly, the applicant company, which was only the subject of civil proceedings (see paragraph 6 above), cannot be regarded as having standing in the proceedings before the Court regarding the complaint under Article 4 of Protocol No. 7 (compare Falgest S.r.l. v. Italy (dec.), no. 19029/11, § 28, 30 April 2013, concerning a limited liability company).

17.  The argument raised by the applicant company, according to which the Court has accepted that there are situations where it would serve no purpose to distinguish between companies with a separate legal personality and their shareholders, is immaterial, as this principle was developed solely with a view to enabling shareholders to proceed with their complaints about proceedings or events affecting their companies (see Albert and Others v. Hungary [GC], no. 5294/14, § 135-36, 7 July 2020), which is not the case in the present application (see paragraph 14 above).

18.  The mere fact that, under domestic law, the shareholders of a general partnership are jointly and severally liable without limit for its debts does not mean that charges were brought against the applicant company in the criminal proceedings, in particular because, as highlighted in the applicant company’s own observations, it could not even face charges in criminal proceedings under Legislative Decree no. 231/2001 – which governs company liability – because the offences with which the shareholders had been charged were not ones that could trigger its criminal liability.

19.  The Court therefore considers that a situation where charges are brought or penalties are issued against the shareholders of a general partnership does not automatically lead to an interference with the legal entity’s rights (see, mutatis mutandis, Liblik and Others v. Estonia, nos. 173/15 and 5 others, § 112, 28 May 2019).

20.  It follows that the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

21.  In the light of the foregoing, the Court does not find it necessary to examine the other exceptions for inadmissibility and declares the application inadmissible.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 March 2025.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President