Published on 17 June 2024
FOURTH SECTION
Application no. 35549/21
INDIGO GYM S.R.L. and MADNESS GYM S.R.L.
against Romania
lodged on 1 July 2021
communicated on 28 May 2024
SUBJECT MATTER OF THE CASE
The applicant companies are fitness centres. Their application concerns the closing of their business from March 2021 to, at least, July 2021 following monthly decisions taken jointly by the Government and by the health authorities during the health crisis due to COVID-19 seeking to combat the spread of the virus. These decisions followed other similar decisions which had been taken by the same authorities from March 2020 to February 2021 and had forced the applicant companies to severely curtail their operations. Indigo Gym S.R.L. challenged the decision of March 2021 and claimed pecuniary damages for the alleged loses it had suffered because of it. Madness Gym S.R.L. challenged the decision of April 2021 and asked for a stay of its enforcement pending the outcome of the proceedings. On 19 April and 13 May 2021 the Cluj Court of Appeal quashed, respectively, the decisions of March and April 2021 in so far as they concerned fitness centres because the measures imposed on these centres were unnecessary and disproportionate. Nonetheless, the Court of Appeal dismissed Indigo Gym S.R.L.’s claim for pecuniary damages as unsubstantiated and Madness Gym S.R.L.’s request for a stay of enforcement as inadmissible. By a final judgment of 21 October 2021 the High Court of Cassation and Justice, sitting as a second and last-instance court, confirmed the Court of Appeal’s judgment of 19 April 2021. The appeal against the judgment of 13 May 2021 appears to be still pending before the Court of Cassation. By the time the proceedings brought by the applicant companies ended or were bound to end, the above-mentioned decisions had expired and had been replaced by new ones requiring fresh court challenges.
Relying on Article 6 § 1 of the Convention and on Article 13 taken jointly with Article 6 § 1, the applicant companies complained that the national authorities had violated their rights of access to a court and to an effective remedy. They alleged that, under the national law in force at the relevant time, they had not had access to an effective and enforceable judicial review of the lawfulness of the monthly decisions taken by the national authorities from March to, at least, July 2021 capable of removing the effects of the decisions in question in an efficient and timely manner pending their expiration, either by staying their enforcement or by quashing them. Invoking in substance Article 1 of Protocol No. 1 to the Convention the applicant companies complained of a violation of their right to the peaceful enjoyment of their possessions. They alleged that the absence of the above-mentioned effective and enforceable judicial review of the allegedly unlawful decisions in question had given rise to severe and irreversible losses for them which had affected their ability to cover their expenses and had essentially jeopardized their existence.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (see Project-Trade d.o.o. v. Croatia, no. 1920/14, § 68, 19 November 2020)?
If so, did the applicant companies have access to a court for the determination of their civil rights in accordance with Article 6 § 1 of the Convention given that the contested decisions were in force for a short time?
2. Have the applicant companies exhausted the effective domestic remedies in respect of their complaint raised under Article 1 of Protocol No. 1, as required by Article 35 § 1 of the Convention?
If so, has there been an interference with the applicant companies’ peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1 (see Rola v. Slovenia, nos. 12096/14 and 39335/16, § 71, 4 June 2019)?
If so, has the interference been accompanied by sufficient procedural guarantees against arbitrariness as required by Article 1 of Protocol No. 1 (see Pintar and Others v. Slovenia, nos. 49969/14 and 4 others, § 97, 14 September 2021)?
Furthermore, was the interference in accordance with the conditions provided for by law, foreseeable and necessary to control the use of property in accordance with the general interest? Did that interference impose an excessive individual burden on the applicant companies (see, for instance, Vékony v. Hungary, no. 65681/13, §§ 32-36, 13 January 2015)?
3. Did the applicant companies have at their disposal an effective domestic remedy for their complaint under Article 6 § 1 of the Convention, as required by Article 13 of the Convention?