Communicated on 12 June 2018
FIRST SECTION
Application no. 42879/14
ONE TELECOMMUNICATIONS SERVICES DOOEL SKOPJE
against the former Yugoslav Republic of Macedonia
lodged on 4 June 2014
STATEMENT OF FACTS
The applicant company, One Telecommunications Services Dooel Skopje, is a company registered in Skopje and operating on the telecommunications market. It is represented before the Court by Ms D. Chakarovska-Grozdanovska, a lawyer practising in Skopje.
The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
1. Background
On 22 November 2001 the applicant company’s legal predecessor (“the concessionaire”) signed a concession contract with the Ministry of Transport for provision of mobile communication services. The contract was signed in accordance with the Telecommunications Act and was valid until 31 December 2023. Under the terms of the contract, the service provider was obliged to pay an annual fee for the use of radio frequencies. It further provided that a proportional adjustment in the annual fee should be made upon the entry into force of the contract and its termination with respect to the ratio of the unexpired part of the calendar year to the whole calendar year. Based on an invoice of 6 June 2008, the concessionaire paid 51,782,553 Macedonian denars (MKD) (833,590 euros (EUR)), being the annual fee for 2008.
On 5 March 2005 a new law regulating the sector entered into force – the Electronic Communications Act. Subsequently, on 24 July 2008, the Parliament adopted amendments to the aforementioned act (which entered into force on 5 August 2008), according to which concession contracts signed under the Telecommunications Act were to be regarded as terminated (престануваат да важат) thirty days after the entry into force of the Amendments Act. The existing mobile operators, including the concessionaire, were to be awarded a licence.
On 5 September 2008 the Agency for Electronic Communications (“the Agency”) granted the concessionaire a licence to use radio frequencies (valid until 5 September 2023). On 2 February 2009 it issued an invoice requesting the concessionaire to pay MKD 51,992,776 (EUR 841,534) as annual fee (for the period between 5 September 2008 and 5 September 2009). The concessionaire returned the invoice to the Agency, asking for corrections to be made to the amount due, stating that it had already paid the annual fee for the entire year 2008 (under the concession contract), including the period from 5 September to 31 December 2008. The Agency did not amend the invoice and stated that the fee was to be paid annually, starting from the date when the licence was issued. It further stated that should the concessionaire fail to pay the invoice within the specified time-limit, the Agency shall seek payment in court proceedings. The invoice was then paid in full by the concessionaire.
2. Civil proceedings for unjust enrichment
On 27 January 2010 the applicant company sued the Agency for unjust enrichment (стекнување без основ), claiming reimbursement of MKD 16,694,921 (EUR 271,462) plus interest. That figure concerned the fee for the period from 5 September to 31 December 2008 that had allegedly been paid twice – on the basis of the concession contract and the awarded licence.
The Agency disputed the applicant company’s claim, arguing that each payment had a different legal basis. Moreover, the second payment had been made without the applicant company having reserved the right to claim back the disputed amount, contrary to section 200 of the Obligations Act (“the Act”).
On 18 February 2011 the Skopje Court of First Instance (Основен суд Скопје) granted the applicant company’s claim holding that it had paid the annual fee for the entire year 2008 on the basis of the concession contract, which had been terminated on 5 September 2008 with the entry into force of the legislative amendments. Relying on section 199(3) of the Act, the court considered that the applicant company was entitled to recover the amount paid on the basis of the concession contract for the relevant period.
On 9 February 2012 the Skopje Court of Appeal (Апелационен суд Скопје) overturned the first-instance judgment and dismissed the applicant’s claim holding that there had been a valid legal basis (правниот основ постоел) when the payment had been made. Relying on section 200 of the Act the court considered that since the applicant company had failed to reserve the right to claim back the amount paid, and had not been compelled to make the payment (the Agency’s warning that it shall seek payment of the invoice in court proceedings could not be considered as compulsion), the Agency was not obliged to reimburse the amount claimed.
The applicant company challenged that judgment, arguing that the concession contract had been terminated on 5 September 2008 with the resulting effect that the legal basis for the payment of the annual fee for the relevant period under the concession contract had ceased to exist. The Agency had insisted that the invoice of 2 February 2009 was to be paid in full, and the applicant company had been obliged to pay it in order to operate on the market.
On 30 October 2013 the Supreme Court upheld the Court of Appeal’s judgment, finding no grounds to depart from the reasons given. The applicant company’s representative received a copy of this judgment on 18 December 2013.
COMPLAINT
The applicant company complains that the dismissal by the domestic courts of its claim seeking reimbursement of the annual fee paid for the period from 5 September to 31 December 2008 violated its rights under Article 1 of Protocol No. 1 to the Convention.
QUESTIONS TO THE PARTIES
1. Did the dismissal by the domestic courts of the applicant company’s claim for unjust enrichment amount to an interference with its possessions within the meaning of Article 1 of Protocol No. 1 to the Convention?
2. If so, was that interference in compliance with Article 1 of Protocol No. 1? In particular, was the law on which it was based foreseeable in its application? Did it impose an excessive individual burden on the applicant company?
3. The parties are invited to submit examples of domestic practice regarding the interpretation and application of sections 199 and 200 of the Obligations Act in comparable situations.
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