Communicated on 12 January 2018
FOURTH SECTION
Application no. 39859/14
PANNON PLAKÁT KFT. and Others
against Hungary
lodged on 15 May 2014
STATEMENT OF FACTS
1. A list of the applicant companies is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant companies, may be summarised as follows.
3. The applicant companies are advertising companies who operated roadside advertising hoardings and gained a substantial part of their income from this activity.
4. Until 14 March 1996 the Road Traffic Act (Act no. I of 1988 on Traffic on Public Roads) prohibited the displaying of roadside hoardings in so far as they presented a risk for the safety of the traffic.
5. Between 15 March 1996 and 31 December 2010 the Road Traffic Act prohibited the installation of roadside hoardings within 50 m of the axis of the roads outside built-up areas. In the case of main roads, dual carriageways and motorways, the distance to be respected was 100 m.
6. As of 1 January 2011 the Road Traffic Act was amended to the effect that hoardings exceeding 4 sq. m in size were banned altogether, even if outside the safety range of 50 or 100 m. The amending law was promulgated on 30 December 2010 and entered into force on 1 January 2011.
7. On 1 July 2011 the Road Traffic Act was amended with a rule permitting the traffic authority to impose fines on the owners of land on which hoardings not respecting the new criteria were found.
8. On 21 October 2011 the Government issued a decree on the execution of the statutory regulations contained in the Road Traffic Act as regards advertising installations. According to the decree, which entered into force on 24 October 2011, roadside advertising hoardings located outside built-up areas within a range of 50 m counted from the axis of the road (100 m in case of main roads, dual carriageways or motorways), or exceeding the size of 4 sq. m even if located outside the security range were to be considered unlawful, irrespective of the date of their installation. The authority responsible for road maintenance was empowered to request the removal of unlawful hoardings and, if unsuccessful, to remove such hoardings itself.
9. On 7 August 2012 a further amendment to the Road Traffic Act entered into force. It specified, on the statutory level and in line with the previously adopted Government decree, that not only the “installation” of roadside hoardings was prohibited outside built-up areas but their “presence” as well, if they were capable of distracting drivers’ attention. The amendment stipulated that hoardings violating the regulations were to be removed by 30 September 2012. An explanatory memorandum issued by the Parliamentary Committee for Financial and Information Technology Matters in connection with the relevant provision of the bill contained the following passages: “Pursuant to the amendment, a general ban will apply to roadside advertising hoardings, rather than only a prohibition of new installations thereof. ... The amendment shall make possible the removal of previously installed but henceforth unlawful hoardings.”
10. On 1 July 2013 the Road Traffic Act was again amended so that it prohibited, in general and with only certain limited exceptions, the presence of any roadside advertising hoardings outside built-up areas, irrespective of whether they were capable of distracting drivers’ attention.
11. As a result of the ban, the applicant companies have lost the possibility to use and rent out a significant part of their previously installed hoardings. Their established businesses were affected, respectively, to the following extent:
(i) In the case of Pannon Plakát Kft., 32% of their hoardings were affected, from which 24% of the company’s income originated in 2010;
(ii) In the case of Gandalf Produkció Kft., 73% of their hoardings were affected, which were the source of 54 % of their income in 2010;
(iii) In the case of Holczmann Bt., sixty hoardings were affected, representing 55% of the company’s assets and an income of 50 million Hungarian forints (approximately 167,000 euros) in 2010;
(iv) In the case of Kroc Kft. 8% of their hoardings had to be removed, which were the source of 20% of the company’s income in 2010;
(v) In the case of Ryas Reklám Kft., all of their hoardings were affected by the ban, which generated 80% of their income in 2010;
(vi) In the case of Urbánus Reklám Kft., 66% of their hoardings were affected, which were the source of 62% of their income in 2010;
(vii) In the case of Út Reklám Kft., 40% of their hoardings were affected, which were the source of 97% of their income in 2010.
12. On an unspecified date before the entry into force of the new Constitutional Court Act on 1 January 2012, the applicant companies referred the legislation to the Constitutional Court in the framework of action popularis proceedings. Under the new rules governing the Constitutional Court’s proceedings as from 2012, they maintained their petitions as individual constitutional complaints (see section 26(2) of the Constitutional Court Act outlined in Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 30, ECHR 2016 (extracts)). On 4 November 2013, following an examination on the merits, the Constitutional Court dismissed the complaints and found the relevant legislation (that is to say the relevant provisions of the Road Traffic Act and the Government decree, as in force since 1 July 2013 and 24 October 2011 respectively) to be in conformity with the Constitution (see the Constitutional Court’s decision no. 3208/2013. (XI. 18.) AB).
B. Relevant domestic law
13. The Road Traffic Act, as in force since 7 August 2012, provides as follows in its relevant parts:
Section 12(3)(c)
“No advertising hoardings ..., capable of distracting drivers’ attention, may be present next to public roads ... outside built-up areas.”[1]
Section 46/G
“Advertising hoardings ... affected by the ban laid down in section 12(3)(c) above have to be removed by 30 September 2012.”
COMPLAINTS
14. The applicant companies complain under Article 1 of Protocol No. 1 to the Convention that the loss of the possibility to exploit their previously installed advertising hoardings amounted to an unjustified interference with their right to peaceful enjoyment of possessions.
15. Relying on Article 10 of the Convention, they further complain that the restrictions imposed on the advertising hoardings in question (which were a means of dissemination of information) amounted to an unjustified interference with their right to freedom of expression.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant companies’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?
2. If so, did that interference comply with the requirements of Article 1 of Protocol No. 1? In particular, was that interference necessary to control the use of property in accordance with the general interest? Was an excessive individual burden imposed on the applicant companies (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
3. Has there been an interference with the applicant companies’ freedom of expression within the meaning of Article 10 § 1 of the Convention?
4. If so, was that interference necessary in terms of Article 10 § 2?
Appendix
LIST OF APPLICANTS
PANNON PLAKÁT KFT. is a Hungarian company, based in Budapest and represented by Mr Z. Lajer. GANDALF PRODUKCIÓ KFT. is a Hungarian company, based in Újlengyel and represented by Mr Z. Lajer. HOLCZMANN BT. is a Hungarian company, based in Budapest and represented by Mr Z. Lajer. KROC KFT. is a Hungarian company, based in Budapest and represented by Mr Z. Lajer. RYAS REKLÁM KFT. is a Hungarian company, based in Debrecen and represented by Mr Z. Lajer. URBÁNUS REKLÁM KFT. is a Hungarian company, based in Budapest and represented by Mr Z. Lajer. ÚT REKLÁM KFT. is a Hungarian company, based in Újlengyel and represented by Mr Z. Lajer.
[1] The text in italics was deleted as of 1 July 2013.
Full & Egal Universal Law Academy