Published on 10 June 2025
FOURTH SECTION
Application no. 17355/22
António José PEREIRA DE ALMEIDA
against Portugal
lodged on 28 March 2022
communicated on 23 May 2025
SUBJECT MATTER OF THE CASE
The applicant was the sole owner of computer distribution company M. (empresário em nome individual). The application concerns an alleged loss of clientele and market share by his company M. due to the implementation of a State programme in the digital sector. The applicant claims this resulted in an unlawful direct award to a market competitor.
On 17 December 2013 the applicant instituted non-contractual liability proceedings against the Ministry for the Economy with the Porto Administrative Court. He alleged that his business had been compromised irreparably when his two biggest clients revoked their distribution contracts with his company M. following the implementation of “e.Iniciativa”, a government programme launched in June 2007 which aimed at, inter alia, providing subsidised laptops to school students. On 23 June 2014 these proceedings were rejected on the grounds that the action had been lodged against the wrong respondent.
On 13 March 2015 the applicant instituted new proceedings against the Ministry for the Economy with the Porto Administrative Court, seeking both the annulment of the “e.Iniciativa” programme’s regulations and compensation for damages. On 8 February 2016 these proceedings were also rejected on the grounds that the action had been lodged against the wrong respondent.
On 3 March 2016 the applicant instituted non-contractual liability proceedings against the State with the Porto Administrative Court. By a decision of 11 February 2021 the Porto Administrative Court declared the action inadmissible on the grounds that the claim had become statute barred. On 9 March 2021 the applicant appealed against this decision to the North Administrative Tribunal (“TCAN”) which upheld the lower court’s decision on 21 May 2021.
On 25 October 2021 the applicant lodged a constitutionality appeal with the Constitutional Court, arguing that the interpretation adopted by the TCAN to the effect that his claim had become statute-barred infringed several constitutional principles. On 2 November 2022 the Constitutional Court ruled that the interpretation in question was not unconstitutional.
Relying on Article 1 of Protocol No. 1 of the Convention, the applicant alleges that, through an unlawful State programme, the Government created a monopoly situation for a single manufacturer which led his company to lose clientele, market share, and ultimately to become insolvent.
Under Article 14 of the Convention and Article 12 of Protocol No. 12, he claims that he was discriminated against in the implementation of the said programme, since the tender specifications were designed to benefit a single market operator.
Relying on Article 6 § 1 of the Convention, the applicant complains of the lack of access to a tribunal because the domestic courts failed to analyse the merits of his claims by resorting to formalist and unfair interpretations of the applicable law.
Under Article 13 of the Convention, the applicant claims that he was deprived of an effective remedy in respect of the alleged interference into his property rights.
QUESTIONS TO THE PARTIES
1. Did the applicant’s company market share constitute a “possession” within the meaning of Article 1 of Protocol 1 to the Convention (see Könyv-Tár Kft and Others v. Hungary, no. 21623/13, §§ 31-32, 16 October 2018)?
In the affirmative:
(a) Did the impugned measures constitute a measure entailing control of the use of property and an interference with the applicant’s right to the peaceful enjoyment of his possessions (ibid., § 43)?
(b) If so, were the impugned measures in compliance with the requirements of Article 1 of Protocol No. 1, read alone or in conjunction with Article 14 of the Convention?
More specifically:
- Were the impugned measures in accordance with the law and did they pursue a legitimate aim (ibid., §§ 44-59)?
- Has the applicant been afforded a reasonable opportunity to challenge effectively the measures affecting his possessions and to obtain adequate redress (see Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018)?
2. Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see Zubac v. Croatia [GC], no. 40160/12, §§ 76-81, 5 April 2018)? In particular, did the national courts’ decisions to declare the three actions introduced by the applicant inadmissible amount to excessive formalism (ibid., §§ 96-99)?
3. Did the applicant have an effective domestic remedy at his disposal through which he could have raised his complaints under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?