FOURTH SECTION
DECISION
Applications nos. 55189/15 and 55199/15
PRO-CREDITOR KFT. against Hungary
and CSABAHOLDING SZOLGÁLTATÓ KFT. against Hungary
The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 30 October 2015 and 27 October 2015 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant companies,
Having deliberated, decides as follows:
THE FACTS
1. The applicant companies, Pro-Creditor Kft. and Csabaholding Szolgáltató Kft., are limited liability companies with registered offices in Budapest, Hungary. They were represented before the Court by Mr L. Farkas, a lawyer practising in Győr.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Zoltán Tallódi, Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant companies had carried out liquidation activities for many years prior to a change in the legislation in 2009, which stipulated that the register of liquidators had to be renewed every seven years.
5. A call for tenders was published by the Government on 15 April 2013 and the applicant companies submitted tenders seeking to be placed on the new register of liquidators. Tenders were examined and scored by the Administrative Authority of Public Administration and Justice (hereinafter “the administrative authority”), which rendered decisions on the applicant companies’ rankings (hereinafter “the first ranking decisions”), finding that their scores were insufficient for them to be included on the new register of liquidators.
6. Subsequently, the administrative authority decided to strike the applicant companies off the (old) register (hereinafter “the striking-off decisions”).
7. The applicant companies challenged the first ranking and striking-off decisions before the Budapest Administrative and Labour Court which quashed the aforementioned decisions and remitted the cases to the administrative authority for re-examination. It also granted the applicant companies’ requests for interim injunctions and ordered that the enforcement of the first ranking and striking-off decisions be suspended. However, in the meantime, the applicant companies had been struck off the register.
8. On the basis of the interim injunctions granted by the court the applicant companies requested to be restored to the register. The administrative authority rejected their requests with decisions which the applicant companies subsequently challenged before the Budapest Administrative and Labour Court. The latter rejected one petition as premature and granted the other one remitting the case to the administrative authority for re-examination. The applicant companies have not been restored to the register since their removal despite their requests made to this end, and consequently they have not been assigned any new cases.
9. Following the re-examination of the applicant companies’ tenders (see paragraph 7 above), the administrative authority again rendered unfavourable ranking decisions in respect of the applicant companies (hereinafter “the second ranking decisions”). They challenged the decisions before the Budapest Administrative and Labour Court, which again quashed them.
10. Subsequently, the administrative authority lodged a petition for review with the Kúria, which quashed the Budapest Administrative and Labour Court’s second ranking decision (see paragraph 9 above) issued with respect to the applicant company in application no. 55189/15 (Pro-Creditor Kft. v. Hungary) and remitted the case to the first-instance court for re‑examination.
11. In the meantime, following the Budapest Administrative and Labour Court’s remittal (see paragraph 9 above), the administrative authority again rendered decisions refusing to add the applicant companies to the register of liquidators. The applicant companies once again challenged the unfavourable ranking decisions before the Budapest Administrative and Labour Court.
12. According to the latest information received from the applicant companies on 18 March 2019, on that date the proceedings were pending before the Kúria and before the Budapest Administrative and Labour Court, respectively (see paragraphs 10 and 11 above).
COMPLAINTS
13. The applicant companies complained that Article 6 of the Convention had been violated in relation to the tender process and ensuing proceedings as well as on the account of the non‑implementation of the interim injunctions granted by the domestic court. They also complained of being struck off the register of liquidators with irreversible effect, in violation of domestic rules concerning the processing of injunction requests and of the failure of the administrative authorities to rectify the situation once the court injunctions had been granted.
14. The applicant companies further complained that they had been deprived of their possessions in breach of Article 1 of Protocol No. 1 to the Convention because the tender process had been non-transparent and arbitrary. They complained, in particular, about being struck off the register of liquidators, submitting that this had served no public interest and had in any event been disproportionate.
THE LAW
15. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
16. The Court notes that the applicant companies raised their complaints under both Article 6 of the Convention and Article 1 of Protocol No. 1. The Court, being master of the characterisation to be given in law to the facts of the case (see, among many authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine all the above complaints solely under Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The parties’ submissions
17. The Government argued that the impugned decisions were being contested in the domestic proceedings, which were still ongoing, and that effective remedies had thus not been exhausted. In the alternative, they submitted that application no. 55199/15 (Csabaholding Szolgáltató Kft. v. Hungary) had been lodged out of time.
18. The applicant companies argued that their resulting loss of business was unlawful. As regards the injunctions, the applicant companies argued that the administrative authority had struck their names off the register and created an irreversible situation and prejudiced the effectiveness of any remedy. They further argued that the register of liquidators and the ranking of other tenderers should not have been finalised until their remedies against the ranking decision had been exhausted. The applicant companies submitted that they had suffered a continuous disadvantage since being removed from the register as they could not receive new assignments and that domestic remedies had proven to be ineffective in this respect.
B. The Court’s assessment
19. The Court does not find it necessary to examine the Government’s objection that application no. 55199/15 had been lodged out of time (see paragraph 17 above), since both applications are in any event inadmissible for the following reasons.
20. The Court reiterates that States do not have to answer for their acts before an international body until they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court in respect of their complaints against a State are thus obliged to first use the remedies provided by the national legal system (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014, and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 115, 23 February 2016). The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010).
21. Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that are available and sufficient to afford redress in respect of the breaches alleged. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996-IV). In addition, in accordance with the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999‑V). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others, cited above, § 71, and Vučković and Others, cited above, § 74).
22. Turning to the present cases, the Court notes that the applicant companies essentially complained about having been struck off the register of liquidators as a result of having received insufficient scores in the tender process, and about the related proceedings (see paragraphs 13 and 14 above).
23. The Court also observes that the applicant companies confirmed in their submissions of 18 March 2019 that the judicial review proceedings concerning the ranking decisions were, on that date, still pending before the Kúria and before the Budapest Administrative and Labour Court (see paragraph 12 above). It further notes that although the applicant companies’ complaints also relate to the non‑implementation of the interim injunctions granted by the domestic court (see paragraphs 7 and 8 above), this issue is intrinsically linked to the applicant companies’ allegations of not being able to be included on the register of liquidators, even in the event of a positive outcome from the available remedies (see paragraphs 13, 14 and 18 above). Since those remedies have not yet been exhausted and the proceedings were, on 18 March 2019, still pending before the domestic courts, the Court does not consider it appropriate to deal with the matter before it has been decided by way of a final domestic decision (see MHZ Kft. v. Hungary (dec.) [Committee], no. 47872/15, § 32, 23 May 2019).
24. Accordingly, and without prejudice to the possibility that the applicant companies may bring new proceedings before this Court after exhausting the domestic remedies, the Court finds the present applications to be premature (see MHZ Kft. v. Hungary, decision cited above, § 33).
25. Consequently, the applications must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 27 June 2019.
Andrea TamiettiFaris Vehabović
Deputy RegistrarPresident
Full & Egal Universal Law Academy