FOURTH SECTION
DECISION
Application no. 13013/06
S.C. BLACK SEA CAVIAR S.R.L.
against Romania
The European Court of Human Rights (Fourth Section), sitting on 31 May 2016 as a Committee composed of:
Krzysztof Wojtyczek, President,
Iulia Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 March 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, S.C. Black Sea Caviar S.R.L., is a Romanian limited liability company (“the applicant company”), whose registered office is in Constanţa. It was represented before the Court by Mr P. Vărzaru, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 15 June 2002 the Ministry of Water and Environmental Protection announced a public call for tenders with pre-selection for the concession of fishing resources in twenty-five zones of the Danube Delta Biosphere Reserve.
5. The applicant company submitted its tender within the deadline.
6. On 22 July 2002, after the pre-selection stage, it was informed that its candidature had been rejected on the ground that it did not comply with one of the qualification criteria.
7. On 2 August 2002 the applicant company submitted a challenge (contestație) with the concession-granting authority. According to the applicable law the challenge should have been examined by a special commission set up by the organisers of the tender procedure and its decision communicated within ten days. The said commission was set up on 25 July 2002. From the documents submitted by the parties it appears that the applicant company’s challenge remained unsettled.
8. Even before submitting the challenge against the concession‑granting authority, on 1 August 2002 the applicant company brought an action with the competent court against the concession-granting authority seeking revocation of the decision to reject its candidature and the cancellation of the tender process with the setting up of a new one.
9. On 24 June 2003, that county court dismissed the applicant company’s action as unfounded. It held that the applicant company did not meet the qualification criteria for the bid.
10. On 23 July 2003 the applicant company lodged an appeal. It claimed, inter alia, that the county court had not examined all the arguments raised by it in connection with the grounds for the cancellation of the tender process.
11. On 24 September 2004 the Bucharest County Court allowed the appeal and quashed the judgment of the first-instance court. However, it dismissed the applicant company’s action as inadmissible for failure to exhaust the available remedies. It held that the applicant company had not followed the special administrative procedure provided for by the applicable law concerning public procurement.
12. The applicant company lodged an appeal on points of law against that decision. The Bucharest Court of Appeal dismissed the appeal on 8 November 2005, holding that in the absence of a reply from the special commission the applicant company should have lodged a civil action by which to ask the administrative authority which organized the tender to examine its challenge.
B. Relevant domestic law
13. The domestic laws concerning public tender procedures and court proceedings in force at the material time were Law no. 219/1998 regarding the concession procedure and Government Decision no. 216/1999 setting out the procedural norms for the implementation of Law no. 219/1998.
COMPLAINTS
14. The applicant company complained under Article 6 § 1 of the Convention that it had been denied the right of access to court because of the dismissal of its action without an analysis of its merits, on the ground that it had not followed a special preliminary administrative procedure.
15. Relying on the same article of the Convention, the applicant company complained of the excessive length of the criminal proceedings.
THE LAW
A. Non-observance of the six-month time-limit
16. The Government raised as an objection the non-observance by the applicant company of the six-month time-limit for lodging an application with the Court. In this respect they contended that the application form lodged with the Court on 29 March 2006 indicated as applicant the administrator of the applicant company, Mr V.A. They further maintained that it was only on 4 February 2011 that the applicant company had submitted a correctly completed application to the Court.
17. The Court finds that it was clear from the form submitted on 29 March 2006 that the intention of the applicant company, its administrator and its lawyer was that the applicant company, not the administrator, should be the applicant in the case. Accordingly, the application has complied with the six-month time-limit under Article 35 § 1 of the Convention. The Government’s objection must therefore be dismissed.
B. Complaint of lack of access to a court
18. The applicant company complained that by dismissing its action without an analysis of its merits the domestic courts had deprived it of its right of access to court.
It relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”.
19. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (see Pudas v. Sweden, 27 October 1987, § 31, Series A no. 125‑A).
20. The mere fact that a legal person submitted a bid or made an offer could not give rise to an expectation, even less so a right, to be awarded the tender, or to have it determined by any particular method (see, mutatis mutandis, Jan De Nul (S.A.) Ondernemingen v. Belgium (dec.), no. 20907/92, 2 March 1994).
21. Turning to the present case the Court notes that the decision to award the concession contract has been held to be an administrative act by the domestic courts.
The fact that, as claimed by the applicant company, a tenderer had the right to object to an award and to have the objections considered at a public hearing, did not amount to a civil right, but merely to a right of a public nature. Indeed a right to object to an award does not suffice to make Article 6 applicable to proceedings determining the award of a tender, in view of the adjudication authority’s discretion to decide who should be granted the tender (see, I.T.C. LTD v. Malta (dec.), no. 2629/06, 11 December 2007).
22. For the above reasons the Court finds that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 and 4 of the Convention.
C. Other complaints
23. Relying on Article 6 of the Convention, the applicant company also complained about the length of proceedings.
24. In the light of the above considerations concerning the applicability of Article 6 § 1 of the Convention to proceedings relating to public tenders, the Court finds that this complaint is also incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares inadmissible the application.
Done in English and notified in writing on 23 June 2016.
Fatoş AracıKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy