THIRD SECTION
Application no. 26429/07
S.C. FIERCOLECT IMPEX S.R.L.
against Romania
lodged on 19 June 2007
STATEMENT OF FACTS
The applicant, S.C. Fiercolect Impex S.R.L., is a Romanian limited liability company, whose registered office is in Cluj-Napoca.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 March 2002 the Cluj Prefecture issued a permit for the operation of the applicant company. Its main activity consisted in collecting recycling scrap iron. The permit was yearly prolonged until 7 March 2005.
The first step in obtaining an operation permit was the issuance of an environmental permit. As the previous environmental permit was valid until 31 January 2005, on 4 January 2005 the applicant company lodged an application for the prolongation of the existing permit.
On 20 December 2004 a new order concerning the authorisation procedure entered into force. It replaced Order no. 265/2001.
The competent authority, namely the Regional Environmental Agency (“REA”), registered the applicant company’s application but refused to accept the accompanying documents on the ground that the methodological norms for the new order’s implementation were not published yet.
On 11 January 2005 the methodological norms were published and the applicant company was invited to submit the new supporting documents only on 25 January 2005.
The new order provided for two different procedures concerning the environment authorisation: i) the prolongation of the existing permit if the initial operating conditions were not changed and ii) the issuance of a new authorisation within a period of up to four months.
According to the applicant company, the competent authority took an unjustified decision to issue a new permit despite that the company’s operating conditions had not changed. A new environmental permit was issued on 24 March 2005. On 14 April 2005 the prefecture issued a new operating permit.
Between 7 March and 14 April 2005 the applicant company continued to carry out its activity in the absence of any permit.
Following a control operated at the applicant company’s headquarters, on 6 May 2005 the Cluj Financial Control Authority (Garda Financiară Cluj) applied a fine of ROL 25,000,000 and ordered the confiscation of ROL 768,471,700 (approximately EUR 21,347), representing the counter value of the recycling scrap iron collected between 8 March and 14 April 2005.
The applicant company lodged a civil action against REA seeking to recover the damages caused by the late issuance of the environmental permit. It claimed that the imposition of a fine and the confiscation of the money earned from its activity between 8 March and 14 April 2005 had as main cause the wrong interpretation of the applicable law by the competent authority. In this connection the applicant company pointed out that the new order, as well as the previous order, provided for the ope legis prolongation of an existing permit up to five years if the operating conditions of a company were not changed.
On 10 March 2006 the Cluj County Court dismissed the action as premature holding that the applicant company had not followed the prior procedure provided by law before lodging its action with the court.
The applicant company lodged an appeal claiming that the dismissal of its action as premature had been unjustified given that the defendant agency had already submitted its observations on the merits.
On 31 May 2006 the Cluj Court of Appeal allowed the applicant company’s appeal. The appeal court quashed the first‑instance judgment and referred the case to the first-instance court for an examination on the merits.
On 15 September 2006 the Cluj County Court dismissed the applicant company’s action. It noted that the applicant company had not complied with the obligation to lodge an application for a new permit forty five days prior to the expiry of the existing permit, as provided by the new order. It concluded that the competent agency had issued the environment permit within the delay of ninety days provided by the new order and could not be held liable for the damages incurred by the applicant company.
The applicant company lodged an appeal on points of law pointing out that on 4 January 2005 when it had lodged its application for the prolongation of the environment permit the methodological norms for the implementation of the new order were not published yet. It also claimed that it could not submit an application for a new permit forty five days prior to the expiry of its environmental permit on 31 January 2005, as the new order entered into force on 20 December 2004 and its methodological norms were published only on 11 January 2005.
The Cluj Court of Appeal dismissed the applicant company’s appeal on points of law upholding the first-instance judgment mainly on the same reasons.
B. Relevant domestic law
At the relevant time, the procedure for granting, prolongation, suspension and annulment of the permit for collecting recycling iron scraps was set out in Order no. 265/2001.
The validity of a collecting permit was one year.
Article 5 of the order provided that the beneficiary of the permit had the right to submit an application for the renewal of the permit. The application had to be submitted at least thirty days prior to the expiry of the existing permit. The general information contained in the permit renewal application was much the same as that provided with the initial operating permit application. An environmental permit had to be submitted together with the application.
On 29 December 2004 a new order concerning the authorisation procedure of activities with significant environmental impact entered into force. The methodological norms for its implementation were published on 11 January 2005.
COMPLAINTS
1. The applicant company complains under Article 1 of Protocol No. 1 to the Convention that the confiscation of a large amount of money resulting from its activity and the fine inflicted by the fiscal authority represent an infringement of its right to the peaceful enjoyment of its possessions.
2. Relying on Article 6 § 1 of the Convention the applicant complains about the outcome of the proceedings against REA.
QUESTIONS TO THE PARTIES
1. Did the confiscation of the amount representing the applicant company’s profit between 8 March and 14 April 2005 constitute an interference with the peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol No. 1?
2. If so, did that interference strike a fair balance between the demands of the general interest and the interests of the applicant company?
Full & Egal Universal Law Academy