Communicated on 1 December 2015
SECOND SECTION
Application no. 68320/13
Alenka ŠPOLJAR and DJECJI VRTIC PCELICE
against Croatia
lodged on 21 October 2013
STATEMENT OF FACTS
The first applicant, Ms Alenka Špoljar, is a Croatian national who was born in 1967, and the second applicant organisation, Dječji Vrtić Pčelice, is a child care institution established in accordance with Croatian law in 1991. They are represented before the Court by Ms G. Banić, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is an entrepreneur who owned a kindergarten (Maslačak), and the second applicant organisation is a privately-owned kindergarten established in accordance with the relevant domestic law. In 1998 the kindergarten managed by the first applicant ceased to exist, and the second applicant organisation changed its structure, but continued to provide child care.
At the time, the relevant Act on Social Care for Pre-school Children (Zakon o društvenoj brizi o djeci predškolske dobi) provided that privately-owned institutions authorised to work in the area of child care should come under the supervision of the local authority; in the present case, this was the town of Bakar.
According to the 1 April 1994 interpretation of the relevant law by the Ministry with jurisdiction at the time, local authorities were authorised to grant subsidies to privately owned kindergartens, just as they could grant subsidies to those which were publicly-owned.
The Bakar local authorities availed themselves of this opportunity. However, they decided that publicly-owned kindergartens should receive higher subsidies than privately-owned kindergartens.
On 13 December 1994 the applicants challenged that practice by the Bakar Municipality before the Rijeka Municipal Court (Općinski sud u Rijeci), arguing that the difference in the treatment of privately owned and publicly-owned kindergartens had no reasonable justification.
In the course of the proceedings, they speficied their action, seeking compensation for the difference in subsidy payments for the period between 1993 and 1998 (the first applicant’s claim) and 1993 and 1999 (the second applicant organisation’s claim).
During the proceedings, the Rijeka Municipal Court commissioned several expert reports on the question of differences in subsidy payments to privately owned and publicly-owned kindergartens by the Bakar Municipality.
The reports showed that the difference in payment with regard to the first applicant amounted to approximately 30,000 euros (EUR), and with regard to the second applicant organisation to approximately EUR 50,000.
On 7 May 2007 the Rijeka Municipal Court allowed the applicants’ civil action and ordered the Bakar Municipality to pay the applicants the difference in the subsidy payments. It held that, because privately-owned and publicly-owned kindergartens performed the same social function, there had been no justification for the difference in treatment regarding the grant of subsidies.
The Bakar Municipality challenged this judgment before the Rijeka County Court (Županijski sud u Rijeci), which on 9 January 2009 dismissed its appeal, upholding the findings of the first-instance judgment.
The Bakar Municipality then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), which on 27 January 2010 reversed the judgment of the Rijeka County Court, dismissing the applicants’ civil action as ill-founded. The Supreme Court held that the relevant domestic law did not require local authorities to grant the same subsidies to privately-owned kindergartens as they did to publicly owned kindergartens. It did not elaborate any further as to whether such a difference in treatment was justified.
The applicants challenged these findings before the Constitutional Court (Ustavni sud Republike Hrvatske), which on 25 April 2013 dismissed their constitutional complaint as ill-founded, upholding the judgment of the Supreme Court. In particular, it held that nothing in the relevant domestic law prevented local authorities from granting higher subsidies to publicly-owned kindergartens, and that therefore there had been no discrimination against the applicants.
The decision of the Constitutional Court was served on the applicants’ representative on 10 May 2013.
COMPLAINT
The applicants complain under Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1, that, as private entrepreneurs, they were discriminated against by the local authorities with regard to the grant of kindergarten subsidies when compared with publicly-owned kindergartens.
QUESTION TO THE PARTIES
Have the applicants suffered discrimination on the ground of their professional status with regard to the enjoyment of their Convention rights, contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1?
The Government are requested to submit two copies of the relevant documents concerning the applicants’ case.
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