Communicated on 22 September 2017
FIRST SECTION
Application no. 14460/16
Strezo STREZOVSKI against the former Yugoslav Republic of Macedonia
and 7 other applications
(see list appended)
The applicants are Macedonian nationals. For more details see the appendix.
The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
All applicants own (and live in) apartments in residential buildings connected to a central heating system operated by private companies. The dwellings in question have either never been connected to the heating system installed in the building (application no. 20229/17) or were disconnected before 2012 at the request of the the former owner (application no. 30206/17) or the applicants (remaining applications).
On 30 July 2012 the Energy Regulatory Commission, an independent body whose members are appointed by Parliament, adopted regulations on the supply of heat energy (“the regulations”, published in the Official Gazette). Section 53(2) of the regulations, set out in chapter 11 concerning the “terms and procedure for individual disconnection from the distribution system”, provides that disconnected consumers are charged an annual standing charge (надоместок за ангажирана моќност), payable in fixed monthly instalments.
All applicants received court payment orders regarding the standing charge for the months following the entry into force of the regulations.
On 22 May 2013 the Constitutional Court found section 53(2) of the regulations compliant with the Constitution (U.br.125/2012). It held that disconnected apartments in collective residential buildings were passive users of heat from pipes passing through those apartments or from neighbouring and other apartments in the building connected to the central heating system. The indirect use of such heat justified the charge introduced by the regulations. In a dissenting opinion, Judge B.N. stated that the Energy Act did not provide for the standing charge. Accordingly, its introduction by the regulations was contrary to the Constitution. In this connection he referred to an earlier decision of the Constitutional Court (U.br.148/2008) declaring a piece of secondary legislation introducing a similar charge unconstitutional. He concluded that the payment of the charge was an issue of fact which had to be determined by the civil courts.
In the impugned proceedings the applicants contested the payment orders, arguing (i) that they had not entered into an agreement with the supplier; (ii) that payment of the charge had been prescribed by the regulations, notwithstanding that such an obligation could only be introduced by a law; (iii) that the terms “disconnected users” and “passive consumers” introduced by the regulations were not covered by the relevant law (the Energy Act); (iv) that their apartments had either never been connected or had been disconnected from the heating system before the regulations had entered into force; (v) that they had received either little (application no. 30206/17) or no heat whatsoever since no pipes passed through the apartment (remaining applications) and/or all neighbouring apartments were also disconnected (all applications except no. 14966/16). In this connection some applicants argued (applications nos. 16064/16 and 20229/17) that their apartments were on the ground or highest floor, and were surrounded by apartments that were disconnected from the system.
All cases were decided by the Skopje Court of First Instance and the Court of Appeal. By separate decisions (Pl.P. 1486/13; 1487/14; 1794/14; 1824/14; 1907/14; 2133/14; 2837/14 and 977/15) both courts dismissed the applicants’ claim. Referring to the decision of the Constitutional Court (see above), the courts held that the applicants were “passive users” of the heat distributed in the building through the central heating system. Since there were other connected dwellings in the buildings that used the heat which that system provided, the applicants were obliged to pay the standing charge specified in section 53(2) of the regulations. The Court of Appeal further held (applications nos. 14460/16; 14966/16; and 20229/17) that “all (disconnected) dwellings in a building connected to a central heating system were obliged to pay the standing charge irrespective of their position or the composition or construction of the internal installation”.
COMPLAINT
The applicants complain that the requirement to pay the standing charge violated their proprietary rights under Article 1 of Protocol No. 1 of the Convention.
COMMON QUESTIONS
Did the payment of the standing charge introduced by the regulations amount to an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference 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? Did the way in which the domestic courts interpreted and applied the regulations impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
APPENDIX
No.
Application
no.
Lodged on
Applicant’s name
date of birth
place of residence
Represented by
14460/16
08/03/2016
Strezo STREZOVSKI
12/08/1953
Skopje
Gordana KARKALAŠEVA TRAJKOVSKA, lawyer practising in Skopje
14958/16
Cane NIKOLOSKI
20/02/1958
Skopje
14962/16
Aco SPASOVSKI
19/09/1955
Skopje
14966/16
Juvan JOSIP
28/06/1942
Skopje
27884/16
09/05/2016
Zoran KOSTOVSKI
16/02/1952
Skopje
16064/17
21/02/2017
Trajanka NAKEVSKA
02/07/1953
Skopje
20229/17
06/03/2017
Enver ISENI
20/10/1958
Skopje
/
30206/17
13/04/2017
Sonja NALBANTI-DIMOSKA
27/09/1969
Skopje
Gordana KARKALAŠEVA TRAJKOVSKA
Full & Egal Universal Law Academy