CASE OF S.C. FIERCOLECT IMPEX S.R.L. v. ROMANIA
Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
Branko Lubarda;Carlo Ranzoni;Iulia Motoc;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
4. The applicant, S.C. Fiercolect Impex S.R.L., was a Romanian limited liability company, with a registered office in Cluj-Napoca. 5. On 7 March 2002 the Cluj Prefecture issued the applicant company with an operating permit, which was valid until 7 March 2005. The applicant company was required to apply for an extension of the permit if the initial conditions of operation did not change. Its main activity consisted in collecting and recycling scrap iron. 6. Under Article 5 of Order no. 265/2001 (see paragraph 28 below) an application for extension of the operating permit had to be submitted at least thirty days prior to the expiry of the previous permit. As the applicant company’s permit was due to expire on 7 March 2005, on 4 January 2005 it applied for an extension of the existing permit. 7. The applicant company also applied to the Regional Environment Agency (“REA”) for an environmental permit, which according to the law had to accompany the application for extension of the operating permit. 8. REA registered the applicant company’s application but refused to accept the accompanying documents on the grounds that on 20 December 2004 a new order providing for the authorisation of activities with a significant impact on the environment had been adopted and the guidelines for implementing the new order had not yet been published. 9. The relevant guidelines were published on 11 January 2005. 10. In a letter of 25 January 2005, REA informed the applicant company that under the new Order no. 876/2004, its activity was considered to have a significant impact on the environment and that it should therefore follow the authorisation procedure set out in that order. The applicant company was invited to submit new supporting documents within thirty days. 11. The applicant company submitted the requested documents on 27 January 2005. 12. A new environmental permit was issued on 24 March 2005. On 14 April 2005 the prefecture issued a new operating permit. 13. Between 7 March and 14 April 2005 the applicant company continued to carry out its activity. 14. Following an inspection carried out at the applicant company’s headquarters, on 6 May 2005 the Cluj Finance Inspectorate (Garda Financiară Cluj) fined the company ROL 25,000,000 (approximately 694 euros) and ordered the confiscation of ROL 768,471,700 (approximately EUR 21,347), representing the market value of the scrap iron collected for recycling between 8 March and 14 April 2005. The finance inspectorate based its decision (proces-verbal de constatare şi sancţionare a contravenţiilor) against the applicant company on Article 13 (a) of Emergency Government Ordinance no. 16/2001. 15. The applicant company lodged a complaint against the decision of the Cluj Finance Inspectorate, claiming that the competent authorities were responsible for the delay in issuing the operation permit. In this connection, it argued that the application for an extension of the operating permit had been lodged in good time, namely on 4 January 2005. 16. On 2 August 2005 the Cluj-Napoca District Court dismissed the complaint as unfounded. It noted that the decision of 6 May 2005 was in accordance with Article 17 of Government Ordinance no. 2/2001. It also noted that the applicant company had continued to carry out its activity despite the fact that its operating permit had expired on 7 March 2005; it had therefore infringed Article 7 § 1 in conjunction with Article 13 (a) of Emergency Government Ordinance no. 16/2001. The court dismissed the applicant company’s claim that liability for its situation lay with the authorities for failing to issue its environmental and operating permits in time, holding that such a claim would be relevant only within the framework of a tort action and could not be raised as a reason for exonerating a company that had committed an administrative offence. 17. The applicant company appealed. On 2 December 2005 the Cluj County Court dismissed the appeal, upholding the decision of the firstinstance court on the same grounds. 18. The applicant company brought administrative proceedings against REA, seeking to recover the damages incurred as a result of the late issuing of the environmental permit. It based its action on Law no. 554/2004. It claimed that because of the amendment to the legislation concerning the procedure for issuing permits, the competent authority had not issued its permit in due time. It pointed out that even after the publication of the guidelines for the application of the new order on 11 January 2005, REA had not acted effectively, as it had not written to the applicant company until 25 January 2005. Moreover, REA had interpreted the applicant company’s application as a request for a new permit instead of for an extension of the existing permits, given that the operation conditions had not changed. That had further delayed the authorisation procedure. 19. On 10 March 2006 the Cluj County Court dismissed the action as premature, holding that the applicant company had not followed the prior procedure required by law before lodging an action with the court. 20. 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. 21. On 31 May 2006 the Cluj Court of Appeal allowed the applicant company’s appeal. It quashed the first-instance judgment and remitted the case to the first-instance court for examination on the merits. 22. On 15 September 2006 the Cluj County Court dismissed the applicant company’s action. It held that the applicant company had not complied with the obligation to lodge an application for a new environmental permit forty-five days prior to the expiry of the existing permit, as provided for by Article 16 of the new order regulating the procedure for obtaining an environmental permit, namely Order no. 876/2004. It noted that the previous order, no. 265/2001, had provided only for the obligation to obtain an environmental permit, without establishing the procedure to be followed in that respect. It concluded that the competent agency had issued the environmental permit within the ninetyday deadline provided for by the new order and could not therefore be held liable for the damages incurred by the applicant company. 23. The applicant company lodged an appeal on points of law, pointing out that on 4 January 2005 when it had lodged its application for an extension of the operating permit, the guidelines for implementation of the new order had not yet been published. It also claimed that it had been unable to apply for a new permit forty-five days prior to the expiry of its existing environmental permit on 31 January 2005, as the new order had entered into force on 20 December 2004 and the relevant guidelines had not been published until 11 January 2005. The applicant company also complained that the first-instance court had interpreted Article 16 of Order no. 876/2004 to mean that the administrative authority had the option of extending the existing permit if the operating conditions had not changed, instead of an obligation to extend the permit. In this connection, the applicant company pointed out that, like the previous order, the new order provided for the ope legis extension of an existing permit for up to five years if the company’s operating conditions had not changed. It also pointed out that at the time of lodging its application for a new permit on 4 January 2005, the applicable law was Order no. 265/2001, which provided for a time-limit of thirty days for the issuance or renewal of an operating permit. 24. On 8 February 2007 the Cluj Court of Appeal dismissed the applicant company’s appeal on points of law, upholding the firstinstance judgment. It held that the law applicable to the applicant company was Order no. 876/2004, which had entered in force before the expiry of the applicant company’s environmental permit. It concluded that even assuming that the administrative authorities were liable for non-compliance with the applicable legislation, the applicant company had had no right to continue an illicit activity in the absence of the authorisation required by law. The applicant company should have suspended its activity until it had obtained the necessary permits and should then have brought proceedings seeking to recover any damages – as long as it could prove the existence and extent of such damages. 25. Following a request lodged by the sole shareholder of the applicant company on 10 February 2010, the National Chamber of Commerce took note of the voluntary dissolution of the company. 26. In January 2013, before the Court had communicated the applicant company’s complaints to the respondent Government, the administrator and sole shareholder, Mr Teodor Morar, informed the Court of the company’s dissolution on 24 February 2010 and his intention to continue the procedure initiated before the Court by the applicant company.