EURO MARKETING SP. Z O.O. v. POLAND
Inadmissible
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant is a limited liability company with its registered office in Lublin. It was represented by Mr R. Choroszyński, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 1995 the applicant company acquired the right of perpetual use of a plot of land (prawo użytkowania wieczystego) located at 3 Unicka Street in Lublin. It appears that it carried out some business activity on the plot. 4. On 10 August 2006 the applicant company instituted administrative proceedings with a view to obtaining planning permission for the construction of a block of flats on the plot. 5. On 7 December 2006 the Mayor of Lublin granted planning permission. The decision was served on the Warsaw Jewish Religious Community (Gmina Wyznaniowa Żydowska w Warszawie; “the Community”) which owned an adjacent plot. 6. On 2 January 2007 the Community appealed against the decision of the Mayor. It argued that on 28 December 1998 it had filed an application with the Property Commission on Jewish Religious Communities (Komisja Regulacyjna ds. Gmin Wyznaniowych Żydowskich, “the Commission”) to institute so-called regularisation proceedings (postępowanie regulacyjne) pursuant to the Law of 20 February 1997 on relations between the State and the Jewish Communities in Poland (“the 1997 Act”). In those proceedings the Community sought, inter alia, an award of compensation for properties located on Unicka Street, including the property which the applicant company had acquired as a “perpetual user”. 7. The Community argued that since the regularisation proceedings in respect of the said plot were pending, the administrative proceedings concerning the grant of planning permission should be suspended pursuant to section 32 § 4 of the 1997 Act. 8. The Lublin Governor and the Lublin Municipality were parties to the regularisation proceedings. 9. The applicant company objected to the Community’s appeal, relying on section 30 § 4 of the 1997 Act. This provision stipulated that regularisation proceedings could not affect the rights of third parties. 10. On 22 February 2007 the Lublin Local Government Board of Appeal quashed the Lublin Mayor’s decision of 7 December 2006 and remitted the case to him. It observed that in accordance with section 32 § 4 of the 1997 Act a court or administrative proceedings concerning a property which was subject to regularisation proceedings should be suspended. However, a decision on the suspension fell within the competence of the first-instance authority. 11. The applicant company lodged an appeal against that decision with the Lublin Regional Administrative Court. It argued, amongst others, that the Community had not sought restitution of the plot which the applicant company had acquired as a “perpetual user” in 1995. The 1997 Act entered into force on 10 May 1997 and thus could not affect the relations between the Community and the applicant company. Furthermore, the applicant company submitted that its vested rights to the plot had been violated. 12. On 14 June 2007 the Lublin Regional Administrative Court dismissed the appeal. It found that in accordance with the Law on Local Planning an administrative authority could grant planning permission provided that a number of specific conditions were met. One of the conditions was the compliance with other relevant laws and the 1997 Act belonged to that category. The court found that the Community had instituted regularisation proceedings in respect of, among others, the plot subject to the administrative proceedings, and that those regularisation proceedings were still pending. In those circumstances the suspension of the administrative proceedings pursuant to section 32 § 4 of the 1997 Act was justified. It noted that it was necessary to quash the decision of the Mayor of Lublin granting planning permission since that decision should not have been issued given the statutory obligation to suspend the administrative proceedings on account of the pending regularisation proceedings. 13. The applicant company lodged a cassation appeal with the Supreme Administrative Court which was dismissed on 16 April 2008. This court upheld the lower court’s judgment. In addition, it observed that the Regional Administrative Court was not competent to review the legality of the Commission’s acts, such as its allegedly flawed decision to institute the regularisation proceedings. 14. The case was remitted to the Mayor of Lublin. On 10 September 2008 the Mayor stayed the administrative proceedings concerning the applicant company’s request for planning permission on the ground that the regularisation proceedings in respect of the same property had been pending. The applicant company did not appeal this decision. Neither did it request to resume the proceedings. 15. On 18 September 2008 the applicant company lodged a constitutional complaint with the Constitutional Court. It alleged that sections 32 §§ 1, 2 and 4 and 33 § 4-5 of the 1997 Act were unconstitutional. It argued that those provisions had violated its right to property, the right to a fair trial and the right to review of administrative decisions. The applicant company referred to the Supreme Administrative Court’s judgment of 16 April 2008 as a final decision in the case. 16. On 30 December 2008 the applicant company concluded a contract with company L. and transferred to it the right of perpetual use of the plot of land at issue and the right of ownership of the buildings constructed on the plot. 17. Company L. instituted administrative proceedings with a view to obtaining planning permission for the construction of a block of flats on the plot. 18. On 20 March 2009 the Property Commission on Jewish Religious Communities informed the parties to the regularisation proceedings that it did not reach a decision in respect of the property located at 3 Unicka Street. Subsequently, the Community filed a compensation claim against the State with the Lublin Regional Court. That claim was dismissed on 10 June 2010. 19. On 26 November 2009 the Mayor of Lublin granted planning permission to company L. Subsequently the right of perpetual use was transferred to company W.N. On 27 April 2012 the Mayor of Lublin granted company W.N. a building permit for the construction of a block of flats. 20. On 28 February 2012 the Constitutional Court discontinued the proceedings instituted by the applicant company. It emphasised that at the time of the lodging of the constitutional complaint the issue of suspension of the proceedings for planning permission had not been finally determined. It found that the Supreme Administrative Court’s judgment of 16 April 2008 had not constituted a final ruling with regard to the applicant company’s property rights to the plot in question. A possible interference with the claimant’s property rights may have occurred as a result of the suspension of the administrative proceedings for planning permission in respect of the property which the claimant used as a “perpetual user” on account of the pending regularisation proceedings. The Constitutional Court found that the applicant company had not exhausted the available domestic remedies as it should have appealed against the decision on the suspension of the administrative proceedings for planning permission. Accordingly, its constitutional complaint was premature. 21. The Law of 20 February 1997 on relations between the State and the Jewish Religious Communities in Poland (“the 1997 Act”) entered into force on 10 May 2007. Section 30 § 1 of the 1997 Act provides that Jewish Religious Communities may request the institution of proceedings (the so-called “regularisation proceedings”) with a view to restitution of their properties which on 1 September 1939 had been owned by them or other Jewish legal persons. Section 30 § 4 of the 1997 Act expressly provides that the regularisation proceedings may not affect the rights acquired by third parties. Section 31 stipulates that the regularisation may consist of: 1) transfer of the ownership of property, 2) the grant of suitable alternative property, 3) the award of compensation if neither of the above solutions is possible. Section 32 § 1 of the 1997 Act provides that regularisation proceedings are conducted by the Property Commission on the Jewish Religious Communities (Komisja Regulacyjna) composed in equal numbers of the representatives nominated by the Minister of Internal Affairs and the Jewish Religious Communities. Applications are decided by adjudicatory panels composed of two representatives of the Minister and two representatives of the Communities. The parties to the regularisation proceedings are the claimant and all interested State, local government and religious entities (Section 32 § 2). Section 32 § 4 states: “Court or administrative proceedings with regard to properties referred to in section 30 shall be suspended, ...”. Section 33 § 3 provides that no appeal lies against decisions of the adjudicatory panels of the Property Commission. 22. The right of perpetual use is defined in Articles 232 et seq. of the Civil Code. It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person the full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of it being declared void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question.