PIEKARSKA AND OTHERS v. POLAND
Inadmissible
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
1. A list of the applicants is set out in the appendix. 2 3. The applicants are the owners, co-owners or perpetual lessees of estates on which various types of utility grids, substations or equipment were installed between the 1950s and 1980s. In respect of at least twenty-two of the thirty-three applications, the utilities were set up prior to the acquisition of the land by the applicants. 4. Until 1989, the installations in question belonged to the State Treasury (various State utility enterprises). They are currently owned by different utility companies which are the legal successors of the State enterprises. In thirty-one cases, the current owners are commercial joint-stock companies controlled by the State Treasury as the largest shareholder. In the two remaining applications, the utility equipment belongs to State companies (see Annex 1; applications nos. 8585/13 and 28531/14). 5. Since the date of their installation, the utility grids, substations and equipment have been accessed, maintained and used by the utility companies without any interruption or disputes with legal consequences. The applicants either live on the estates in question or use them for agriculture or manufacturing purposes. Their use of the parts of the land where the utility grids or equipment have been placed is to a greater or lesser extent restricted. Under the applicable law, access to areas directly under, over or around utility stations, pipes, poles or other equipment cannot be hindered; in particular, it cannot be blocked by vegetation or buildings. 6. On various dates the applicants became parties to various civil proceedings aimed at regulating the legal status of the utility installations on their estates. 7. Twenty-one applicants (application nos. 36350/13; 49800/13; 50041/13; 63957/13; 14891/14; 14934/14; 31089/14; 46099/14; 47538/14; 54240/14; 56980/14; 70263/14; 78040/14; 18939/15; 20670/15; 21667/15; 24271/15; 41154/15; 45573/15; 45619/15 and 48023/15), sought compensation for the resulting restriction of their property rights. They brought actions either for compensation for the establishment of a transmission easement (o ustalenie służebności przesyłu) (for the applicable domestic law, see paragraphs 28-31 below) or compensation for non-contractual use of land (o bezumowne korzystanie z nieruchomości) (for the applicable domestic law, see paragraphs 32-35 below). Some of those actions were accompanied by a claim to remove the utility equipment considered cumbersome. 8. Two applicants (application nos. 52591/13 and 55666/13) did not seek payment and instead brought actions exclusively for restitution of the owner’s lawful position and for the removal of the utility equipment in question (for the applicable domestic law, see paragraph 36 below). 9. The remaining ten applicants (application nos. 8585/13; 13512/13; 42258/13; 44773/13; 52143/13; 22059/14; 28482/14; 28531/14; 36799/14 and 20818/15) did not bring any actions and were respondents in proceedings resulting from actions for easements by prescription (o zasiedzenie służebności) lodged by relevant utility companies (for the applicable domestic law, see paragraphs 37-40 below). 10. In respect of thirty applicants (application nos.: 8585/13; 13512/13; 42258/13; 44773/13; 49800/13; 50041/13; 52143/13 52591/13; 55666/13; 63957/13; 14891/14; 14934/14; 22059/14; 28482/14; 28531/14; 36799/14; 47538/14; 54240/14; 56980/14; 70263/14; 78040/14; 18939/15; 20670/15; 20818/15; 21667/15; 24271/15; 41154/15; 45573/15; 45619/15 and 48023/15), the domestic courts delivered judgments concluding that the companies which ran the utility installations on the applicants’ estates had acquired the easements in question by prescription. Accordingly, it was held that the applicants concerned were either not entitled to claim compensation for past or future use of the utility grids or to seek the removal of the electrical equipment from their land. 11. In most of these cases, the courts of first instance initially ruled in favour of the applicants. Those decisions were later reversed by the higher courts. 12. The proceedings involving each of these applicants are described in more detail in Annex 1, and the applicable domestic law and practice are set out at paragraphs 37-58 below. 13. In respect of three applicants (applications nos. 36350/13, 31089/14 and 46099/14), the domestic courts held that their property rights had been lawfully restricted by historical administrative decisions which had been issued under Section 35 of the 1958 Act (see paragraphs 20 and 21 below). 14. Further details about those proceedings and the applicable domestic law and practice are set out in Annex 2 and at paragraphs 48-56 below. 15. In the case of Mr Jędrzejczyk (no. 45573/15; see Annex 1), the applicant co-owns with his wife, among others, five adjacent plots of agricultural land in Potok and Kolonia Grudzień (lot nos. 802 and 804PT1O/00007612/7 and PT1O/00024160/8 and lot nos. 278, 147/3 and 319 – 9PT1O/00023818/9). Title to the land in question was acquired in 1992, 1994, 1997 and 1985 respectively. In 1962 an overhead electrical grid with a number of electrical poles was installed across it. 16. In 2010 the applicant rejected a friendly settlement proposal made by PGE, the owner of the electrical grid. In March 2012 he sued the company for compensation for non-contractual use of his land, claiming PLN 200,000 (approximately EUR 50,000). 17. On 20 May 2014 the Piotrków Trybunalski Regional Court gave the first-instance judgment in the case. On 9 March 2015 the Łódź Court of Appeal partially allowed the applicant’s action. The court, granting an objection raised by the respondent, held that the utility company had acquired the easement for the electrical grids on the applicant’s lot nos. 804, 319 and 147/3 by prescription in 1985. That date was determined in view of the entry into force of the 1965 Civil Code and the statutory requirement of twenty years’ possession if it was, as in the case at hand, in bad faith. Consequently, the applicant could not claim remuneration for the use of the land since the date of prescription of the easement. In respect of the remaining two lots, the court held that the prescription period had not elapsed because, until 1997 and 1979 respectively, the State had been the landowner not possessor. In view of those considerations, the applicant was awarded PLN 41 (approximately EUR 10) on account of the utility company’s non-contractual use of lot nos. 802 and 278 between April 2002 and July 2009. This amount was in line with the calculation put forward by a court-appointed expert. 18. The process of rural electrification in Poland was regulated by the Public Electrification of Villages and Settlements Act of 28 June 1950 (Ustawa o powszechnej elektryfikacji wsi i osiedli), in force from 6 July 1950 until 5 December 1997. Similar processes concerning other utilities were regulated primarily by the Water Act (Prawo Wodne) of 30 May 1963, 24 October 1974 and 18 July 2001. 19. Currently, most of these matters are regulated by the Energy Act (Prawo Energetyczne) of 10 April 1997, which entered into force on 5 December 1997, the Water Act (Prawo Wodne) of 16 December 2016, which entered into force on 31 December 2015, and by European Union law. 20. The entitlement of State enterprises to access private estates in order to install and run various overhead or underground drainage, sewage, water or gas pipelines and electricity grids, substations or other similar equipment was originally regulated by the Expropriation Rules and Procedure Act of 12 March 1958 (Ustawa o zasadach i trybie wywłaszczania nieruchomości – “the 1958 Act”), in force until 1985. 21. Section 35 required State energy enterprises to obtain authorisation from the local administrative authority to gain access to private estates for the purpose of laying pipelines or installing electric poles and substations. 22. Under Section 36 of the 1958 Act, a landowner was entitled to claim compensation for damage resulting from the installation or maintenance of equipment or lines. Examples of such damage were loss of harvest or a decrease in the value of the property due to the installation of the utility grid or equipment. Entitlement to compensation did not arise, however, from restrictions on the use of the land if no damage occurred. 23. From 1 August 1985 until 31 December 1997 these matters were regulated in a similar way by section 70 (et seq.) of the Land Administration and Expropriation Act of 29 April 1985 (Ustawa o gospodarce gruntami i wywłaszczeniu nieruchomości) Since 1 January 1998 they have been regulated by section 124 (et seq.) of the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami). Under the provisions currently in force, a landowner is entitled to compensation not only for damage caused by the installation or maintenance of the grid, but also for granting access to the land and any related depreciation in value (sections 124 and 128). 24. Applications for such compensation must be lodged with the relevant administrative authorities and are not examined by the civil courts (Article 2 § 3 of the Code of Civil Procedure and the Supreme Court’s (Sąd Najwyższy) decision of 15 March 1983 (IV CZ 15/83) and judgment of 9 March 2007 (II CSK 457/06)). Civil courts, however, retain jurisdiction in respect of actions for compensation if the alleged damage has been caused by activities beyond the scope of a relevant administrative decision and for non-contractual use of the land (the Supreme Court’s judgments of 24 June 2010 (IV CSK 554/09) and 9 March 2007, cited above). 25. Prior to 2008, the legal status of the parts of private land burdened by utility installations was regulated under the civil law only by analogy, originally to easements by necessity (służebność drogi koniecznej) under Article 145 of the Civil Code, which entered into force in 1965, and ultimately to land easements (służebność gruntowa) under Articles 285-295 of the Civil Code. 26. The former approach is illustrated by the Supreme Court’s resolutions of 3 June 1965 (no. III CO 34/65) and 30 August 1991 (no. III CZP 73/91), adopted by a bench of three judges. 27. The latter practice was triggered by the Supreme Court’s resolution of 17 January 2003 (no. III CZP 79/02), adopted by a bench of three judges, authorising the establishment of a land easement by means of a contract for the benefit of an energy company which owned a utility grid on a property. This practice was further developed by the Supreme Court’s decision of 8 September 2006 (II CSK 112/06), authorising the energy company which owned a utility grid to acquire a land easement by prescription. In that decision, the Supreme Court applied the existing provisions beyond the traditional relationship between the two owners of estates, dominant and servient. It was reasoned that in general, a utility company owned estates which could be considered as benefiting from the easement. In this broad sense, a utility company could be viewed as the owner of a dominant estate within the meaning of the applicable provisions on land easements. It was therefore not required to identify a specific estate as dominant. 28. Transmissions easements (służebność przesyłu) are limited property rights introduced in Poland by the Civil Code and Other Acts Amendment Act of 30 May 2008, which entered into force on 3 August 2008 (Ustawa o zmianie ustawy - Kodeks cywilny oraz niektórych innych ustaw – “the 2008 Amendment Act”). Under Article 3051 of the Civil Code, a utility company (which owns a utility grid or equipment and is responsible for the supply and distribution of electric energy or other utilities to a given area) is entitled to enter onto and use property owned by a third party in a specific manner to run a sewage or gas pipeline or a utility grid situated on the land. The landowner, in turn, is restricted in his right to use the servient part of the estate. 29. Under Article 3052 of the Civil Code, the landowner and the utility company shall establish a transmission easement either by means of a contract or a court action. Just compensation (wynagrodzenie) is payable for the easement from the moment of its establishment for the future. 30. Lodging a court action for a transmission easement interrupts the running of the prescription period (Article 123 of the Civil Code and the Supreme Court’s resolution of 21 January 2011 (III CZP 124/10) and decision of 13 October 2011 (V CSK 502/10)). 31. Article 3054 of the Civil Code provides that transmission easements are further regulated, in so far as applicable, by the provisions on land easements. 32. The owner or perpetual lessee of land with a utility installation is also entitled to seek compensation from a utility company if the latter has possession in bad faith, in the form of an action for compensation for non-contractual use of land (o bezumowne korzystanie z nieruchomości) under Article 225 in conjunction with Article 224 of the Civil Code (in force without amendment since 1 January 1965). Such compensation can only be claimed for use of the land from the date on which the possessor was informed of the owner’s claim for compensation until the date of the court’s ruling and as long as an easement has not been established (the Supreme Court’s judgment of 7 August 2014 (II CSK 573/13)). The limitation period for such claims is ten years (Article 118 of the Civil Code). 33. The landowner or perpetual lessee has a claim even if he or she acquired the land in full knowledge that it was encumbered by a utility installation (the Supreme Court’s judgment of 4 July 2012 (ICSK 641/11)). 34. Prior to the 2008 amendments, introducing the paid transmission easement, the lodging of such a court action against a utility company interrupted the running of the prescription period. Since then, an action under Article 225 of the Civil Code ceased to have the same effect (the Supreme Court’s resolution of 26 November 2014, adopted by seven judges (III ZP 45/14)). 35. The criteria for the calculation of the compensation awarded under Article 225 of the Civil Code was laid down by the Supreme Court in its resolutions of 17 June 2005 (III CZP 29/05) and 10 July 1984 (III CZP 20/84), adopted by a bench of three and seven judges respectively. The compensation must be commensurate with the degree of interference with the plaintiff’s property rights and must not, in the long run, flagrantly exceed the value of the part of the land encumbered by the utility installation. The Supreme Court accepted that consequently, the amount of annual compensation awarded was likely to be insignificant. 36. Pursuant to Article 222 § 2 of the Civil Code (in force without amendment since 1 January 1965), a property owner has the right to claim restitution of his or her lawful position and discontinuation of infringements against anyone who infringes his ownership other than by depriving him or her of actual control of the property. There is no limitation period for such claims if they relate to immovable property (Article 223 of the Civil Code). Such actions can, but do not have to, be accompanied by a claim for compensation (o zapłatę) for past use of the property without legal title (see the Supreme Court’s resolution of 17 June 2005, cited above). The lodging of such a court action interrupts the running of the prescription period (Article 123 of the Civil Code). Such an action will not be allowed if the defendant has legal title to the property in question or has acquired it through prescription or adverse possession. Moreover, a landowner who acquired property which had in the past been lawfully encumbered by a utility installation is not entitled to seek its removal (the Supreme Court’s judgments of 13 January 2011 (III CSK 85/10) and 29 January 2008 (IV CSK 410/07). 37. The general rules concerning easements by prescription (zasiedzenie służebności) are contained in Article 292 of the Civil Code and in the provisions on adverse possession of property (zasiedzenie własności nieruchomości) contained in Articles 172-176 of the Civil Code (amended in 1990). 38. Under these provisions, an easement by prescription arises through the uninterrupted use of permanent and visible equipment by an autonomous possessor (owner-like possessor) without the permission of the landowner. In the event of possession in good faith (where use of the equipment has been open and notorious), the statutory prescription period was ten years prior to the 1990 amendment and is currently twenty years. In the event of possession in bad faith (where use of the equipment has been concealed or secretive), the applicable statutory period was twenty years prior to the 1990 amendment and is currently thirty years (Article 172 of the Civil Code). 39. Under Article 176 of the Civil Code, if during the running of the prescription period possession has been transferred from one autonomous possessor to another, the new possessor must include the period of possession by his predecessor. 40. A domestic court can rule on prescription in the event of an action for establishment of prescription (Article 609 of the Code of Civil Procedure) or in the course of other proceedings, if such an objection has been made by a party. A domestic court cannot rule on prescription of its own motion. 41. Since the 2008 amendments, the following approach has been developed by the domestic courts in cases concerning easements for utility grids and equipment. If possession of the part of the land with a utility grid reached the necessary prescription period after 2008, when the legal concept of a transmission easement was created, the domestic courts established prescription of the transmission easement. If, however, the end of the statutory prescription period fell on a date prior to the entry into force of the 2008 amendments, the domestic courts came up with the legal concept of a “land easement corresponding in its content to a transmission easement” (służebność gruntowa odpowiadająca w swojej treści służebności przesyłu) and accordingly, ruled on the prescription of such an easement. 42. In practice, most of the civil actions concerning transmission easements lodged under Article 3051 of the Civil Code sought to regulate the status of historical utility grids and equipment. They therefore resulted in the establishment by prescription of land easements corresponding to transmission easements and, resulting from it, refusal to grant any payment to the owner of the servient estate. 43. In its resolution of 7 October 2008 (no. III CZP 89/08), adopted by a bench of three judges, the Supreme Court held that prior to the enactment of provisions on transmission easements (Articles 3051-3054 of the Civil Code; see paragraphs 28–31 above) it had been possible to acquire by prescription a land easement corresponding in its content to a transmission easement. It was reasoned that the content of the land easement was essentially the right to use servient property in connection with the activities of the company which benefited from the easement. In the resolution the Supreme Court cited its earlier case-law on the possession of utility grids and on land easements. In particular, it referred to its 2003 resolution and 2006 decision (described in paragraph 27 above). 44. This approach was further confirmed by the Supreme Court in its resolutions of 9 August 2011 (III CZP 10/11) and 22 May 2013 (III CZP 18/13), adopted by a bench of seven and three judges respectively; and in its judgment of 12 December 2008 (II CSK 389/08) and decisions of 26 July 2012 (II CSK 752/11), 18 April 2012 ( V CSK 190/11), 6 July 2011 (CSK 157/11) and 5 June 2009 (I CSK 392/08). 45. Moreover, in its judgment of 12 January 2012 (II CSK 258/11), the Supreme Court held that in the event of prescription of an easement for a utility grid or equipment, the owner of servient land could not claim compensation for the easement. 46. Apart from the above-mentioned approach, the domestic case-law concerning transmission easements has not been uniform. Early on, the lower and higher courts diverged, among other things, on the issue of the possession of utility easements by State enterprises prior to 1989. Over time, this area has become harmonised by the Supreme Court. 47. It was therefore accepted that, if during the running of the prescription period possession of an easement had been transferred from a State enterprise to a utility company, the new possessor was entitled to include the period of possession by its predecessor prior to 1989 in the calculation of the statutory prescription period for the company’s easement. It was reasoned that prior to 1989, when the principle of uniform State ownership (zasada jednolitej własności państwowej) was abolished, the State Treasury had installed and run utility grids as part of its economic activities under its mandate as a State legal entity and the owner of State property and not as a superior governor in the exercise of its imperial powers. Moreover, the State Treasury at that time only had factual control (władztwo faktyczne) and operational management (zarząd operatywny) of utility grids and equipment. That corresponded to the activities of a limited-right possessor and not an owner-like possessor. Consequently, control over a utility grid of the predecessor of the claimant utility company could result in the prescription of a land easement for the benefit of the current possessor. This view has been expressed in the following case-law of the Supreme Court: its judgments of 31 May 2006 (IV CSK 149/05) and 15 January 2009, adopted by a bench of seven judges (I CSK 333/07); its judgment of 10 May 2013 (I CSK 495/12); and decisions of 17 December 2008 (I CSK 171/08), 13 October 2011 (V CSK 502/10), 12 January 2012 (IV CSK 183/11), 13 June 2013 (IV CSK 627/12), 20 September 2013 (II CSK 10/13) and 18 June 2014 (V CSK 405/13). The opposite opinion was held by the Supreme Court in its judgment of 9 December 2009, adopted by a bench of three judges (IV CSK 291/09). 48. Another discrepancy occurred in so far as the domestic courts, including the Supreme Court, initially drew different conclusions from the existence of historical administrative decisions which had been issued under Section 35 of the 1958 Act in order to authorise the installation of utility grids and equipment on particular private estates (see paragraph 21 above). 49. In cases in which an administrative decision under Section 35 of the 1958 Act had not been issued or in cases in which that element was left undetermined, the domestic courts generally ruled consistently. They held that a claimant utility company who had for a sufficiently long period exercised autonomous possession of an easement for a utility installation had acquired it by prescription. In all such cases, the domestic courts also refused to grant any compensation to the owner of the servient estate. 50. This line of case-law is illustrated by the Supreme Court’s case-law described in paragraphs 41-45 above and, further, by the domestic court decisions delivered in the proceedings giving rise to the following twenty applications lodged with the Court: no. 8585/13; 13512/13; 42258/13; 49800/13; 50041/13; 52143/13; 52591/13; 55666/13; 63957/13; 14934/14; 56980/14; 70263/14; 18939/15; 20670/15; 20818/15; 21667/15; 24271/15; 45573/15; 45619/15 and 48023/15 (see Annex 1). 51. In cases in which it was revealed that the installation of a utility grid or equipment had been authorised by an administrative decision issued under Section 35 of the 1958 Act, some domestic courts still granted easements by prescription; others refused to do so. Either way, the domestic civil courts also decided not to allow claims for compensation to the servient land’s owner for the restriction of his property rights. 52. The former approach was taken by the Supreme Court in its decision of 17 December 2008 (I CSK 171/08). It held that the restriction of property rights by means of a binding administrative decision issued under Section 35 of the 1958 Act (in that particular case, in 1977), was to be considered a “public easement” or a “transmission easement”. Consequently, in the Supreme Court’s view, prescription of a transmission easement was possible; the period of use of the electrical grid by the legal predecessor of its current owner could be calculated towards the statutory prescription period and the administrative decision in question made the use of the grid lawful, hence in good faith. This view was further upheld by the Supreme Court in its judgment of 9 December 2009 (IV CSK 291/09) and decision of 21 February 2013 (I CSK 354/12). 53. The domestic court decisions delivered in the course of the proceedings in the following ten applications lodged with the Court illustrate the above-mentioned line of case-law: no. 44773/13; 14891/14; 22059/14; 28482/14; 28531/14; 36799/14; 47538/14; 54240/14; 78040/14; and no. 41154/15 (see Annex 1). 54. The latter, opposite approach was expressed for the first time in the Supreme Court’s resolution of 8 April 2014 (III CZP 87/13), adopted by a bench of seven judges. It held that the enforcement of rights bestowed by a decision issued under Section 35 of the 1958 Act did not lead to prescription of a land easement corresponding in its content to a transmission easement. The Supreme Court observed that the decision of a relevant local administrative authority issued under Section 35 of the 1958 Act to authorise construction and maintenance of a utility grid on private land had the character of an expropriation decision. Consequently, it did not create an easement but permanent legal title which determined the content or particular restriction of a property right. Unlike the right to an easement, such a restriction had a public-law character as it was derived from the act of law and from a related administrative decision. The Supreme Court also expressly stated that the claims of utility companies which could not prove title for taking over and using private land were beyond the subject matter of that resolution. 55. This line of case-law was relied on by the domestic courts in the proceedings which gave rise to the following three applications lodged with the Court: no. 36350/13; 31089/14 and 46099/14 (see Annex 2). 56. Irrespective of the issue of prescription of easement, the Supreme Court consistently ruled that a decision issued under Section 35 of the 1958 Act constituted legal title for a utility company to permanently use the estate identified in such a decision. In consequence, no claims for compensation for the authorised use of the land by such a utility company could be made under the civil law because it was lawful. Compensation could only be sought under the administrative law (the Supreme Court’s resolution of 20 January 2010 (III CZP 116/09), adopted by a bench of three judges and judgments of 9 January 2008 (II CSK 432/07) and 9 March 2007, cited above). 57. The divergent practice as described above gave rise to a question of law (pytanie prawne) as to whether Article 292 taken in conjunction with Articles 172 and 285 of the Civil Code, in so far as it provided a legal basis for the establishment by prescription of a land easement corresponding in its content to a transmission easement for the benefit of a utility company, was in compliance with the Constitution and with Article 1 of the Protocol No. 1 to the Convention. 58. On 17 July 2014 the Constitutional Court (Trybunał Konstytucyjny) held that it was beyond its mandate to pronounce on a question of law which in fact concerned the interpretation given to the law by the courts of general jurisdiction (P 28/13). It was observed that the Constitutional Court was entitled to rule on the constitutionality of a provision which gained particular judicial interpretation but only if that interpretation was obviously settled through uniform and authoritative practice of the Supreme Court and the Supreme Administrative Court. In the Constitutional Court’s view, the uniform practice of granting prescription of land easement corresponding in its content to a transmission easement (as described in paragraphs 41-45 above), was disrupted by the 2014 resolution of the Supreme Court (III CZP 87/13) (see paragraph 54 above). Consequently, it was held that in the current situation, the applicable law was not implemented in an uncontestably uniform manner.