I incorrectly predicted that there's no violation of human rights in CROATIA BUS D.O.O. v. CROATIA.

Judgment

FIRST SECTION
CASE OF CROATIA BUS D.O.O. v. CROATIA
(Application no. 12261/15)

JUDGMENT

STRASBOURG
2 June 2022

This judgment is final but it may be subject to editorial revision. In the case of Croatia Bus d.o.o. v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Raffaele Sabato, Davor Derenčinović, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 12261/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 March 2015 by Croatia Bus d.o.o., a limited liability company incorporated under Croatian law and having its registered office in Zagreb (“the applicant”) who was represented by Mr B. Radan, a lawyer practising in Zagreb;
the decision to give notice of the complaint concerning the lack of access to court to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant is a passenger transport company. The application concerns the impossibility to challenge before judicial authorities the Croatian Chamber of Economy’s refusal to approve the applicant company’s itinerary schedule, which approval had to be obtained before it could apply for a transport permit. 2. Under Croatian law, before applying for a permit from the relevant Ministry, passenger transport companies must undergo proceedings for harmonisation of itinerary schedules before a special commission of the Croatian Chamber of Economy and obtain approval of their proposed schedules. 3. In 2013 the applicant company participated in such proceedings, but its itinerary schedule was not approved because the commission deemed that it overlapped with the schedule of another company. The applicant company lodged an objection against the commission’s report containing the list of approved itinerary schedules, specifically, objecting against the part of the report in which the commission approved the itinerary schedule of the other company but not the applicant company’s schedule. On 20 May 2013 the commission rejected the objection as ill-founded. 4. The applicant company then brought an action for judicial review. By a decision of 25 April 2014, the Split Administrative Court declared that action inadmissible finding that the contested report of the Croatian Chamber of Economy was not an administrative act interfering with any right or legal interest of the applicant company. It added that the applicant company could “possibly obtain judicial protection of its rights in proceedings against a decision whereby, on the basis of the said report, a certain right was granted”, that is to say, against a decision granting a transport permit. 5. On 23 May 2014 the applicant company lodged a constitutional complaint against the Administrative Court’s decision. It argued that if the reasons given by the Administrative Court were to be accepted, judicial review would only be available to those transport companies which obtained an approval of their proposed itinerary schedule and therefore satisfied the statutory conditions for applying for a transport permit. That view placed the applicant company in an impossible situation because, without having its schedule approved, it could not even apply for a transport permit, and hence could not obtain a decision which could be challenged before judicial authorities. 6. On 10 September 2014 the Constitutional Court declared inadmissible the applicant company’s constitutional complaint finding that the case did not raise any constitutional issue. 7. Before the Court the applicant company complained, relying on Article 6 § 1 of the Convention, that the Administrative Court’s decision to declare its action for judicial review inadmissible had deprived it of access to a court. It argued that the refusal of the Croatian Chamber of Economy to approve its itinerary schedule, which it could not challenge before judicial authorities, had directly affected its right to obtain a transport permit and to carry out its business activities. THE COURT’S ASSESSMENT
8. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 9. The general principles concerning the right of access to a court have been summarised in Zubac v. Croatia [GC], no. 40160/12, §§ 76-79, 5 April 2018. In particular, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (ibid., § 76). That right is not absolute but may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (ibid., § 78). 10. The Government argued that the applicant company could have exercised its access to court in two ways:
- by, as suggested by the Administrative Court, bringing an action for judicial review against the decision whereby the relevant Ministry had granted a transport permit to the other, competing, company whose schedule had been approved (see paragraphs 3-4 above), or
- by applying for a transport permit even though its itinerary schedule had not been approved. If the relevant Ministry would have denied the permit, the applicant company could have brought an action for judicial review against the Ministry’s decision. 11. The Court first refers to the High Administrative Court’s judgment no. Usž-2066/15 of 26 November 2015, delivered in a case raising similar factual and legal issues as the present one. 12. In that case the first-instance administrative court, advancing similar reasons as the Split Administrative Court in the present case (see paragraph 4 above), declared inadmissible an action for judicial review whereby the plaintiff (a transport company) challenged the lawfulness of the proceedings for harmonisation of itinerary schedules conducted before the Croatian Chamber of Economy. 13. On appeal, the High Administrative Court held that even though the Croatian Chamber of Economy in the harmonisation proceedings was not adopting a decision in the form of an administrative act, it nevertheless decided on the right of the plaintiff because the companies whose itinerary schedules were not approved could not obtain a transport permit. Consequently, the plaintiff should have had a possibility to obtain judicial review of lawfulness of acts of the Croatian Chamber of Economy, which it had not had. The High Administrative Court therefore quashed the first instance decision and remitted the case. 14. In view of the High Administrative Court’s findings and having regard to its own case-law (see, mutatis mutandis, Pudas v. Sweden, 27 October 1987, §§ 36-38, Series A no. 125‐A), the Court considers that the proceedings before the Croatian Chamber of Economy indeed concerned the determination of the applicant company’s “civil rights and obligations” and that Article 6 § 1 of the Convention is therefore applicable. In particular, under Croatian law granting a transport licence (including the decision to approve or refuse itinerary schedules by the Chamber of Economy) was subject to certain clearly defined statutory criteria and did not depend on unfettered discretion of the relevant authorities. The right to a transport permit was therefore an actual right recognised in domestic law (see Pudas, cited above, §§ 31 and 34, and, by converse implication, Ladbrokes Worldwide Betting v. Sweden (dec.), no. 27968/05, 6 May 2008). 15. The High Administrative Court’s judgment likewise implies that if actions for judicial review by transport companies against a refusal of the Croatian Chamber of Economy to approve their itinerary schedules are declared inadmissible, they have no other means of challenging such refusal before judicial authorities. This means that the Government’s arguments that the applicant company had access to court (see paragraph 10 above) must be dismissed. 16. In view of the foregoing, the Court cannot but conclude that the applicant company should have had access to a court to review the lawfulness of the Croatian Chamber of Economy’s refusal to approve its itinerary schedule but was denied that right. 17. Accordingly, there has been a violation of Article 6 § 1 of the Convention in the present case. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. The applicant company claimed 3,000 euros (EUR) in respect of non‐pecuniary damage and EUR 1,260 in respect of costs and expenses incurred before the domestic courts and EUR 2,515 for those incurred before the Court. 19. The Government contested these claims. 20. The Court finds that the applicant company must have suffered non‐pecuniary damage which cannot be compensated for solely by the finding of a violation, it being understood that a legal person, even a commercial company, may also sustain non-pecuniary damage (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, §§ 31-37, ECHR 2000‐IV). Making its assessment on an equitable basis, the Court awards the applicant company EUR 3,000, plus any tax that may be chargeable. 21. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 840 for costs and expenses in the domestic proceedings. As regards the remainder of the claim for costs and expenses incurred before the domestic courts, the Court is of the opinion that it must be rejected, given that the applicant company will be able to have those costs reimbursed should the proceedings complained of be reopened (see, for example Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013). 22. As to the costs incurred before the Court, the Court considers it reasonable to award the sum of EUR 2,515, plus any tax that may be chargeable to the applicant company. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant company, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,355 (three thousand three hundred and fifty-five euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Péter Paczolay Deputy Registrar President

FIRST SECTION
CASE OF CROATIA BUS D.O.O. v. CROATIA
(Application no. 12261/15)

JUDGMENT

STRASBOURG
2 June 2022

This judgment is final but it may be subject to editorial revision. In the case of Croatia Bus d.o.o. v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Raffaele Sabato, Davor Derenčinović, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 12261/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 March 2015 by Croatia Bus d.o.o., a limited liability company incorporated under Croatian law and having its registered office in Zagreb (“the applicant”) who was represented by Mr B. Radan, a lawyer practising in Zagreb;
the decision to give notice of the complaint concerning the lack of access to court to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant is a passenger transport company. The application concerns the impossibility to challenge before judicial authorities the Croatian Chamber of Economy’s refusal to approve the applicant company’s itinerary schedule, which approval had to be obtained before it could apply for a transport permit. 2. Under Croatian law, before applying for a permit from the relevant Ministry, passenger transport companies must undergo proceedings for harmonisation of itinerary schedules before a special commission of the Croatian Chamber of Economy and obtain approval of their proposed schedules. 3. In 2013 the applicant company participated in such proceedings, but its itinerary schedule was not approved because the commission deemed that it overlapped with the schedule of another company. The applicant company lodged an objection against the commission’s report containing the list of approved itinerary schedules, specifically, objecting against the part of the report in which the commission approved the itinerary schedule of the other company but not the applicant company’s schedule. On 20 May 2013 the commission rejected the objection as ill-founded. 4. The applicant company then brought an action for judicial review. By a decision of 25 April 2014, the Split Administrative Court declared that action inadmissible finding that the contested report of the Croatian Chamber of Economy was not an administrative act interfering with any right or legal interest of the applicant company. It added that the applicant company could “possibly obtain judicial protection of its rights in proceedings against a decision whereby, on the basis of the said report, a certain right was granted”, that is to say, against a decision granting a transport permit. 5. On 23 May 2014 the applicant company lodged a constitutional complaint against the Administrative Court’s decision. It argued that if the reasons given by the Administrative Court were to be accepted, judicial review would only be available to those transport companies which obtained an approval of their proposed itinerary schedule and therefore satisfied the statutory conditions for applying for a transport permit. That view placed the applicant company in an impossible situation because, without having its schedule approved, it could not even apply for a transport permit, and hence could not obtain a decision which could be challenged before judicial authorities. 6. On 10 September 2014 the Constitutional Court declared inadmissible the applicant company’s constitutional complaint finding that the case did not raise any constitutional issue. 7. Before the Court the applicant company complained, relying on Article 6 § 1 of the Convention, that the Administrative Court’s decision to declare its action for judicial review inadmissible had deprived it of access to a court. It argued that the refusal of the Croatian Chamber of Economy to approve its itinerary schedule, which it could not challenge before judicial authorities, had directly affected its right to obtain a transport permit and to carry out its business activities. THE COURT’S ASSESSMENT
8. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 9. The general principles concerning the right of access to a court have been summarised in Zubac v. Croatia [GC], no. 40160/12, §§ 76-79, 5 April 2018. In particular, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (ibid., § 76). That right is not absolute but may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (ibid., § 78). 10. The Government argued that the applicant company could have exercised its access to court in two ways:
- by, as suggested by the Administrative Court, bringing an action for judicial review against the decision whereby the relevant Ministry had granted a transport permit to the other, competing, company whose schedule had been approved (see paragraphs 3-4 above), or
- by applying for a transport permit even though its itinerary schedule had not been approved. If the relevant Ministry would have denied the permit, the applicant company could have brought an action for judicial review against the Ministry’s decision. 11. The Court first refers to the High Administrative Court’s judgment no. Usž-2066/15 of 26 November 2015, delivered in a case raising similar factual and legal issues as the present one. 12. In that case the first-instance administrative court, advancing similar reasons as the Split Administrative Court in the present case (see paragraph 4 above), declared inadmissible an action for judicial review whereby the plaintiff (a transport company) challenged the lawfulness of the proceedings for harmonisation of itinerary schedules conducted before the Croatian Chamber of Economy. 13. On appeal, the High Administrative Court held that even though the Croatian Chamber of Economy in the harmonisation proceedings was not adopting a decision in the form of an administrative act, it nevertheless decided on the right of the plaintiff because the companies whose itinerary schedules were not approved could not obtain a transport permit. Consequently, the plaintiff should have had a possibility to obtain judicial review of lawfulness of acts of the Croatian Chamber of Economy, which it had not had. The High Administrative Court therefore quashed the first instance decision and remitted the case. 14. In view of the High Administrative Court’s findings and having regard to its own case-law (see, mutatis mutandis, Pudas v. Sweden, 27 October 1987, §§ 36-38, Series A no. 125‐A), the Court considers that the proceedings before the Croatian Chamber of Economy indeed concerned the determination of the applicant company’s “civil rights and obligations” and that Article 6 § 1 of the Convention is therefore applicable. In particular, under Croatian law granting a transport licence (including the decision to approve or refuse itinerary schedules by the Chamber of Economy) was subject to certain clearly defined statutory criteria and did not depend on unfettered discretion of the relevant authorities. The right to a transport permit was therefore an actual right recognised in domestic law (see Pudas, cited above, §§ 31 and 34, and, by converse implication, Ladbrokes Worldwide Betting v. Sweden (dec.), no. 27968/05, 6 May 2008). 15. The High Administrative Court’s judgment likewise implies that if actions for judicial review by transport companies against a refusal of the Croatian Chamber of Economy to approve their itinerary schedules are declared inadmissible, they have no other means of challenging such refusal before judicial authorities. This means that the Government’s arguments that the applicant company had access to court (see paragraph 10 above) must be dismissed. 16. In view of the foregoing, the Court cannot but conclude that the applicant company should have had access to a court to review the lawfulness of the Croatian Chamber of Economy’s refusal to approve its itinerary schedule but was denied that right. 17. Accordingly, there has been a violation of Article 6 § 1 of the Convention in the present case. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. The applicant company claimed 3,000 euros (EUR) in respect of non‐pecuniary damage and EUR 1,260 in respect of costs and expenses incurred before the domestic courts and EUR 2,515 for those incurred before the Court. 19. The Government contested these claims. 20. The Court finds that the applicant company must have suffered non‐pecuniary damage which cannot be compensated for solely by the finding of a violation, it being understood that a legal person, even a commercial company, may also sustain non-pecuniary damage (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, §§ 31-37, ECHR 2000‐IV). Making its assessment on an equitable basis, the Court awards the applicant company EUR 3,000, plus any tax that may be chargeable. 21. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 840 for costs and expenses in the domestic proceedings. As regards the remainder of the claim for costs and expenses incurred before the domestic courts, the Court is of the opinion that it must be rejected, given that the applicant company will be able to have those costs reimbursed should the proceedings complained of be reopened (see, for example Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013). 22. As to the costs incurred before the Court, the Court considers it reasonable to award the sum of EUR 2,515, plus any tax that may be chargeable to the applicant company. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant company, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,355 (three thousand three hundred and fifty-five euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Péter Paczolay Deputy Registrar President