FIRST SECTION

DECISION

Application no. 19083/08 CAROLINEX s p. z o. o . against Poland

The European Court of Human Rights (First Section), sitting on 13 March 2018 as a Committee composed of:

Aleš Pejchal , President, Krzysztof Wojtyczek, Jovan Ilievski , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 28 March 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, Carolinex sp. z o. o., is a Polish limited liability company with its seat in Warsaw. It was initially represented before the Court by Ms K. Krzy ż ewska and subsequently by Ms. B. Głowacka , lawyers practising in Warsaw.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz , and subsequently Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. On 31 May 1993 the Zakroczym Municipal Council ( Rada Gminy ) approved a local development plan ( miejscowy plan zagospodarowania przestrzennego ) in which a plot of land was earmarked for the construction of a waste processing plant.

5. On 1 June 1998 a tender procedure was initiated in respect of the plot of land in question, and on 9 September 1998 it was purchased by the applicant company. On 2 September 1998, the Mayor of Zakroczym ( burmistrz , hereafter “the mayor”) affirmed the municipality ’ s intention to have a modern waste processing plant constructed by the applicant company, and affirmed that the municipality would assist it in carrying out the development.

2. Proceedings for a zoning permit

6. On 9 August 1999 the applicant company asked the mayor to issue a zoning permit for the planned development ( decyzja o warunkach zabudowy i zagospodarowania terenu ) under the provisions of the 1994 Local Planning Act (see paragraph 35 below).

7. On 26 February 2001 the mayor refused to issue the requested zoning permit, holding that, although the planned development complied with the requirements of the local development plan, it constituted a threat to the local environment and went against the vital interests of the inhabitants. The applicant company appealed. On 5 April 2001 the Board of Appeal overruled the mayor ’ s decision.

8. On 12 June 2001 the mayor again refused to issue the requested permit, on grounds similar to those referred to in his previous decision. The applicant company appealed.

9. On 23 July 2001 the Board of Appeal overruled the mayor ’ s decision of 12 June 2001 and remitted the case. Several local civic organisations appealed against the decision of the Board of Appeal to the Supreme Administrative Court ( Naczelny Sąd Administracyjny ).

10. On 20 December 2001 the mayor once again refused to issue the requested permit, on the grounds he had previously referred to. The applicant company appealed to the Board of Appeal, which on 21 May 2002 stayed the proceedings pending a decision by the Supreme Administrative Court.

11. On 26 November 2002 the Supreme Administrative Court quashed the Board of Appeal ’ s decision of 23 July 2001 on account of its procedural flaws. The Supreme Administrative Court remitted the case to the Board of Appeal for an examination on the merits.

12. On 10 February 2003 the Board of Appeal resumed the proceedings and, by decisions given on 10 February 2003 and 23 July 2004, it overruled the mayor ’ s decisions of 20 December 2001 and 12 June 2001 respectively.

13. On 31 December 2003 the validity of the local development plan approved by the Zakroczym Municipal Council on 31 May 1993 expired. Consequently, on an unspecified date in 2004 the Board of Appeal sent the case to the mayor, who, as the administrative organ of first instance, was to examine it.

14. On 19 January 2006 the mayor once again refused to issue the zoning permit, finding that the operation of the waste treatment plant would be a danger to the quality of life of the local community. The applicant company appealed.

15. On 22 June 2007 the Board of Appeal overruled the mayor ’ s decision, finding that it violated the applicable legal provisions, and remitted the case.

3. Transfer of ownership

16. Subsequently, the plot in question was offered for sale at a public auction. On 19 July 2007 the Nowy Dwór Mazowiecki District Court gave a decision ( postanowienie o przys ą dzeniu w ł asno ś ci nieruchomo ś ci ) confirming that the land had been bought by Multi- Hekk Nieruchomosci . The new owner subsequently sold the property to Hotele de Silva sp. z o. o. on 25 June 2008. The latter company is the current owner of the property.

17. Despite the transfer of ownership, the applicant company remained a party to the proceedings for the zoning permit, under section 63 of the 2003 Local Planning and Development Act. In accordance with this provision, an application for a zoning permit does not have to be made by an owner of the land in question (see paragraph 40 below).

4. Subsequent proceedings for a zoning permit

18. On 12 March 2008 the mayor once more refused to issue the requested zoning permit, on grounds similar to those which he had previously referred to. The applicant company appealed.

19. On 22 September 2008 the Board of Appeal overruled the mayor ’ s decision and remitted the case. The mayor and one other party to the proceedings appealed against that decision to the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ).

20. On 23 April 2009 the Warsaw Regional Administrative Court quashed the Board of Appeal ’ s decision of 22 September 2008. The Board of Appeal appealed against the court ’ s judgment.

21. On 18 April 2012 the Supreme Administrative Court dismissed a cassation appeal by the Board of Appeal. As a result, the decision of 22 September 2008 given by the Board of Appeal remained quashed.

22. On 1 March 2013 the Board of Appeal quashed the mayor ’ s decision of 12 March 2008 and remitted the case.

23. On 29 July 2016 the mayor gave a decision and refused to issue a zoning permit for the planned development.

24. Upon an appeal by the applicant company, the Board of Appeal upheld that decision on 13 June 2017.

25. The applicant company appealed to the Warsaw Regional Administrative Court and the proceedings are ongoing.

5. Civil action for damages

26. On 2 July 2002 the applicant company sued the Zakroczym Municipality in respect of damage resulting from the administrative authorities ’ failure to issue the requisite zoning permit in time.

27. On 20 March 2006 the Warsaw Regional Court ( Sąd Okręgowy ) allowed the applicant company ’ s claim in part. The court held that the mayor had acted unlawfully by refusing to issue the requested permit over a period of many years even though the planned development had not been incompatible with the requirements of the local development plan. It further considered that the conduct of the administrative authorities in the case had been both unlawful and characterised by bad faith. The court concluded that the applicant company had not sustained any actual financial loss ( damnum emergens ), but had suffered a loss of profit ( lucrum cessans ) in the amount of 662,054 Polish zlotys (PLN – approximately 165,500 euros (EUR)). Consequently, it awarded the above-mentioned sum to the applicant company.

28. On 30 April 2007 the Warsaw Court of Appeal ( Sąd Apelacyjny ) quashed the first-instance court ’ s judgment and dismissed the applicant company ’ s claim in its entirety, ordering it to pay the costs of the proceedings. The Court of Appeal observed that the applicant company ’ s claim was based on Article 420 1 of the Civil Code, as applicable until 1 September 2004. It further noted that the mayor had not been under any obligation to issue a decision which would be positive for the applicant company, that is, to issue the requested zoning permit. In the court ’ s view, only once the administrative proceedings were terminated by a final decision could there be an assessment of whether the mayor ’ s refusal to issue the zoning permit had been correct and if not, whether it had been given in breach of the law.

29. The court further referred to the reasoning of the Supreme Court ’ s Resolution of 26 April 2006 (no. III CZP 125/05) given in relation to tax proceedings. In that resolution the Supreme Court held that an assessment of the legal conditions for civil liability of a mayor for damage caused by issuing a non-final administrative decision could only be done after the proceedings were terminated by a final administrative decision.

30. The court concluded that in the present case, before termination of the administrative proceedings it was not possible to assess whether a non ‑ final administrative decision refusing a zoning permit had been given in breach of the law and, consequently, whether the municipality had caused any damage to the applicant. Therefore, a claim for damages could only be examined after a final decision had been given in the case. In this sense, the court found the applicant company ’ s claim to be unjustified and at least premature. The court did not see a need to examine whether other legal conditions for the defendant ’ s civil liability (damage and the direct causal link) had been met. It noted that pursuant to Article 420 1 of the Civil Code all three legal conditions had to be satisfied cumulatively. Since in the present case the mayor ’ s actions had not been unlawful there was no need to examine the remaining legal conditions.

31. On 21 December 2007 the Supreme Court ( Sąd Najwyższy ) refused to examine a cassation appeal lodged by the applicant company.

6. Length-of-proceedings complaints

32. On 21 February, 5 April, 25 May and 21 September 2001 and on 14 June 2005 the applicant company filed complaints with the Board of Appeal on the basis of Article 37 § 1 of the Code of Administrative Procedure, alleging inactivity on the part of the mayor. All complaints were dismissed, as the mayor had issued decisions in the case in the meantime.

33. On 15 October 2007 the applicant company filed another complaint with the Board of Appeal, alleging inactivity on the part of the mayor. It appears that, as a result of the complaint, the mayor fixed a new time-limit for an administrative hearing. The hearing took place on 28 November 2007.

34. On a further unspecified date the applicant company filed another complaint with the Board of Appeal, alleging inactivity on the part of the mayor.

35. On 29 January 2009 the Board of Appeal refused to set a new time ‑ limit for dealing with the case, finding that the mayor had already decided the case by his non-final decision given on 12 March 2008.

B. Relevant domestic law and practice

1. The 1994 Local Planning Act

36. On 7 July 1994 the 1994 Local Planning Act ( ustawa o zagospodarowaniu przestrzennym , hereafter “the 1994 Act”) was enacted. It entered into force on 1 January 1995.

37. Pursuant to section 43 of the 1994 Act, an administrative authority could not refuse to issue a zoning permit if a planned development was in compliance with the local development plan.

2. The 2003 Local Planning and Development Act

38. On 27 March 2003 a new Local Planning and Development Act ( ustawa o planowaniu i zaospodarowaniu przestrzennym ) was enacted. It repealed the 1994 Act.

39 . Pursuant to the provisions of the 2003 Act (section 59 and seq.), a zoning permit can now only be issued if there is no local development plan.

40. Section 63 of the 2003 Act provides that a zoning permit does not give any rights to the land covered by it, nor does it infringe the property rights of third parties. This principle has been confirmed in a number of judgments given by administrative courts, which have consistently held that an application for a zoning permit may be lodged by a person who is not an owner of the land covered by the permit (for example, the Supreme Administrative Court on 23 April 2013 in decision no. II OSK 2532/11 and the Bydgoszcz Regional Administrative Court on 21 September 2016 in decision no. II SAB/ Bd 96/15 ).

3. Building permits

41. Pursuant to the provisions of the Construction Act of 7 July 1994 ( Prawo Budowlane ), before issuing a building permit an administrative authority shall verify whether the planned construction is in accordance with the local development plan and, if the land is not covered by such a plan, whether the development complies with a relevant zoning permit (section 35).

4. The State ’ s liability in tort

42. Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State ’ s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, laying down a general rule, read as follows:

“The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him”

43. Article 420 1 of the Civil Code was applicable until 1 September 2004. It was repealed by the Law of 17 June 2004 on amendments to the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw , “the 2004 Amendment Act”). However, under the transitional provisions of section 5 of the 2004 Amendment Act, Article 4 20 1 applies to all events and legal situations subsisting before 1 September 2004. This provision, in so far as relevant, provides as follows:

“1. If damage has been caused by an official of a territorial self-government unit in the performance of a duty entrusted to him, the unit of territorial self-government on whose behalf the duty was performed is responsible for damage. ...”

COMPLAINTS

44. Relying on Article 6 § 1 of the Convention, the applicant company complained that the length of the administrative proceedings for a zoning permit had been incompatible with the “reasonable time” requirement.

45. Moreover, under Article 13 of the Convention, the applicant company complained that it had had no effective remedy against the excessive length of the impugned administrative proceedings.

46. Lastly , invoking Article 1 of Protocol No. 1, the applicant company complained that the length of the impugned proceedings had affected its property rights.

THE LAW

A. Preliminary objections

1. The Government ’ s submissions.

47. With respect to the complaint under Article 6 of the Convention, the Government submitted firstly that, in their view, the applicant company had failed to exhaust the available domestic remedies. Although the applicant company had lodged a complaint under Article 37 of the Code of Administrative Proceedings, it had failed to lodge a complaint regarding the excessive length of the impugned proceedings with an administrative court. In addition, it could still lodge a claim for compensation with a civil court for damage caused as a result of the municipality ’ s failure to issue a decision.

48. Secondly, the Government maintained that the complaint under Article 1 of Protocol No 1 to the Convention had been lodged in breach of the six-month time-limit provided for by Article 35 § 1 of the Convention. They referred to the fact that on 19 July 2007 the applicant company had sold the land covered by its application for a zoning permit, and the present application had been lodged with the Court on 28 March 2008.

49. Thirdly, relying on the case of Dimitrescu (see Dimitrescu v. Romania , nos. 5629/03 and 3028/04, §§ 33 ,34 , 3 June 2008), the Government submitted that the complaint under Article 1 of Protocol No 1 to the Convention should be rejected, owing to the fact that the applicant company could no longer be regarded as a victim within the meaning of Article 34 of the Convention. They asserted that the applicant company had not been the owner of the land covered by the zoning permit on the day of lodging its application with the Court.

2. The applicant company ’ s submissions

50. The applicant company disputed the Government ’ s objections. It submitted firstly that all available domestic remedies had been exhausted with respect to its complaint under Article 6 of the Convention.

51. Secondly, the applicant company submitted that its complaint under Article 1 of Protocol No 1 had been submitted within the required time ‑ limit. It argued that on 2 July 2002 it had instituted proceedings for compensation under Article 420 1 of the Civil Code. Those proceedings had ended on 21 December 2007, thus less than six months before the date of lodging the present application with the Court. At the same time, it admitted that a claim based on Article 420 1 of the Civil Code could not have been regarded as an effective remedy against the excessive length of administrative proceedings. Moreover, in its initial submissions the applicant company confirmed that the fact that the administrative proceedings had not been terminated had prevented it from seeking damages from the municipality for damage caused by the mayor ’ s failure to issue a final administrative decision.

52. Lastly, the applicant company asserted that it could still be considered a victim with respect to its complaint under Article 1 of Protocol No 1. It referred to the fact that it had bought a plot of land earmarked for the construction of a waste processing plant. However, after the land had been acquired, the mayor, in a number of decisions, had refused to issue the requested zoning permit. Eventually the applicant company had had to sell the land. However, while it had transferred ownership of the land, it had not transferred its claims for compensation for damage suffered as a result of the mayor ’ s decisions.

B. The Court ’ s assessment

53. The Court does not need to rule separately on all of the Government ’ s objections, as the present application is in any event inadmissible for the following reasons.

1. The complaint under Article 6

54. The Court reiterates firstly that, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on “arguable grounds”, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive as regards the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016).

55. Where there is a dispute, Article 6 applies to proceedings concerning the granting of a building permit, given its civil nature (see Ortenberg v. Austria , 25 November 1994, § 28, Series A no. 295 ‑ ), and to proceedings challenging a change of designation of land which have denied an applicant a right to build, a right which the applicant had at a particular point in time when the land was designated as building land (see Haider v. Austria ( dec. ), no. 63413/00, 29 January 2004). However, Article 6 is not applicable to proceedings for a building permit if building is not allowed under the relevant zoning plan in force (see Enzi v. Austria ( dec. ), no. 29268/95, 8 February 2000).

56. In the present case, the Court notes that in 1998 the applicant company bought a plot of land in Zakroczyn (see paragraph 5 above). Subsequently, it lodged an application for a zoning permit, with a view to constructing a waste processing plant on that land (see paragraph 6 above). The proceedings for a zoning permit were a necessary prerequisite for obtaining any building permit in future (see paragraph 41 above).

57. However, as submitted by the Government, on 19 July 2007 the ownership of the land in question was transferred to another company (see paragraphs 16 and 48 above). The Court regrets that the applicant company failed to inform it about such an important development, in particular as this took place before the lodging of the application with the Court. In any event, the essential question is therefore whether after that date the administrative proceedings for a zoning permit involved a determination of the applicant company ’ s civil rights and obligations

58. The Court observes that the applicant company ’ s reason to pursue the proceedings for a zoning permit, even after 19 July 2007, was that, while it had transferred the ownership of land it had not transferred its claims for compensation for damage caused by the mayor (see paragraph 52 above). However, the applicant company had not plausibly demonstrated before the Court what kind of compensation claim it had intended to pursue in future and whether such a claim had any basis in the domestic law. In addition, it had not submitted whether after 19 July 2007 it had still intended to construct the waste processing plant and/or whether it had been linked to the new owner of the land with any kind of investment contract. In those circumstances, such a hypothetical and mere remote consequence of the administrative proceedings in the present case was not sufficient to bring Article 6 § 1 into play (see, among many other authorities, Balmer ‑ Schafroth and Others v. Switzerland , 26 August 1997, § 32, Reports of Judgments and Decisions 1997 ‑ IV).

59. Consequently, the present complaint, in so far as it relates to the period after 19 July 2007, is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

60. As regards the period before that date, the Court observes that the Government made an objection relating to compliance with the six-month rule under Article 1 of Protocol No 1 (see paragraph 48 above). However, it considers that this objection is inextricably linked to the substance of the complaint under Article 6 § 1 of the Convention and that it cannot be detached from it. Accordingly, the Court will examine the Government ’ s objection in the context of the present complaint.

61. The Court observes that the present application was lodged on 28 March 2008, while the applicant company sold the land covered by its request for a zoning permit on 19 July 2007.

62. The applicant company argued that it had complied with the six ‑ month rule, as it had instituted civil proceedings for compensation from the mayor which had been terminated by the decision of the Supreme Court of 21 December 2007 (see paragraphs 51 above).

63. In this respect the Court reiterates its established case-law relating to the requirements of exhaustion of domestic remedies and the six-month period, which are closely intertwined. Thus where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. UK ( dec. ), no.57420/00, 21 March 2000, ECHR 2003-I). However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sofri and Others v. Italy ( dec. ), no. 37235/97, ECHR 2003-VIII). In particular, for a remedy to be effective, it must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56681/00, § 46, ECHR 2006 ‑ II). Where an applicant has tried a remedy that the Court considers ineffective, the time taken to do so will not interrupt the running of the six ‑ month time-limit, which may lead to the application being rejected as out of time (see Rezgui v. France ( dec. ), no. 49859/99, ECHR 2000 ‑ XI,) .

64. In the circumstances of the present case, the Court does not consider that the remedy used by the applicant company offered any reasonable prospects of success. As observed by the domestic court, with reference to the case-law of the Supreme Court the proceedings for compensation under Article 420 1 of the Civil Code could not have produced any results as long as the administrative proceedings for a zoning permit were pending (see paragraphs 28 – 30 above). In addition the applicant company expressly acknowledged before the Court that these proceedings could not be regarded as an effective remedy for its complaint about the length of administrative proceedings (see paragraph 51 above).

65. In the light of the foregoing, the Court considers that it should not take into account the date of the Supreme Court ’ s decision for the purpose of calculating the six-month period in the present case.

66. It follows that the remainder of the complaint under Article 6 of the Convention was submitted outside the six-month time-limit, and must be rejected in accordance with Article 35 § 1 of the Convention.

2. The complaint under Article 1 of Protocol No 1 to the Convention

67. The applicant also complained that the length of the administrative proceedings had breached its property rights.

68. In the circumstances of the present case, the Court considers that the applicant company ’ s complaint under Article 1 of Protocol No 1 is essentially the same as the complaint examined and rejected under Article 6. Consequently, having regard to the fact that on 17 July 2007 the applicant company ceased to be the owner of the land in question, and in view of its analysis and conclusions under Article 6 of the Convention (see paragraphs 56 - 66 above), the Court considers that no separate issue arises in the case under Article 1 of Protocol No 1 to the Convention.

3. The complaint under Article 13

69. The applicant company complained that it had not had an effective remedy against the excessive length of the administrative proceedings relating to its application for a zoning permit.

70. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief (see KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). However, given its above findings, according to which the complaint under Article 6 was declared inadmissible for failure to observe the six-month rule and as being incompatible ratione materiae (see paragraphs 59 and 60 above), the Court finds that the applicant has no arguable claim for the purposes of Article 13 of the Convention and that, therefore, this provision does not apply. It follows that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 April 2018 .

Renata Degener Aleš Pejchal Deputy Registrar President