SECOND SECTION

DECISION

Applications nos . 1406/14 and 8890/14 BERTALAN ZOLTÁN MEZŐGAZDASÁGI KFT AND OTHERS against Hungary and SZABOLCS MEZŐGAZDASÁGI KFT against Hungary

The European Court of Human Rights ( Second Section ), sitting on 15 April 2014 as a Committee composed of:

Helen Keller , President, András Sajó , Egidijus Kūris , judges and Abel Campos , Deputy Section Registrar ,

Having regard to the above applications lodged on 20 December 2013 and 21 January 2014 respectively,

Having deliberated, decides as follows:

THE FACTS

A list of the applicants is set out in the appendix.

The facts of the case s , as submitted by them , may be summarised as follows.

The applicant s are farming companies , which intended to produce crops of rare species and to request European Union agricultural support for this activity under the area-related aid scheme of the European Agricul tural Fund for Rural Development . According to the Hungarian regulation s on the detailed rules of such payments (section 43(6) of Decree no. 61/2009. (V. 14.) FVM of the Ministry of Agriculture and Rural Development ) , a farmer is entitled to increased financial suppor t for producing such rare crops under the condition that the Hungarian Agricultural Authority certifies the identity of the crops in question.

As of 31 March 2010, this provision was amended, requiring the certificate to be submitted at the same time as the application for the payment of support. Previously, the certificate had been verified by the time of the subsequent on-the-spot checks executed by the Agricultural and Rural Development Agency afte r the payments. On 2 April 2010 the Ministry of Agriculture and Rural Development issued a communiqué which drew farmers ’ attention to this procedural modification.

T he request for a certificate may be submitted to the competent authority until 15 April every year.

Article 58 of Commission Regulation (EC) n o . 1122/2009 stipulates that, i n case of over-declaration of their area giving right to payment entitlement under the area-related aid scheme, farmers have to face financial penalties and exclusion from the scheme for a certain period.

The applicant s submitted application s for s upport payment for rare crops in May 2010 – however, without either submitting or, at least, requesting the obligatory certificate s of the crops ’ identity. This failure resulted in the rare crops production area being calculated as zero hectares. Accordingly, in view of the difference between the area previously declared and the area eventually giving right to support (that is, zero hectares), the applicant s were ordered to pay over-declaration penalty, to be deducted from the ir future payment entitlements during the three subsequent years.

The applicant s brought action against the final a dministrative decision. They contended that, due to inland inundation, the planting of the rare grains had been impossible in the year concerned and that this fact had been recognised as force majeure even by the competent authority. They also argued that the verification of the grains which had been purchased from abroad would have been particularly complicated, since the competent authority had not had protocol for this scenario.

In September and October 2012 , respectively, the Gyula High Court dismissed the applicant s ’ claim s for the review of the administrative decision. The court held, in essence, that the applicant s had failed to meet their procedural obligations (notably, to submit the certification of the species in due time) and the sanctions were lawful on this ground alone, independently from an eventual force majeure . The court obtained the opinion of several expert institutions as to the feasibility of the verification of t he grains purchased from abroad without having to wait for the development of the plant itself. On this ground, it concluded that the applicant s could have obtained, or at least requested in due time, the necessary certificate s .

On 25 April, 14 May and 20 June 2013 , respectively, the Kúria [1] confirmed the High Court ’ s judgment s . The judgments of the Kúria were served on the applicants on 28 June, 23 and 25 July, and 6 August 2013, respectively.

COMPLAINTS

Relying on Article 1 of Protocol No. 1, the applicants essentially complained about their deprivation of a legitimate expectation (notably, the area-related support payment), on the ground of legislation lacking foreseeability and entailing disproportionate consequences.

On account of the foreign origin of the grains and the alleged lack of appropriate verification protocol for this case, they also complained about an infringement of their right enshrined in Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1.

THE LAW

Given that the applications raise the same issue in essence, the Court decides that they should be joined under Rule 42 § 1 of the Rules of Court.

The Court further reiterates that Article 35 § 1 of the Convention normally requires that the complaints intended to be brought subsequently before the Court should have been made to domestic courts, at least in substance (see Gäfgen v. Germany [GC] , no. 22978/05, § 142, ECHR 2010). In this respect, the Court observes that, as it appears from the case file, the applicants failed to raise their concerns about the quality and in particular the foreseeability of the relevant legal provisions as well as about the proportionality of the sanction before the national courts. Instead, they argued that the impugned administrative decisions were unlawful because, in their view, they were not obliged to present the litigious certificate s sooner than an eventual on-the-spot check. Moreover, in their opinion it was in any event impossible to verify the identity of the crops due to the inundation and the resulting lack of developed plants.

The Court further observes that the domestic courts thoroughly examined the above-mentioned arguments of the applicants. It is not the function of the Court to substitute its own assessment for that of the national courts or to deal with errors of fact or law allegedly committed by the national courts ; it cannot question th eir assessment unless and in so far as they may have infringed rights and freedoms protected by the Convention or unless there is clear evidence of arbitrariness (see Sisojeva and Others v. Latvia (striking out) [GC] , no. 60654/00, § 89, ECHR 2007- I ; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I ). In the present circumstances, the Court is satisfied that there was no appearance of any arbitrariness or of a violation of the applicants ’ Convention rights .

In view of the above, the Court concludes that, even assuming exhaustion of domestic remedies, the facts of the case do not indicate any arbitrary interference with the applicants ’ property rights in breach of Article 1 of Protocol No. 1 read alone or in conjunction with Article 14 of the Convention. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

It follows that the application s must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the C ourt, unanimously

Joins the applications;

Declares the applications inadmissible.

Abel Campos Helen Keller              Deputy Registrar President

Appe ndix

LIST OF APPLICANTS

Application no . 1406/14

Application no . 8890/14

[1] The highest judicial instance in Hungary.