FIFTH SECTION

DECISION

Application no. 42879/14 ONE TELECOMMUNICATIONS SERVICES DOOEL SKOPJE against North Macedonia

The European Court of Human Rights (Fifth Section), sitting on 14 October 2021as a Committee composed of:

Mārtiņš Mits, President, Ivana Jelić, Stéphanie Mourou-Vikström, judges, and Martina Keller, Deputy Section Registrar,

Having regard to the above application lodged on 4 June 2014,

Having regard to the observations submitted by the Government of the Republic of North Macedonia (“the Government”) and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, One Telecommunications Services Dooel Skopje, was a limited liability company registered in Skopje that operated in the telecommunications market. It was represented before the Court by Ms D. Chakarovska-Grozdanovska, a lawyer practising in Skopje.

2. The Government were represented by their Agent, Ms D. Djonova.

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

4 . On 22 November 2001 the applicant company’s legal predecessor (“the concessionaire”) signed a concession contract with the Ministry of Transport for the provision of mobile communication services. The contract was signed in accordance with the Telecommunications Act and was valid until 31 December 2023. Under the contract, the applicant company was obliged to pay an annual fee for the use of radio frequencies. On the basis of an invoice dated 6 June 2008, the concessionaire paid the sum of 51,782,553 Macedonian denars (MKD – equivalent to approximately 841,992 euros (EUR)) on 8 July and 7 August 2008 to the Agency for Electronic Communications (“the Agency”) in respect of the annual fee for 2008.

5 . On 5 March 2005 a new Electronic Communications Act entered into force. An amendment of 24 July 2008 to this Act (“the Amendment Act”) provided that concession contracts signed under the Telecommunications Act were to terminate ( престануваат да важат ) thirty days after 5 August 2008, the date when the Amendment Act would enter into force. The operating licences of the existing mobile operators, including the concessionaire, were to be renewed.

6 . On 5 September 2008, under the Amendment Act, the Agency granted the concessionaire a licence to use radio frequencies (valid until 5 September 2023). On 2 February 2009 it issued an invoice for the concessionaire to pay MKD 51,992,776 (equivalent to approximately EUR 845,410) in respect of the annual fee for the period between 5 September 2008 and 5 September 2009. The concessionaire returned the invoice to the Agency, arguing that it had already paid the annual fee for 2008 under the concession contract, including the amount for the period from 5 September to 31 December 2008 . The Agency did not amend the invoice and stated that the fee was to be paid annually, starting from the date when the licence had been issued. It further stated that, should the concessionaire fail to pay the invoice within the specified time-limit, the Agency would seek payment by initiating court proceedings. On or around 2 June 2009 the invoice was paid in full by the concessionaire.

7 . On 27 January 2010 the applicant company brought a claim against the Agency for unjust enrichment ( стекнување без основ ), seeking the reimbursement of the sum of MKD 16,694,921 (equivalent to approximately EUR 271,462), plus interest. That figure amounted to the part of the annual fee covering the period from 5 September to 31 December 2008 (“the relevant period”) that had been paid twice – on the basis of the concession contract and the licence issued on 5 September 2008. Relying on section 199 of the Obligations Act (“the Act”), the applicant company argued that on 8 July and 7 August 2008 it had paid the annual fee for the relevant period under the concession contract, which had been terminated when the Amendment Act entered into force.

8 . On 18 February 2011 the Skopje Court of First Instance granted the applicant company’s claim, holding that the annual fee for 2008 paid under the concession contract no longer had a legal basis, given that that contract had been terminated on 5 September 2008 when the Amendment Act had entered into force. Relying on section 199(3) of the Act (see paragraph 11 below), the court ruled that the applicant company was entitled to recover the amount paid on the basis of the concession contract for the relevant period.

9 . On 9 February 2012 the Skopje Court of Appeal (“the Court of Appeal”) overturned the first-instance court’s judgment on account of errors in the application of the law and dismissed the applicant company’s claim, holding that the payments of 8 July and 7 August 2008 had had a valid legal basis ( правниот основ постоел ) at the time. Relying on section 200 of the Act (see paragraph 11 below), the Court of Appeal found that the applicant company had failed to reserve the right to claim back the amount paid on 2 June 2009. Furthermore, it had not been compelled to make the payment, since the Agency’s warning that it would seek payment of the invoice by instituting court proceedings could not be considered to amount to coercion within the meaning of the above-mentioned provision. Accordingly, the Agency was not obliged to reimburse the amount claimed for the relevant period.

10. The applicant company challenged that judgment before the Supreme Court, arguing that the concession contract had been terminated on 5 September 2008 with the resulting effect that the legal basis for payment of the annual fee for the relevant period under the concession contract had ceased to exist. On 30 October 2013 the Supreme Court dismissed the applicant company’s appeal and upheld the Court of Appeal’s judgment. The applicant company’s representative received a copy of the Supreme Court’s judgment on 18 December 2013.

11. Under section 199(1) and (3) of the Act, a person is entitled to recover an amount that has been paid if that payment does not have a valid legal basis or if the legal basis has ceased to exist. Under section 200 of the Act, a person who has made a payment, while being aware that there was no obligation to do so, is not entitled to seek repayment of the amount paid, unless the person has reserved that right and/or had not been compelled to make the payment.

12 . The Government submitted copies of six final decisions ( Рев.1.бр.92/2012; ГЖ.бр.-1839/12; ГЖ.бр.-1809/13; ГЖ.бр.-3453/13; ТСЖ.бр.-1428/11; and ГЖ.бр.-432/15 ), delivered between December 2011 and October 2014, regarding cases examined under sections 199 and 200 of the Act . In ГЖ.бр.-1809/13 of 23 May 2013 and ГЖ.бр.-3453/13 of 20 January 2014 the domestic courts interpreted the notion of coercion as an inability to register a property right and as an inability to dispose of a property in a land registry. In Рев.1.бр.92/2012 of 25 April 2013 , which concerned similar issues of fact and law to the present case: the plaintiff, a mobile operator, had failed to reserve the right to claim back the amount paid on a second occasion (after the Amendment Act had entered into force), a fact on which the Supreme Court had relied (pursuant to section 200 of the Act) in dismissing the claim for unlawful enrichment. The Supreme Court also upheld a finding that a warning for instituting court proceedings vis-à-vis seeking payment is an avenue pursued by legal means which did not amount to coercion within the meaning of section 200 of the Obligations Act.

COMPLAINT

13 . The applicant company complained that the dismissal by the domestic courts of its claim seeking reimbursement of the annual fee for the relevant period (from 5 September to 31 December 2008) had violated its property rights under Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

THE LAW

A. The parties’ submissions

1. The Government

14. The Government argued that the applicant company had no locus standi to pursue the application on account of the fact that it had ceased to exist and had been removed from the register of companies, a fact which it had not brought to the Court’s attention.

15. They further submitted that the applicant company could not have legitimately expected to recover the amount paid in respect of the relevant period since it had neither reserved the right to claim back that amount, nor had it been compelled to make the payment on the basis of the invoice of 2 February 2009. The decisions of the higher courts had followed the well ‑ established practice in the matter. In any event, the interference with the applicant company’s possessions had been lawful; it had been aimed at ensuring payment of the annual fee for the use of radio frequencies, and it had been proportionate, given the possibility that the applicant company, represented by a lawyer, could have reserved the right to claim back the amount paid on the basis of that invoice, since it had been aware that it had already paid the annual fee for the relevant period in accordance with the invoice of 6 June 2008.

2. The applicant company

16. The applicant company maintained that, following a merger on 1 October 2015, its name had changed to “One.Vip DOO Skopje” and subsequently to “One.Vip DOOEL Skopje”. On 2 September 2019 the company had changed its name to “A1 Macedonia DOOEL Skopje”. It also expressed its wish to continue with the proceedings before the Court.

17. The applicant company further argued that its legitimate expectation to be reimbursed the annual fee in respect of the relevant period, which it had paid in accordance with the invoice of 6 June 2008 , had had a sufficient legal basis in section 199 of the Act. At the time of that payment, it had not been possible for it to foresee that the concession contract would subsequently cease to exist, or to reserve the right to claim back the annual fee for the relevant period.

B. The Court’s assessment

1. Locus standi

18. The general principles relevant to the Government’s objection under this head are set out in Capital Bank AD v. Bulgaria (no. 49429/99, § 78, ECHR 2005-XII (extracts)) and Uniya OOO and Belcourt Trading Company v. Russia (nos. 4437/03 and 13290/03, § 260, 19 June 2014).

19. The Court notes at the outset that the applicant company existed at the time when the application was lodged, on 4 June 2014. Its legal personality was extinguished as a result of the subsequent merger with another company on 1 October 2015. The Government have not challenged the status of the newly created entity as the legal successor of the applicant company after the merger. Subsequent changes to the name of that entity have no bearing on its status. The Court also takes note of the applicant company’s intention to pursue the application concerning its pecuniary claim against the Agency (see paragraph 7 above), which by its very nature is “transferable”. In this connection it is noteworthy that the applicant company’s status as claimant for payments made by the concessionaire, its legal predecessor, was never questioned in the domestic proceedings.

20. As regards the second criterion (“respect for human rights”), the Court notes that the applicant company’s complaint concerns its inability to obtain reimbursement of the payments made twice for the relevant period (see paragraph 7 above). If the case is struck out now, without further examination of the applicant company’s claim, it might appear that the authorities have benefited from any possible wrongdoing on their own part. In addition, the case raises questions of general interest concerning the existence of adequate procedural mechanisms safeguarding property rights, which transcend the facts of the present case and the applicant company’s private interests.

21. Accordingly, the applicant company has a legitimate interest in obtaining a final determination of its case by the Court (see Uniya OOO and Belcourt Trading Company , cited above, § 263). The Government’s objection must therefore be dismissed.

2. Article 1 of Protocol No. 1

22. In view of the general principles applicable to the present case set out in Gratzinger and Gratzingerova v. the Czech Republic ((dec.) [GC], no. 39794/98, § 69, ECHR 2002 ‑ VII), Kop ecký v. Slovakia ([GC], no. 44912/98, § 35, ECHR 2004 ‑ IX) and Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, § 59, Series A no. 301 ‑ B), the Court considers it necessary to examine whether the applicant company’s claim for reimbursement of the amount paid twice for the relevant period had a sufficient basis in national law to be regarded as “assets” and therefore “possessions” protected by Article 1 of Protocol No. 1 to the Convention. It may also be of relevance whether a “legitimate expectation” of realising its claim arose for the applicant company in the context of the proceedings complained of (see Kopecký , cited above, §§ 45-53).

23. In this connection the Court observes that, under section 199 of the Act, the applicant company claimed reimbursement of the annual fee for the relevant period paid on the basis of the invoice of 6 June 2008 . In the civil action against the Agency, the applicant company argued that the concession contract, which had constituted the legal basis for that payment, had been terminated. It further referred to the second payment for the relevant period made on 2 June 2009 (see paragraphs 6 and 7 above). The applicant company pursued this line of argument in its submissions to the Agency when it refused to pay the amount specified in the invoice of 2 February 2009 (see paragraph 6 above).

24. The first-instance court upheld the applicant company’s claim and ordered the Agency, under section 199 of the Act, to reimburse the amounts paid on 8 July and 7 August 2008 (see paragraph 8 above). However, both the Court of Appeal and the Supreme Court considered that the applicant company’s claim for unjust enrichment was to be examined in the light of section 200 of the Act (see paragraph 11 above). Such an approach seems to have been based on the overall factual context and the arguments put forward by the applicant company in the civil action (see paragraph 9 above). Both higher courts held that the applicant company’s claim did not fulfil the conditions specified in section 200 of the Act because the applicant company had not reserved the right to claim back the amount paid for the relevant period when making the payment of 2 June 2009, although it had known that it had already paid for that period on the basis of the invoice of 6 June 2008. Furthermore, it had not been compelled to make the second payment for the relevant period (see paragraphs 9 above). In this latter context, the Court observes that the notion of coercion had not been defined precisely in the Act therefore affording latitude to the domestic courts. Nevertheless, the approach by the courts followed the earlier case-law on the matter in question (see paragraph 12 above). In addition, they dealt with the same issues of fact and law as in the present case in respect of another company and followed the same reasoning (see paragraph 12 above). The applicant company neither argued nor provided any example of domestic practice demonstrating that that approach was inconsistent or otherwise unforeseeable. Furthermore, in the absence of any arguments by the applicant company, the Court does not consider that the conditions specified in section 200 of the Act and applied in the present case imposed an excessive administrative burden on the applicant company in asserting its proprietary interests.

25. Having regard to the information before it, and considering that it has only limited power to deal with alleged errors of fact or law committed by the national courts, to which it falls in the first place to interpret and apply the domestic law (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018 and the case-law cited therein), the Court finds no appearance of arbitrariness in the way the national courts determined the applicant company’s claim for unjust enrichment.

26. The Court therefore concludes that the applicant company’s claim (see paragraph 13 above) was not sufficiently established to qualify as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. The guarantees of that provision therefore do not apply to the present case (see Kopecký , cited above, § 60).

27. Accordingly, the application is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 November 2021.

Martina Keller Mārtiņš Mits Deputy Registrar President