Communicated on 7 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 48570/16 Marian PIĘTKA and Rafał P I Ę TKA against Poland lodged on 11 August 2016

STATEMENT OF FACTS

1 . The applicants, Mr Marian Piętka and Mr Rafa ł Piętka , are Polish nationals, who were born in 1952 and 1977, respectively and who live in Legionowo . They are represented before the Court by Ms E. Prejs , a lawyer practising in Toruń .

The circumstances of the case

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . At the material time, the applicants worked as land surveyors in the town of Legionowo , in Poland.

4 . Pursuant to various resolutions taken by the Legionowo Mayor ( starosta ) between 1999 and 2009, the applicants were charged for the use of the National Surveying and Cartographic Database (for copies of maps, plans and other documents).

5 . During this period, the applicants paid to the Legionowo Mayor a total amount of 389,600 Polish zlotys (PLN - 97,400 euros (EUR)).

6 . On 28 December 2009 the applicants filed a civil action against the State Treasury ’ s represented by the Legionowo Mayor, seeking the return of the above-mentioned amount. The applicants claimed that the surveyor ’ s fees in question had been imposed without a legal basis and therefore, constituted unjust enrichment. Their action was based on Article 405 in conjunction with Article 410 of the Polish Civil Code.

7 . On 29 January 2010 the Warsaw Regional Court granted the applicants ’ action.

8 . Upon the State ’ s appeal, on 2 February 2012 the same court dismissed the action on procedural grounds. The court found that the mayor had not had any legal basis for charging the applicants fees in question. The applicants ’ claim was nevertheless partly inadmissible on the grounds of negative prescription (in respect of the fees charged up until 27 December 2006). The remainder of the applicants ’ action was inadmissible ratione personae , as lodged against a wrong entity - it was established that the fees had not been transferred to the State Treasury.

9 . On 5 December 2012 the Warsaw Court of Appeal dismissed the appeal lodged by the applicants.

10 . In result of the applicants ’ cassation appeal, on 10 January 2014 the Supreme Court quashed the latter judgment and remitted the case to the appellate court. The Supreme Court instructed the lower-instance court to carry out a deeper analysis of the financial records in order to establish which entity (local or national) had been the end-receiver of the fees.

11 . On 4 June 2014 the Warsaw Court of Appeal granted the applicants ’ action in its entirety. The appellate court held that the State Treasury had been liable in the case because it owned the National Surveying and Cartographic Database, the running of which was financed from locally collected surveyors ’ fees, including those that had been paid by the applicants. Moreover, holding that a part of the applicants ’ claim was belated would be contrary to the principles of co-existence with others ( zasady współżycia społecznego ).

12 . Following the State ’ s cassation appeal, on 20 November 2015 the Supreme Court issued a final judgment, deciding to quash the judgment of the second instance-court and to dismiss the applicants ’ appeal altogether. That judgment was served on the applicants ’ lawyer on 12 February 2016.

13 . The Supreme Court held that the legal basis for charging the fees in question had lay, at the material time, in section 40 of the Surveying and Cartographic Law of 17 May 1989 ( Prawo geodezyjne i kartograficzne ), as well as in the settled case-law of domestic courts. The mayor had therefore been entitled to calculate and collect the fees from the applicants. In view of that overarching finding, the Supreme Court did not find it necessary to rule on the question of the negative prescription of a part of the applicants ’ claim. The court did not make any reference to the revocation of the mayor ’ s resolutions by the administrative court (see below).

14 . In parallel to the above-described civil case, administrative proceedings were on-going in respect of mayor ’ s resolutions to charge the applicants the fees. These proceedings concerned five resolutions issued in 1999, 2004, 2008, and 2009 (two for that year).

15 . On 18 December 2013 the Warsaw Regional Administrative Court issued five judgments, declaring the impugned five resolutions of the Legionowo Mayor null and void.

16 . The administrative court observed that charging the applicants fees in question had indeed been based on section 40 of the 1989 Surveying and Cartographic Law, which set out the general principle of paid services. The applicable rates (the calculation of the fees), however, were based on a minister ’ s ordinance and not, on a higher ranking legal act. As such, the relevant provision of the 1989 Surveying and Cartographic Law - which instead of setting out the rates, only made reference to the minister ’ s ordinance -, had been declared unconstitutional by the Constitutional Court (judgment of 25 June 2013). As a result, the mayor of Legionowo had, in charging the applicants the fees in question, acted without a valid legal basis. The administrative court thus held that that constituted a flagrant error or law.

COMPLAINTS

17 . The applicants complain also under Article 1 of Protocol No. 1 to the Convention about the lack of compensation for the unlawful imposition of public fees in relation to their professional activity. In particular they argue that the Supreme Court ’ s judgment of 20 November 2015 disregarded the enforceable rulings of the Warsaw Regional Administrative Court of 18 December 2013, in which that court had annulled five mayor ’ s resolutions as issued with a manifest error of law.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Has there been a violation of Article 1 of Protocol No. 1 to the Convention? In particular, has there been an excessive individual burden imposed on the applicants (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V?) Reference is made to the fact that their claim for damage caused by unlawful actions of the mayor ’ s was dismissed.