Communicated on 31 August 2017

FIRST SECTION

Application no. 70286/12 Daria Wanda FALKOWSKA against Poland lodged on 17 October 2012

STATEMENT OF FACTS

The applicant, Ms Daria Falkowska , is a Polish national who was born in 1962 and lives in Bytom. She is represented before the Court by Mr R. Broll , a lawyer practising in Chorz ó w.

A. The circumstances of the case

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

1. The applicant ’ s real estate transactions

The applicant lived for many years as a tenant in an apartment measuring 142 square metres, which was owned by the Bytom Municipality ( Gmina ).

In March 2008 the applicant bought the apartment with the statutory 95% discount, paying 5,535 Polish zlotys (PLN) (approximately 1,327 euros (EUR) ). The sale contract contained a clause stating that in the event the apartment was sold and the funds from the sale were not used for housing purposes within the meaning of section 68 of the Law of 21 August 1997 on Land Administration ( Ustawa o gospodarce nieruchomościami ; “the 1997 Law”), the applicant had to return the amount of the discount with adjustments.

In July 2008 the applicant sold the apartment for its market price of PLN 200,000 (approximately EUR 47,960).

In January 2009 she bought a smaller apartment (measuring 34 square metres), for which she paid PLN 90,000 (approximately EUR 21,582), using part of the funds earned from the discounted sale of her first apartment.

Prior to the transactions described above, the applicant asked the Municipality Office ( UrzÄ…d Mejski ) whether the official interpretation of the 1997 Law required that all or only part of the funds obtained from the sale of a discounted apartment should be used for housing purposes in order to avoid the recovery obligation.

In their reply, sent on 9 January 2008, the authorities copied the wording of section 68 of the 1997 Law, without elaborating on the question raised by the applicant.

2. Proceedings for discount reimbursement

On 2 April 2009 the Bytom Mayor ( Prezydent ) orde red the applicant to return PLN 108,578 (approximately EUR 24,733), which corresponded to the discount with adjustments. The payment was to be made by 8 May 2009. The mayor observed that the applicable law was clear in its requirement that the entire amount obtained through the sale of a discounted apartment should be used for housing purposes or else the recovery obligation arose. The applicant did not comply with the order and the municipality sued for payment later that year.

On 22 April 2010 the Gliwice Regional Court ( Sąd Okręgowy ) found in the applicant ’ s favour and dismissed the municipality ’ s action.

On 10 November 2010 the Katowice Court of Appeal ( SÄ…d Apelacyjny ) amended the first-instance judgement and ordered the applicant to pay back the adjusted amount of discount, namely PLN 105,180 (approximately EUR 23,958), with interest payable as from 8 May 2009. The appellate court held that the impugned provisions should be interpreted as making the discount dependent on using all the funds obtained from the sale of a discounted apartment for housing purposes. Consequently, because the applicant had only used a portion of the funds for such purposes, she was under a statutory obligation to return the adjusted discount in full.

On 14 December 2011 the Supreme Court refused to admit a cassation appeal by the applicant. It observed that the appellate court had exhaustively analysed the issue of the interpretation of section 68 of the 1997 Law. It also noted that her case did not warrant examination at the level of the Supreme Court because she had derived profits of PLN 110,000 (approximately EUR 25,580). The decision was served on the applicant on 8 May 2012.

B. Relevant domestic law and practice

Under section 68 of the 1997 Law, as amended on 24 August 2007, if a buyer of a discounted apartment sells the property within five years then the funds obtained must be spent within twelve months for housing purposes, otherwise the seller must repay the amount of the discount.

On 26 January 2012 the Supreme Court delivered a resolution (case no. III CZP 87/11), holding that a person who sells a discounted apartment must return the discount in proportion to the sum not used for housing purposes. That position was confirmed in another Supreme Court judgement, delivered on 16 March 2012 (case no. IV CSK 356/11).

On 26 May 2011 the Warsaw Court of Appeal ruled in a case in which the plaintiff, in similar circumstances to the applicant, sold an apartment she had bought at a discount from the Bytom Municipality in January 2008. The plaintiff used a portion of the funds to buy a new, smaller apartment. The appellate court held that section 68 of the 1997 Law was not concerned with the actual value of the transaction made by the owner of a discounted apartment. Consequently, the obligation to return the discount did not arise if at least some of the funds were used to buy a new apartment. As a result, the domestic court ruled in the plaintiff ’ s favour and did not order her to return the discount she had obtained.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention that the obligation to return the entire adjusted discount constituted a disproportionate financial sanction, which was based on an ambiguous law and its erroneous interpretation by the domestic courts.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

2. If so, was that interference necessary to control the use of property in accordance with the general interest, in accordance with the law and without imposing an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999 ‑ V?