Communicated on 12 January 2017

FOURTH SECTION

Application no. 22716/12 Andrzej RUCIŃSKI against Poland lodged on 5 April 2012

STATEMENT OF FACTS

The applicant, Mr Andrzej Ruciński , is a Polish national, who was born in 1958 and lives in Dobra.

He is represented before the Court by Mr Z. Barwina , a lawyer practising in Szczecin.

A. The circumstances of the case

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

From 1990 onwards the applicant and his wife B. were running a company on a sole trader basis, registered in the applicant ’ s name, trading in tobacco products previously confiscated by the customs authorities and subsequently sold by those authorities at auctions.

In May and June 2003 an audit was carried out by a tax authority as to the applicant ’ s company ’ s excise tax liabilities for the period from January 2002 until March 2003.

On 19 May 2003 the Szczecin Tax Office gave a number of decisions by virtue of which it instituted the tax proceedings in this regard and seized the applicant ’ s company ’ s bank accounts, the cars used by the company and created mortgage on the applicant ’ s property, up to the amount of PLN 708,372).

The applicant appealed against those decisions. On 5 August 2003 the Szczecin Tax Office upheld them. On the same date further seizures of the applicant ’ s and his wife ’ s possessions were carried out.

On 21 August 2003 the Szczecin Tax Office gave decisions establishing the company ’ s excise tax liabilities for that period. The authority considered that, as the company had been selling cigarettes on which maximum price was not indicated, it was liable to pay excise tax under section 37(7) and (8) of the Value Added and Excise Tax of 8 January 1993 ( ustawa o podatku od towarów i uslug oraz o podatku akcyzowym - ‘ the VAT Act ’ ).

On 1 September 2003 the customs duty authorities became competent in matters of excise tax.

The applicant appealed against the decisions of 21 August 2003. He argued that the excise tax concerning cigarettes sold by the company had already been paid prior to the company selling them. The cigarettes had been bought from the tax authorities who had paid the tax and that tax was included in the price according to the invoices. He submitted that under section 12 of the ordinance of the Minister of Finances of 22 March 2002 on excise tax ( rozporządzenie Ministra Finansów w sprawie podatku akcyzowego – ‘ the 2002 ordinance ’ ), sellers of goods were exempted from paying excise tax if that tax had already been paid on the merchandise they were selling.

On 17 November 2003 the Szczecin Customs Office refused the applicant ’ s request for a stay of the execution of the decisions he had contested.

Finally, on 2 August 2004 the Director of the Szczecin Customs Chamber gave decisions by virtue of which it upheld the decisions in essence but the amount of the tax liabilities was corrected by an insignificant amount.

The applicant lodged complaints with the Szczecin Regional Administrative Court on 25 August 2004.

On 24 April 2006 the Director of the Szczecin Customs Chamber allowed the appeal and quashed the decisions of 2 August 2004. The authority found that the decisions under appeal had been tainted with a breach of substantive law. These decisions resulted in double taxation of the goods sold by the applicant. They were thus contrary to section 38 (2) (2a) of the VAT Act and to section 12 (1) (4) of the 2002 ordinance. The authority also pointed out that there was no legal basis for imposition of the excise tax on sellers who traded in goods as to which the excise tax should have been paid by the tax authorities themselves.

On 25 May 2006 the Szczecin Regional Administrative Court discontinued the proceedings, finding that in the light of the decision of 24 April 2006 by which the contested decisions had been quashed, there was no call to continue the proceedings concerning the applicant ’ s appeal against them.

On 15 January 2009 the applicant and his wife lodged a civil claim for compensation against the State Treasury under provisions of the Civil Code governing the civil liability of the State for damage arising from unlawful acts and decisions. They claimed PLN 790,839 as lost profits in the period from May 2003 until June 2006. The damage had arisen as a result of the seizure of their company ’ s bank accounts and other possessions. The seizures effected on the basis of the unlawful decisions of the authorities had prevented them from running their business in that period.

On 27 April 2010 the Szczecin Regional Court awarded the applicant and his wife PLN 759,999 of compensation. [1] The domestic court had no doubt that the decisions of 21 August 2003 and 2 August 2004 were unlawful (“ sąd nie mia ł wątpliwości , że decyzje organów ... nie były zgodne z prawem ”) within the meaning of Art icle 417 as applicable before 1 September 2004. The court also referred to a relevant admission of the tax authority, to the effect that section 38 (2) (2a) and section 12 item 1 (4) had been breached by the decisions. As a result, the applicant ’ s company had been made to pay the tax which should not have been paid. The court further held that the applicant and his wife had suffered damage as a result of the decisions complained of, as without the bank account and without the car which had been seized the company could not continue their business operation. It was of the view that the damage relied on by the plaintiffs had without doubt been caused by the fact that, as a result of the unlawful decisions, they had lost the possibility of continuing their business activity. Without the decision of 2 August 2004 which led to the seizure of the applicant ’ s bank account, he would have been able to continue his business operation.

In consequence, the legal conditions that Article 417 attached to the civil liability of the State – existence of damage, unlawful decision carried out in the exercise of the public powers and the causal link between the decision and the damage - had been met.

The State Treasury appealed.

On 22 December 2010 the Szczecin Court of Appeal allowed the appeal and dismissed the claim in its entirety.

The appellate court noted the defendant ’ s State Treasury argument that the core substantive issue involved in the case, namely whether cigarettes sold by the applicant in packets purchased from the administrative enforcement bodies and not marked by individual retail price, had been exempt from the excise tax or not under the Ordinance of the Minister of Finance of 2000, had given rise to serious discrepancies in their application. The defendant referred to two full-bench resolutions of the Supreme Administrative Court (of 1 June 2007 (I FPS 6/07) and 19 February 2009 (I FPS 3/09)) whereby that court had twice examined legal questions concerning the issues involved in the case and ultimately had expressed divergent legal views. This demonstrated that these issues were of a complex character and that they had given rise to difficulties in their interpretation. The court concluded that therefore it was legitimate on the part of the tax authority to follow one of these interpretations. As a result, the error in law it had committed was not of the manifest character resulting in unlawfulness of the impugned decision. An error in law giving rise to the State ’ s civil liability had to be qualified, fundamental and manifest ( kwalifikowany , elementarny i oczywisty ).

On 16 November 2011 the Supreme Court refused to entertain the cassation appeal lodged by the applicant.

B. Relevant domestic law and practice

Article 77 of the Polish Constitution, which entered into force on 17 October 1997, provides:

“1. Everyone is entitled to compensation for damage caused by the unlawful acts of a public authority.

2. A statute shall not bar access to court to persons seeking redress for any breach of their freedoms or rights.”

On 1 September 2004 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”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury ’ s liability in tort.

Article 417 § 1 of the Civil Code, as applicable after 1 September 2004, provides:

“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the Convention that he suffered serious damage to his business operation as a result of the tax decisions which were ultimately declared unlawful. Subsequently, he was refused compensation for that uncontested and significant damage. The courts applied law in their case in a manner that created a disproportionate protection of the State Treasury against compensation claims by private individuals. As a result, the existing legal provisions guaranteeing right to compensation for unlawful acts of the State resulting in damage became in his case non-effective and illusory.

QUESTION TO THE PARTIES

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 applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?) Reference is made to the fact that his claim for damage caused by unlawful tax decision was dismissed.

[1] . EUR 190,00 0 at that time approx.