DISSENTING OPINION OF JUDGES EICKE AND SCHUKKING

Introduction

1. Unfortunately, for the reasons set out below, we were unable to agree with the majority that, in the circumstances of the present case, the applicant company had sufficiently established either that its claim was admissible or, even if admissible, that there has been a violation of its rights under Article 1 of Protocol No. 1.

Background

2. Having bought a property from the City of Bucharest on 26 September 2006 (§ 5), by a final judgment of the Bucharest Court of Appeal of 25 October 2010 (§ 9) the underlying contract of sale was partially annulled on the basis that the City of Bucharest had never, in fact, owned the basement part of the property.

3. As a consequence, on 13 February 2012, the applicant company brought proceedings against the City of Bucharest, seeking compensation for the damage it had sustained on account of the partial annulment of the contract of sale. The applicant company argued that it was entitled to compensation on the basis that it had been “evicted” from part of the property it had purchased and was therefore entitled to compensation accordingly. While this claim was partially successful before the Bucharest County Court at first instance, both the Bucharest Court of Appeal and the High Court of Cassation and Justice rejected the applicant company’s claim. Both courts confirmed that, in fact, the legal provisions regulating a seller’s liability for eviction were not applicable to the applicant company’s situation but that, once the contract of sale had been annulled in part, it was to be considered to have never existed and a claim should, therefore, have been brought under the principle of restitutio in integrum (§§ 22 and 25).

4. However, it was then only by an action initiated on 7 March 2018, more than three years after either the Bucharest Court of Appeal first identified restitutio in integrum as the (only) appropriate cause of action (24 November 2014) or the High Court of Cassation and Justice finally rejected its claim on the basis of eviction on that basis (4 March 2015), that the applicant company brought an action on the basis of restitutio in integrum before the Bucharest County Court. That claim, however, was rejected at first instance as having been brought outside the three year limitation period (§ 28) and that decision was never appealed and became final on 9 July 2019.

Disagreement

5. It is in this context that, as the judgment records in § 41, the applicant company complains that “the domestic courts had unfairly dismissed its claims relating to the reimbursement of the price paid and costs incurred for the property that it had been deprived of, in breach of Article 1 of Protocol No. 1”. The claim was therefore, ultimately, one of access to court in order to obtain compensation and this Court’s assessment of that complaint inevitably depended heavily on the interpretation of domestic law. That is, however, where our difficulties, not being qualified to interpret Romanian domestic law, arose.

6. After all, while the judgment asserts (§ 28) that the limitation period in relation to any claim on the basis of restitutio in integrum expired after three years calculated from the moment when the judgment annulling the contract of sale became final, this seems to be contradicted both by the Government’s observations as well as by the summary of the relevant law referred to in the judgment (§ 35).

7. The Government, in its observations, notes that the rejection of the applicant company’s claim for restitutio in integrum was based on Article 3 of Legislative Decree no. 167/1958 and asserts that, in fact, the relevant limitation period fell to be calculated from the date of the judgment of the High Court of Cassation and Justice. Unfortunately for us the applicant company never engaged with or contradicted this statement of domestic law nor did it explain why it had failed even to mention the restitutio in integrum proceedings in the context of its application to this Court. As a result, the applicant company also failed to explain why it had waited more than three years after the judgment of the High Court of Cassation and Justice before bringing such proceedings rather than do so either as soon as the Bucharest Court of Appeal had identified this as the appropriate cause of action (even if advanced at that stage only as an alternative to the appeal to the High Court of Cassation and Justice) or at the latest immediately after the appeal to the High Court of Cassation and Justice had been unsuccessful.

8. This failure to engage with the Government’s submissions on the relevant domestic law is further exacerbated by the fact that it appears to us that the Government’s assertions are very much in line with the summary of the relevant law as set out in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 68-70, 25 June 2019 and, at least partly, adopted by the judgment in this case (§ 35):

“68. The former Romanian Civil Code, in force until 1 October 2011, provided that any person who was responsible for causing damage to another would be liable to make reparation for it regardless of whether the damage was caused through his or her own actions, through his or her failure to act or through his or her negligence (Articles 998 and 999).

69. Legislative Decree no. 167/1958 on the statute of limitations, in force until 1 October 2011, provided that the right to lodge an action having a pecuniary scope was time-barred unless it was exercised within three years (Articles 1 and 3). The time-limit for lodging a claim for compensation for the damage suffered as a result of an unlawful act started to run from the moment the person became, or should have become, aware of the damage and knew who had caused it (Article 8). However, the time‑limit was interrupted by the lodging of a court action (Article 16). A new term of the statute of limitations started to run after its interruption (Article 17).

70. The new Romanian Civil Code, in force since 1 October 2011, provides that a person with discernment is liable for all damage caused by his actions or inactions and is bound to make full reparation (Article 1349). ... The right to lodge an action, including one with a pecuniary scope, is time-barred if not exercised within three years, unless the law provides otherwise (Articles 2500, 2501 and 2517). The time-limit for lodging a claim for compensation for the damage suffered as a result of an unlawful act starts to run from the moment the person becomes, or should become, aware of the damage and knows who caused it (Article 2528). The time-limit can be interrupted by the lodging of a court action or of a civil‑party claim during the criminal proceedings instituted, or before the court, up to the moment when the court starts the judicial examination of the case (Article 2537). If the time-bar is interrupted by the lodging of a civil‑party claim, the interruption remains valid until the order to close or suspend the criminal proceedings or the decision of the court to suspend the proceedings is notified, or until the criminal court has delivered a final judgment (Article 2541).” (underlined emphasis added)”

9. Furthermore, there is no indication that the applicant company has at any time in any of the legal proceedings pursued before the domestic court advanced, either in substance or in form, any argument that to dismiss his claim for compensation would have amounted to a violation of Article 1 of Protocol No. 1.

10. As a consequence, we were not satisfied that the applicant company, which had at all times been legally represented, had sufficiently established either that it had adequately or at all exhausted domestic remedies as required by Article 35 § 1 of the Convention or, in any event, that the domestic courts had, in fact, unfairly dismissed its claims relating to the reimbursement of the price paid and costs incurred for the property that it had been deprived of, in a manner amounting to a breach of Article 1 of Protocol No. 1.

1. The information was found on the main Romanian legislation portal, which provides also access to some domestic case-law: https://lege5.ro/