CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 avril 2024

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ROMANIA (Application no. 8889/18)             JUDGMENT   STRASBOURG 16 April 2024   This judgment is final but it may be subject to editorial revision. In the case of Plasty Prod S.A. v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Branko Lubarda , President ,   Anne Louise Bormann,   Sebastian Răduleţu , judges , and Crina Kaufman, Acting Deputy Section Registrar, Having regard to: the application (no.   8889/18) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 February 2018 by a Romanian commercial company, S.C. Plasty Prod S.A. (“the applicant company”), set up in 1993 and based in Constanta, and represented by Ms   S.M. Muhscina, lawyer practising in Constanta; the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs; the parties’ observations; and the decision to reject the Government’s objection to the examination of the application by a Committee; Having deliberated in private on 26 March 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant company’s complaint about the alleged breach of its right of access to a court under Article 6 § 1 of the Convention and of its right under Article 1 of Protocol No. 1 to the Convention, on account of the alleged erroneous interpretation of a time-limit rule by the domestic court of last resort. 2 .     On 15 September 2004 the applicant company signed a contract with company E for the supply of electric energy (“the electric energy supplier”). Following a control by the electric energy supplier, carried out on 20 July 2012, the applicant company became aware that the measuring device installed by the electric energy supplier at its premises had measured erroneously the electricity consumption since its installation in 2004. The electric energy supplier admitted its fault and reimbursed the applicant company the sums wrongly invoiced between 1 July 2009 and 4 March 2013 (the date on which the electric energy supplier replaced the measuring device). 3.     On 20 May 2015 the applicant company brought civil proceedings against the electric energy supplier seeking the calculation of the sums it had unduly paid for the period between the installation of the measuring device in 2004 and 1 July 2009. 4 .     On 3 March 2016 the Constanta District Court (“the first instance court”) allowed the action finding based on the evidence submitted by the parties that the electric energy registered and invoiced had been double than that actually consumed by the applicant company owing to the incorrect operation of the measuring device installed by the electric energy supplier at the premises of the applicant company. The court dismissed the objection raised by the electric energy supplier that the action was time-barred noting that it had been brought within the three-year time-limit which had started to run only on 20 July 2012, when the applicant company had become aware of the wrong installation of the measuring device. 5.     The electric energy supplier filed an appeal reiterating its objection that the applicant company’s action was time-barred. 6 .     By a final decision of 16 June 2017, served on the applicant on 8 August 2017, the Constanta County Court allowed the appeal and set aside the judgment of the first-instance court. It held that the right to obtain the calculation of the undue payments made by the applicant company, followed by their reimbursement was time-barred as the three-year time-limit started to run from the date on which each incorrect monthly invoice had been issued, rather than from the date on which the applicant company had learnt of the erroneous invoicing. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 7.     The applicant company complained that the Constanta County Court had interpreted the provisions of domestic law concerning the statute of limitations in an arbitrary manner and accordingly it had denied its right of access to a court, in violation of Article 6 § 1 of the Convention. 8.     The general principles concerning access to a court have been summarised in Zubac v. Croatia ([GC] no. 40160/12, §§ 76-79, 5   April 2018). 9.     The Court firstly reiterates that the requirement to lodge a judicial claim within a statutory time-limit is not, in itself, incompatible with Article 6 § 1 of the Convention. The Court has held on numerous occasions that such a requirement pursued a legitimate aim of proper administration of justice and of compliance, in particular, with the principle of legal certainty (see, for example,   Pérez de Rada Cavanilles v. Spain , 28 October 1998, § 45, Reports of Judgments and Decisions 1998-VIII, and   Miragall Escolano and Others v.   Spain , no. 38366/97, §   33, ECHR   2000-I). 10.     Turning to the present case, the Court notes that what is at its heart is the way in which the Constanta County Court interpreted and applied the time-limit rules in relation to the applicant company’s right to obtain the calculation and the reimbursement of the sums wrongly calculated by the electric energy supplier between 2004 and 2009. 11.     The device measuring the electric energy consummation had been installed by the electric energy supplier at the applicant company’s premises in September 2004. However, the applicant company learned of its wrong installation and of the fact that it had been subjected to double invoicing only on 20   July 2012 (see paragraph 2 above). While that date was undisputed between the parties to the domestic civil proceedings, what was disputed between the parties was the date from which the three-year time-limit provided by law started to run. The electric energy supplier acknowledged its fault and reimbursed the applicant company the sums wrongly invoiced between 1 July 2009 and 3 September 2013 (see paragraph 2 above); however, it refused to calculate and reimburse the sums for the period between the installation of the measuring device and 1 July 2009, claiming that they were time-barred. 12.     The Court also notes that the two domestic courts which had examined the applicant company’s case at the two levels of jurisdiction differed in their interpretation of the relevant domestic provisions. Thus, while the first instance court instance attached importance to the date on which the applicant company had become aware of the wrong installation of the measuring device, and considered therefore that the three-year time-limit started to run from that moment (see paragraph 4 above), the Constanta County Court considered that the applicant company should have brought its case within three years from the date on which each incorrect monthly invoice had been issued (see paragraph 6 above). 13.     Under Article 8 of the Legislative Decree no. 167/1958 on the statute of limitations, in force until 1 October 2011, but applicable to the present case in accordance with the transitory provisions of the new Civil Code (as the limitation period started to run while the decree was still in force), the limitation period for lodging a claim for compensation for the damage suffered as a result of an unlawful act starts to run from the moment the holder of the right becomes aware of the damage and knows who caused it. Under Article 1 of the same decree, the limitation period to lodge an action having a pecuniary scope is three years. 14.     In the light of the foregoing, the Court considers that the interpretation and application of the relevant time ‑ limit rule by the Constanta County Court, whereby the applicant company was required to institute proceedings at a moment when it could not realistically have sufficient knowledge of the damage incurred or of the factual basis for making a claim, was arbitrary and precluded a full examination of the merits of the case. Moreover, such an interpretation was not in line with the existent doctrine and case-law. Thus, by imposing a disproportionate burden on the applicant company, the Constanta County Court impaired the very essence of the applicant company’s right of access to a court. 15 .     In the circumstances of the present case, the Court considers that the applicant company’s right of access to a court has been breached and that there has therefore been a violation of Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION 16.     Relying on Article 1 of Protocol No. 1 to the Convention, the applicant company also alleged that the decision of the Constanta County Court had deprived it of the right to obtain the reimbursement of the sums wrongly invoiced for the period between 2004 and 2009. 17.     The Court considers that this complaint is linked to the one examined above. Having regard to its finding above (see paragraph 15 above), and taking into account that the applicant company could ask for the re-opening of the proceedings before the domestic courts (see paragraph 20 below), the Court considers that there is no need to examine further whether there has also been a breach of Article 1 of Protocol No. 1 to the Convention (see S.C.   IMH Suceava S.R.L. v. Romania , no. 24935/04, § 45, 29 October 2013). APPLICATION OF ARTICLE 41 OF THE CONVENTION 18.     The applicant company claimed 697,230.38 Romanian lei (RON) (the equivalent of approximately 140,925 euros (EUR) together with the statutory interest in respect of pecuniary damage, and EUR 2,000 in respect of non ‑ pecuniary damage. It also claimed RON 4,000 (approximately 810   EUR), which represents the lawyer’s fees in respect of costs and expenses incurred before the domestic courts. The applicant company submitted copies of documents proving the payment of the lawyer’s fees. 19.     The Government regarded the applicant company’s claims in respect of pecuniary damage as unjustified and its claims in respect of non-pecuniary damage as excessive. They also contested the applicant company’s claim for costs and expenses on the ground that it was unsupported by the relevant documents. 20 .     The Court observes that, where it finds that an applicant’s rights have been violated, Article 509 § 10 of the Romanian Code of Civil Procedure allows for a domestic review of the proceedings in order to remedy the violation of the Convention. This appears to be the case under the current circumstances, since the Court found that there has been a violation of Article   6 § 1 of the Convention on account of an infringement of the applicant company’s right of access to a court. In these circumstances, the Court considers that the most appropriate remedy for the applicant company would be to reopen, at its request, the proceedings in issue (see Sfrijan v. Romania , no. 20366/04, §§ 48 and 49, 22 November 2007, and S.C.   IMH   Suceava   S.R.L. , cited above, § 56). It therefore rejects the applicant company’s claims in respect of pecuniary damage. 21.     Having regard to the nature of the violation found under Article 6 § 1 of the Convention, the Court considers it appropriate to award the applicant company the sum of EUR 2,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on that amount (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 182, 29 November 2016 and Bio Farmland Betriebs S.R.L. v. Romania , no. 43639/17, § 61, 13 July 2021). 22.     Having regard to the documents in its possession, the Court considers it reasonable to award the amount requested of 810 EUR for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant company. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that there is no need to examine whether there has been or not a violation of Article   1 of Protocol No.1 to the Convention; Holds (a)   that the respondent State is to pay the applicant company, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: i. EUR 2,000 (two thousand euros), plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage; ii. EUR 810 (eight hundred ten euros), plus any tax that may be chargeable to the applicant company on that amount,   in respect of costs and expenses; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant company’s claim for just satisfaction. Done in English, and notified in writing on 16 April 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Crina Kaufman   Branko Lubarda   Acting Deputy Registrar   President