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THIRD
SECTION
CASE OF MEGADAT.COM SRL v. MOLDOVA
(Application
no. 21151/04)
JUDGMENT
(just satisfaction -
striking out)
STRASBOURG
17 May 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Megadat.com SRL v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Ineta Ziemele,
Luis López
Guerra,
Mihai Poalelungi, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21151/04) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Megadat.com SRL (“the applicant
company”), a company incorporated in the Republic of Moldova,
on 8 June 2004.
- In
a judgment delivered on 8 April 2008 (“the principal
judgment”), the Court held that the applicant company’s
right guaranteed by Article 1 of Protocol No. 1 to the Convention was
breached as a result of the invalidation of its licences (Megadat.com
SRL v. Moldova, no. 21151/04, § 79, 8 April 2008).
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach.
- The
applicant and the Government each filed observations.
THE LAW
- The applicant company claimed 12,512,075 euros (EUR) in
respect of pecuniary damage. The claim
was based on business plan drawn up in 2003 for Megadat.com SRL and
Megadat.com International SRL (not an applicant in this case)
concerning the implementation of new technologies such as digital
television and high speed internet and a 7-14% annual growth of the
market. In support of its claims, the applicant company submitted a
report prepared by “Estimator-VM”, a rating agency from
Moldova. The period covered in the report was April 2004 to July
2008. The applicant company also claimed non-pecuniary damage in the
amount of EUR 100,000 and argued that the company and its managers
had been under severe pressure and had been subjected to endless
searches and checks by all inspection and law-enforcement bodies of
the State. The company’s manager, Mr E. Musuc, had been
prosecuted for peacefully protesting against the unlawful closure of
the company and had been the victim of an unlawful arrest (see Musuc
v. Moldova, no. 42440/06, 6 November 2007). The applicant
company also claimed EUR 36,000 for costs and expenses, EUR 12,000 of
which was for its representation before the Court and the rest of
which represented the amount paid to the rating agency
“Estimator-VM”.
- The
Government contested the amounts claimed by the applicant company and
argued, in the first place, that Megadat.com International was not an
applicant in the case and that any information concerning its
business perspectives was irrelevant in the case. Moreover, the
Government submitted that the implementation of any new technologies
of the kind mentioned in the business plan presented by the applicant
would have required new licences. It is not known how long it would
have taken to obtain such licences and whether the applicant company
would have obtained them at all. According to the Government, the
business plan had been based on the assumption that there would be no
competition in the market. Moreover, the Government submitted that
after the withdrawal of its licences in October 2003 the applicant
company could have re-applied and obtained new licences after six
months. Accordingly, any lost profit should only be calculated for a
period of six months, plus the fifteen days necessary to complete the
formalities. The fact that the applicant company had not mitigated
its losses by re-applying after six months for new licences could not
be held against the Government. In any event, the calculation could
not go beyond April 2007, the date on which the applicant company’s
licences were to expire.
- On
19 August 2010, after failing in reaching a friendly settlement
agreement with the applicant company, the Government informed the
Court that they proposed issuing a unilateral declaration with a view
to resolving the issue of just satisfaction. The Government undertook
to pay the applicant company EUR 120,000 to cover any damage as well
as EUR 10,000 for costs and expenses. This sum would be payable
within three months from the date of notification of the judgment
taken by the Court pursuant to Article 37 § 1 of the European
Convention on Human Rights. In the event of failure to pay this sum
within the said three-month period, the Government undertook to pay
simple interest on it, from the expiry of that period until
settlement, at a rate equal to the marginal lending rate of the
European Central Bank during the default period, plus three
percentage points. They further requested the Court to strike out the
application in accordance with Article 37 of the Convention.
- By
letter of 7 October 2010 the applicant company’s representative
expressed the view that the sum mentioned in the Government’s
declaration was unacceptably low and
requested the Court to reject the Government’s proposal on that
basis. The applicant company insisted on the claims made in its
observations (see paragraph 5 above).
- The
Court notes that Article 37 of the Convention provides that it may at
any stage of the proceedings decide to strike an application out of
its list of cases where the circumstances lead to one of the
conclusions specified under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the Court to strike a case
out of its list in particular if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
Article
37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination
of the application if respect for human rights as defined in the
Convention and the Protocols thereto so requires.”
- The
Court also notes that under certain circumstances, it may strike out
an application, or part thereof, under Article 37 § 1 (c) of the
Convention on the basis of a unilateral declaration by a respondent
Government even if the applicant wishes the examination of the case
to be continued. Moreover, there is nothing to prevent a respondent
State from filing a unilateral declaration relating, as in the
instant case, to the reserved Article 41 procedure. To this end, the
Court will examine the declaration carefully in the light of the
general principles applicable in respect of Article 41 of the
Convention (see, for example, Brumărescu v. Romania (just
satisfaction) [GC], no. 28342/95, § 20, ECHR 2001–I).
- In
examining the present case the Court obtained from the parties
information concerning the net post-tax profit of the applicant
company during the last three years of its activity. According to the
information provided by the parties it appears that in 2001 the
applicant company suffered a loss of EUR 317,922. In 2002 the net
profit was EUR 145,680 and in 2003 it was EUR 202,706.
- On
the basis of the above figures and of the submissions made by the
applicant company, the Court notes that the bulk of its claimed
pecuniary losses do not derive from an activity that has come into
existence, namely, from its activity prior to the withdrawal of the
licences, but from plans that never went further than anticipation.
In particular, it does not appear that the applicant company
undertook any steps in order to implement the 2003 business plan. The
Court agrees with the Government’s submission that the
applicant company would have needed new licences for the
implementation of its business plan and that there is a great degree
of conjecture in any attempt to predict how long it would have taken
to obtain such licences and whether it would have been able to obtain
them at all. In such circumstances, and leaving aside the fact that
the applicant company’s claims refer also to a business entity
which is not an applicant in the present case, the Court is not
convinced that the applicant company’s anticipated income has
attained sufficient attributes to be considered a legally protected
interest of sufficient certainty so as to be compensable.
- The
Court also examined the applicant company’s claims in respect
of non-pecuniary damage and costs and expenses and considers them to
be excessive in the light of its case-law (see Oferta Plus SRL v.
Moldova (just satisfaction), no. 14385/04, 12 February 2008, and
Dacia SRL v. Moldova (just satisfaction), no. 3052/04, 24
February 2009).
- Having
regard to the above considerations and to the amount of compensation
proposed by the Government, which appears to be equitable in the
present case, the Court considers that it is no longer justified to
continue the examination of the case (Article 37 § 1 (c)) (see
Racu v. Moldova (just satisfaction – striking out), no.
13136/07, 20 April 2010).
- In
the light of all the above considerations, the Court is satisfied
that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of
the case (Article 37 § 1 in fine).
Accordingly
it should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes note of the terms of the respondent
Government’s declaration and of the modalities for ensuring
compliance with the undertakings referred to therein;
- Decides to strike the case out of its list of
cases.
Done in English, and notified in writing on 17 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
