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FOURTH
SECTION
CASE OF HUOLTOASEMA MATTI EURÉN OY AND OTHERS v. FINLAND
(Application
no. 26654/08)
JUDGMENT
STRASBOURG
19
January 2010
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 Huoltoasema Matti Eurén Oy and Others v.
Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26654/08) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Finnish limited liability company, Huoltoasema Matti Eurén
Oy, and by two Finnish nationals, Mr Matti Vesa Eurén and
Mr Ari-Pekka Eurén (“the applicants”), on 5
June 2008.
- The
applicants were represented by Mr Kari Marttinen,
a lawyer practising in Helsinki. The Finnish Government
(“the Government”) were represented by their Agent, Mr
Arto Kosonen of the Ministry for Foreign Affairs.
- On
9 February 2009 the
President of the Fourth Section decided to communicate the complaint
concerning the length of the proceedings to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant company has its seat in Nastola and the second and third
applicants live in Villähde and Orimattila respectively.
- The
applicant company has operated a service station in Nastola since
1965. The service station is located in the industrial zone of the
municipality which is situated in a groundwater basin. The second and
third applicants are the only owners of the applicant company.
- In
1998 new regulations concerning handling and storage of dangerous
chemicals (including fuels for motor vehicles) entered into force and
service stations needed to comply with these new requirements by
31 December 2002. In order to comply with the new
regulations, the applicant company had to undertake some
restructuring works.
- On
1 March 2000 the Environmental Protection Act (ympäristönsuojelulaki,
miljöskyddslagen, Act No. 86/2000) entered into force
requiring, inter alia, an environmental permit to be held for
activities which might cause environmental pollution. As the
activities of the applicant company fell within the scope of
application of the Act, it applied for an environmental permit for
the restructuring works on 8 December 2000. More
specifically, the application concerned an environmental permit for
enlarging the storage capacity of liquid fuel.
- On
20 March 2001 the Nastola Environmental Board (ympäristölautakunta,
miljönämnden) granted the applicant company the permit
and set several conditions for the restructuring works.
- By
letter of 17 April 2001, the Häme Regional Environment Centre
(ympäristökeskus, miljöcentralen) appealed
against the Board's decision to the Vaasa Administrative Court
(hallinto-oikeus, förvaltningsdomstolen) claiming that,
despite the proposed protective measures, there was still a risk that
the quality of groundwater could be jeopardised and that the
environmental permit should therefore be withdrawn.
- On
26 October 2001 the Administrative Court rejected the Centre's appeal
but amended one of the conditions for the permit.
- By
a letter of 22 November 2001, the Centre appealed to the Supreme
Administrative Court (korkein hallinto-oikeus, högsta
förvaltningsdomstolen), reiterating the grounds of appeal
relied on before the Administrative Court.
- On
11 February 2003 the Supreme Administrative Court quashed the
decisions of the Board and the Administrative Court and referred the
case back to the Board, ordering it to clarify whether it was
possible to eliminate the risk of pollution of groundwater by using
more efficient protective measures. The court found that the activity
in question was to be compared to a new activity as regards the
environmental permit as this was the first time that the effects of
the activities on groundwater were being assessed. The environmental
permit could not be granted as the applicant company had not shown
that the proposed protective measures would eliminate the risk of
pollution of the groundwater.
- On
29 April 2005 the applicant company lodged an amended application for
an environmental permit with the Nastola Environmental Board. More
specifically, this application concerned an environmental permit for
reducing the storage capacity of liquid fuel. On 13 December
2005 the Board decided to grant the permit with several conditions.
- By
letter dated 18 January 2006 the Häme Regional Environment
Centre again appealed against the Board's decision to the Vaasa
Administrative Court, claiming that the environmental permit should
be withdrawn.
- On
29 December 2006 the Administrative Court rejected the appeal,
considering that sufficient protective measures were included in the
permit.
- By
letter dated 29 January 2007 the Centre appealed to the Supreme
Administrative Court, reiterating the grounds of appeal relied on
before the Administrative Court.
- On
19 December 2007 the Supreme Administrative Court quashed the
decisions of the Board and the Administrative Court. It found that,
even though the protective measures proposed by the company
diminished the risk of pollution of groundwater, they could not
guarantee the protection of groundwater under all circumstances.
- As
the applicant company was refused the permit, it was ordered to close
down the service station by 31 December 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- As
to the period to be taken into consideration, the parties disagree on
whether these proceedings should be regarded as one set or two
separate sets of proceedings.
- The
Government maintained that there had been two sets of proceedings of
which the first set had started vis-à-vis the
applicants on 6 June 2001 when they submitted their statements
on the appeal of the Regional Environment Centre and ended with the
Supreme Administrative Court's decision on 11 February 2003, lasting
thus about one year and seven months at two levels of jurisdiction.
On 29 April 2005 the applicants had submitted a new application for
an environmental permit which had been granted on 13 December
2005. The second set of proceedings started vis-à-vis
the applicants on 16 February 2006 when they submitted their
statements on the second appeal of the Regional Environment Centre
and ended with the Supreme Administrative Court's second decision on
19 December 2007, lasting thus close to one year and eight
months at two levels of jurisdiction. In the Government's view the
two sets of proceedings had not concerned the same environmental
application throughout the proceedings.
- The
applicants pointed out that in its first decision of 11 February 2003
the Supreme Administrative Court had referred the matter back to the
Environmental Board, ordering it to clarify whether it would have
been possible to eliminate pollution of groundwater by using more
efficient protective measures. The Board had left the matter unsolved
until the applicants renewed their application. The application of
29 April 2005 had not been a new application in the sense
that it would have started a completely new process but had only
contained technical amendments to the first application of 8 December
2000. These amendments had been exactly those requested by the
Supreme Administrative Court in its decision of 11 February
2003. The subject-matter of the proceedings had not changed at any
point and the proceedings as a whole should thus be regarded as
comprising only one set of proceedings.
- The Court firstly reiterates that, in respect of
separate sets of proceedings, for the purposes of calculating the
period to be taken into consideration, the Court has only considered
such proceedings in toto where the proceedings are
indissociable and concern essentially the same dispute
('contestation'); for example, where proceedings on the merits
of a claim are followed by enforcement proceedings (see Di Pede v.
Italy, 26 September 1996, § 22-24, Reports of
Judgments and Decisions 1996 IV; Bhandari v. the United
Kingdom, no. 42341/04, § 17, 2 October 2007; and Rangdell
v. Finland, no. 23172/08, § 31, 19 January 2009).
- The
Court notes that the period to be taken into consideration began
vis-à-vis the applicants at the latest on 6 June
2001 when they submitted their observations on the Regional
Environment Centre's appeal which was pending in the Administrative
Court. The proceedings continued uninterrupted until 11 February 2003
when the Supreme Administrative Court quashed the earlier decisions
and referred the case back to the Environmental Board, ordering
further clarifications to be made. The Court considers that the
decision of 11 February 2003 by the Supreme Administrative Court
cannot be regarded as a final decision as the matter was referred
back to the Board where it remained pending.
- Both
parties agree that on 29 April 2005 the applicants submitted an
application for an environmental permit. It must thus be determined
whether this application concerned the same subject-matter as the
previous one or whether it was a new application introducing a
different subject-matter. The Court notes that both applications
concerned an environmental permit which was needed for the
restructuring works of the service station. In the first application
the applicants applied for an environmental permit for enlarging the
storage capacity of liquid fuel, in the second one they wanted to
reduce the said storage capacity. The Court finds this difference,
however, irrelevant as the environmental permit was needed in any
event to perform restructuring works on the site, which was a
precondition for that the service station could continue functioning.
The applications must therefore be regarded as having concerned the
same subject-matter, and accordingly the proceedings comprised only
one set of proceedings for the purposes of Article 6 § 1
of the Convention (see also Ekholm v. Finland, no. 68050/01, §
62, 24 July 2007: Cravcenco v. Moldova, no. 13012/02, § 49,
15 January 2008; Boboc v. Moldova, no. 27581/04, § 27,
4 November 2008; and Trzaskalska v. Poland, no. 34469/05,
§ 36, 1 December 2009).
- The
proceedings, which had begun vis-à-vis the applicants
on 6 June 2001, lasted thus uninterrupted until 19 December
2007 when the Supreme Administrative Court gave a final decision in
the case. The proceedings lasted thus in toto over six years
and six months at two levels of jurisdiction, both levels twice.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Government maintained that the two separate sets of proceedings had
been swift. The Supreme Administrative Court had had a clear and
well-justified reason to refer the case back to the Environmental
Board. The reconsideration of the matter once the additional
clarifications had been acquired had been in the best interest of the
applicants.
- The
applicants pointed out that they had not at any stage appealed
against any of the decisions taken in their case nor had they
complicated the case or contributed to its length in any way. The
proceedings had been very important to the applicants as without the
environmental permit they had been forced to close down their
business. Due to the length of the proceedings the applicants had
suffered great financial loss.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. THE REMAINDER OF THE APPLICATION
A. Complaint concerning the right to property
- The
applicants also complained under Article 1 of Protocol No. 1 to the
Convention that the rejection by the Supreme Administrative Court of
their application for an environmental permit had constituted an
interference with their right to peaceful enjoyment of their
possessions, and that this interference had been unlawful and
disproportionate.
- The
Court notes that it is clear that the applicants had a possession and
that there was an interference with their right to use their
property, as the rejection of their application for the environmental
permit had adverse effects for their business (see the case Fredin
v. Sweden (no. 1), 18 February 1991, Series A no. 192, in which
the revocation of the applicants' permit to exploit gravel was
considered as control of use of property). In the present case the
interference was based on the Environmental Protection Act which
required an environmental permit for activities possibly causing
environmental pollution. The law was sufficiently clear, foreseeable
and accessible to the public.
- The
Court points out that it is in the first place for the national
authorities to interpret and apply the national law (see Chappell
v. the United Kingdom, 30 March 1989, § 54, Series A no.
152 A). Nothing in the Supreme Administrative Court's decision
suggests that it was contrary to Finnish law, in fact the decision
was in accordance with that court's established case-law. The
rejection of the request for an environmental permit was thus lawful
and pursued the general interest, namely protection of the
environment.
- As
to the proportionality, the Court notes that the applicants were not
able to continue the business legally without the environmental
permit and that the service station had to be closed down. They still
own the premises but it is difficult to see how any other activity
could be started there as the real estate has been designated in the
local town plan to be used as a service station only. The applicants
have apparently not been awarded any compensation so far but it is
possible for them to file such a claim against the State.
- On
the other hand, the applicants did not have any legitimate
expectation to be granted the environmental permit since this was
their first application. They must have been aware of the fact that
environmental protection had become increasingly important. Moreover,
the States enjoy a wide margin of appreciation in this context. As
there was an absolute prohibition on polluting water, any action
possibly presenting such a risk would result in the authorities
refusing to grant a permit. As polluted groundwater is very
difficult, sometimes even impossible, to purify, it is understandable
that there is a strong general interest involved.
- The
Court concludes that a fair balance was struck between the demands of
the general interest and the requirements of the protection of the
individual's fundamental rights. Accordingly, this part of the
application is manifestly ill-founded and must be rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
B. Complaints concerning Article 14
- Lastly,
the applicants complained that the decision by the Supreme
Administrative Court had been discriminatory, firstly, as service
stations had been treated differently from other types of activity,
and secondly, as service stations situated in different regions in
Finland had been treated differently.
- Assuming
that Article 14 would apply to the present case, the Court points out
that the right under Article 14 not to be discriminated against in
the enjoyment of the rights guaranteed under the Convention is
violated when States treat differently persons in analogous
situations without providing an objective and reasonable
justification (see Thlimmenos v. Greece [GC], no. 34369/97,
§ 44, ECHR 2000 IV). It cannot be said that service
stations and other types of activity would be in an analogous
situation as they may involve very different risks for the
environment. As to service stations situated in other regions, it
might be that the Regional Environment Centres have different views
on this issue but it is the task of the higher domestic courts to
harmonise the case-law in this respect. The Court notes that the
Supreme Administrative Court's case-law has been consistent on this
issue.
- The
Court considers therefore that also this part of the application is
manifestly ill-founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 1,858,000 euros (EUR) in respect of pecuniary
damage.
- The
Government contested the claim for pecuniary damage and pointed out
that the present proceedings before the Court had only concerned the
length of the administrative proceedings. There was no causal link
between the damage suffered and the alleged violation of the
“reasonable time” requirement under Article 6 of the
Convention. The applicants had not made any claim for compensation
for non-pecuniary damage. No compensation should therefore be awarded
under this heading.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
B. Costs and expenses
- The
applicants also claimed EUR 81,541.93 for the costs and expenses
incurred before the Court.
- The
Government considered that the hourly rate applied had been very high
and that the general costs such as postage, telephone and copying
costs should not be compensated separately as they had already been
included in counsel's fee. The applicants had also submitted a vast
amount of material not relevant to the present case which had only
concerned the length of the administrative proceedings. In any event,
the applicants' claim was too high as to quantum and the total
amount of compensation awarded to them should not exceed EUR 2,500
(inclusive of value-added tax).
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being
had to the documents in its possession, the above criteria and to the
fact that the Court has found a breach only in respect of the length
complaint, the Court considers it reasonable to award to the
applicants the sum of EUR 2,500 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros), plus any tax that may be chargeable to
them, 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 amount 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 19 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
