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THIRD
SECTION
CASE OF OKLEŠEN AND POKOPALIŠKO POGREBNE STORITVE
LEOPOLD OKLEŠEN S.P. v. SLOVENIA
(Application
no. 35264/04)
JUDGMENT
STRASBOURG
30
November 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 Oklešen and
Pokopališko Pogrebne Storitve Leopold Oklešen S.P. v.
Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Boštjan
M. Zupančič,
Egbert Myjer,
Ineta
Ziemele,
Luis López Guerra,
Ann Power,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35264/04) against the Republic
of Slovenia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Leopold Oklešen, a Slovenian
national, and a private enterprise called Leopold Oklešen
Cemetery and Funeral Services s.p. (Pokopališko pogrebne
storitve Leopold Oklešen s.p.) on 28 September 2004.
- The
applicants were represented by Mr D. Rituper, a lawyer practising in
Murska Sobota. The Slovenian Government (“the
Government”) were represented by their Agent, Mr L. Bembič,
State Attorney-General.
- The
applicants alleged, in particular, that there had been a breach of
Article 1 of Protocol No. 1 to the Convention and Article 14 of the
Convention, because of the municipal decree which had prevented the
second applicant from carrying out funeral services, which it had
been providing successfully for seven years.
- On
3 October 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, Mr Leopold Oklešen, is a Slovenian national
who was born in 1947 and lives in Novo Mesto. The second applicant is
a private enterprise called Leopold Oklešen Cemetery and
Funeral Services s.p. (Pokopališko pogrebne storitve
Leopold Oklešen s.p.) located in Novo Mesto.
- The
second applicant, which was owned, legally represented and run by the
first applicant, had held a valid licence issued by Chamber of Crafts
(obrtno dovoljenje) for the provision of funerals, landscaping
and maintenance of exterior surfaces (zunanja ureditev) since
6 March 1995. The licence confirmed that the second applicant
was in compliance with section 9 of the Crafts Act (see paragraph 22
below). The second applicant used to provide all funeral services in
Novo Mesto municipality, including preparing and transporting
remains, obtaining the necessary documents, arranging cremations,
selling funeral items (coffins, funeral wreaths, flowers and so on)
and organising ceremonies. It appears that funerals represented an
important, if not the main, part of the activities of the second
applicant.
- In
September 2000 a Decree on the provision of public utility as regards
cemetery and funeral activities, management of cemeteries and funeral
ceremonies in Novo Mesto Municipality (“the 2000 Decree”,
see paragraphs 24-25 below) came into force. Subsequently, the Novo
Mesto Municipal Enterprise (Komunala Novo Mesto, “KNM”)
was entrusted with the provision of such services in the
municipality's area.
- According
to KNM's website (http://www.komunala-nm.si/, consulted on
3 September 2007), KNM provided services concerning, inter
alia, digging and organising graves, obtaining documents
concerning the deceased, preparation and storage of remains, funeral
home leasing, organisation and performance of funeral ceremonies and
services and transportation of remains.
- By
a letter of 1 March 2002, KNM warned the second applicant to comply
with the 2000 Decree. This implied, according to KNM, that “all
activities relating to those deceased (...) who are to be buried in
cemeteries managed by KNM should be carried out solely by KNM!”
- On
19 April 2002, further to the second applicant's request, Novo Mesto
Municipality explained that the second applicant was not eligible to
provide funeral services because of the restrictions set out in the
2000 Decree, the 1993 Public Utilities Act and the Cemetery and
Funeral Services and Cemetery Management Act (“the 1984
Cemetery and Funeral Act”). The Municipality further stated
that the Constitutional Court decision no. U-I-48/97 had confirmed
that funerals should be a mandatory public utility (see paragraphs
26-27 below).
- On
25 November 2002 the second applicant submitted a request to the
Constitutional Court for a review of the
constitutionality and legality (pobuda za oceno
ustavnosti in zakonitosti) of the 2000 Decree, in particular
sections 1 and 16. While section 1 provided, inter alia, that
funerals should be provided by a public utility, section 16
established that a provider of a public utility, namely a public-law
enterprise, should be contacted in the event of a death and should be
responsible for transport of the remains.
- In
its request, the second applicant argued that funeral provision
should be in the free market, and requested the Constitutional Court
to issue an injunction against the 2000 Decree. The second applicant
further stated that, following the adoption of the 2000 Decree, KNM
had obtained a monopoly in this field and did not allow it to
transport remains to cemeteries. It submitted that the 2000 Decree
had been introduced with the intention of closing down its successful
business.
- On
1 April 2004 the Constitutional Court rejected the second
applicant's request, referring to its earlier decision no. U-I-48/97
(see paragraphs 26-27 below) finding that section 2 of the 1984
Cemetery and Funeral Act was in conformity with the Constitution. The
above-mentioned provision read together with section 68 of the 1993
Public Utilities Act determined that the funeral services belonged to
the mandatory public utilities. These rules were binding on the Novo
Mesto Municipality, which was required to implement them.
- According
to the applicants, as a result of the above situation the second
applicant has been unable to provide the core funeral services since
the implementation of the 2000 Decree and has lost a large proportion
of the clientele due to the 2000 Decree's restrictions.
- The
second applicant continued to operate until 2006. For illustration of
the effects of the 2000 Decree's restrictions on the applicants'
earnings, it would appear from the first's applicant's tax forms
concerning the second applicant's activity, that his taxable income
was calculated as follows: in 1998, it was approximately 15,000 euros
(EUR), in 1999 it was EUR 26,000, in 2000 it was EUR 39,000 and
in 2001 it was 27,000. After the implementation of the 2000 Decree,
his taxable income was approximately EUR 17,000 in 2003, EUR 28,000
in 2005 and EUR 18,000 in 2006.
- On
7 August 2006 the second applicant was removed from the Slovenian
register of enterprises. The first applicant retired in
November 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
- The
relevant provisions of the Constitution of the Republic of Slovenia
(Ustava Republike Slovenije,
Official Gazette no. 33/91), provide as follows:
Article 33 - Right to Private Property and
Inheritance
“The right to private property and inheritance
shall be guaranteed.”
Article 74 - Free Enterprise
“Free economic initiative shall be guaranteed.
The conditions for establishing commercial organisations
shall be established by law. Commercial activities may not be pursued
in a manner contrary to the public interest.
Unfair
competition practices and practices which restrict competition in a
manner contrary to the law are prohibited.”
B. The Constitutional Court Act
- The
relevant provisions of the Constitutional Court Act (Zakon o
ustavnem sodišču, Official Gazette no. 15/94), which
concern the review of constitutionality and legality,
were at the relevant time as follows:
Section 24
“(1) Anyone who demonstrates a
legal interest may submit a request for a procedure to be initiated
for a review of the constitutionality or legality of regulations or
general acts issued for the exercise of public authority.
(2) A legal
interest is deemed to be demonstrated if a regulation or general act
issued for the exercise of public authority whose review has been
requested by the petitioner directly interferes with his rights,
legal interests, or legal position.”
Section 25
“(1) The Constitutional Court
rejects a request if the procedural conditions ... have not been
fulfilled.
...”
Section 26
“...
(2) The Constitutional Court dismisses a
request if it is manifestly unfounded or if it
cannot be expected that an important legal question will be resolved.
(3) The Constitutional Court decides by
an order to accept or dismiss a request by a
majority vote of judges present. The order to dismiss a request must
include a statement of reasons.
(4) If the Constitutional Court accepts
a request, it may immediately proceed to
decide on the merits of the case if the factual situation has been
clarified and if during consideration of the request the opposing
party has been given the opportunity to make statements.”
Section 30
“In deciding on the
constitutionality and legality of a regulation or general act issued
for the exercise of public authority, the Constitutional Court is not
bound by the production of a request. The Constitutional Court may
also review the constitutionality and legality of other provisions of
the same or another regulation or general act issued for the exercise
of public authority for which a review of constitutionality or
legality has not been proposed, if such provisions are mutually
related or if this is necessary to resolve the case.”
Section 45
“...
(2) The Constitutional Court quashes
regulations or general acts issued for the exercise of public
authority that are unconstitutional or unlawful when it determines
that it is necessary to remedy harmful consequences arising from such
unconstitutionality or unlawfulness. Quashing has retroactive effect.
...”
Section 46
“(1) Any person who suffers
harmful consequences due to a regulation or general act issued for
the exercise of public authority which has been quashed is entitled
to request that such consequences be remedied.
...”
C. The 1984 Cemetery and Funeral Act
- Section
2 of the 1984 Cemetery and Funeral Act, which was adopted in 1984 and
continued to be in force after the independence of Slovenia (Zakon
o pokopališki in pogrebni dejavnosti ter o urejanju
pokopališč, Official Gazette of the Socialist
Republic of Slovenia no. 34/84), provides that cemetery and funeral
services, as well as the running of cemeteries, correspond to
“municipal activities of special social importance”
(komunalna dejavnost posebnega druZbenega pomena). According
to section 6, transport of the deceased was to be provided by a
specially designed vehicle of a local public organisation (komunalne
organizacije) or the local community (krajevne skupnosti).
D. The 1993 Public Utilities Act
- The
1993 Public Utilities Act (Zakon o gospodarskih javnih sluZbah,
Official Gazette no. 32/93, entered into force on 2 July 1993)
provides in section 3 that mandatory public utilities should be
established by law. Local decrees should regulate the way the local
public utilities operate. Section 6 provides that public utilities
may be ensured through the form of a public-law enterprise (javno
podjetje), or through concessions (koncesija) granted to
private enterprises.
- Finally,
section 68 provides that until the introduction of legislation
establishing specific public utilities, “activities of special
social importance” should be deemed to be public utilities.
E. Crafts Act
- Section
9 of the Crafts Act (Obrtni zakon, Official Gazette
no. 50/1994) provides the following conditions under which a
licence may be issued by the Chamber of Crafts:
“(1) The conditions for obtaining a licence to
provide a crafts service are as follows:
– title of master craftsman,
– proof of fulfilment of the minimum requirements
prescribed for providing a certain service.
(2) The conditions for obtaining a craft licence to
provide a service which is similar to a crafts service are ...
(3) The minimum requirements prescribed for providing a
certain service from the preceding paragraphs are as follows:
– minimum technical and other conditions relating
to the space where the service is provided, land and other exterior
surface, facilities and equipment,
– minimum sanitary and health conditions relating
to the space where the service is provided, land and other exterior
surface, facilities, equipment and the people who work in the
workplace
– minimum conditions relating to the exterior
surface (land and other exterior surface).”
F. The Municipal Decrees
1. The Decrees on the provision of public utilities in
Novo Mesto Municipality
- On
27 October 1994 the Novo Mesto Municipal Council adopted a Decree on
the provision of public utilities (“the 1994 Decree”,
Official Gazette 71/94), which listed funeral services as optional
public utility. This Decree was amended on 11 May 1998 (“the
1998 Amendment”, Official Gazette 40/98). The latter listed
funeral and cemetery services among the mandatory public utilities
and stipulated that with respect to the cemeteries provided under
special decree these services should be provided by a public-law
enterprise. On 26 April 2001 the Municipal Council adopted a new
Decree on the provision of public utilities (“the 2001 Decree”,
Official Gazette 40/01), which quashed the previous decree and its
amendment. It also listed cemetery and funeral services as mandatory
public utilities and stated that a special municipal decree should
determine the exact structure by means of which each of the listed
public utilities should be provided. On 31 January 2002 the
2001 Decree was amended (“the 2002 Amendment”, Official
Gazette 11/02), to include a provision stating that “public
utilities .... funeral and cemetery services, which should be carried
out by a public-law enterprise according to specific decrees, shall
be provided by KNM”. The 2002 Amendment also stated that
“provided that a particular public service is not entirely
provided by KNM, a part of that service can be carried out by another
entity on the basis of a contract signed with KNM...”
2. The Decree on the provision of public utility as
regards cemetery and funeral activities, management of cemeteries and
funeral ceremonies in Novo Mesto Municipality (“the 2000
Decree”)
- According
to the 2000 Decree (Official Gazette no. 74/00, entered into force in
September 2000), cemetery and funeral services, management of
cemeteries and funeral ceremonies in Novo Mesto Municipality should
be provided by a mandatory public utility in the form of a public-law
enterprise (sections 1 and 2). The Decree lists 32 cemeteries
situated within the Novo Mesto municipal area; it applies to all of
them.
Section
6 of the Decree provides:
“Funerals are normally conducted outside
cemeteries and include in particular the following:
- obtaining the required documents;
- preparation of the body and transport of the remains;
- renting graves and managing the registry of
cemeteries;
- providing an emergency funeral service;
- providing other services established by the law or
this decree.”
-
Section 16 of the 2000 Decree provides that the relatives and the
relevant institutions should report the death of a person to the
provider of a mandatory public utility. The remains can be taken from
a hospital or a retirement home only by the provider of a mandatory
public utility. The latter should take the remains from the person or
institution concerned and take them to a place specifically
designated for this purpose...”
G. Constitutional Court's case law
- On
6 July 2000 the Constitutional Court issued a decision in a case
brought by a private funeral provider, P., from Ravne na Koroškem
municipality. The court found that section 2 of the 1984 Cemetery and
Funeral Act was not in conflict with Article 74 of the Constitution,
and neither was the impugned municipality decree, which established
funeral services as a local public utility. The Constitutional Court
noted that, since no new act had been adopted in this area, funeral
and cemetery services were deemed to be public utility on the basis
of section 68 of the 1993 Public Utilities Act read together with
section 2 of the 1984 Cemetery and Funeral Act.
- The
Constitutional Court found that the restrictions resulting from the
system whereby cemetery and funeral services must be provided as a
public utility were justified by the public interest. In addition,
the court accepted the municipality's argument that for ethical,
health and sanitary and hygiene reasons funerals could not be
provided in the free market. Finally, the Constitutional Court took
into consideration the fact that the impugned regulation was of a
transitional nature pending the adoption of a specific law, and found
that the duration of this situation had not yet contravened the
principle of the rule of law.
H. Decisions of the Office for Protection of
Competition of 3 October 2002 and 13 July 2007
- On
3 October 2002 the Office for Protection of Competition (Urad
za varstvo konkurence – “the Competition
Office”) issued a decision declaring lack of jurisdiction to
deal with the complaint lodged by the private funeral services
provider P. The latter argued that the municipal enterprise
authorised to provide funeral services on the basis of the municipal
decree refused to accept at the cemetery remains transported by it.
- The
Competition Office declared lack of jurisdiction to deal with the
complaint, since the impugned decree concerned the State's control of
the market. Despite this, the Competition Office expressed criticism
concerning the regulation of funerals in Slovenia. It was, in
particular, critical of the fact that, due to a legal vacuum, the
1984 Cemetery and Funeral Act, adopted under the previous regime, was
still in force. This Act did not distinguish between funerals and
cemetery services. Consequently, funerals and cemetery services were
automatically considered public utilities on the basis of section 68
of the 1993 Public Utilities Act. The Competition Office further
noted that funerals, which could not have been provided freely and
privately under the previous regime, had in fact been carried out by
registered private enterprises since the independence of Slovenia and
the transition of the economic system. These private enterprises had
provided all services except those concerning cemeteries.
- The
Competition Office then listed the funeral products and services
which should continue to be provided by private funeral enterprises.
They included, inter alia, the sale of funeral articles
(coffins, upholstery, cremation urns and memorials), funeral flower
arrangements, transport of remains (except for emergency services
which should be provided through concession), preparing obituary
notices, obtaining the necessary permits and documents, organising
ceremonies and graveside services, and the sale and installation of
tombstones and memorials.
- The
Competition Office was of the opinion that the listed services should
undoubtedly be subject to a free market regime and that the
restrictions in question could not be justified on ethical, health or
sanitary or hygiene grounds.
- P.
lodged a new complaint in 2003, claiming that the municipal
enterprise had acted in a discriminatory manner when it refused to
bury the remains transported by him while allowing the remains to be
transported by some other private entrepreneurs. Further to the
remittal of the case by the Supreme Court, the Competition Office
issued a final decision on 13 July 2007. It found that
while it was true that P. had suffered damage due to the municipal
enterprise's acts, the municipal enterprise had a lawful monopoly on
the territory of the respective municipality, which included the
transport of remains. It has therefore protected its position by
preventing P. from carrying out business which he could not have done
lawfully. The other entrepreneurs who were allowed to bring remains
to the cemetery were from other municipalities. As obiter dictum,
the Competition Office again questioned the appropriateness and
constitutionality of the system, which should operate only as a
transitional measure.
III. COMPARATIVE LAW AND PRACTICE
- According
to the information available to the Court
from a
number of member States, in most
of them funeral services are subject to the free market and provided
by private firms. In some countries public bodies may choose to
provide funeral services, however if they do they must compete
with private enterprises. For example, in Austria, Belgium, Bulgaria
and France, funeral services may also be provided by public bodies.
If so, they are subject to market regulations and must compete on the
free market with private enterprises. On the other hand, in Croatia,
as in Slovenia, funeral services are listed as public utilities and
are mostly provided by public bodies.
- As
far as can be seen, funeral services providers are regulated by law
in some countries, as is the case in Belgium, France, Italy or
Slovakia, and unregulated or self-regulated in others, like Germany,
Latvia, Ireland and the United Kingdom.
-
In Austria, Croatia, France, Hungary, Italy, Lithuania and Slovakia,
for example, private funeral service providers may only operate
with a licence or concession from a public body. Permits or licences
are granted by local authorities and subject to a number of
requirements, such as professional qualifications and competence,
fulfilment of technical, security and health protection standards,
and analysis of the company's financial situation.
- Unlike
funerals, it would appear that cemetery and crematorium services are
generally provided by public bodies, mostly the municipalities, since
they are considered essential public services which are intrinsically
linked to public health issues. When crematoria were nationalised in
Belgium, a transitional period was provided and a certain form of
compensation was paid to the private enterprises which had formerly
run the country's crematoria.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- Under
Article 1 of Protocol No. 1 to the Convention, the applicants
complained that due to the 2000 Decree and the acts of KNM, the
second applicant was prevented from providing funeral services, which
it had been successfully doing for years. As a result, the first
applicant's family's economic and social situation has been put at
risk and the second applicant is under threat of liquidation.
Article
1 of Protocol No. 1 which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
1. Victim status
- The
Government objected to the first applicant's claim to be a victim of
the alleged violation, as he had not participated as a party to the
domestic proceedings, in particular as regards the proceedings before
the Constitutional Court. In addition, the second applicant had
ceased to exist on 7 August 2006 and therefore there were no
grounds for the examination of the present application.
- The
applicants disagreed. The first applicant was a private entrepreneur
(samostojni podjetnik) and had been liable for the obligations
deriving from his business with all his assets, personal and
professional. The operations of the second applicant were carried out
using the first applicant's identification numbers, including his tax
number.
- The
Court notes that the applicants complained that their right under
Article 1 of Protocol No. 1 had been violated by the local
authorities, which prevented the second applicant from continuing to
provide funeral services. It further observes that the first
applicant was a private entrepreneur, and therefore the sole owner of
the business carried out by the second applicant. He was also a legal
representative of the second applicant and was liable with his
property for its obligations and debts. The Court notes that in this
particular situation, where the owner and the professional entity are
so closely connected, the first applicant can be considered to be a
person directly effected by the acts at issue (see Eckle v.
Germany, 15 July 1982, § 66, Series A no. 51) and can
therefore claim to be a victim of the violation alleged in the
present case. The Court further notes that the second applicant
ceased to exist in 2006 and that therefore it is only the first
applicant who can continue to pursue the present application.
2. Exhaustion of domestic remedies
- The
Government argued that the applicants had had at their disposal an
effective remedy, namely a request for a review of
constitutionality and legality. However, the second applicant
lodged it only against the 2000 Decree and not against the previous
1994 Decree and 1998 Amendment or the subsequent 2001 Decree and 2002
Amendment. The 2000 Decree set out only the means of organisation of
funeral services. However, funeral services were classified as a
public utility in the 1994 Decree. In addition, the second applicant
only challenged section 1 and 16 of the 2000 Decree, while it should
have challenged section 2, which established that a provider of
funeral services should be a public-law enterprise.
- The
applicants contested this argument, submitting that they had used all
the avenues available in the domestic legal system.
- The
Court observes that the applicants specifically complained about the
effects of the 2000 Decree, which the second applicant had challenged
before the Constitutional Court. The latter, which had the power to
consider the legality and constitutionality of all of the provisions
of the impugned decree (see paragraph 18 above), found that the
system complained of was in conformity with the applicable laws and
the constitution (see paragraph 13 above). The Court
also notes that it was the 2000 Decree which determined that funerals
should be provided by a public-law enterprise, which is at the
centre of the applicants' complaint. The subsequent 2001 Decree and
2002 Amendment, which concerned all public utilities in the
municipality, did not add anything significant which would seem to
have a prospect of changing the position of the Constitutional Court
on this subject. It further notes that both the 1994
Decree and the 1998 Amendment to which the Government referred, had
been annulled by the 2001 Decree.
44. Having
regard to the above, the Court must reject the Government's objection
concerning exhaustion of domestic remedies.
3. Conclusion
- The
Court notes that the part of the application concerning the
complaints under Article 1 of Protocol No. 1 pursued by the first
applicant 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. On the other hand, the part of the application concerning
the second applicant shall be declared inadmissible in accordance
with Article 34 of the Convention (see paragraph 40 above). The first
applicant will be referred to hereinafter as “the applicant”.
The second applicant will be referred to as “the applicant's
company”.
B. Merits
(a) The parties' arguments
- The
applicant maintained that because of the 2000 Decree and the
subsequent delegation of the exclusive right to provide funeral
services to KNM, the applicant's company, had been prevented from
providing services concerning the deceased who were to be buried in
the cemeteries managed by KNM; specifically, he was unable to provide
transport of remains, preparation of bodies and preparation of
display rooms in funeral homes.
- The
Government argued that the applicant's company had never had the
right to provide public services in terms of funerals and cemetery
services. These services had already been classified as a public
utility in the 1994 Decree. The 1998 Amendment, which classified them
as a mandatory public utility, entered into force on 5 June 1998. The
applicant therefore knew or should have known that funerals were a
public utility before he obtained the licence. What is more, the 1984
Cemetery and Funeral Act had already established that cemetery and
funeral services had been municipal activities of special social
importance and had been classified as public utilities with the
introduction of the Public Utilities Act in 1993. Therefore, the 2000
Decree cannot be understood as interfering with the applicant's right
to property.
- In
addition, while the Government admitted that the applicant's company
could not provide core funeral services, such as those concerning the
preparation of bodies and transport of remains, it could and did
continue to sell funeral items. The allegation that the applicant's
company, was at risk of liquidation due to the 2000 Decree was
therefore unsubstantiated.
- The
Government further maintained that the interference, provided that
the Court found that there was one, was in the public interest and
was justified on ethical, health and sanitary and hygiene grounds. In
particular, determination of the time of death, special diligence in
cases of communicable diseases and special hygiene requirements
concerning the transport and keeping of remains did not allow for a
free market regime in this field. In addition, it would be unethical
and not in the interest of the consumer to allow competition in this
area of services. Control of these services by local authorities was
therefore essential.
- The
Government disputed the relevance of the Competition Office's
opinion, arguing that the Competition Office had declined
jurisdiction to deal with the case. In addition, they submitted a
copy of a decision of 13 July 2007 in which the Competition
Office found that P., who was a private entrepreneur with a licence
to provide funeral services, was unsuccessful with his complaint
similar to that of the applicant.
- Furthermore,
the Government submitted that the interference was strictly
necessary, as this was the only way to protect the public interest.
In this respect they mentioned that some private companies providing
funerals had been preparing deceased for funerals in inappropriate
conditions.
- The
Government further maintained that the same system existed in other
Slovenian municipalities and submitted copies of municipal decrees
demonstrating that funerals were regulated either through a
concession being awarded to a private company through competition or
through public enterprise. The Government moreover argued that the
decision to regulate the provision of funerals as a public utility
was a matter which fell within the State's margin of appreciation.
(b) The Court's assessment
- The
Court must examine whether the applicant had a “possession”
within the meaning of Article 1 of Protocol No. 1 before considering
whether the relevant legislation or the way it was applied to the
applicant interfered with his rights as guaranteed by that provision
(see Kopecký v. Slovakia [GC], no.
44912/98, § 40, ECHR 2004 IX).
- The Court reiterates that the concept of “possessions”
in the first part of Article 1 of Protocol No. 1 has an autonomous
meaning which is not limited to ownership of physical goods and is
independent from the formal classification in domestic law.
Accordingly, as well as physical goods, certain rights and interests
constituting assets may also be regarded as “property rights”,
and thus as “possessions” for the purposes of this
provision. The applicability of Article 1 of Protocol No. 1 therefore
extends also to professional practices and their clientele, as these
are entities of a certain worth that have in many respects the nature
of private rights, and thus constitute assets (see among many
authorities, Van Marle and Others v. the Netherlands,
26 June 1986, § 41, Series A no. 101, and Buzescu
v. Romania, no. 61302/00, § 81, 24 May 2005).
- Furthermore,
the concept of “possessions” is not limited to “existing
possessions” but may also cover assets, including claims, in
respect of which the applicant can argue that he has at least a
reasonable and “legitimate expectation” of obtaining
effective enjoyment of a property right (see, for example, Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §
83, ECHR 2001-VIII).
- Bearing
in mind the above principles, the Court needs to examine whether the
circumstances of the present case, considered as a whole, may be
regarded as having conferred on the applicant title to a substantive
interest protected by Article 1 of Protocol No. 1 (see, mutatis
mutandis, Öneryıldız v. Turkey [GC], no.
48939/99, § 124, ECHR 2004 XII).
- It
is undisputed in the present case that the applicant had developed a
significant level of goodwill in relation to funeral provision, such
as preparation of bodies and transport of remains (see paragraph 6
above), during his seven years of providing this service. However, in
1995, when the applicant obtained his craft licence, funeral
provision had already been designated as public utility by the 1993
Public Utilities Act. The latter left to the local authorities the
latitude to choose to regulate funeral provision through the form of
a public-law enterprise or through concessions granted to private
enterprises. The local authorities in the applicant's municipality
fully regulated this area by 2002, when the 2002 Amendment was
adopted and when public utilities were entrusted to the municipal
enterprise KNM, which acquired a lawful monopoly on providing funeral
services in the municipal area.
- The
Court finds that the applicant could, admittedly, be said to have an
existing possession in respect of providing the funeral services in
question (see perhaps 6, 46 and 48 above) during the period of legal
vacuum. However, the applicant's complaint concerns the period
following the implementation of the 2000 Decree and the 2002
Amendment and therefore a question as to whether he could have been
considered to have a reasonable expectation of continuing to provide
these services after they were designated to the municipal
enterprise.
- The
Court cannot question the decision made by the local authorities to
designate the funeral provision to the municipal enterprise instead
of regulating it through the means of concession; an issue which was
left by the national legislation to their discretion and which
certainly falls within the State's margin of appreciation. It
attaches decisive importance to the fact, undisputed by the
applicant, that he had been throughout the entire period, in which he
provided funeral services, aware that this was only a temporary
solution pending the implementation of the national legislation,
which required the municipality to regulate funeral provision as
public utility.
- The
Court observes that several local decrees and amendments were adopted
in Novo Mesto Municipality since 1994 regulating the public
utilities. It is true that the first one of them, the 1994 Decree,
apparently mistakenly, listed funeral services as the optional public
utilities. However, in view of the clear provisions of the 1993
Public Utilities Act and the 1984 Cemetery and Funeral Act and in the
absence of any further implementing local legislation this could not
be understood as eliminating the funeral services from the public
realm. In any event, this Decree was amended by the 1998 Amendment,
which listed funeral services as mandatory public utilities, as did
all the subsequent decrees (see paragraphs 23-25 above). The Court
therefore observes that the applicant's de facto possibility
to provide funeral services in question in the period of seven years,
which de jure ceased following the implementation of the 2002
Amendment, was from the beginning of an obviously transitional
nature.
- The
Court considers that the fact that the authorities did not adversary
interfere with the applicant's activity during the seven year period
could not affect the above conclusion. Unlike in Öneryıldız
v. Turkey (cited above, §§127-9) and Beyeler v.
Italy ([GC], no. 33202/96, § 121, ECHR 2000 I), where
the authorities largely contributed to the uncertainty as to the fate
of the applicants' possessions, the authorities in the present case
did nothing to contribute to the applicant's expectation to be able
to continue to provide funeral services after the necessary
regulations were adopted and also immediately and consistently
informed him about the effects the relevant decrees had for his
business (see paragraphs 9, 10 and 13 above). As regards the more
general context, the applicant has not provided proof of any
inconsistency on the part of different municipalities in implementing
the 1993 Public Utilities Act in this field, by showing that some of
them refused to regulate funeral services as public utilities.
- Therefore,
having regard to all of the above and notwithstanding the Competition
Office's opinion questioning the appropriateness of the system (see
paragraphs 28-32 above) and the fact that the full nationalisation or
municipalisation of funeral services appears to be a rare occurrence
in the member States (see paragraphs 33-36), the Court cannot
conclude that the applicant's hope of being able to continue to
provide funeral services in question constituted a claim of a kind
that was sufficiently established to constitute a legitimate
expectation, and hence a distinct “possession” within the
meaning of the Court's case-law (see, mutatis mutandis,
Öneryıldız, cited above, § 126, and
Zhigalev v. Russia, no. 54891/00, §§ 143 and 146,
6 July 2006).
- This
being so, the 2000 Decree and KNM's acts, which
prevented the applicant from continuing to provide the funeral
services, cannot be considered an interference with the
applicant's “possession” within the meaning of Article 1
of Protocol No. 1. The guarantees of that provision do not therefore
apply to the present case.
- The
Court thus concludes that there has been no violation of Article 1
of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ
TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant complained that the Constitutional Court's decision of 1
April 2004 (see paragraph 13 above) was incompatible with the rights
enshrined in Article 14 of the Convention read together with Article
1 of Protocol No. 1 to Convention.
Article
14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court notes that as regards the applicant's company, it cannot be
considered to have a standing to pursue this part of the application
before the Court, for the reasons set out in paragraph 40 above.
- As
regards the applicant, the Court, having regard to the finding
relating to Article 1 of Protocol No. 1 (see paragraphs 53-64
above) and the arguments adduced by the applicant, finds that this
complaint is unsubstantiated and it must therefore be rejected as
manifestly ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Mr Leopold
Oklešen's right under Article 1 of Protocol No. 1 to the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
