CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 février 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s25F5CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s9BD430F6 { margin-top:6pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sFF075836 { margin-right:7.05pt; margin-left:7.05pt; border-collapse:collapse; } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s598389F7 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 4 March 2024   FIFTH SECTION Application no. 60680/16 VESTRA, PP against Ukraine and 6 other applications (see list appended) communicated on 15 February 2024 SUBJECT MATTER OF THE CASES The applications concern the refusal of domestic authorities in Ukraine to reimburse the applicant companies in respect of overpaid customs duties and value-added tax (VAT) resulting from import operations. During the period 2009-2012 the applicant companies imported multiple categories of goods into Ukraine. In each customs declaration they reported the goods’ value at a rate exceeding their contract price, which led to the overpayment of customs duties and VAT. According to the applicant companies, this was made in response to requests from Ukrainian customs authorities which otherwise would have refused to proceed with the customs clearance of the imported goods. After having paid customs duties and VAT calculated on this basis, the applicant companies sought reimbursement of the overpaid amounts from the customs authorities, but their requests were either ignored or rejected. The applicant companies then instituted administrative proceedings. The courts of first instance and appeal granted the applicant companies’ claims. On various dates in 2014 the Higher Administrative Court (HAC) upheld the decisions of the lower courts in all seven cases. Following applications for review of the HAC’s decisions from the Customs Office and/or the Office of the Prosecutor General, on various dates in 2016 the Supreme Court of Ukraine (SCU) quashed the HAC’s decisions and remitted all seven cases for reconsideration in view of the existing case-law divergence on the matter. The SCU noted that the customs duties and VAT amounts were calculated based on the goods’ value as declared by the applicant companies and concluded that, given the absence of evidence showing the state authorities’ involvement in determining the goods’ value, they should not be held liable for the alleged overpayments and that, therefore, the overpaid amounts should not be reimbursed. After a fresh examination, on various dates in 2016 the HAC found against the applicant companies in each of these cases. In dismissing their claims, it relied on the same reasons previously given by the SCU. In all but one case (application no. 60680/16), the applicant companies applied to the SCU with an application for review of the HAC’s 2016 decisions claiming an alleged case-law divergence. They relied, in particular, on the HAC’s judgments in three apparently similar cases, where it had reached a different conclusion, ruling against the customs authorities. On various dates in 2017 the SCU established the absence of divergence in the case-law and rejected the applicant companies’ applications. Relying on Article   1 of Protocol No.   1 to the Convention, the applicant companies complain about unjustified interference with their property rights on account of the domestic authorities’ refusal to reimburse them in respect of overpaid customs duties and VAT. They claim, inter alia , that such interference was unlawful and disproportionate. QUESTIONS TO THE PARTIES 1.     Have the applicant companies exhausted all effective domestic remedies and submitted their complaints under Article 1 of Protocol No. 1 to the Convention within six months of the final domestic decision in each case, as required by Article 35 § 1 of the Convention? In particular, having regard to the relevant domestic law as in force during the period between March 2015 and December 2017, should an application for review with the Supreme Court of Ukraine on grounds of alleged divergent case-law in the applicant companies’ cases be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention?   2.     If the requirements of Article   35   §   1 of the Convention have been complied with, can the applicant companies claim that they had a “possession” within the meaning of Article   1 of Protocol   No.   1 to the Convention (see mutatis mutandis , S.A.   Dangeville v.   France , no.   36677/97, 16   April 2002, § 48)?   3.     If so, has there been an interference with the applicant companies’ peaceful enjoyment of possessions, within the meaning of Article   1 of Protocol   No.   1 to the Convention? Was the interference in accordance with the conditions provided for by law, as required by Article   1 of Protocol No.   1 to the Convention, in particular as regards the quality of the applicable legislation and the case-law of the domestic courts? Did that interference impose an excessive individual burden on the applicant companies within the meaning of that Article?     APPENDIX   List of applications   No. Application no. Case name Introduction date Applicant’s name Registration date Place of residence Nationality Representative’s name Location Amount of overpayment (UAH) Decision of the Higher Administrative Court Decision of the Supreme Court of Ukraine following the applicant company’s application for review, if any 1. 60680/16 Vestra, PP v.   Ukraine 13/10/2016 VESTRA, PP 2002 Odesa Ukrainian Gennadiy Volodymyrovych TOKAREV Kharkiv 4,784,756.09 13/04/2016 N/A 2. 3672/18 Vestra, PP v.   Ukraine 11/01/2018 VESTRA, PP 2002 Odesa Ukrainian Gennadiy Volodymyrovych TOKAREV Kharkiv 9,881,495.74 08/06/2016 19/07/2017 3. 3678/18 Vestra, PP v.   Ukraine 11/01/2018 VESTRA, PP 2002 Odesa Ukrainian Gennadiy Volodymyrovych TOKAREV Kharkiv 9,904,151.32 17/05/2016 14/07/2017 4. 3681/18 Vestra, PP v.   Ukraine 11/01/2018 VESTRA, PP 2002 Odesa Ukrainian Gennadiy Volodymyrovych TOKAREV Kharkiv 9,941,063.49 02/06/2016 19/07/2017 5. 3808/18 Varra Treyd, TOV v. Ukraine 11/01/2018 VARRA TREYD, TOV 2009 Odesa Ukrainian N/A 5,776,506.11 17/05/2016 19/07/2017 6. 9709/18 Vestra, PP v.   Ukraine 15/01/2018 VESTRA, PP 2002 Odesa Ukrainian Gennadiy Volodymyrovych TOKAREV Kharkiv 7,381,401.84 20/07/2016 31/07/2017 7. 13202/18 Vestra, PP v.   Ukraine 07/03/2018 VESTRA, PP 2002 Odesa Ukrainian Gennadiy Volodymyrovych TOKAREV Kharkiv 9,610,886.30 02/08/2016 15/09/2017