FIRST SECTION
DECISION
Application no. 34568/22
PIRO PLANET D.O.O.
against Slovenia
The European Court of Human Rights (First Section), sitting on 3 April 2025 as a Committee composed of:
Erik Wennerström, President,
Raffaele Sabato,
Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 34568/22) 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”) on 8 July 2022 by Piro Planet d.o.o. (“the applicant company”), a limited liability company registered in Slovenia, which was represented by the law firm Odvetniška družba Čeferin, Pogačnik, Novak, Koščak in partnerji, o.p., d.o.o. practising in Grosuplje;
the decision to give notice of the application to the Slovenian Government (“the Government”), represented by their Agent, Ms A. Grum, Senior State Attorney;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the ban on the sale of pyrotechnic articles imposed by Government decrees concerning COVID-19 prevention measures.
2. At the relevant time, the applicant company (a supplier and seller of pyrotechnic articles) held a licence for, inter alia, the retail sale of pyrotechnic articles.
3. On 17 December 2020 the Government adopted a decree, valid for one week, temporarily prohibiting the offering and sale of several goods and services directly to consumers within the territory of the Republic of Slovenia. Subsequently, several decrees were issued extending the measures. In accordance with those decrees, the sale of pyrotechnic articles to consumers in Slovenia was prohibited between 21 December 2020 and 15 January 2021.
4. On 13 May 2021 and 7 October 2021, respectively, the Constitutional Court issued decisions U-I-79/20 and U-I-155/20 in which it found that the provisions of the Communicable Diseases Act, which provided the legal basis for the adoption of the decrees in question, were unconstitutional.
5. On 17 December 2021 the applicant company lodged a petition with the Constitutional Court for a review of the constitutionality and legality of the provisions of the above-mentioned decrees prohibiting the sale of pyrotechnic articles.
6. On 9 March 2022 the Constitutional Court rejected the applicant company’s petition. Referring to its case-law the court noted that it was not sufficient to rely, in a general manner, on a loss of revenue as an allegedly unremedied consequence in order to justify the review of the regulations in question. Moreover, a possible finding of unconstitutionality of the contested regulations and their annulment or repeal would in no way alter the applicant company’s legal position, as the alleged deprivation of property would not have been remedied. Furthermore, the Constitutional Court, citing its case-law, found that the exceptional review of the contested decrees on the grounds of public interest was not required.
7. In its submissions of 18 March 2024, the applicant company informed the Court that it had brought an action against the Republic of Slovenia before the Ljubljana District Court, seeking damages for losses incurred as a result of the ban on the sale of pyrotechnic articles introduced by the decrees in question. The proceedings appear to be pending before the Ljubljana District Court.
8. The applicant company complained under Article 6 § 1 of the Convention that the Constitutional Court had arbitrarily rejected its petition for the review of the constitutionality and legality of the contested decrees, and that its decision was insufficiently reasoned, thereby denying its right of access to a court. It further complained under Article 1 of the Protocol No. 1 to the Convention that (i) it had not been afforded a reasonable opportunity to challenge the contested ban and (ii) that the ban had been unforeseeable, had not pursued legitimate aims and had been disproportionate.
THE COURT’S ASSESSMENT
9. The Court does not find it necessary to rule on the applicability of Article 1 of Protocol No. 1, which was disputed by the Government, as the complaint is, in any event, inadmissible for the following reasons.
10. The Court takes note of the Government’s argument that the applicant company failed to exhaust domestic remedies in civil proceedings. It notes that the general principles on the exhaustion of domestic remedies have been set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
11. In the present case, the applicant company initially sought a constitutional review of the contested decrees but was unsuccessful. Subsequently, and after lodging the application with the Court, it brought an action for damages in civil proceedings (see paragraph 7 above).
12. The Court acknowledges that where several remedies are available, the applicant is not normally required to pursue more than one (see, for instance, Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009). However, in the present case, the main remedy that could offer redress to the applicant company appears to be a claim in civil proceedings. Firstly, it notes in this connection that a favourable Constitutional Court decision in the constitutional review proceedings could not, of itself, remedy the alleged deprivation of property caused by the ban in question (see paragraph 6 above) and the applicant company would, in any event, have to initiate additional proceedings to that end. Secondly, the applicant company has not argued before the Court that the Constitutional Court’s rejection of its petition rendered its civil action for damages ineffective, nor that such an action would have no prospect of success.
13. In the light of the above, the Court attaches weight to the Government’s submissions that, in assessing the claim for damages at issue in the civil proceedings, the national court would be required to determine, subject to a proper pleading by the applicant company, whether the decrees in question were inconsistent with the Constitution or the applicable law. The Government argued that, taking account of the Constitutional Court’s decisions declaring the legal basis for the decrees unconstitutional (see paragraph 4 above), the national court should exercise particular caution in assessing the legal compliance, or, as the case may be, the unlawfulness of the measure in question.
14. It is not for the Court to speculate whether the national courts will indeed exercise such caution in the applicant company’s case or what the outcome of those proceedings might be. In that connection, it reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others, cited above, § 74). It therefore notes that the applicant company has indeed instituted civil proceedings for damages which appear to be an appropriate remedy for the alleged breach and that it will be open to it to lodge an appeal and, ultimately, a constitutional complaint with the Constitutional Court in the event that it does not succeed with its civil action for damages. Moreover, should the applicant company ultimately be unsuccessful in the civil proceedings, it will be able to lodge a fresh application with the Court within four months after the exhaustion of all effective domestic remedies.
15. Accordingly, having regard to the fact that the civil proceedings for damages are still pending, this complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention.
16. The Government objected to the applicability of Article 6 § 1 of the Convention under its civil head to the proceedings in question before the Constitutional Court. The applicant company contested the Government’s objection. The Court does not find it necessary to rule on the issue of applicability, as the complaint is, in any event, inadmissible for the following reasons.
17. Having regard to the Constitutional Court’s reasoning and the case‑law referred to (see paragraph 6 above), the Court finds no indication of arbitrariness in the court’s decision. Furthermore, it concludes that the Constitutional Court’s reasoning was not insufficient (see Logos Trend d.o.o. v. Slovenia (dec.), no. 9205/19, §§ 35-38, 16 March 2021). Moreover, in the light of the Court’s finding regarding the complaint under Article 1 of Protocol No. 1 (see paragraph 15 above), the Court concludes that the case does not disclose any appearance of a violation of the applicant company’s right of access to a court under Article 6 § 1 of the Convention.
18. Having regard to the foregoing, these complaints should be rejected as manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
19. As to the applicant company’s complaint, raised under Article 1 of Protocol No. 1, alleging that it had not had a reasonable opportunity to challenge the contested ban (see paragraph 8 above), it overlaps with its complaint regarding access to a court. Having regard to the reasons that have led it to dismiss the latter complaint (see paragraph 17 above) and the fact that the applicant company could have lodged a constitutional complaint immediately after the enforcement of the ban and asked for a temporary stay of the contested decrees but failed to do so, the Court finds the complaint concerning the procedural protection under Article 1 of Protocol No. 1 manifestly ill‑founded within the meaning of Article 35 § 3 (a) and rejects it under and Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 May 2025.
Liv Tigerstedt Erik Wennerström
Deputy Registrar President