Legal norm prescribing the procedures for the distribution of the difference in water consumption declared unconstitutional
The Constitutional Court declared that Sub-paragraph 19.1 1 of Cabinet Regulation No. 1013 of 9 December 2008, Procedures by which an Apartment Owner in a Residential Apartment House shall Pay for Services which are Related to Use of the Residential Property, in the wording that was in force from 1 October 2013 to 21 November 2019 is unconstitutional. The Constitutional Court emphasised that the difference in water consumption could arise due to various circumstances and it was disproportionate to impose the entire burden of covering the difference in water consumption on the person who had not submitted readings for three months, regardless of the reasons for the difference.
According to the contested norm, in cases where a difference arises between the reading of the common meter of the house and the water consumption determined in apartment properties, including the total amount of water discharged due to accidents and repair works, the difference in water consumption is to be distributed according to the number of individual properties among those apartment owners who have not submitted their water meter readings for at least three consecutive months (if there are such apartment owners in the building).
The Constitutional Court initiated the case based on an application submitted by the Senate. There are pending proceedings in a civil case for the recovery of a debt relating to the management and service fees of a residential building, including the difference in water consumption, because a person failed to submit meter readings on time. The applicant holds that the procedures for the distribution of the difference in water consumption prescribed by the contested norm are disproportionate. Additional circumstances that could cause a difference in water consumption, including accidents or repair works, are not taken into account. Hence, the contested norm causes disproportionate restriction of the right to own property established in Article 105 of the Constitution.
The Constitutional Court noted that it was not permissible that a person, by not submitting information on the readings, could avoid paying the relevant fee. In other words, a person has to pay for the amount of water he or she consumes. However, the difference in water consumption could arise due to circumstances other than the failure to provide information on the readings, for instance, due to repair works of the water supply system, an accident or a water leak due to the poor technical condition of the water supply system. Nonetheless, the contested norm has departed from the principles of civil law with regard to mutual relationships between joint owners, imposing the entire burden of covering the difference in water consumption on the person who had not submitted information on the readings for at least three consecutive months. If the obligation to cover the entire difference in water consumption is imposed only on that person, regardless of the reason for the difference, a result consistent with the principle of proportionality and the principle of equity cannot be achieved. Accordingly, the Constitutional Court recognised that the restriction of fundamental rights included in the contested norm is disproportionate and the contested norm fails to conform to the first three sentences of Article 105 of the Constitution.
The Constitutional Court also took into account that the contested norm had been applied in a number of civil cases in which a final ruling had already entered into force. Invalidation of the contested norm from the moment of adoption thereof could undermine the expectations of others with regard to certainty of the legal framework and thus affect their confidence in the State and the law. In such circumstances, the Constitutional Court concluded that it was not possible to invalidate the contested norm from the moment of adoption thereof. However, in order to protect the rights of other persons in a comparable situation, the Constitutional Court recognised invalidation of the contested norm from the moment when the infringement of fundamental rights occurred in respect of the defendant in the proceedings in a civil case pending before the Senate and other persons in civil cases in which the proceedings had not yet been concluded.
Linked case: 2023-46-03