NASK, S.R.O. v. SLOVAKIA

 
 
 
 
THIRD SECTION
DECISION
Application no. 50817/15
NASK, S.R.O.
against Slovakia
 
The European Court of Human Rights (Third Section), sitting on 30 April 2019 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 October 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1.  NASK, s.r.o. (“NASK”), is a private limited company which was established under Slovakian law in 2001 and has its registered office in Veľký Meder. The application was originally submitted on its behalf by Mr M. Šulva, a lawyer practising in Bratislava, who was at a later stage of the proceedings joined by Ms E. Steiner of LANSKY, GANZGER + partner, a law firm established in Vienna (Austria).
2.  The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The circumstances of the case
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
1.  The proceedings
4.  In 2006 NASK sued the State, naming the Ministry of Finance as the defendant, for the equivalent of more than 2.3 million euros in compensation for the damage that it claimed to have sustained as a result of an allegedly erroneous decision and mistakes in procedure made by the customs authorities in connection with a seizure of alcohol that NASK had been producing and trading in.
5.  On 19 June 2007 the Bratislava II District Court issued an interlocutory judgment recognising the basis for the claim. The quantum of the claim, or in other words the amount of damages to be awarded, remained to be determined in subsequent proceedings by means of a final judgment.
6.  On 1 October 2009 the Bratislava Regional Court upheld the judgment of 19 June 2007 following an appeal (odvolanie) by the defendant, as a result of which the interlocutory judgment became final and binding on 17 December 2009.
7.  However, on 23 April 2014 the Supreme Court quashed the judgments of 19 June 2007 and 1 October 2009 and remitted the matter to the District Court for re-examination, following the exercise by the Prosecutor General of his discretionary power to challenge those judgments by way of an extraordinary appeal on points of law, which was prompted by an application made to the Prosecutor General by the defendant.
8.  On 4 March 2015 the Constitutional Court rejected a complaint by NASK, s.r.o. against the Supreme Court’s decision of 23 April 2014 as manifestly ill-founded.
9.  Following the quashing of the judgments of 19 June 2007 and 1 October 2009 by the Supreme Court the action of NASK was remitted to the first-instance court where it has remained since, pending re‑examination.
2.  The standing of NASK and the present application
10.  On 9 February 2015 insolvency proceedings concerning NASK were opened and on 22 June 2015 it was declared insolvent, following which an insolvency practitioner was appointed and assumed, by operation of law, the capacity to act in the name of the company.
11.  On 1 October 2015 a director of NASK issued a power of attorney to a lawyer who, on the same day, filed the present application with the Court.
12.  NASK claimed that no receivables in relation to the proceedings mentioned above had been recorded as assets of its insolvency estate until 7 December 2016.
13.  In a declaration of 18 October 2017, which is accompanied by a power of attorney of the same date, both of which were attached to the observations made by NASK in reply to those of the Government on the admissibility and merits of the present case, the insolvency practitioner appointed to NASK, s.r.o. expressed the wish to join and approve the actions taken in the proceedings by NASK acting through its directors and authorised the lawyer who introduced the application to act on behalf of NASK before the Court.
14.  The insolvency proceedings are ongoing.
COMPLAINT
15.  In the application of 1 October 2015 a complaint was expressed under Article 6 § 1 of the Convention that the quashing of the final and binding judgment in favour of NASK had been contrary to the principles of legal certainty and equality of arms.
THE LAW
16.  In their observations on the admissibility and merits of the present application, the Government pointed out, inter alia, that in the application of 1 October 2015 NASK had failed to disclose that, as it had been declared insolvent and authority to act in its name had been transferred to the insolvency practitioner, its directors no longer had the authority to apply to the Court in the name of the company. The application had accordingly not been validly introduced in the name of NASK and therefore had to be rejected.
17.  In its observations in reply, in response to the above objection, NASK submitted that, in contrast to the general rule, the authority to act on behalf of NASK with regard to its claim for damages against the State had not been transferred to the insolvency practitioner on his appointment but only on 7 December 2016 when that claim was registered as an asset of its insolvency estate (see paragraph 12 above). Until that date, with regard to that claim, the authority to act on behalf of NASK had remained with the original directors, through whom the application had validly been lodged.
18.  In their further observations, the Government disagreed and pointed out that in view of its value (see paragraph 4 above), the claim in question had been manifestly outside the ordinary course of business. It was accordingly implausible that the insolvency practitioner had had no knowledge of it. This had nothing to do with whether the claim was registered in the estate or not and nothing had prevented the practitioner from lodging an application under Article 34 of the Convention on behalf of NASK.
19.  The Court reiterates that the term “victim” in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). In its judgment in the case of Agrotexim and Others v. Greece (24 October 1995, §§ 66 and 68, Series A no. 330‑A) the Court held that, in principle, a company had to apply to the Convention institutions through the bodies set up by its articles of association or, in the event of liquidation, through its liquidators. It was only in exceptional circumstances, in particular where it was clearly established that it was impossible for the company to apply through its liquidators, that the “corporate veil” could be pierced and an application lodged on the applicant company’s behalf by third parties, such as its shareholders, provided that they had sufficient interest in bringing the application.
20.  In Credit and Industrial Bank v. the Czech Republic (no. 29010/95, § 51, ECHR 2003‑XI (extracts)) the Court found that where the essence of the complaint was the denial of effective access to a court to oppose or appeal against the appointment of a compulsory administrator, to hold that the administrator alone was authorised to represent the bank in lodging an application with the Convention institutions would be to render the right of individual petition conferred by Article 34 theoretical and illusory.
21.  Since then, similar exceptions were found to apply in the case of a complaint related to the chain of events leading to the appointment of special administrators and liquidators and to their role in the proceedings in which an applicant bank had been declared insolvent (see Capital Bank AD v. Bulgaria (dec.), no. 49429/99, 9 September 2004); a complaint specifically concerning the complex events leading to the appointment of administrators, their role and the subsequent conduct of the compulsory administration proceedings (see Vefa Holding sh.p.k and Alimuçaj v. Albania (dec.), no. 24096/05, § 91, 14 June 2011); a complaint concerning the very fact that a liquidator had been appointed without the applicant bank having really had the opportunity to challenge the measures which had led to that appointment (see Cooperativa de Credit Sătmăreana v. Romania, no. 32125/04, §§ 28-29, 11 March 2014); and a complaint about an interference by the prosecuting authorities with the applicant bank’s management, the revocation of its licence, and the fact that in the proceedings in which it was declared insolvent it had only been represented by the special administrators (see International Bank for Commerce and Development AD and Others v. Bulgaria, no. 7031/05, § 91, 2 June 2016).
22.  However, the present case is not of that kind. In particular, the Court notes that there is no conflict of interests between NASK and its insolvency practitioner with regard to the object of the present application (see, conversely, Vefa Holding sh.p.k and Alimuçaj, cited above, § 92, with further references). In fact, the declaration made by the insolvency practitioner in the subsequent course of the proceedings before the Court (see paragraph 13 above) clearly attests to the practitioner’s readiness to advance Convention complaints on behalf of NASK.
23.  Moreover, the Court considers that the argument that the directors had had the right to bring the application, based on the time of the registration of the claim as an asset of the insolvency estate of NASK is a contested argument arising from a technicality of the domestic law rather than an argument revealing any genuine inability of the insolvency practitioner to make use of the right of NASK to lodge an individual application with the Court under Article 34 § 1 of the Convention.
24.  As to the subsequent attempt of NASK to validate the existing application by having it endorsed by its insolvency practitioner (see paragraph 13 above), the Court notes that, even assuming that such a validation were in principle possible, in the present case it would be out of time since it was done more than six months after the final domestic decision.
25.  Accordingly, the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 May 2019.
Fatoş AracıDmitry Dedov
Deputy RegistrarPresident

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