Lexploria

FIFTH SECTION

DECISION

Application no . 49845/10 PEKÁRNY A CUKRÁRNY KLATOVY, A.S. against the Czech Republic and 4 other applications

The European Court of Human Rights (Fifth Section), sitting on 23 October 2012 as a Committee composed of:

Mark Villiger , President, Karel Jungwiert , André Potocki , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the applications in the list appended,

Having regard to the declaration submitted by the respondent Government on 6 June 2012 requesting the Court to strike the applications out of the list of cases and the applicant company ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant is a corporation registered in the Czech Republic . It is represented before the Court by Mr J. Skácel , a lawyer practising in Prague .

The Czech Government (“the Government”) were represented by their Agent, Mr V. A. Schorm , of the Ministry of Justice.

The part of the applications concerning Article 6 of the Convention has been communicated to the Government .

On 11 July 2005 company P. instituted proceedings against K. B. claiming to be the true owner of shares held by him constituting a ninety percent share of the applicant company. K. B. is the chair of the board of directors of the applicant company and signed the powers of attorney accompanying the present applications.

During these proceedings company P. asked the courts to order interim measures to prohibit the applicant company from holding scheduled general meetings. It argued that a general meeting would have irreversible negative effects on its rights, such as the payout of the company ’ s dividends amounting to approximately 40,000,000 Czech korunas (CZK) (approximately 1,667,000 euros (EUR)), and control being gained over the company through personnel changes in the board of directors.

On 25 April 2012 the Prague Municipal Court ( městský soud ) terminated these proceedings.

1. Application no. 49845/10

On 18 September 2009 the Municipal Court granted an interim measure and, without any reasoning, prohibited the applicant company from convening its general meeting scheduled for 25 September 2009.

On 18 November 2009 the Municipal Court granted a new interim measure and prohibited, without any reasoning, the applicant company from convening a general meeting scheduled for 20 November 2009.

On 10 February 2010 the Prague High Court ( vrchní soud ) dismissed the applicant company ’ s appeals as inadmissible under Article 218 of the Code of Civil Procedure holding that since the interim measures had already lost effect, their review would be immaterial.

On 27 May 2010 the Constitutional Court ( Ústavní soud ) dismissed the applicant company ’ s constitutional appeal holding that constitutional appeals against interim measures were not allowed.

2. Application no. 73985/10

On 11 March 2010 the Municipal Court granted another interim measure prohibiting the applicant company from convening a general meeting scheduled for 19 March 2010. The decision was not reasoned. On 7 May 2010 it further prohibited the company from convening a general meeting scheduled for 14 May 2010. This decision was not reasoned either.

On 14 June 2010 the High Court dismissed the applicant company ’ s appeals as inadmissible under Article 218 of the Code of Civil Procedure. It held that since the interim measures had already lost effect as they prohibited meetings in the past, their review would be immaterial.

On 14 October 2010 and 3 January 2011, respectively, the Constitutional Court dismissed the applicant company ’ s constitutional appeals as manifestly ill-founded.

3. Application no. 74326/10

On 15 January 2010 the Municipal Court granted another interim measure prohibiting the applicant company from convening a general meeting scheduled for 22 January 2010. The decision was not reasoned.

On 14 June 2010 the High Court dismissed the applicant company ’ s appeal as inadmissible under Article 218 of the Code of Civil Procedure. It held that since the interim measure had already lost effect as it prohibited a meeting in the past, its review would be immaterial.

On 24 March 2011, the Constitutional Court dismissed the applicant company ’ s constitutional appeal as manifestly ill-founded. It held, inter alia , that it was not true that the applicant company had not been able to hold a general meeting for five years as it had held a meeting on 31 July 2009 and also on 6 August 2010.

4. Application no. 13179/11

On 2 July 2010 the Municipal Court granted another interim measure prohibiting the applicant company from convening a general meeting scheduled for 9 July 2010. The decision was not reasoned.

On 3 September 2010 the High Court dismissed the applicant company ’ s appeal as inadmissible under Article 218 of the Code of Civil Procedure. It held that since the interim measure had already lost effect as it prohibited a meeting in the past, its review would be immaterial.

On 30 November 2010, the Constitutional Court dismissed the applicant company ’ s constitutional appeal as manifestly ill-founded.

5. Application no. 23513/11

On 24 September 2010 the Municipal Court granted another interim measure prohibiting the applicant company from convening a general meeting scheduled for 1 October 2010. The decision was not reasoned.

On 25 November 2010 the High Court dismissed the applicant company ’ s appeal as inadmissible under Article 218 of the Code of Civil Procedure. It held that since the interim measure had already lost effect as it prohibited a meeting in the past, its review would be immaterial.

On 24 January 2011, the Constitutional Court dismissed the applicant company ’ s constitutional appeal as manifestly ill-founded.

COMPLAINTS

1. The applicant company complained under Articles 6 § 1 and 13 of the Convention that the interim measures had been issued in proceedings in which it had not been a party and could not raise any arguments against it, that the decisions had not been reasoned and there had been no public hearing.

2. The applicant company further complained under Article 1 of Protocol No. 1 that the interim measures had interfered with its peaceful enjoyment of possessions because for properly running the business it needed to conduct regular general meetings.

THE LAW

1. The Court notes that the subject matter of the applications (nos. 49845/10, 73985/10, 74326/10, 13179/11 and 23513/11) is similar and that they were submitted by the same applicant company. It is therefore appropriate to join them, in application of Rule 42 of the Rules of Court.

2. The applicant company complained that the interim measures had been ordered in the proceedings to which it had not been a party and had, therefore, been unable to challenge them and had had no effective remedies against them. It relied on Articles 6 and 13 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 6 June 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby acknowledge that in cases nos. 49845/10, 73985/10, 74326/10, 13179/11 and 23513/11, there was a violation of the applicant company ’ s right of access to court guaranteed by Article 6 § 1 of the Convention (see Pekárny a cukrárny Klatovy , a. s. v. the Czech Republic , [ nos. 12266/07, 40059/07, 36038/09 and 47155/09 , 12 January 2012 ]).

The Government offer to pay the applicant company a sum of EUR 2,000 (two thousand Euros), plus any value added tax on this sum provided that this tax has been verifiably chargeable to the applicant company with respect to costs and expenses related to the above five applications. The Government note in this context that according to Section 18(2)(d) of Act no. 586/1992, payment of just satisfaction awarded by the Court or stemming from a friendly settlement of the case before the Court is not subject to corporate income tax.

This sum will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.”

In a letter of 31 August 2012, the applicant company indicated that it was not satisfied with the terms of the unilateral declaration on the ground that the proposed sum was insufficient.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the applications” .

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o . v. Poland ( dec .) no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec .) no. 28953/03).

The Court has already examined an identical complaint of the same applicant company in Pekárny a cukrárny Klatovy , a.s . v. the Czech Republic , nos. 12266/07, 40059/07, 36038/09 and 47155/09 , 12 January 2012, where it found a violation of Article 6 § 1 of the Convention.

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec .), no. 18369/07, 4 March 2008).

3. The applicant company further complained that the interim measures had interfered with its peaceful enjoyment of possessions.

Having regard to its case-law ( Pekárny a cukrárny Klatovy , a.s . v. the Czech Republic , cited above, § 54) the Court considers that this part of the application s is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declaration under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike part of the applications out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application s inadmissible.

Stephen Phillips Mark Villiger De puty Registrar President

LIST OF APPLICATIONS

No.

Application

no.

Lodged on

Applicant name

Place of residence

Represented by

49845/10

05/08/2010