Communicated on 10 February 2015

FOURTH SECTION

Application no. 8928/13 CENTRUM HANDLOWE AGORA SP ZOO against Poland lodged on 17 January 2013

STATEMENT OF FACTS

The applicant, Centrum Handlowe Agora sp. z o.o ., is a limited liability company registered in Poland, with its seat in Warsaw. The applicant company operates on the real estate market.

A. The circumstances of the case

The facts of the case, as submitted by the applicant company, may be summarised as follows.

1. The proceedings before the Warsaw Regional Court and the Warsaw Court of Appeal.

On 5 May 2004 the applicant company ’ s business partner lodged an action for payment of 2,703,498 Polish zlotys (PLN) (approx. 644,688 euros (EUR)) plus interest against the applicant company. On 31 May 2004 the Warsaw Regional Court (case no. XX GNc 535/04) delivered an order of payment in summary proceedings and ordered the applicant to pay the whole sum in question within two weeks from receipt of the order, or alternatively, within the same time-limit, to lodge an appeal against it. On 26 June 2004 the claimant received a writ of enforcement and asked the bailiff to start the execution proceedings (case no. I KM 2317/04). The bailiff seized the applicant company ’ s movable property, its real estate in Warsaw, its bank accounts, and debts of third parties towards the applicant company.

On 9 July 2004 the applicant company lodged an application for re ‑ opening of the proceedings before the Warsaw Regional Court (case no. XX GNc 535/04) which was granted. Following the decision to reopen the proceedings the bailiff had to stay the execution proceedings. The decision to stay the execution proceedings did not annul the actions and decisions of the bailiff delivered before. Thus, the applicant company had been deprived of the possibility to continue its investments on the real property it possessed.

On 24 January 2006 the Warsaw Regional Court (case no. XX GNc 1337/04) delivered the judgment on the merits allowing the claim against the applicant company. The applicant company appealed.

On 22 June 2007 the Warsaw Court of Appeal (case no. VI ACa 1010/06) quashed the judgment of the first-instance court and remitted the case.

Upon the decision of the Warsaw Court of Appeal (case no. I ACa 1010/06) the remitted case and the case lodged on 19 September 2006 by the same claimant had been joined.

The claimant changed the amount of his claim several times in course of the proceedings due to execution of the parts of the claim in execution proceedings initiated after they had been granted a writ of execution in a composition proceedings in respect of the applicant company ( post ę powanie upad ł o ś ciowe z mo ż liwo ś ci ą zawarcia uk ł adu z wierzycielami ).

Finally, on 22 February 2012 the Warsaw Regional Court (case no. 16/07) allowed the claimant ’ s action to the amount of PLN 2,337,111 (approx. EUR 557,317) plus interest and cost of the proceedings.

2. The proceedings regarding an application for exemption from the court fees before the Warsaw Regional Court and the Warsaw Court of Appeal.

On 27 April 2012 the applicant company ’ s lawyer lodged an appeal against the first-instance judgment with an application for partial exemption from the costs of the proceedings, a fee for lodging the appeal, i.e. PLN 100,000 (one hundred thousand) ( approx. EUR 25,000 ) . The applicant justified it by presenting the balance sheet, the profit and loss report, the bank statement, the statement of the board of directors concerning the applicant ’ s capital assets, cash register and the copies of documents presenting the stage of the execution proceedings. The documents showed that the financial situation of the applicant was very poor. The applicant company ’ s bank account had been seized by the bailiff (case no. KM 2187/09) which made it impossible for the applicant company to use its money as all of it had been transferred to the creditors of the applicant company. Moreover, the applicant company ’ s shares in the real property in Warsaw (a plot of land with a block of flats and a separate building with a garage) had been seized by the bailiff what made it impossible for the applicant to sell it within the time-limit set for lodging the appeal.

On 15 May 2012 the Warsaw Regional Court (case no. XX GC 16/07) refused the applicant ’ s request. The court stated that the phrase “it has demonstrated that it does not have sufficient means for paying them” included in Article 103 of the 2005 Law on the Court Fees should be read as an obligation of the party to the proceedings to demonstrate a permanent inability to pay the court fees. The priority should be granted to the expenses connected with the economic activity of the party to the proceedings, to which the court fees undoubtedly belonged. It transpired from the documents submitted by the applicant that the company had not been wound-up nor insolvent but had a negative return. In the court ’ s view this did not justify the lack of ability to pay the court fees. The court underlined that the fact that the execution of the judgments pending against the applicant company and the fact that the company had a negative return had been a normal phenomenon for companies. Thus, the applicant should also have taken into account the necessity to secure funds for conducting the court proceedings. Moreover, since the applicant company had not secured the funds for court fees, it was not entitled to claim that its rights had been infringed on account of the refusal of the application for exemption from the court fees.

On 28 May 2012 the applicant ’ s lawyer lodged an interlocutory appeal, indicating that its application was justified due to the fact that the applicant company had not had sufficient funds to pay the court fees .. He also underlined that due to financial situation of the applicant company it was not possible to obtain the amount within the time-limit for lodging an appeal. At the time of lodging the appeal with an application for partial exemption from the court fees the applicant company had not been economically active.

On 28 June 2012 the Warsaw Court of Appeal (case no. VI ACz 1167/12) dismissed the applicant ’ s interlocutory appeal. It underlined that the obligation to pay court fees was of temporary and repayable nature, thus in the case of lack of funds, it had been possible to comply with the legal requirements by taking a loan. Having in mind that the applicant company was still in business, the court of appeal indicated that temporary financial problems should not have prevented it from obtaining the funds for the court fees. The Warsaw Court of Appeal decision was served on the applicant company ’ s lawyer on 17 July 2012.

In consequence, the first-instance judgment became final and binding.

B. Relevant domestic law and practice

The rules governing the right to access to a court were set in the Court ’ s judgments Kreuz v. Poland , no. 28249/95, §§ 58-67, ECHR 2001 ‑ VI; Jedamski and Jedamska v. Poland , no. 73547/01, §§ 60-67, 26 July 2005; Teltronic -CATV v. Poland , no. 48140/99, §§ 50-64, 10 January 2006; NieruchomoÅ›ci Sp. z o.o . v. Poland , no. 32740/06 , §§ 12-16, 2 February 2010 .

Article 103 of the Law of 28 July 2005 on Court Fees provides as follows:

“The court shall grant the exemption from the court fees to a legal person, or an entity not possessing legal personality whose legal capacity has been recognized by law, provided that it has demonstrated that it does not have sufficient means for paying them.”

COMPLAINT

The applicant company complains under Article 6 § 1 of the Convention that it was deprived of its right of access to a court on account of the excessive fees required for pursuing its appeal.

QUESTION TO THE PARTIES

Was the applicant company deprived of its right of access to a court guaranteed by Article 6 of the Convention on account of the excessive fees required for pursuing its appeal?