Communicated on 16 June 2014

FIFTH SECTION

Application no. 1984/12 BENVILLE LIMITED, PODRUŽNICA ZA TRANSPORT, LJUBLJANA against Slovenia lodged on 29 December 2011

STATEMENT OF FACTS

The applicant, Benville Limited, Podružnica z a Transport, Ljubljana, is a private company registered in the United Kingdom. It is represented before the Court by Mr B. Rangus , a lawyer practising in Ljubljana.

A. The circumstances of the case

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

On 25 January 2007 the applicant company requested from the Slovenian Chamber of Commerce (hereinafter “the Chamber”) a licence for the international road transport of goods.

On 23 February 2007 the Chamber, having established that the applicant company was a foreign branch of a British corporation and, as such, did not possess legal personality, found that it did not meet one of the conditions for acquiring a Community authorisation for carrying goods by road. According to the Chamber, Council Regulation (EEC) No. 881/92 of 26 March 1992 provided that an authorisation for international road transport could be issued to a haulier that was established in that Member State in accordance with its legislation. As the applicant company was not established in Slovenia, the Chamber rejected its request.

The applicant company appealed against the Chamber ’ s decision with the Ministry of Transport.

On 16 April 2007 the Ministry of Transport dismissed the applicant company ’ s appeal, explaining that the applicant company should establish a company or another commercial entity in the territory of Slovenia in order to be eligible for the transport licence in this State.

The applicant company, acting through its specially authorised representative or the so-called procurator, brought an administrative action against the State before the Administrative Court.

On 27 January 2009 the Administrative Court dismissed the applicant company ’ s action. The court agreed with the administrative authorities that according to Community law, as well as to the national Road Transport Act, the applicant company, acting on behalf of and in the name of its British parent undertaking, could not be considered a legal person or private entrepreneur eligible for the transport licence in Slovenia.

On 13 March 2009 the applicant company, again acting through its procurator and represented by a lawyer, lodged an appeal on points of law before the Supreme Court.

On 16 September 2009 the Supreme Court, relying on its own decision of 26 February 2009, rejected its appeal on the ground that the procurator was not entitled to represent a legal entity in judicial proceedings, and neither was he entitled to give a power of attorney to a lawyer. In the court ’ s opinion, the procuration was to be regarded as a special form of a general business authorisation. This authorisation, according to the Supreme Court, only entitled the holders of the procuration to perform, on behalf of the company, acts falling within the scope of substantive law. However, it did not give them any powers with regard to the procedural acts, such as acting on behalf of a company in judicial proceedings. Therefore, the Supreme Court concluded that the power of attorney signed by the applicant company ’ s procurator was not a valid instrument of authorisation which would entitle the company ’ s lawyer to represent the latter in the appeal proceedings.

The applicant company lodged a constitutional complaint before the Constitutional Court, claiming that the procedural regulation providing that an incomplete appeal on points of law was to be rejected forthwith without summoning the party to supplement the pleadings was unconstitutional.

On 14 June 2011 the Constitutional Court dismissed the applicant company ’ s complaint, holding that the impugned procedural regulation did not constitute a limitation of the constitutional right to judicial protection, but only determined the manner of exercising this right. The court therefore applied a restrained approach to the assessment of the constitutionality, emphasising that, since the applicant company had already been party to proceedings at two levels of jurisdiction, it had already been provided with what could be considered the essence of the right to judicial protection. It had also already exercised its right to appeal. Therefore, the Constitutional Court took the view that the fact that the Supreme Court had not decided its case on the merits could not entail serious consequences for the applicant company.

B. Relevant domestic law and practice

1. The Companies Act

According to Section 33 of the Companies Act, a company may grant the power of procuration to one or more persons in accordance with the procedure laid down in its instrument of incorporation. A procuration may also be granted for a branch of the company. As regards the scope of the power of procuration, Section 35 of the Act provides that the procuration is granted for all legal acts falling within a company ’ s legal capacity, with the exception of the right to encumber or dispose of the company ’ s real property, for which the holder of the procuration must be granted a special power of attorney.

2. The Civil Procedure Act

(a) Power of attorney

As regards, firstly, the requirement of submitting the power of attorney, the Act distinguishes between power granted to a lawyer or to other persons, in the sense that the requirements regarding the lawyers are stricter than those applicable to other persons. While according to Section 98 § 2 a person who fails to submit the power of attorney is given a deadline to produce the power, but may in the meantime continue to perform procedural acts on behalf of the party, by virtue of Section 98 § 5 the legal action or other remedy is rejected forthwith if lodged by a lawyer who fails to submit the power of attorney.

(b) Rectification of errors

In the proceedings before the first-instance courts parties that submit unintelligible, incomplete or otherwise deficient pleadings are given an additional time-limit to correct or supplement their pleadings so as to enable the examination of their case. Only if the pleading fails to be corrected or supplemented within the specified time-limit, will the competent court reject the application. However in the appeal proceedings before the higher courts and the Supreme Court any incorrect or incomplete pleadings are rejected forthwith.

COMPLAINT

The applicant company complains under Article 6 § 1 of the Convention that it was denied access to the Supreme Court, as the power of attorney given to its legal representative by the company ’ s procurator was considered invalid by the Supreme Court which changed its jurisprudence regarding the procedural entitlements of procurators and decided the applicant company ’ s case contrary to its previous case-law on the matter. As the applicable procedural legislation does not provide for the possibility of correcting errors in the pleadings before the Supreme Court, the applicant company ’ s appeal on points of law was rejected forthwith, thereby preventing the company from having its appeal decided on the merits.

QUESTION TO THE PARTIES

Did the applicant company have a fair hearing in the determination of its civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, was the Supreme Court ’ s decision of 16 September 2009 , based on a new position of this court with regard to the procedural entitlements of holders of procuration such as to undermine the very essence of the applicant ’ s right to a court? Also, was the principle of legal certainty implicit in Article 6 § 1 of the Convention complied with ?

The Government are requested to submit examples of domestic jurisprudence showing the development of the Supreme Court ’ s case-law on procedural entitlements of the holders of procuration.