Published on 25 July 2022

FIRST SECTION

Application no. 50991/21 Boleslaw BOTOR against Poland lodged on 11 October 2021 communicated on 7 July 2022

SUBJECT MATTER OF THE CASE

The applicant owned shares of the company PKE S.A., of which he was an employee. That company was to be merged with the company TPE S.A. on the basis of the Act of 7 September 2007 on the Principles of Acquisition of Shares from the State Treasury in the Process of Consolidation of Electric Power Companies (“the 2007 Act”). In accordance with the 2007 Act the applicant obtained the right to exchange his shares in company PKE S.A. (“the merged company”, spółka konsolidowana ) for shares in company TPE S.A. (“the merging company”, spółka konsolidujÄ…ca ) . In 2009 he signed an agreement with the Ministry of State Treasury, whereby the State Treasury acquired the shares of the merged company and the applicant acquired the shares of the merging company. That agreement was governed by the 2007 Act and the relevant regulation of the Minister of State Treasury of 10 February 2008 (“the 2008 regulation”). Section 3(3) of the 2007 Act established a mechanism of reduction concerning the number of shares of the merging company that could be exchanged for shares of the consolidated company. This provision stipulated that the number of shares in the merging company made available to the entitled employees of the merged companies could not exceed 15% of the number of shares subscribed for by the State Treasury in the merging company. The applicant claimed that the agreement on exchange of shares between him and the State Treasury was not equivalent and that he had sustained a damage as a result of the exchange of shares. He instituted civil proceedings against the State Treasury. The courts of the first and second instance dismissed his claim. The applicant lodged a constitutional complaint, alleging, inter alia , that the relevant provisions of the 2007 Act and the 2008 regulation were incompatible with Article 64 §§ 1 ‑ 2 of the Constitution (the equal protection of property rights). He also alleged that the limitation of his property rights in subordinate legislation (the 2008 regulation) was incompatible with Article 64 § 3 of the Constitution.

After a hearing held in camera , the Constitutional Court gave judgment (no. SK 24/18) on 24 March 2021 in a bench composed of judges J.W., J.Pi., J.P., W.S. and M.W. It held that section 3(3) in conjunction with section 5(1) of the 2007 Act and § 2 (3) of the 2008 regulation were compatible with Article 64 § 2 of the Constitution and discontinued the proceedings for the remainder. The applicant was served the judgment on 19 April 2021.

Judge J.Pi. had been elected as judge of the Constitutional Court on 15 September 2017 following the death of Judge L.M., one of the judges elected on 2 December 2015 to a seat that had already been filled (see, Xero Flor w Polsce sp. z o.o. v. Poland , no. 4907/18, 7 May 2021).

Judge J.W. had been elected as judge of the Constitutional Court on 26 January 2018 following the death of Judge H.C., one of the judges elected on 2 December 2015 to a seat that had already been filled.

The applicant complains under Article 6 § 1 that he was denied the right to a “tribunal established by law” on account of the participation in the proceedings before the Constitutional Court of Judges J.Pi. and J.W. who had not been duly elected to that court. He refers to Xero Flor w Polsce sp. z o.o. The applicant also alleges a violation of Article 1 of Protocol No. 1. He contends that the application by the Ministry of State Treasury of the mechanism of unilateral reduction of shares to the agreement concluded between him and the State Treasury resulted in him being deprived of part of shares of the merging company to which he was entitled.

QUESTIONS TO THE PARTIES

1. Was the bench of the Constitutional Court, which included Judges J.Pi. and J.W. and dealt with the applicant’s constitutional complaint a “tribunal established by law” as required by Article 6 § 1 of the Convention, having regard to the applicant’s arguments regarding the validity of election of those two judges? Reference is made to Xero Flor w Polsce sp. z o.o. v. Poland , no. 4907/18, 7 May 2021.

2. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference lawful and necessary to control the use of property in accordance with the general interest?

In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)?