AGROTEXIM HELLAS S.A. AND OTHERS v. GREECEPARTIALLY DISSENTING OPINION BY MR. L. LOUCAIDES
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Document date: March 10, 1994
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PARTIALLY DISSENTING OPINION BY MR. L. LOUCAIDES
JOINED BY MM. F. ERMACORA, J.-C. SOYER AND C.L. ROZAKIS
I regret that I cannot share the Commission's opinion that there
has been no violation of Articles 6 and 13 of the Convention in the
present case.
It is of course reasonable, in principle, to exclude the
individual shareholders from acting on behalf of the legal person of
their company. However, where the company is unable or unwilling to
take the necessary steps before the competent judicial authorities to
protect its own interest, it must be possible to an individual or to
a group of individuals who hold a substantial shareholding and whose
rights are indirectly, though necessarily, affected to exercise the
company's rights. This should be in particular the case, where the
company is under the effective control of the State and the measure
allegedly affecting its rights are taken by State organs.
The Government submitted that the applicants, in their capacity
of shareholders could still, notwithstanding the winding up process
under the law on "ailing enterprises", exercise an effective control
on the liquidators, by taking appropriate action against them before
the courts. However, the winding up of the company was effected under
the supervision of the O.A.E., which is the State agency responsible
for the "ailing companies". The "Karolos Fix Brewery S.A." was thus in
liquidation and under the effective control of the State.
Under these circumstances, Article 6 para. 1 requires that the
applicant shareholders be entitled, by lifting the veil of the
company's legal personality, to bring effectively before the courts the
company's claims against the Municipality of Athens. This possibility
was not offered to the applicants shareholders under domestic law.
In this respect it is useful to refer also to the decision on the
admissibility whereby it was found that no effective remedies were
available to the applicants in respect of the interference with their
rights under Article 1 of Protocol No. 1 complained of in this case.
I believe that so long as the Commission found it established that
there has been a viuolation in respect of such complaint a finding of
a violation of the right to have access to court under Article 6 of the
Convention should, in the circumstances of this case, as explained
above, follow as a corollary of the first finding.
For these reasons I conclude that in the present case there has
been a violation of Article 6 para. 1 of the Convention.
Having regard to this conclusion, I take the view that it is not
necessary to examine the case under Article 13 as its requirements are
less strict and are absorbed by those of Article 6.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
29 November 1988 Introduction of application
21 March 1989 Registration of application
Examination of admissibility
13 February 1990 Commission decision to communicate
the case to the respondent Government
and to invite the parties to submit
observations on admissibility and
merits
16 May 1990 Government's observations
4 July 1990 Applicant's observations in reply
8 July 1991 Commission's decision to hold a
hearing
12 February 1992 Hearing on admissibility and
merits. Commission's decision to
declare application admissible
Examination of the merits
22 April 1992 Decision on admissibility
communicated to parties. Invitation
to parties to submit further
observations on the merits
25 June 1992 Government's observations
4 July 1992 Commission's consideration of state
of proceedings
28 September 1992 Applicant's observations
17 October 1992, Commission's consideration
13 February 1993 of state of proceedings
19 February 1993 Government's comments
3 July 1993 Commission's consideration
15 January 1994 of state of proceedings
10 March 1994 Commission's deliberations on the
merits, final vote and consideration
of text of the Report
10 March 1994 Adoption of Report