JOINT CONCURRING OPINION OF JUDGES RAIMONDI, NUSSBERGER, LEMMENS, RAVARANI, PACZOLAY AND ZALAR

1. We voted with the majority in finding no violation of Article 1 of Protocol No. 1 to the Convention.

We respectfully disagree, however, with the statement in the judgment that “holding a member of a limited liability company liable for debts of the company, and thus lifting the corporate veil, should be made necessary by exceptional circumstances and counterbalanced by specific safeguards” (see paragraph 112 of the judgment). In our opinion, the reference to “exceptional circumstances” is inappropriate or misleading in a case like the present one.

A. The “exceptional circumstances” requirement should not have been introduced in the context of the “fair balance” test

2. It is for domestic law to determine under which conditions legal personality can be given to a corporate entity created by one or more individuals, and to determine to what extent the legal personality of the corporation is separate from that of its members. Where domestic law provides that a corporation of a given type has a separate legal personality, the courts, including international courts, must take the characteristics of that legal personality into account. Accordingly, in principle, only the corporation can act in defence of its rights and only the corporation can be held liable for its obligations.

3. That principle is not without exception. As was explained by the International Court of Justice in the Barcelona Traction case, quoted in paragraph 111 of the present judgment, the lifting of the corporate veil is admitted by the domestic law of many, if not all States, “in the interests of those within the corporate entity as well as of those outside who have dealings with it” ( Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) , judgment of 5 February 1970, ICJ Reports 1970, p. 40, § 56). The International Court of Justice pointed to a difference in frequency between the two situations: while “the lifting of the veil is more frequently employed from without, in the interests of those dealing with the corporate entity, ... it has also been operated from within, in the interests of – among others – the shareholders, but only in exceptional circumstances” (ibid., p. 40, § 57). Based on its analysis of domestic laws, the International Court of Justice concluded that the process of lifting the veil, “being an exceptional one admitted by municipal law in respect of an institution of its own making”, was “equally admissible to play a similar role in international law”; it admitted, more specifically, that there could be “special circumstances which justif[ied] the lifting of the veil in the interest of shareholders” (ibid., p. 40, § 58).

Barcelona Traction concerned a claim by a State acting on behalf of shareholders who were its nationals. The European Court of Human Rights relied on that judgment when it had to decide whether individual shareholders (themselves legal persons) could bring an application before it, complaining about a violation of their company’s rights. It held as follows (see Agrotexim and Others v. Greece , 24 October 1995, § 66, Series A no. 330-A):

“... the piercing of the ‘corporate veil’ or the disregarding of a company’s legal personality will be justified only in exceptional circumstances in particular where it is clearly established that it is impossible for the company to apply to the Convention institutions through the organs set up under its articles of incorporation or – in the event of liquidation – through its liquidators.”

We would like to emphasise that in situations such as those covered by Barcelona Traction and Agrotexim , the lifting of the corporate veil occurs according to a general principle of (corporate) law that operates in favour of the shareholders. In that specific context the requirement of exceptional circumstances is perfectly understandable and clearly applicable: lifting the corporate veil appears as a derogation from the general rule of separation of the legal personalities of the company and its shareholders as determined by the legislature .

4. The present case is of a different nature. The majority acknowledge the existence of such a difference, and even admit that “the Agrotexim line of case-law cannot ... be transposed directly to assist the Court in resolving a case, such as the present one, which concerns lifting of the corporate veil of a limited liability company in the interest of its creditors” (see paragraph 111 of the judgment). They nevertheless hold, as indicated above, that lifting the corporate veil in a case such as the present one can only be admissible under the Convention where this is “made necessary by exceptional circumstances” (see paragraph 112 of the judgment). Notwithstanding the wording to the contrary, this seems to be a rather direct transposition of the Agrotexim criterion to the present case...

The difference between the two types of cases is not only about who benefits from the lifting of the corporate veil: the shareholders (as in Barcelona Traction and Agrotexim ) or the corporation’s creditors (as in the present case). The difference is also, and more fundamentally, about the legal basis for lifting the corporate veil: in the former situation, as explained above, the legal basis is a general principle of law allowing for a derogation from the general rule established by the legislature; in the latter situation it is the legislature itself which allows for a derogation, under certain conditions, from the general rule that individual shareholders are not liable for the corporation’s debts [20] .

We do not believe that it is for the Court to limit the discretion of domestic legislatures to shape the legal personality of corporate entities as they see fit. More specifically, there is in our opinion, in principle [21] , nothing that should prevent a legislature from deciding that an individual shareholder may be held liable for the corporation’s debts, or from determining the circumstances in which that can and should happen. To hold that the legislature can do so only “in exceptional circumstances” (a vague notion, and therefore in fact left to the appreciation of the Court) constitutes, in our opinion, an unjustified restriction of the discretion enjoyed by the domestic legislature.

We cannot see how such a restriction can be derived from Article 1 of Protocol No. 1. The majority are, in fact, turning a principle of (mere) company law (the principle of separation of the legal personalities of the corporation and its shareholders and the ensuing limited liability of shareholders, a principle from which the legislature can freely derogate) into a Convention principle (from which the legislature can derogate only “in exceptional circumstances”).

Finally, we find that the majority’s inclusion of the “exceptional circumstances” requirement among the general principles to be applied creates uncertainty. Indeed, when it comes to the application of the principles, the “exceptional circumstances” requirement is mentioned only in paragraph 115 of the judgment. The majority explain that “the exceptional character of the circumstances that may warrant the lifting of the corporate veil essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations”, and thus “[i]t does not mean that this kind of measure may be justified only in rare cases”. When it comes to the concrete fair-balance test (see paragraphs 116-29 of the judgment), however, the requirement of exceptional circumstances is not mentioned again.

B. The fair balance in the present case

5. Leaving aside the “exceptional circumstances” test altogether does not mean that the legislature’s choices are beyond the scrutiny of the Court. As indicated above, when the legislature interferes with the property rights of individuals, the Convention requires that a fair balance be struck between the rights of those directly affected by the legislative choices and the competing interests of the State or the public generally (see paragraph 109 of the judgment).

The assessment of whether a fair balance has been struck depends on all the circumstances of the case. Whether or not these circumstances are “exceptional”, whatever the meaning to be given to that term, is in our opinion irrelevant. We take the system set up by the legislature as a fact.

What counts is whether the legislature had relevant and sufficient reasons to intervene, whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied (see paragraph 110 of the judgment), and whether any individual and excessive burden was imposed on the applicant (see paragraphs 110 and 112 of the judgment).

6. We can be brief as to the assessment of whether there has been a fair balance in the present case.

As a starting point, we note that the interference with the applicant’s rights resulted from a general measure adopted by the legislature. Indeed, the FOCA determined the situations in which shareholders could be held liable for the debts of their company. All that the courts had to do was to establish whether or not the applicant’s situation corresponded to the statutory one (compare Ždanoka v. Latvia [GC], no. 58278/00, § 114, ECHR 2006-IV), apart of course from examining whether the interference with the applicant’s right to the peaceful enjoyment of his possessions was compatible with the Convention standards.

In order to determine whether a general measure struck a fair balance between the competing interests at stake, the Court must primarily assess the legislative choices underlying it. The application of the general measure to the facts of the case remains, however, illustrative of its impact in practice and is thus material to its proportionality (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013, and Correia de Matos v. Portugal [GC], no. 56402/12, § 129, 4 April 2018).

7. In this respect, we agree with the general approach adopted by the majority in their application of the general principles to the present case: they examine first the legislative framework as such, in paragraphs 113-18 of the judgment, then the application of that framework to the applicant’s case, in paragraphs 119-28.

In particular, we agree that the legislature set up a system that was able to strike a fair balance between the interests of the creditors of struck-off companies and those of the members of such companies (see paragraph 118 of the judgment), and in particular that the quality of the parliamentary and judicial review of the necessity of that legislation and of the measures adopted was such as to warrant a wide margin of appreciation as regards the legislative and judicial choices made (ibid.) [22] . We finally agree that in the circumstances of the present case no individual and excessive burden was imposed on the applicant (see paragraph 129 of the judgment).

On the basis of these reasons, we concur in the conclusion that there has been no violation of Article 1 of Protocol No. 1.