CONCURRING OPINION OF JUDGE Turković

1 . Whilst I agree with the Court ’ s conclusion I would like, however, to make several remarks relating to the Constitutional Court ’ s decision no. U ‑ III-3471/2003 of 16 March 2006, published in the Official Gazette on 19 April 2006 (see paragraph 36 of the judgment) in which that court stated that the Government Decision of 23 September 1999 was not in breach of Article 48 § 1 of the Croatian Constitution.

2 . I would first point out that the Government in their observations did not in any way rely on the Constitutional Court ’ s decision in question (see paragraphs 39-41 of the judgment). Moreover, that decision was adopted in the case of Miljenko Kovač , who then, within six month of its adoption, i.e. on 7 September 2006, lodged his application with the Court (see Miljenko Kova č v. Croatia ( dec. ), no. 39739/06, 15 January 2009). In that case the Government claimed that civil proceedings before the commercial courts were the right remedy to be used (see paragraphs 49 and 51 of the judgment).

3 . I will explain why the said decision of 16 March 2006 is indeed of no relevance in the present case.

4 . Under Croatian law, subordinate legislation can be contested only on the grounds of its non-conformity with primary legislation and/or the Constitution. Such a challenge can be mounted either:

– directly in abstract-review proceedings, in which the Constitutional Court can invalidate the contested subordinate legislation if it finds that it is not in conformity with the primary legislation and/or the Constitution: or

– indirectly before any other court in civil, criminal or judicial-review (administrative-dispute) proceedings, in which the courts can disapply the impugned subordinate legislation (which they would otherwise have to apply), if they find that it is not in conformity with the primary legislation and/or the Constitution (the so-called exceptio illegalis rule).

5 . The Constitutional Court ’ s decision no. U-III-3471/2003 of 16 March 2006 was adopted in proceedings initiated by an individual constitutional complaint in which the complainant contested judgments of ordinary courts.

6 . In proceedings upon an individual constitutional complaint, the Constitutional Court can only review the contested individual legal acts (judgments or decisions) for their compliance with the Constitution. It cannot examine whether the primary legislation applied was in conformity with the Constitution or whether the subordinate legislation applied was in conformity with primary legislation or with the Constitution. Its review is confined to examining whether the way in which the courts interpreted and applied the relevant legislation is in compliance with the Constitution.

7 . If the Constitutional Court in the proceedings upon an individual constitutional complaint suspects that the primary legislation applied is incompatible with the Constitution, or that the subordinate legislation applied is incompatible with primary legislation or with the Constitution, it can institute abstract-review proceedings of its own motion.

8 . The Constitutional Court had an opportunity to examine the Government Decision of 23 September 1999 in abstract-review proceedings (see paragraphs 9-11 of the judgment). In its decision of 30 January 2003 that court, however, decided to discontinue those proceedings because the primary legislation on which the decision was based had in the meantime been repealed (see paragraph 11 of the judgment).

9 . In these circumstances, the Constitutional Court ’ s statement in its decision of 16 March 2006 (see paragraph 36 of the judgment) that the Government Decision was not in breach of Article 48 § 1 of the Constitution can only be seen as an obiter dictum which merely highlighted the legal consequences for the case in question of its earlier decision of 30 January 2003 and reflected the scope of its jurisdiction in the type of the proceedings at issue. Specifically, in the proceedings concerning an individual constitutional complaint, the Constitutional Court could not in any event examine the conformity of the Government Decision with the Constitution or with the relevant primary legislation, let alone do so after it had, in its earlier decision of 30 January 2003, discontinued the relevant abstract-review proceedings.

10 . The following facts further suggest that the above statement was indeed an obiter dictum and thus could not prejudice the outcome of the applicant company ’ s case:

– the Constitutional Court did not even mention it in its decisions in the leading cases concerning the application of the exceptio illegalis rule (see paragraph 34 of the judgment) to which decisions that court referred when dismissing the applicant company ’ s constitutional complaint (see paragraphs 18-19 of the judgment); and

– in its judgment of 18 June 2008, adopted in the applicant company ’ s case, the High Commercial Court, even though it accepted the said statement, expressly stated that it did not consider itself bound by it (see paragraph 16 of the judgment).

11 . In view of the above, after the Constitutional Court ’ s decision of 30 January 2003 the only possible way to challenge the Government Decision was to do so indirectly, namely, in the civil proceedings before commercial or civil courts, relying on the exceptio illegalis rule.

12 . However, as explained in the judgment (see paragraph 56), the fact that this remedy used by the applicant company lacked any prospects of success and was therefore ineffective was not established until 24 July 2013 when the Constitutional Court ’ s decision of 8 July 2013, adopted in a leading case, was published in the Official Gazette. That was some two months before the same court, on 2 October 2013, adopted the decision in the applicant company ’ s case.

13 . It follows that, as the Court has correctly concluded in paragraph 59 of the judgment, the applicant company, by lodging its application with the Court on 20 December 2013, complied with the six-month rule regardless of whether the relevant starting date was 24 July 2013, when the Constitutional Court ’ s decision of 8 July 2013 in a leading case was published in the Official Gazette (see paragraphs 34 and 55 of the judgment), or 10 October 2013, when the same court served its decision of 2 October 2013 in the applicant company ’ s case on the company ’ s representative.

14 . Furthermore, I subscribe entirely to the reasoning of my learned colleagues Judges Pejchal and Wojtyczek relating to the exhaustion of remedies and the six-month rule as expressed in paragraphs 4 and 5 of their concurring opinion.