DISSENTING OPINION OF JUDGE JAEGER , JOINED BY JUDGE MARUSTE

I am unable to agree with the majority ' s finding of a violation of Article 6 § 1 of the Convention – access to court – without any determination of the substantive civil right at stake.

The case is about the rights of shareholders as defined by the Czech law. On the one hand owners of shares may be protected under Article 1 of Protocol N o. 1 in so far as these shares constitute a possession or a property right of a certain variable value according to the stock market. But the Chamber declared these claims inadmissible as being premature (§ 110-112). On the other hand shareholders are empowered to participate in certain decisions concerning the future of the company concerned by means of resolutions taken within a general meeting, which is an added value to the pure monetary value.

These decisions are taken under the majority rule. Shareholders being in the majority have the overwhelming power to transform the company into something differ ent and to transfer its assets. Minority rights are rather limited, according to the res trictions by law: the minority, or a single shareholder, can institute proceedings to set aside such resolutions, but cannot inhibit registration following the majority ' s vo te by virtue of his own right. After registration the minority ' s rights dwindle to a mere right to compensation. This is all set out in the judgment under § 42-59.

The Czech courts gave some reasoning why they considered those restrictions of shareholder rights to be legitimate – legal certainty and the expeditio us transformation of companies. The court administering the commercial register was established to project majority rights and the rights of the company as such (see paragraph 12 of the judgment). In addition, by reviewing the legality of the decision-making process within the company the courts administering the commercial register also protect the public interest in ensuring that the law is complied with.

I am of the opinion that the restrictions of which the applicants complain are partly implemented by substantive provisions, partly by procedural ones. Whether these restrictions are in conformity with Convention rights cannot be answered by Article 6 § 1 of the Convention only focusing on the procedural aspect, even limited to one single factor wit hin the procedural safeguards. In the context of civil rights that are not to be exercised individually but collectively together with other shareholders in the same position and under the obligation to reach a majority vote, access to court cannot be understood as a purely individual right to challen ge and suspend every decision. This would at the same time g rant every single shareholder a veto rig ht against majority decisions. Thus the scope of shareholders ' voting rights is defined within the limits of judicial control attached to them.

Whether the rights enshrined in the Convention demand for an extension of minority rights with the aim to sufficiently protecting a minority of shareholders cannot be answered by Article 6 § 1 of the Convention but only by Article 1 of Protocol No. 1. It is a substantive and not a procedural question.

Art icle 6 of the Convention applies under its “civil head” if there was a “dispute” over a “right” which can be said, at least, on arguable grounds , to be recognised under domestic law irrespective of whether it is also protected under the Convention (see Associazone Nazionale Reduci Dalla Prigonia Dall ' Internamento E Dalla Guerra Di Liberazione and others v. Germany , no. 45563/04; J.S. and A.S. v. Poland , no. 40732/98, 24 May 2005 ). The absence o f a legitimate expectation of a property right or any other civil right does not presuppose the absence of a right recognised on arguable grounds and the applicability of Article 6 of the Convention. The Court therefore has always to examine whether there was a dispute over a defendable right, which the Chamber did not do in any depth in this case.

The civil right under dispute might be the purely financial propert y right embodied in the share. This dispute is still pending as conceded b y the majority of the Chamber. It might as well be the additional right to influence important resolutio ns taken in a general meeting. The only existing legal provisions regarding a rig ht to influence the future of a company clearly limit shareholders ' bearing to a right to participate and vote in the general meeting, to a right to challenge resolutions as long as the changes are not registered and assets transferred by the commercial court, and – after the registra tion finalises the transactions – to claim compensation in case of any damages sustained or of inadequate compe nsation paid for their shares. Domestic law neither provides for any right to set aside majority resolutions nor to suspend thei r execution after registration. Minority shareholders are clearly excluded from these rights. Thus they cannot claim to have such right o n arguable grounds. Article 6 § 1 of the Convention is not applicable (see Associazone Nazionale , referred to above).

Finding Article 6 of the Convention not applicable in the case does not necessarily exclude finding a violation under Article 1 of Pr otocol N o. 1 to the Convention. This question, especially whether the law strikes a fair balance between the competing interests of the majority ' s rights and the public interest in the functioning of economy under the safeguards of the rule of law on the one hand and the protection of minority rights on the other hand, cannot be decided bef ore compensation is determined. In the course of their scrutiny the courts will have to examine whether the totality of restrictions, including those on access to court, can be deemed necessary to control the use of property in accordance with the general interest (under the second paragraph of Article 1 of Protocol N o. 1). I agree with the majority of the Chamber under § 112 that this part of the application is premature.