DISSENTING OPINION OF JUDGES BAKA, GARLICKI AND POPOVIĆ

It is with regret that we are unable to share the majority ’ s position in this case. The Court considered that the Polish judicial authorities failed to secure a proper balance between the interests of the State and the interest of the applicant company. The Court analysed the grounds given by the domestic courts in imposing the court fees upon the applicant company and concluded that it “[did] not find those grounds persuasive”.

We are not sure, however, whether this Court is adequately equipped to assess particular facts of particular cases and to contradict the domestic court ’ s findings concerning the company ’ s gross and net profits (§ 55), the probability of the company ’ s being wound up (§ 56), the practicability of securing the necessary funds at earlier stages of the company ’ s activity (§ 58), the possibility for the company to obtain a bank loan (§ 59) and, lastly, the willingness of the company ’ s partners to provide it with additional funds (§ 60). The domestic courts based their decision on careful assessments of all relevant factors. Their decisions gave adequate reasoning and were reviewed by higher judicial instances. The domestic courts had, and used, every opportunity to research all relevant facts, to study all relevant documents and to arrive at conclusions which were consonant with those facts and documents. We wonder whether it is the task of this Court to substitute its own judgments and assessments for those adopted at the domestic level.

In our opinion, there are but two situations in which the intervention of the Strasbourg Court would not give rise to such reservations.

The first relates to a general legal regime governing how court fees are calculated. Polish legislation provides, as a rule, that court fees should represent 5% of the value of the claim. It also provides for several possibilities of partial or total exemption. This general rule has never been challenged by the Strasbourg Court . Hence it may simply be the manner in which this rule is applied in particular cases, which prompts the Court to find that the Convention has been violated. But once the Court embarks upon an assessment of particular applications of domestic legislation, it ventures into an area where it must abide by the principle of subsidiarity .

Therefore, the only situation in which the Court ’ s intervention seems always to be legitimate is when domestic decisions and assessments are clearly arbitrary and/or discriminatory. But in such situations the burden of proof lies with the Strasbourg Court . In other words, the Court is always required to demonstrate that there has actually been arbitrariness in the case. Hence it is not enough to come to the conclusion that the domestic courts could have taken better decisions and could have assessed the facts of a case differently. Such a conclusion goes beyond the remit of the Strasbourg Court . That is why, in the present case, the Court, instead of finding that the

domestic courts ’ position was not persuasive, should have given its own persuasive arguments as to the arbitrariness of their decisions.

Each commercial company must calculate its business risks, particularly if, like in this case, it put all its resources into one major transaction. Courts procedures (and courts fees) represent an obvious component of business risk and when a company had not thought about it in advance, it is not the task of the Strasbourg Court to compensate its losses.

[1] . The applicant company’s share capital was PLN 1,200.

[2] . Approximately 76,000 euros (“EUR”) at the relevant time.

[3] . Approximately EUR 13,700 at the relevant time.

[4] . Under the applicable tax legislation, the company which issued an invoice must pay VAT on the amount due in the month following the issue, regardless of whether the debtor paid the invoice.