CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree that Article 6 has been violated in the present case, but I see the nature of the violation differently from my colleagues and, moreover, I fundamentally disagree with the main arguments in the reasoning of the judgment.

2. In the instant case, the domestic courts dismissed the applicant company ’ s claims in their totality. They found that the applicant had no standing in the proceedings because it was not a party to the contract on which it based its claims. In other words, the applicant could not derive any claims from the contract with the State Health Insurance Fund to which it was not a party. The final decision is clearly a decision on the merits rendered after the examination of the substance of the case. Moreover, the judicial decisions rendered by the domestic courts in the instant case are called judgments (in Macedonian: пресуда ), a term which designates decisions on the merits. The applicant had access to the domestic courts and obtained a final judgment which decided upon its claim. The problem – under the Convention – lies elsewhere: the reasoning of the domestic judgments fails to meet the quality requirements laid down in the case-law of the European Court of Human Rights, as in particular the Macedonian courts failed to address the essential arguments put forward by the applicant. Article 6 has been violated because of a lack of sufficient reasoning.

3. The reasoning of the present judgment states as follows in paragraph 47:

“The foregoing considerations are sufficient to enable the Court to conclude that in the particular circumstances of the case the domestic courts imposed an unjustifiable procedural obstacle on the applicant company by adopting an excessively formalistic approach and dismissing its claims for lack of standing. This impaired the very essence of the applicant company ’ s right of access to a court and left it no opportunity to have its claims examined on the merits.”

I am not able to understand these statements. Firstly, decisions on the merits may have very different content. The dismissal of the claims because the applicant was not considered to be party to a contract is a precisely an example of a decision on the merits. This is not a procedural decision but a decision touching upon the very substance of the case. It determined the gist of the applicant ’ s dispute with the State Health Insurance Fund by denying any claims derived from the contract in question. The reasoning seems to confuse procedural and substantive issues.

Secondly, as the case was examined and ended with a decision on the merits of the applicant ’ s claims, I do not see any obstacles in its access to a court. What else does “access to a court” mean? Moreover, the applicant had full access to the courts – at two levels of jurisdiction. The first instance court initially granted the claim in part (see paragraph 16).

Thirdly, the Court reproaches the domestic courts for “excessive formalism”. It is true that some arguments used in the reasoning of domestic courts may appear “formalistic” when read in the context of reasoning which does not provide sufficient analysis of the points raised by the applicant. Nonetheless, in the instant case, I find the blame of “excessive formalism” pernicious. The crucial legal issue in the case was the identification of one of the parties to a contract. The question of who is a party to a contract is of utmost importance for the security of legal commerce. Legal certainty in this area is fundamental to protect the interests of legal subjects who enter into contractual relations with other parties. Everyone has to know whether he is a party to a legal relationship with another party. In this domain the reproach of “excessive formalism” in the application of the law is inappropriate. The approach adopted in the judgment touches upon the most fundamental issues of private law and may detrimentally affect its very basis.

Fourthly, the Court – by criticising the dismissal of claims for lack of standing – enters into a field of domestic law remaining within the scope of the domestic court. The question of identifying parties to a contract (especially in the context of transformations of legal persons and the transfer of claims) may be regulated in very different ways. Under the Convention, the High Contracting Parties are in principle free to legislate on these issues. The problem – under the Convention – is not the content of the law but the reasoning of the domestic courts.

4. Paragraph 46 contains in fine the following passage:

“While it can accept the Government ’ s argument that assigning an identification code to legal entities (such as the individual tax number) is a measure aimed at ensuring legal certainty, which can be seen as a legitimate aim, the Court is struck by the fact that the Supreme Court found, in nearly identical circumstances involving the same parties and the same contract, that the applicant company had standing to sue in the proceedings since the impugned contract had been terminated by the notice of 29 November 2006 given to the new Practice (see paragraph 31 above). In view of that, the Court sees no reason, and none was offered by the Government, to depart from the conclusion of the highest domestic court.”

The last sentence is very ambiguous and problematic. Firstly, the instant case was terminated at domestic level in 2009, whereas the only Supreme Court judgment on a similar question dates from 2011. Is it rational to blame the lower courts for departing in 2009 from a conclusion adopted by the Supreme Court in 2011? Is there an obligation for a court to anticipate future judgments of the highest domestic court? One can at most blame the courts for not having found either a right answer or the right answer to the case.

Secondly, the last sentence of the paragraph refers to the highest domestic court . In this sentence, emphasis is placed on the position of the court in the structure of the national judicial branch, whereas there is no reference here to the specific circumstances of the case. Such wording conveys the message that the domestic courts should follow the views of the court which occupies the highest position in the structure because of this specific position. In my view, the domestic courts may not be blamed for departing from the conclusion of the highest domestic court, they can only be blamed for not giving a/the right answer – an answer which happened to be provided, previously or subsequently, by another domestic court.

The approach developed in the present judgment ’ s reasoning touches upon the most sensitive issues of judicial organisation and sources of domestic law. In numerous States, case-law is not viewed as a source of law and the courts have the power to establish – acting independently – the content of the applicable law. The principle of stare decisis is not part of civil-law systems. A judgment in a civil case has binding effect only for a specific case. Courts are not obliged to follow the approach of those which have a higher rank in the judicial structure, even if the new case concerns the same parties and the same legal relationship.

Moreover, in some States the courts ’ power to apply the law independently, regardless of existing case-law, is seen as one of the constitutive elements of judicial independence. According to such views, courts have to be independent not only from the parties, the public and the non-judicial branches of the government, but also from other courts.

Pursuant to the domestic law of many States, national courts have to give reasoned judgments but do not have an obligation to provide specific arguments addressing the issue of why they decide to “depart” from the case-law of higher courts. The approach developed in the present judgment ’ s reasoning, implicitly introducing the obligation to provide reasons for departing from legal views expressed by the highest court, seems to attribute to the highest courts ’ judgments a semi-binding nature, extending beyond the scope of the res iudicata in a specific case. It affects the system of sources of national law by introducing certain elements of the precedent system to civil-law countries and promotes convergence with the common law. Was this the real intent of the judgment, or is this only a matter of regrettable clumsiness in the wording?