DISSENTING OPINION OF JUDGE NUSSBERGER

The majority of the Chamber has found a violation of Article 6 § 1 of the Convention in applications nos. 36038/09 and 47155/09 on account of lack of access to court, as the appellate court dismissed the applicant company ’ s appeals without deciding the case on the merits.

I doubt very much whether the findings in the Micallef judgment, as developed further in Udorovic v. Italy and Kübler v. Germany , apply in the present case. The interim measure cannot be considered “to determine effectively a civil right”. In the main proceedings the “civil right” at issue is the ownership of the shares. It is clear that the injunction does not have any bearing on that issue. The subject of the injunction is the right to hold meetings, which can hardly be considered as a “civil right” per se ; it is rather an intermediary step or a prerequisite for determining other civil rights. The injunction therefore has rather to be considered as a protective measure, in line with the reasoning in Stokal o v. Croatia and Imobilije Marketing v. Croatia : it is meant to prevent the adoption of decisions which might have a negative impact on the ownership rights that are the subject of the main proceedings.

But even assuming Article 6 were applicable, the specificities of interim measures have to be taken into account (see Micallef , § 86 ).

According to the majority, the appellate High Court ’ s decisions rendered on 5 February 2009 and 16 July 2009 violated the applicant company ’ s right of access to court. Two aspects are to be distinguished in this context. First, the High Court ’ s decisions came too late, as they were rendered only after the date on which the meeting had been scheduled. Second, the High Court refused to decide on the merits ex post facto .

Concerning the first aspect, regard must be had to the fact that the appeals were almost certainly lodged a very short time before the date of the meeting. The exact dates are not known to the Court (see paragraph 16: “on an unspecified date before 30 January 2009”). On the basis of the ad impossibilia nemo tenetur principle, courts cannot be expected to always be in a position to decide immediately. They must be afforded some discretion in prioritising important issues and postponing less important ones. The applicant company ’ s appeals did not concern a matter of utmost urgency, as the right to hold a meeting was not lost but could still be exercised at a future point in time.

Concerning the second aspect, it is important to note that the High Court did consider the legality of the injunction, even if only in an obiter dictum . In the context of interim measures this approach should be acceptable.

I would therefore argue that there has been no violation of Article 6 § 1 in the present case.