Communicated on 24 August 2016
FIRST SECTION
Application no. 66313/14
ASP PP DOOEL
against the former Yugoslav Republic of Macedonia
lodged on 30 September 2014
STATEMENT OF FACTS
The applicant company, ASP PP DOOEL, is a single-owner limited liability company incorporated in Ohrid. It is represented before the Court by Mr V. Pocevski, a lawyer practising in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
On 30 November 2004 the applicant company signed a contract (hereafter “the contract”) with the Ministry of Finance (hereafter “the Ministry”) for approval of an investment loan in the amount of 4,000,000 Macedonian denars (MKD). Under the terms of the contract, the loan was approved in the national currency equivalent and calculated in euros (EUR) (clause number 5 of the contract – “Кредитот ќе се одобрува во денарска противвредност пресметана во ЕВРА”); the interest rate was calculated in euros (clause number 6 of the contract); and the repayment of the loan was also defined in the national currency equivalent in euros (clause number 8 of the contract). Clause number 11 of the contract stipulated that the debtor was obliged to pay default interest on all matured and outstanding debts in relation to the loan, according to the statutory interest rate (затезна камата по стапка утврдена со закон).
Following the applicant company’s inability to keep up with the loan repayments and unsuccessful negotiations with the Ministry, on 17 May 2013 the applicant company lodged a civil claim, seeking annulment of the contract clause concerning default interest and its amendment, by which the domestic interest rate of the foreign currency would be set as a basis for the calculation of the default interest, rather than the statutory default interest rate. The applicant company argued that the clause was contrary to the relevant provisions of the Obligations Act and the well-established practice of the Supreme Court on the matter, referring in particular to the judgments of 8 February 2012 and 6 December 2012 respectively (Рев.бр.168/11, Рев1.бр.74/2012).
On 7 October 2013 the Ohrid Court of First Instance (Основен суд Охрид) dismissed the applicant company’s claim as unfounded. It made no comments as to the arguments about the Supreme Court’s case-law.
The applicant company appealed against the first-instance judgment, arguing that the trial court had departed from the Supreme Court’s case-law on the matter.
On 13 January 2014 the Bitola Court of Appeal (Апелационен суд Битола) dismissed the applicant company’s appeal and upheld the first-instance judgment. It made no comments regarding the arguments about deviation from the Supreme Court’s case-law.
In addition to the Supreme Court’s judgments on which it relied in its submissions in the impugned proceedings, regarding the relevant legal issue, the applicant company also submits two more judgments of the Skopje Court of First Instance of 5 October 2007 and 16 April 2009 respectively (ПС бр.2101/07 and ПС бр.3674/07), without providing information as to whether those judgments are final.
B. Relevant domestic practice
The Supreme Court’s judgment of 8 February 2012 (Рев.бр.168/11) concerned a claim lodged by the Ministry against a debtor for payment of the default interest rate under clause number 11 of a loan contract, approved under similar circumstances as the loan given to the applicant company. The Supreme Court upheld the lower courts’ judgments dismissing the Ministry’s claim, and found that a contractual provision obliging a debtor to pay default interest on debt in a foreign currency according to the statutory default interest rate would put the debtor in a position whereby he would have to pay an unreasonably high interest rate on the debt, which was contrary to the relevant provisions of the Obligations Act (section 388 § 3 and section 546).
The Supreme Court’s judgment of 6 December 2012 (Рев1.бр.74/2012) concerned a claim lodged by a debtor against the Ministry seeking annulment of a contract clause concerning default interest on an investment loan in Japanese yen. The second-instance court had granted the claim and granted leave to appeal to the Supreme Court concerning overcoming judicial inconsistencies regarding the relevant legal issue. The Supreme Court upheld the second-instance judgment and confirmed that, for debt in a foreign currency or in the national currency equivalent of a foreign currency, the interest rate was to be calculated according to the domestic interest rate of the foreign currency.
COMPLAINTS
The applicant company complains under Article 6 § 1 of the Convention, alleging judicial inconsistency in the domestic proceedings and lack of reasoning provided by the domestic courts for the alleged departure from established domestic practice. It also invokes Article 1 of Protocol No. 1, complaining that the domestic courts’ decisions in the impugned proceedings breached its property rights.
QUESTIONS TO THE PARTIES
1. Was the principle of judicial certainty, contained in Article 6 § 1 of the Convention, complied with by the domestic courts, given the allegedly inconsistent case-law applied in the applicant company’s case? Did the Bitola Court of Appeal provide sufficient reasons for the alleged departure from the Supreme Court’s case-law? The parties are invited to submit examples of any pertinent domestic practice regarding the relevant legal issue.
2. Has there been an interference with the applicant company’s right to the peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No.1 to the Convention? If so, was that interference in compliance with this provision?
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