CASE OF FOLTIS v. GERMANY

FIFTH SECTION

CASE OF FOLTIS v. GERMANY

(Application no. 56778/10)

JUDGMENT

STRASBOURG

30 June 2016

DÉFINITIF

30/09/2016

Cet arrêt est devenu définitif en vertu de l’article 44 § 2 de la Convention. Il peut subir des retouches de forme.

In the case of Foltis v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Angelika Nußberger,
Khanlar Hajiyev,
André Potocki,
Faris Vehabović,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 56778/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Richard Foltis (“the applicant”), on 23 September 2010.

2. The German Government (“the Government”) were represented by their Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant, in his position of insolvency administrator of a German company, alleged that the Frankfurt/Main Court of Appeal’s refusal to grant him legal aid, because it considered his claims to be time-barred, violated his right of access to a court, as provided in Article 6 § 1 of the Convention. Relying on Article 14 read in conjunction with Article 6 of the Convention, he further alleged that as an impecunious litigant he had been discriminated against compared to a litigant with sufficient financial means.

4. On 1 September 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Kassel. He is a lawyer and was appointed insolvency administrator of the German limited partnership M.K. KG (hereafter “the company”) in 1999.

A. The proceedings before the Kassel Regional Court

6. On 12 July 2002 the applicant, in his position of insolvency administrator of the company, took legal action against Ms B., a former limited partner (Kommanditist) of the KG, to seek the reimbursement of close to 56,000 euros (EUR), which had been paid to her as advance payment on profits (Vorauszahlungen auf Gewinne) by the KG.

7. In his statement of claim, the applicant indicated that he might introduce an additional action concerning approximately EUR 1.7 million, to seek the reimbursement of payments received by Ms B. as compensation for her participation as a limited partner (Abfindung für Kommanditbeteiligung) and as advance payments for profit. The applicant declared that he had refrained from introducing an action concerning these claims at that point in time because of the costs involved.

8. Ms B. was notified of the legal action on 17 July 2002.

9. On 30 December 2004 the applicant requested legal aid for his initial action and with a view to introducing an action concerning the supplementary claims, amounting to approximately EUR 1.7 million. The statutory time‑limit for those latter claims was 31 December 2004. This request for legal aid was placed in the case file. It was neither examined by a judge nor was notice given to Ms B.

10. On 24 March 2005 the applicant sent a letter to the Regional Court to enquire whether he had been granted legal aid. He did not receive a response. On 29 August 2005, he sent another letter, to which he received no response. The applicant claimed that, in addition, he had also made telephone calls to the Regional Court on 10 June 2005 and on 14 November 2005 to find out whether he had been granted legal aid and that, both times, he had been informed by the Registry that the file was at the judge’s office and that, therefore, no information could be given.

11. On 11 May 2007 the Regional Court granted the applicant’s request for legal aid, following another written inquiry of that same day. The decision to grant legal aid was served on Ms B. on 16 May 2007. On 5 July 2007 the Regional Court issued a decision, clarifying that the grant of legal aid covered the supplementary claims brought on 30 December 2004.

12. On 20 July 2007 the applicant introduced the additional action concerning the said claims. Ms B. was notified on 25 July 2007. On 1 October 2008 a hearing was held.

13. In its judgment on 19 November 2008 the Regional Court ordered Ms B. to pay EUR 15,338.76 to the applicant and dismissed the remainder of the applicant’s initial action. That court likewise dismissed the applicant’s additional action for reimbursement of approximately EUR 1.7 million in its entirety, finding that the claims were time-barred. It stated that the statutory time-limit for these claims was 31 December 2004 and that submitting the request for legal aid on 30 December 2004 had not been sufficient to suspend the running of time for purposes of limitation, because domestic law also required that the court arrange for notice to be given to the defendant (see relevant domestic law and practice paragraphs 25 to 27 below).

14. The Regional Court noted that Ms B. was notified of the request for legal aid only in mid-2007, hence more than two and a half years after the expiry of the limitation period. It considered that the exception foreseen by domestic law allowing for the retroactive effect of arranging for notice to be given was not applicable in the instant case. According to that exception, the running of time for the purposes of limitation was suspended with effect from the day a request for legal aid was lodged, if the notification of that request was arranged “shortly after” (demnächst). The Regional Court noted that, according to the constant case-law of the domestic courts, the term “shortly after” was interpreted in a way that required the litigant to act with the necessary diligence to effect the immediate notice or service. It found that the applicant – who, as a lawyer, must have known that arranging for notice to be given to the defendant of his request for legal aid “shortly after” its submission was required to prevent his claim from becoming time‑barred – had in a reproachable manner contributed to the delay and thus not acted with the necessary diligence required. The Regional Court observed that the applicant had not asked the Regional Court to notify immediately the defendant of his request for legal aid, irrespective of its prospects of success, which he could have done without additional costs and without suffering any procedural disadvantages. Also, rather than enquiring whether the notification of the request had been arranged, the applicant limited himself to enquiring whether his request for legal aid had been successful. In relation to the alleged telephone calls in June 2005 and November 2005, it found that, given that the Regional Court had not responded to his written request of 24 March 2005, the applicant should not have relied on the registry’s alleged statement. The court found it incomprehensible that the applicant had waited until 29 August 2005, and 11 May 2007, to enquire again in writing about the success of his request for legal aid.

15. The Regional Court added that, in any event, the claim concerning the reimbursement of approximately EUR 1.7 million was ill-founded and thoroughly reasoned this finding.

B. The proceedings before the Frankfurt/Main Court of Appeal

16. On an unspecified date the applicant requested legal aid in order to lodge an appeal.

17. On 22 June 2009 the Frankfurt/Main Court of Appeal dismissed his request, finding that the appeal lacked prospects of success as the Regional Court had rightly considered the applicant’s claims to be time-barred. It observed that the Regional Court had arranged for notice to be given to Ms B. of the applicant’s request for legal aid at the earliest in 2007 and argued that notice two and a half years after the request’s introduction could not be considered as having taken place “shortly after” that introduction. The interests of the defendant, who had no knowledge of the submission of the request for legal aid, in the protection of her legal positions and the clarification of the legal situation, had to be taken into account.

18. The Court of Appeal pointed out that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification. Furthermore, there must not be legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). It confirmed the Regional Court’s finding that the applicant had not acted with the necessary diligence. It underlined that the applicant would have had to alert the Regional Court about the imminent expiry of the limitation period and to ask to arrange for the immediate notification of the defendant in order to suspend the running of time for the purposes of limitation. In fact the applicant had to take into account that the Regional Court also had the possibility to refuse his request for legal aid without hearing, and hence without notifying, the defendant if it considered the claim to be ill‑founded or the applicant to have the necessary means (decision a limine). The Court of Appeal likewise considered that the subsequent steps taken by the applicant were not sufficient, because he had not asked for the notification to be effected immediately. The Court of Appeal based its decision to refuse legal aid exclusively on the finding that the claims were time-barred.

C. The proceedings before the Federal Constitutional Court

19. On an unspecified date the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the refusal to grant him legal aid violated his right of access to a court and that he had been discriminated against as an impecunious person compared to a litigant with sufficient financial means.

20. On 19 July 2010 the Federal Constitutional Court, sitting as a formation of three judges, declined to accept the applicant’s constitutional complaint for adjudication (1 BvR 1873/09). It found that the period of processing the request for legal aid and the delay in arranging for notice to be given to the defendant constituted gross negligence (grob fehlerhaft) by the Regional Court. Nonetheless, it considered that the decision of the Court of Appeal was in conformity with the case-law of the Federal Court of Justice, according to which a notification could only be “shortly after” the submission of a request for legal aid if the applicant concerned acted with the necessary diligence to effect the immediate notification, and if there were no legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). The Federal Constitutional Court found that the Court of Appeal’s finding that the applicant had not acted with the necessary diligence did not raise concerns. The applicant failed to ask the Regional Court to notify immediately the defendant about the request for legal aid. Neither in his initial lawsuit nor in his subsequent enquiries did the applicant indicate the particular urgency of the matter, namely, the imminent limitation of the claims.

21. In relation to the alleged discrimination, the Federal Constitutional Court found that impecunious litigants and litigants with sufficient financial means were in a comparable situation as regards the possibilities and obligations in order to suspend the running of time for purposes of limitation. Referring to the case-law of the Federal Court of Justice (see relevant domestic law and practice paragraph 28 below), it considered that a litigant with sufficient financial means must not limit himself to submitting a lawsuit, but rather had to remind the court to ask him to pay the necessary court fees or even to pay the fees on his own initiative, if the court had failed to ask him, in order to effect the service of the legal action. The Federal Constitutional Court found that such obligations on the part of a litigant with sufficient financial means were comparable to those of the applicant, namely his obligation to ask the court concerned to notify immediately the defendant of the request for legal aid, and to remind the court to arrange for notice to be given.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions governing legal representation and legal aid

22. The conditions for legal aid are laid down in Articles 114 et seq. of the Code of Civil Procedure (Zivilprozessordnung). According to these provisions, a party that is a legal person and that cannot afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton (mutwillig). It is the court having jurisdiction to deal with the intended action itself which is called to decide on requests for legal aid (Article 127 § 1 of the Code of Civil Procedure). An appeal lies against a decision refusing legal aid (Article 127 § 2 of the Code of Civil Procedure).

B. The law to modernise the law of obligations

23. On 1 January 2002 the law to modernise the law of obligations (Gesetz zur Modernisierung des Schuldrechts) of 26 November 2001 entered into force, setting the limitation period, in principle, at three years. Consequently, for numerous claims the statutory time-limit was on 31 December 2004. The rules governing the interruption (Neubeginn der Verjährung) and the suspension (Hemmung der Verjährung) of the running of time for the purposes of limitation were likewise substantially amended as part of this reform.

1. Suspending the running of time for purposes of limitation by introducing legal action

24. Article 204 § 1 no. 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that the running of time for the purposes of limitation is suspended by the service (Zustellung) of a legal action on the defendant. Domestic law foresees that an action can – in principle – only be served when the litigant has paid the necessary court fees. Exceptionally, the running of time for the purposes of limitation is suspended with retroactive effect from the day a legal action was lodged, if the service of the legal action is made “shortly after” (demnächst) it was lodged. Article 167 of the Code of Civil Procedure provides:

“Article 167: Retroactive effect of the service

If service is made in order to comply with a deadline, or to have the period of limitations begin anew, or to have it extended pursuant to section 204 of the Civil Code, the receipt of the corresponding application or declaration by the court shall already have this effect provided service is made shortly after (demnächst).”

2. Suspending the running of time for purposes of limitation by lodging a request for legal aid

25. Prior to the entry into force of the law to modernise the law of obligations, it was constant case-law of the Federal Court of Justice that the introduction of a request for legal aid in itself suspended the running of time for the purposes of limitation. The legislative amendments were based on the principle that interrupting or suspending the running of time for the purposes of limitation presupposed that the defendant could take notice of the intention to take an action against him or her. For evidentiary purposes, it was decided that the running of time be suspended by the court’s order to notify the defendant rather than by his or her actual notification. In order to compensate for potential disadvantages resulting from delays occurring within the competent court, the running of time for the purposes of limitation is, exceptionally, suspended with effect from the day a request for legal aid was lodged, if the notification of a request for legal aid is arranged “shortly after” (demnächst) it was lodged. Article 204 § 1 no. 14 of the Civil Code, which in this regard resembles Article 167 of the Code of Civil Procedure, reads as follows:

“Article 204: Suspension of limitation as a result of prosecution of rights

(1) The limitation period is suspended by (...)

14. arranging for notice to be given of the first application for the grant of legal aid or procedural costs assistance; if notice is arranged shortly after (demnächst) the filing of the application, the suspension of the limitation period takes effect immediately when the application is filed. (...)”

C. The case-law of the Federal Court of Justice

1. The interpretation of the term “shortly after” (demnächst) in relation to service or notification

26. It is constant case-law of the domestic courts that the term “shortly after”, which is contained in various provisions of German Civil Law and Civil Procedural Law and which provides for the retroactive effect of a certain act, is to be interpreted in such a way that the risk of a delayed notification is distributed fairly between both parties to the dispute and, therefore, the litigant concerned must act with the necessary diligence to effect the immediate notification and there must not be legitimate interests of the defendant that conflict with such retroactive effect (see, among many others, Federal Court of Justice, VII ZR 24/98, judgment of 27 May 1999, § 10: “... provided the litigant has taken every reasonable step for an immediate service and no legitimate interests of the defendant conflict [with the retroactive effect of the service].” – “... sofern die Partei alles ihr Zumutbare für eine alsbaldige Zustellung getan hat und schutzwürdige Belange der Gegenseite [der Rückbeziehung der Zustellungswirkung] nicht entgegenstehen.”).

2. Suspending the running of time for purposes of limitation by lodging a request for legal aid

27. In its judgment of 24 January 2008 (IX ZR 195/06), the Federal Court of Justice stated that it was clear from the wording of Article 204 § 1 no. 14 of the Civil Code that lodging a request for legal aid did not in itself suspend the running of time for the purposes of limitation. It found that the situation of those who, due to a lack of financial means, could not pay for the court fees and were obliged to request legal aid, was not worse than the situation of those with sufficient financial means, as regards the possibility to suspend the running of time for purposes of limitation. To achieve that, it was sufficient that an impecunious litigant ask the judge seized with the case to arrange for notice to be given to the defendant of the request for legal aid. The Federal Court of Justice stated that such a request did not entail any disadvantages for the litigant, as it did not cause additional costs, even if the request for legal aid was subsequently rejected. It underlined that the judge concerned could not refuse such a request.

3. Suspending or interrupting the running of time for purposes of limitation by introducing legal action

28. In relation to the diligence required by litigants who bring an action in order to interrupt the running of time, the Federal Court of Justice in its judgment of 19 October 1977 (IV ZR 149/76) stated that, if the court concerned had not asked the litigant to pay for the necessary court fees prior to serving the action on the defendant – which was the act that interrupted the running of time –, the litigant had to remind the court to demand that he pay the fees, or even to pay the fees on his own initiative, in order to effect the service of the action. The litigant “must take every reasonable step to create the conditions for the immediate service of the action and not only has to avoid delays, but also has to act towards expediting the service as much as possible” (Der Kläger “[muss] alles Zumutbare tun, um die Voraussetzungen für eine alsbaldige Zustellung der Klage zu schaffen, [hat] mithin nicht nur Verzögerungen zu vermeiden, sondern auch im Sinne einer möglichsten Beschleunigung zu wirken.“; ibid., § 10).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

29. The applicant, in his position of insolvency administrator of the company, complained that the Court of Appeal’s refusal to grant him legal aid, because it considered his claims to be time-barred, violated his right of access to a court, as provided in Article 6 § 1 of the Convention, which reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

30. The Government contested that argument.

A. Admissibility

31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

32. The applicant submitted that he had lodged a request for legal aid which complied with all requirements – and which turned out to be successful when it was decided upon in May 2007 – on 30 December 2004, that is, prior to the statutory time-limit. He had thus done all he was required to do in order to suspend the running of time for purposes of limitation. The act required for suspending the running of time for purposes of limitation – namely arranging for notice to be given to the defendant – was outside his sphere of influence.

33. The applicant submitted that he could not know that the Regional Court had failed to arrange for notice of his request for legal aid to be given to the defendant and that he could rightfully assume that that court would act in line with its obligations under domestic law and proceed with the processing of his request for legal aid. Obliging him to ask the Regional Court to notify immediately the defendant about the request for legal aid was overly formalistic, did not pursue a legitimate aim in the interest of the proper administration of justice and was disproportionate. Requiring the applicant to ensure that domestic courts acted lawfully unduly shifted the accountability for the courts’ failure onto the applicant. The domestic courts did not take the principles of Article 6 § 1 of the Convention into account when interpreting the pertinent provisions of domestic law. Their decisions impaired the essence of his “right to a court”.

(b) The Government

34. The Government submitted that the German legal aid system was compatible with the Convention, as was the Court of Appeal’s refusal to grant legal aid for lack of prospects of success. It pointed out that the criterion applied by the Court in this respect was whether the domestic courts’ decisions appear arbitrary. In view of the detailed decision of the Court of Appeal, which dealt in depth with the applicant’s arguments and with the case-law of the Federal Court of Justice, the Government argued that there was no appearance of arbitrariness.

35. It referred to the clear wording of Article 204 § 1 no. 14 of the Civil Code, as amended with effect from 1 January 2002, and the principle underlying those legislative amendments, that interrupting or suspending the running of time for the purposes of limitation presupposed that the defendant could take notice of the fact that an action was to be taken against her and secure pieces of evidence accordingly. The amendments deliberately stipulated that the act suspending the running of time was the competent court’s arranging for notice to be given to the defendant.

36. The Government pointed out that, in order to compensate for potential disadvantages resulting from delays occurring within the competent court, domestic law provided that the running of time for the purposes of limitation was retroactively suspended with effect from the day a request for legal aid was lodged, if the notification of a request for legal aid was arranged “shortly after” it was lodged. The Government submitted that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification and there must not be legitimate interests of the defendant that conflicted with such retroactive effect. The Government submitted that the applicant had not acted with the necessary diligence as he had at no point indicated the particular urgency of the matter, namely, the imminent limitation of the claims, nor had he asked the Regional Court to arrange for immediate notice of the request for legal aid to be given to the defendant, which he could have done without any costs or procedural disadvantages. The defendant, who learned about the applicant’s intention to bring legal action against her only two and a half years after the expiry of the limitation period, had a legitimate interest that the notice did not have retroactive effect.

2. The Court’s assessment

37. The Court recalls that, whilst Article 6 § 1 of the Convention guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”, it leaves to the State a free choice of means to be used towards this end (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (see Del Sol v. France, no. 46800/99, § 20, ECHR 2002‑II). Thus, the right of access to court is not absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may notably be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his, her or its prospects of success in the proceedings (see Steel and Morris v. the United Kingdom, no. 68416/01, § 62, ECHR 2005‑II), provided that the legal aid system offers individuals substantial guarantees to protect them from arbitrariness (see Gnahoré v. France, no. 40031/98, § 41, ECHR 2000‑IX).

38. The Court notes that the German legal aid system offers litigants substantial guarantees to protect them from arbitrariness (see relevant domestic law and practice paragraph 22 above as well as Eckardt v. Germany (dec.), no. 23947/03, 10 April 2007; Herma v. Germany (dec.), no. 54193/07, 8 December 2009).

39. The Court has found that limitation periods serve the legitimate aims of ensuring legal certainty and finality, protecting potential defendants from stale claims which might be difficult to counter and preventing the injustice which might arise if courts were required to decide upon events which took place in the distant past, on the basis of evidence which might have become unreliable and incomplete because of the passage of time (Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports of Judgments and Decisions 1996-IV; Stagno v. Belgium, no. 1062/07, § 26, 7 July 2009; Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, § 72, 11 March 2014).

40. The Court observes that the applicant, in his position of insolvency administrator of the company, on 30 December 2004 requested legal aid concerning supplementary claims against Ms B., a former limited partner of the company, to seek reimbursement for payments made to her by the company. The Regional Court found these claims to be time-barred because the court did not arrange for notice to be given to the defendant of the applicant’s request. The Court of Appeal dismissed the applicant’s request for legal aid in order to lodge an appeal, finding that the appeal lacked prospects of success as the Regional Court had rightly considered the claims to be time‑barred.

41. The Court observes that the applicant, in his position of insolvency administrator of the company, waited until the second to last day of the three‑year limitation period to lodge a request for legal aid for legal action concerning claims amounting to approximately EUR 1.7 million. This request did not in itself suspend the running of time. Rather, following legislative changes which had entered into effect in the beginning of 2002, the running of time for purposes of limitation was only suspended when the competent court arranged for notice to be given to the defendant, as provided by Article 204 § 1 no. 14 of the Civil Code.

42. In this connection, the Court notes that the German legislator, by considering that interrupting or suspending the running of time for the purposes of limitation presupposed that the defendant could take notice of the intention to take an action against him or her, chose an act related to the notice of the request for legal aid to the defendant (see relevant domestic law and practice paragraph 25 above). This served the purpose of protecting the legitimate interest of the defendant in the protection of his or her legal positions and the clarification of the legal situation due to limitation. For evidentiary purposes, the legislator decided that the running of time was suspended by the competent court’s act of arranging for notice to be given to the defendant rather than by his or her actual notification (ibid.). The foregoing considerations are sufficient to enable the Court to conclude that the provision in question, Article 204 § 1 no. 14 of the Civil Code, was not per se incompatible with the Convention.

43. In the present case the Regional Court did not arrange for notice to be given prior to the expiry of the limitation period on 31 December 2004. Therefore, the running of time for purposes of limitation could only be suspended retroactively. This exception was included in domestic law in order to compensate litigants for potential disadvantages resulting from delays occurring within the competent court (see relevant domestic law and practice paragraph 25 above). Such suspension with retroactive effect required that the competent court arrange for notice to be given “shortly after” the request for legal aid was lodged. The Court observes that the Regional Court, out of gross negligence, as stated by the Federal Constitutional Court, did not arrange for notice to be given to Ms B. She only learned about the applicant’s request for legal aid when the Regional Court’s decision to grant legal aid to the applicant was served on her on 16 May 2007, hence some two and a half years after the expiry of the limitation period. Both the Regional Court, in its judgment of 19 November 2008, and the Court of Appeal, in its decision of 22 June 2009, found that the applicant had not acted with the necessary diligence and thereby contributed to the delay. In such circumstances the prerequisites for a retroactive effect of the notice, as established in the case‑law of the Federal Court of Justice, were not met (see paragraphs 14 and 18 above).

44. The Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret domestic law. The Court’s role is limited to verifying compatibility with the Convention of the effects of such an interpretation. It observes that the decision of the Court of Appeal, of which the applicant complained, followed from the wording of Article 204 § 1 no. 14 of the Civil Code and the case-law of the Federal Court of Justice as to the interpretation of the term “shortly after” in relation to the suspension of the running of time with retroactive effect.

45. It is true that it was the task of the Regional Court to arrange for notice to be given to Ms. B. about the applicant’s request for legal aid and that that court failed to do so out of gross negligence, as found by the Federal Constitutional Court. However, the applicant had limited himself to lodging a request for legal aid. The Court of Appeal, as confirmed by the Federal Constitutional Court, had rightly taken into account that the applicant had not alerted the Regional Court about the imminent expiry of the limitation period, nor had he asked to arrange for the immediate notification of the defendant, which he could have done without any costs or procedural disadvantages, nor had he specifically enquired about the notification of the defendant when he subsequently contacted the Regional Court in relation to his request for legal aid. Also, the applicant’s two written enquiries, of 24 March 2005 and of 29 August 2005, exclusively contained the question whether his request for legal aid had been granted, and not whether the Court had arranged for the notification of the defendant.

46. The Court further considers that the applicant is a lawyer himself and must have been aware of the pertinent rules concerning the suspension of the running of time for purposes of limitation following the legislative changes that entered into effect on 1 January 2002. What is more, he was required to act with particular diligence due to his position of insolvency administrator of the company. In this context the Court also observes that the applicant had indicated in his statement of claim lodged in July 2002 that he might introduce an additional action concerning the claims at issue and that he could have instituted proceedings within the limitation period (compare, a contrario, Howald Moor and Others v. Switzerland, cited above §§ 74-79; Stagno v. Belgium, cited above, §§ 29-34).

47. The Court reiterates that the retroactive suspension of the running of time for purposes of limitation constituted an exception to the rule and required that such retroactive effect did not conflict with legitimate interests of the defendant. In the present case, the defendant learned about the request for legal aid years after the expiry of the limitation period and had a legitimate interest in the protection of her legal positions.

48. Having regard to all circumstances, the Court finds that the domestic courts’ interpretation of the applicable legal provisions concerning legal aid and limitation cannot therefore be considered as arbitrary. It cannot be said that the refusal of legal aid restricted the right of the applicant, in his position of insolvency administrator of the company, to a court in a disproportionate manner contrary to Article 6 § 1 of the Convention.

49. There has accordingly been no violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6

50. The applicant, relying on Article 14 taken in conjunction with Article 6 of the Convention, alleged that, in his position of insolvency administrator of the company, he was an impecunious litigant and was discriminated against compared to a litigant with sufficient financial means. He submitted that an impecunious litigant depended on a judge, who must arrange for notice to be given to the defendant of the request for legal aid, to suspend the running of time for purposes of limitation. If he were a litigant with sufficient financial means, who could have lodged an action without requesting legal aid, the claims at stake would not have become time-barred.

51. The Government contested that argument.

52. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

53. The facts of the instant case fall within the scope of Article 6 § 1 of the Convention. Accordingly, Article 14 of the Convention is applicable.

54. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Partei Die Friesen v. Germany, no. 65480/10, § 37, 28 January 2016, with further references). Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005).

55. Turning to the instant case, the Court observes that the difference in treatment relates to the possibility of litigants to suspend the running of time for purposes of limitation through their own actions.

56. The Court notes that, according to domestic law, in either scenario an act by the competent court was required to suspend the running of time: in the case of a litigant with sufficient financial means, formal service of the legal action on the defendant, which the litigant could not effect himself, was required (see relevant domestic law and practice paragraphs 24 and 28 above). In the case of an impecunious litigant, like the applicant in his position of insolvency administrator of the company, the competent court had to arrange for notice to be given to the defendant of the request for legal aid (see relevant domestic law and practice paragraphs 25 and 27 above).

57. The Court further observes that domestic law imposed certain obligations on litigants in either scenario in order to suspend the running of time for purposes of limitation. A litigant with sufficient financial means should not limit himself to submitting a lawsuit, but rather had to remind the court to ask him to pay the necessary court fees or even pay the fees on his own initiative, if the court had failed to ask him, in order to effect the service of the legal action (see relevant domestic law and practice paragraph 28 above). An impecunious litigant had to ask for the immediate notification of the defendant of the request for legal aid, and to remind the court to arrange for notice to be given (see relevant domestic law and practice paragraph 27 above). The Court considers that the respective obligations of both groups of litigants were nearly identical and any difference in treatment would not exceed the margin of appreciation afforded to Contracting States in regulating the right of access to a court.

58. There has accordingly been no violation of Article 14 read in conjunction with Article 6 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention;

3. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 6 of the Convention.

Done in English, and notified in writing on 30 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekGanna Yudkivska
RegistrarPresident

Full & Egal Universal Law Academy