SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37398/97
by CDI HOLDING AKTIENGESELLSCHAFT AND OTHERS
against Slovakia
The European Court of Human Rights, sitting on 18 October 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrE. Levits
MrA. Kovler, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 14 August 1997 and registered on 19 August 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
CDI Holding Aktiengesellschaft (“the applicant company”) was a limited company with registered office in Vienna in respect of which the commencement of bankruptcy was declared on 23 July 1997. Since then it has been in liquidation. The application on its behalf was introduced by Mr H. Kosesnik-Wehrle, the trustee in bankruptcy. The application was also lodged by Mr G. Schuster, an Austrian national born in 1956 and living in Neudorf bei Staatz. He is a businessman and acted as the manager of the applicant company. The remaining applicants are Mr W. Tributsch and Mr R. Lugner, Austrian nationals born in 1954 and in 1932 respectively and residing in Vienna, members of the applicant company’s supervisory board. The applicants were represented before the Court by Mr K. Maleschitz, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Mr P. Vršanský.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Arrangements for broadcasts of Radio CD International
On 14 December 1989 D. Ltd concluded a contract with the then Czechoslovak Radio. Under the contract, D. Ltd was entitled to broadcast in German under the name Radio CD International on the frequency of 101,8 MHz which was assigned to the Czechoslovak Radio. The technical prerequisites for the broadcasting which was to cover also the area of Vienna were to be provided by the Czechoslovak Radio. The contract was concluded for the period to 31 December 1994 and could be extended until the end of 1997.
On 12 December 1991 a subsidiary of D. Ltd in Slovakia concluded a contract with the Administration of Radiocommunications (Správa rádiokomunikácií) concerning the hire purchase of a FM transmitter and of an antenna. Unless it lost the right to use the frequency of 101,8 MHz, the Administration of Radiocommunications undertook to transmit the programmes of Radio CD International by means of this equipment for eight years. Possible disputes were to be settled pursuant to Czechoslovak law.
On 23 December 1992 D. Ltd concluded a new contract with the Slovak Radio, the successor of the Czechoslovak Radio in Slovakia, by which several provisions of the original contract of 1989 were changed. The contract was concluded for the period up to the end of 1997, and D. Ltd had an irrevocable right to its extension until the end of 2000.
The Slovak Radio undertook to broadcast the programmes of D. Ltd on another frequency of corresponding quality if, as a result of national or international events, they could not be transmitted on 101,8 MHz. Possible loss of D. Ltd resulting from interruption of the broadcasting was to be covered by the Slovak Radio unless the liability of D. Ltd was involved.
Disputes between the parties were to be decided by an arbitration court in Munich pursuant to the Rules of Procedure of the Arbitration Court of the International Chamber of Commerce in Paris. The parties agreed that the substantive law of the Czech and Slovak Federal Republic and, after 1 January 1993, Slovakian law would be applicable. Proceedings before the courts were excluded.
In June 1993 the applicant company merged with D. Ltd and became the successor of the latter.
On 24 September 1993 the Telecommunications Office (Telekomunikačný úrad) requested the Slovak Telecommunications (Slovenské telekomunikácie) to eliminate technical shortcomings in broadcasts on 101,8 MHz. Since it was allegedly impossible to eliminate the shortcomings, the Slovak Telecommunications had to interrupt the transmissions on 101,8 MHz on 30 September 1993.
On 12 October 1993, following an intervention by the Ministry of Transport, Telecommunications and Public Works, the Telecommunications Office delivered a provisional permit to transmit on 101,8 MHz until the end of 1993.
The representatives of the applicant company learned that the frequency of 101,8 MHz would be withdrawn from the Slovak Radio and allocated to a private radio station.
On 20 December 1993 the applicant company asked the Slovak Radio to arrange for its programmes to be broadcast on another suitable frequency after 1 January 1994.
On 1 January 1994 the Slovak Telecommunications interrupted the applicant company’s broadcasts. On 11 February 1994 the applicant company was informed that following the expiry of the provisional permit of 12 October 1993 the Slovak Telecommunications were no longer entitled to transmit on 101,8 MHz. As this was a relevant condition under the contract of 12 December 1991, the Slovak Telecommunications did not consider themselves bound by that contract.
On 11 February 1994 the applicant company’s lawyer informed the director of the Slovak Telecommunications that another company had announced that it would broadcast on 101,8 MHz as from 14 February 1994.
On 22 June 1994 the applicant company lodged an application with the European Commission of Human Rights in which it complained about interruptions of the broadcasts of Radio CD International. It was registered under number 26079/94.
The broadcasts were resumed on 15 July 1994 on 96,6 MHz and were due to be terminated on 31 December 1995.
At the end of December 1995 the applicant company reached an agreement with the Slovak Radio about a further continuation of the broadcasts after 31 December 1995. The contract was based on the relevant provisions of the Commercial Code. It defined the programme Radio CD International as a broadcast of the Slovak Radio in German covering a part of the territory of Austria and produced jointly by the applicant company and the Slovak Radio. Under the contract the Slovak Radio undertook to broadcast Radio CD International on the frequency of 96.6 MHz on the basis of a special agreement which it was to conclude with the Slovak Telecommunications. The contract further specified the sums which the applicant company undertook to pay to the Slovak Radio in this context. The parties agreed that any disputes under the contract were to be settled in accordance with the material and procedural provisions of Slovakian law. The contract covered the period from 1 January 1996 to 30 June 1996. It provided that it would be extended by a supplement as from 1 July 1996.
By a letter of 29 July 1996 the manager of the applicant company informed the European Commission of Human Rights that the contractual relations between the applicant company and the Slovak Radio had been settled and that the applicant company wished to withdraw its application No. 26079/94. By a decision of 16 October 1996 the European Commission of Human Rights therefore struck the application out of its list of cases.
In the night of 3 September 1996 a representative of the Slovak Telecommunications ordered by phone to stop the broadcasts of Radio CD International. In a letter sent by fax at 9 a.m. on the same day the Slovak Telecommunications informed the Slovak Radio about the interruption of the broadcasts. The letter referred to a decision taken to this effect by the Council of Slovak Telecommunications.
The applicant company was informed that a decision to stop its broadcasts had been taken by the Council for Radio and TV Broadcasts (Rada pre rozhlasové a televízne vysielanie) on 2 July 1996 and that the Slovak Radio had been informed about it on 28 August 1996. On 3 September 1996 the president of the Council for Radio and TV Broadcasts informed the Director of Slovak Radio that the broadcasts of Radio CD International had been stopped in accordance with the Council’s decision of 2 July 1996 as, in accordance with an updated schedule concerning the use of frequencies allocated to the Slovak Republic, the 96.6 MHz frequency was reserved for the programme Slovensko 1 broadcast by the Slovak Radio.
Following the above change in the allocation of frequencies the Slovak Radio was no longer able to meet its contractual obligations in respect of the applicant company.
In a letter of 9 January 1997 the Minister of Culture informed the Minister of Transport, Post and Telecommunications that he did not object to resuming the applicant company’s broadcasts as from 15 February 1997.
On 10 January 1997 the Minister of Culture and the Director of the Slovak Radio concluded an agreement according to which the Ministry of Culture would set up all prerequisite conditions permitting the broadcasts of Radio CD International by the Slovak Radio.
On 14 February 1997 the Slovak Radio and Mr G. Schuster, acting in his private capacity of a businessman, concluded two contracts providing for broadcasts by the Slovak Radio of Radio CD International in German language in an area covering a part of Austria. The contracts were concluded for the period from 15 February 1997 to 15 February 2002 and their validity could be extended. According to a receipt issued by the principal cashier of the Slovak Radio, Mr G. Schuster paid 3,275,000 Austrian schillings (ATS) to Slovak Radio on 16 February 1997. On 9 June 1996 the director of the Slovak Radio issued a certificate indicating that he had received ATS 3,275,000 from Mr G. Schuster on 14 February 1997. According to the Government, Mr G. Schuster handed over a cheque for ATS 3,275,000 to the director of Slovak Radio on 9 June 1997 which was returned to him on 30 June 1997. Mr G. Schuster contends that he paid the aforesaid sum in cash and that it has not been returned to him.
There have been no further broadcasts of Radio CD International. As a result, the applicant company was obliged to file a petition in bankruptcy. The other applicants, who had made investments in the applicant company and who were partly liable for its financial undertakings, suffered considerable damage.
On 25 September 1999 Mr G. Schuster ceded his rights under the contracts of 14 February 1997 to the applicant company.
Proceedings before the Bratislava 1 District Court
On 21 August 1997 Mr G. Schuster claimed compensation of ATS 10,000,000 from the Slovak Radio before the Bratislava 1 District Court (Okresný súd) on the ground that the defendant had failed to comply with its contractual obligations.
On 21 July 1998 the District Court discontinued the proceedings as the plaintiff had failed to pay the court fees. The decision became final on 24 August 1998.
On 28 July 1999 the applicant company claimed damages from the Slovak Telecommunications a.s. before the Bratislava 1 District Court. On 23 September 1999 the applicant company requested that it should be exempted from the obligations to pay court fees.
On 29 July 1999 and on 8 September 1999 the applicant company requested that the Bratislava 1 District Court issue an interim measure ordering the Ministry of Transport, Post and Telecommunications not to alienate the shares of Slovak Telecommunications a.s.
On 20 September 1999 the Bratislava 1 District Court granted the request.
On 30 November 1999 the Bratislava Regional Court quashed the decision and sent the case back to the first instance court.
Upon the instruction of the Bratislava Regional Court the file concerning the request for an interim measure was included into the file concerning the applicant company’s above action of 28 July 1999.
Proceedings before the Bratislava Regional Court
On 10 June 1998 Mr G. Schuster sued the Slovak Radio before the Bratislava Regional Court (Krajský súd). He claimed that the defendant should comply with its contractual obligations under the contracts of 14 February 1997 and compensate damage caused in this context.
On 18 November 1999 Mr G. Schuster requested that “CDI Holding AG” should be allowed to join the proceedings as plaintiff. On the same day “CDI Holding AG” filed an action against the Slovak Radio with the Bratislava Regional Court. It claimed that the defendant should be ordered to comply with its contractual obligations and to compensate damage. Reference was made to the fact that the defendant had stopped the company’s broadcasts in September 1996. The action did not mention the contracts of 14 February 1997.
On 10 February 1999 the Regional Court admitted that “CDI Holding AG” join the proceedings as plaintiff.
On 7 April 1999 the plaintiffs’ lawyer explained to the court that the official denomination of the second plaintiff was “CDI Holding Aktiengesellschaft in liquidation” and requested that the latter be exempted from the obligation to pay court fees.
On 12 September 2000 the Regional Court dismissed the request. The applicant company appealed. The case was submitted to the Supreme Court (Najvyšší súd) on 6 October 2000. On 30 April 2001 the latter quashed the Regional Court’s decision of 12 September 1999.
The proceedings are pending before the Regional Court.
B. Relevant domestic law and practice
Section 2 of Act No. 255/1991 on the Slovak Radio (Zákon o Slovenskom rozhlase) of 24 May 1991, as amended, provides that the Slovak Radio is an independent institution of public law which has legal personality and is entered into the register of companies.
Under Section 4, the Slovak Radio is entitled to engage in business activities.
COMPLAINTS
1. The applicants complain that the applicant company’s broadcasts were stopped and that they have not been resumed in accordance with the contracts of 14 February 1997. They allege that this has resulted in an interference with their rights under Article 10 of the Convention and under Article 1 of Protocol No. 1 which had no legal basis.
2. The applicants further complain that they had no possibility of having the right to have the applicant company’s broadcasts resumed as from 15 February 1997 determined by an independent and impartial tribunal. They allege that the Slovak Radio was prevented from complying with its contractual obligations by the above decision delivered by the Council for Radio and TV Broadcasts on 2 July 1996 which was not served on them and which they lack standing to challenge. They allege a violation of Articles 6 § 1 and 13 of the Convention.
THE LAW
1. The applicants complain under Article 10 of the Convention and under Article 1 of Protocol No. 1 that the applicant company’s broadcasts have not been resumed in accordance with the contracts of 14 February 1997. They further allege a violation of Articles 6 § 1 and 13 of the Convention in that they had no possibility of seeking redress before courts as regards the termination of the broadcasts. The provisions invoked by the applicants provide, so far as relevant, as follows:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government maintain that the subject-matter of the application is the failure, by the Slovak Radio, to comply with the contracts of 14 February 1997. They maintain that only Mr G. Schuster who concluded those contracts can claim to be a victim within the meaning of Article 34 of the Convention in this respect. Since the proceedings concerning these issues are still pending, the complaints under Article 10 of the Convention and Article 1 of Protocol No. 1 are premature.
The applicants contend that they all have standing in the proceedings as they suffered considerable damage as a result of the interruption of the broadcasts of Radio CD International. This was due to the decision taken by the Council for Radio and TV Broadcasts of 2 July 1996 which has not been served. The applicants had therefore no possibility of challenging it in Slovakia. The applicants further maintain that their application concerns, first of all, the termination of the broadcasts in the night of 3 September 1996 the consequences of which became obvious as a result of the failure to resume the broadcasts on 15 February 1997.
2. The Court notes that the above contracts between the applicant company (or its legal predecessor) and its partners in Slovakia as well as the contracts between Mr G. Schuster and the Slovak Radio of 14 February 1997 had a private law character and did not engage, as such, the responsibility of the Slovak Republic under the Convention.
Admittedly, an issue under the Convention may arise as a result of the domestic courts’ decisions on disputes arising from those contracts. In this respect the Court notes that proceedings are pending before the Bratislava 1 District Court concerning the applicant company’s action for damages against the Slovak Telecommunications a.s. Another set of proceedings brought by Mr G. Schuster and the applicant company is pending before the Bratislava Regional Court. In the latter proceedings the plaintiffs claim that the Slovak Radio should comply with its contractual obligations under the contracts of 14 February 1997 and compensate damage caused in this context. In its action of 18 November 1999 the applicant company additionally claimed, with reference to the fact that in September 1996 the broadcasts of Radio CD International had been stopped, that the Slovak Radio should be ordered to comply with its contractual obligations and to compensate damage.
As the above proceedings are still pending before Slovakian courts, the complaints which the applicant company makes in respect of the failure, by its partners in Slovakia, to comply with their contractual obligations as well as the complaints of Mr G. Schuster in respect of the contracts which he concluded with the Slovak Radio on 14 February 1997 are premature.
It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. To the extent that the applicant company may be understood as complaining that the interference with its property rights and its right to impart information and ideas resulted from the above decision delivered by the Council for Radio and TV Broadcasts on 2 July 1996, and that its rights of access to court and to an effective remedy guaranteed respectively by Articles 6 § 1 and 13 of the Convention were violated, the Court notes that the representatives of applicant company were aware of the facts complained of not later than on 3 September 1996 when the broadcasts were terminated and when the Director of the Slovak Radio was informed of the reasons therefor. Since the application was introduced on 14 August 1997, in respect of these complaints the applicant company failed to comply with the six months’ time-limit laid down in Article 35 § 1 of the Convention. The fact that Mr G. Schuster tried subsequently to remedy the situation by concluding contracts with the Slovak Radio on 14 February 1997 cannot affect the position.
It follows that these complaints are introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
4. To the extent that MM R. Lugner, W. Tributsch and G. Schuster allege a violation of Article 1 of Protocol No. 1 as a result of the termination of the applicant company’s broadcasts, the Court notes that their complaints are based on the proposition that the alleged violation of the applicant company’s right to the peaceful enjoyment of its possessions affected adversely their own financial interests. They argue, in particular, that they made investments in the applicant company and were partly liable for its financial undertakings and conclude that the financial losses sustained by the company are to be regarded as their own.
In the Court’s view, by the above allegations MM Lugner, Tributsch and Schuster attempt to pierce the “corporate veil”. The Court has found earlier that disregarding an applicant company’s legal personality in similar cases can be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Convention institutions through the organs set up under its articles of incorporation or - in the event of liquidation - through its liquidators (see the Agrotexim and Others v. Greece judgment of 24 October 1995, Series A no. 330-A, p. 25, § 66). However, no such exceptional circumstances have been established in the present case.
The Court further finds that MM Lugner, Tributsch and Schuster cannot claim to be victims of a violation of Article 10 of the Convention as a result of the termination of the applicant company’s broadcasts as any rights susceptible of attracting the protection of Article 10 in the present case (with the exception of those under the contracts concluded by Mr G. Schuster on 14 February 1997 and which the Court adressed in point 2 above) were linked to the applicant company as such and not to its shareholders or official representatives.
It follows that the above complaints by MM Lugner, Tributsch and Schuster are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
5. As to the alleged violation of Articles 6 § 1 and 13 of the Convention in respect of MM Lugner, Tributsch and Schuster, the Court recalls that neither of these provisions implies that under the national law of the Contracting States shareholders in a limited company or the creditors of such a company in liquidation should have the right to bring an action seeking an injunction or damages in respect of an act or omission that is prejudicial to “their” company (see the Agrotexim and Others v. Greece judgment cited above, § 73).
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis Deputy Registrar President
Full & Egal Universal Law Academy