Communicated on 5 January 2015
FIRST SECTION
Applications nos 29545/10 and 32961/10
CENTRE FOR DEVELOPMENT OF ANALYTICAL PSYCHOLOGY LTD against the former Yugoslav Republic of Macedonia
and CENTRE FOR DEVELOPMENT OF ANALYTICAL PSYCHOLOGY LTD against the former Yugoslav Republic of Macedonia
lodged on 19 May 2010 and 28 May 2010 respectively
STATEMENT OF FACTS
The applicant company in both cases (applications nos. 29545/10 and 32961/10, lodged on 19 and 28 May 2010 respectively), Centre for Development of Analytical Psychology Ltd, is a limited liability company incorporated in the respondent State. It is founded, owned and managed by Dr Marija Arsovska, a psychiatrist (“the psychiatrist”), and is represented before the Court by Ms M. Doneska, 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.
1. General information about the transformation of the applicant company
In 1995 the psychiatrist (whose name at that time was Marija Karanfilova) established her private psychiatric practice, officially titled “Independent Psychiatric Practice – Dr Marija Karanfilova” (Самостојна специјалистичка ординација по невропсихијатрија „Д-р Марија Каранфилова“) (“the Practice”), where she practiced the analytical psychotherapy of Karl Jung. In 2004 the Practice made a contract with the Ministry of Health – State Health Insurance Fund (“the Fund”) for funding of psychiatric treatments (“the contract”).
On 15 February 2006 the Ministry of Health – State Sanitation and Health Inspectorate (“the Inspectorate”) having conducted an on-site inspection (инспекциски надзор) ordered the Practice to re-register so as to comply with the new provisions of 2004 of the Health Protection Act. The order contained a warning that in case of non-compliance with its terms, the Practice may be closed from three to six months.
On 17 February 2006 the psychiatrist requested the Ministry of Health to re-register and re-name the Practice in accordance with the new statutory provisions.
On 28 February 2006 the Minister of Health issued a decision for registration of the “Private Health Institution – Specialist Psychiatric Practice Dr Marija Karanfilova” (Приватна здравствена установа – специјалистичка ординација по невропсихијатрија „Д-р Марија Каранфилова“) (“the new Practice”). This decision states that upon its entry into the relevant register, the previous decision of 1995 (for registration of the original Practice, see above) would no longer be in force (ќе престане да важи). The decision was also served to few institutions, including the Fund.
On 6 March 2006 the Inspectorate, having conducted a fresh on-site supervision, concluded that the Practice complied with its order of 15 February 2006.
On 16 April 2006 the Central Register recorded the registration of the new Practice as of 29 March 2006. New tax number was assigned to the new Practice.
On 6 June 2006 the new Practice notified the Fund about the changes in its registration.
On 29 November 2006 the Fund notified the new Practice that it did not intend to make a new contract after the expiry of the current one.
On 2 August 2007, on the basis of the new Practice’s request of 22 July 2007, the Central Register allowed and recorded the transformation of the new Practice in a limited liability company established by a single person (ДООЕЛ) (the applicant company). The applicant company preserved the tax number assigned to the new Practice. The link between the new Practice and the applicant company had never been disputed in the impugned proceedings (see below).
2. Application no. 29545/10 (compensation proceedings Пс.бр. 2229/07)
On 25 January 2006 the Practice initiated compensation proceedings before the Skopje Court of First Instance (“the first-instance court”) against the Fund for non-adherence to the terms of the contract.
On 10 June 2008 the first-instance court partly accepted the claim of the applicant company as a legal successor of the Practice.
On 26 August 2008 the Fund appealed and for the first time objected against the applicant company’s standing in the proceedings, claiming that the new Practice (which was then transformed in the applicant company) had been a new legal person, with a tax number different from the one that had signed the contract in 2004.
On 28 January 2009 the Skopje Court of Appeal (“the second-instance court”) remitted the case for fresh consideration.
On 10 April 2009 the first-instance court dismissed the applicant company’s claim finding that it had a different tax number and therefore could not be considered as the Practice’s legal successor. Since the contract was made between the Practice and the Fund, the applicant company had no requisite standing in the proceedings. It also decided that the applicant company would cover part of the costs of the proceedings.
On 2 December 2009 the second-instance court dismissed the applicant company’s appeal and confirmed the first-instance court’s judgment. It reiterated that the original Practice had not been succeeded by the new one as they had two different tax numbers.
3. Application no. 32961/10 (civil proceedings Пс.бр. 2644/07)
On 7 July 2006 the new Practice initiated compensation proceedings before the Skopje Court of First Instance against the Fund for yet another non-adherence to the terms of the contract made in 2004.
On 27 June 2008 the Fund objected claiming that the applicant company had no standing in the proceedings.
On 16 February 2009 the Skopje Court of First Instance dismissed the applicant company’s claim finding that it had a different tax number and therefore could not be considered as the original Practice’s legal successor. It decided that the applicant company would cover all the costs of the proceedings.
On 11 December 2009 the Skopje Court of Appeal dismissed the applicant company’s appeal. It reiterated the finding of the first-instance court that no legal continuity could be established between the original Practice and the applicant company, having in mind the difference of the tax numbers.
B. Relevant domestic law and practice
According to section 469 of the 2005 Civil Proceedings Act, in commercial disputes, an appeal on the points of law may be lodged when the value of the challenged part of the second-instance court’s judgment was above 1,000,000 Macedonian denars (around EUR 16,300).
In a separate set of proceedings (between the same parties and concerning the same contract) which ratione valoris reached the Supreme Court, the applicant company’s appeal on the points of law was accepted and the Supreme Court remitted the case for fresh consideration. The Supreme Court found that the difference in the tax numbers could not question the legal continuity between the two psychiatric Practices and lead to a conclusion that the applicant company lacked the requisite standing in the proceedings (ТС.бр. 69/09).
COMPLAINT
The applicant company complains under Article 6 of the Convention and Article 1 of Protocol No. 1 that owing to the domestic courts’ findings regarding its capacity to sue, its claims were not decided on the merits.
QUESTION TO THE PARTIES
Was the applicant company, given the findings of the domestic courts according to which it had no standing to sue in the impugned proceedings, deprived of the right of access to a court, as specified in Article 6 of the Convention?
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