Published on 28 March 2022
SECOND SECTION
Application no. 45538/13
C.F. ‘BV FIDUCIAR INVEST’ S.A.
against the Republic of Moldova
lodged on 18 April 2013
communicated on 10 March 2022
SUBJECT MATTER OF THE CASE
The application concerns the annulment, in administrative proceedings, of several transactions following which the applicant company became the nominal owner (administrator in trust) of shares of a third company (C.). The applicant company concluded contracts with individuals who possessed “patrimonial parts” (bonuri patrimoniale, representing the value of each individual in the State assets and used during the process of privatisation of State property during 1990s) for managing such patrimonial parts (trust agreements). With those parts, the applicant company obtained shares in C. by buying them at public auctions or by exchanging them for other shares from two similar trusts. Some 15 years later, at C.’s request, the courts found that the registration of the purchase and exchange of C.’s shares by the applicant company had not been in conformity with various legal provisions. They ordered the annulment of the record for the applicant company’s nominal ownership of all of its shares and their distribution to individual shareholders or the return of the shares exchanged to the two trusts.
The courts did not answer the applicant company’s argument that since the case concerned both administrative and civil aspects, civil courts alone were by law competent to examine it.
The applicant company complains of a violation of Article 6 of the Convention in that the administrative courts were not competent to examine the case and did not give sufficient reasons for their judgments.
It also complains of a violation of Article 1 of Protocol No. 1 to the Convention since, despite not having broken any rules (all such breaches found by the courts being the fault of the registration company), its administration of C.’s shares was annulled. The deprivation of its possessions had not pursued a strong legitimate aim since none of the individuals or the two trusts had any complaints and it had been the applicant company’s lawsuit against C. for refusal to pay dividends which provoked C. to start administrative proceedings to prevent such distribution. Moreover, a number of shares were to be transmitted to the two trusts without the latter being ordered to transfer back to the applicant company the shares received in exchange.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 6 § 1 of the Convention? In particular, was the case examined by a “tribunal established by law”, considering the alleged lack of jurisdictional competence of administrative courts to examine the case? Did the courts give relevant and sufficient reasons for their judgments, notably in reply to the applicant company’s argument concerning their lack of jurisdictional competence? (Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 217 et seq., 1 December 2020)
2. Has there been a violation of Article 1 of Protocol No. 1 to the Convention? In particular:
(a) did the applicant company have a “possession” within the meaning of that provision?
(b) if so, was the applicant company subjected to an “individual and excessive burden”, within the meaning of Article 1 of Protocol No. 1, as a result of the annulment of its administration of a part of C.’s shares? (Lekić v. Slovenia [GC], no. 36480/07, §§ 107 et seq., 11 December 2018)