Information Note on the Court’s case-law No. 109
June 2008
Cone v. Romania - 35935/02
Judgment 24.6.2008 [Section III]
Article 35
Article 35-1
Six month period
Company’s continuing failure to comply with order to reinstate a dismissed employee ended by supervening winding up order: preliminary objection allowed
Facts: In 1998 an agricultural joint stock company in which the State was a majority shareholder dismissed the applicant. In a judgment delivered in 1999 the court ordered the company to reinstate her in her post. In a judgment pronounced in 2000 the County Court ordered the company to pay her a sum in compensation for the wages she had not been paid. In a judgment of 26 June 2001, in the applicant’s presence, the County Court decided to open insolvency proceedings and duly appointed a liquidator. In 2002 decisions finding that there was no case to answer in respect of the criminal proceedings brought by the applicant against her former employers’ accountant and manager were confirmed. In 2003 the County Court found that the debtor company’s assets were insufficient to cover all the company’s debts, including what it owed the applicant, and terminated the insolvency proceedings, ordering the company to be wound up. The judgment and decisions in the applicant’s favour remained unenforced.
Law: (a) Regarding the objection that the application was out of time in so far as it concerned the finaljudgment of 1999 that the applicant should be reinstated in her former post, the Court had to examine the Government’s argument that it would have been “objectively impossible” to execute the aforesaid judgment once the compulsory liquidation of the employer company had been ordered by the judgment of 26 April 2001, which judgment had allegedly brought the continuing situation to an end and was the starting point for calculation of the six-month time-limit. The Court had previously found continuing situations to exist in cases concerning the reinstatement of applicants in their posts by the authorities, even though the State had argued that the posts concerned had been abolished and the government department where the applicant worked dissolved or the relevant company or State institution liquidated. However, a distinction had to be made between those cases and the present case. Firstly, while the applicant could have expected the authorities to execute the 1999 judgment even though her post had been abolished, that had not been the case after the County Court’s judgment of 26 June 2001 finding that recovery was impossible and ordering the company’s liquidation, leading to the winding up of its activities and the sale of its assets by a liquidator. Subsequent to these judicial decisions, the authorities, which could previously have been held responsible for the failure to execute the judgment concerned, had no longer been in a position to reinstate the applicant in her former post as the company had been liquidated. That being so, the only result applicant’s appeal against the court’s decisions that there was no case to answer might be expected to produce was legal action against those responsible, without any incidence on the execution of the order to reinstate her in her post or an equivalent post. In that respect, unlike in similar cases, there was no evidence to show that the authorities had adopted contradictory positions as to the possibility of executing the 1999 judgment, or that the company in question had been replaced by a comparable structure, where an equivalent post might have been found for the applicant. The applicant herself had made no such claim. Having regard to the very particular circumstances of this case, the opening of liquidation proceedings against the company by the judgment of 26 June 2001 had been such as to put a stop to the continuing situation in respect of the obligation to reinstate the applicant in her former post; the date of the opening of liquidation proceedings was therefore the date from which the six-month time-limit ran. As the applicant had submitted her complaint about the failure to enforce the 1999 judgment to the Court on 20 September 2002, the Government’s preliminary objection was to be allowed and the corresponding part of the application rejected as being out of time.
(b) With respect to the failure to enforce the 2000 judgment, the Court found a violation of Article 6 § 1 and Article 1 of Protocol No. 1.
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This summary by the Registry does not bind the Court.
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