Communicated on 14 January 2018
FOURTH SECTION
Application no. 29278/16
Andrej PREBIL
against Slovenia
lodged on 10 May 2016
STATEMENT OF FACTS
1. The applicant, Mr Andrej Prebil, is a Slovenian national, who was born in 1974 and lives in Ljubljana. He is represented before the Court by Mr M. Šušmelj, a lawyer practising in Ljubljana.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant had been a member of a supervisory board of company A since 11 November 2013.
4. On 29 May 2014 shareholder company P filed a motion to deprive the applicant and another supervisory board member, T.H., of their membership, and appoint provisional members. Company P grounded the motion on the alleged inadequate personal qualities of the applicant and T.H. referring, in particular, to an incident that had occurred during a supervisory board meeting on 13 May 2014. Company P requested the court not to notify the applicant and T.H. of the motion.
5. On 4 June 2014 the Ljubljana District Court upheld company P’s motion. The court explained that the law required that the supervisory board’s members act diligently and responsibly and that this was particularly important in the present case where company A was undergoing a process of “preventive restructuring”. The court noted that the decision was directly effective and that the appeal would not stay its execution.
6. On 5 June 2014 a journalist called the applicant and, to his surprise, asked him to comment on the aforementioned decision. However, the applicant received a copy only a few days later.
7. On 24 June 2014 he lodged an appeal arguing, inter alia, that he had been unlawfully denied any opportunity to participate in the proceedings. He also disputed company P’s allegations concerning his conduct during the aforementioned incident and gave his version of events.
8. On 3 July 2014 company P replied to the appeal.
9. On 5 August company P informed the court that, on 4 August 2014, company A had hold an assembly and appointed two new members to replace the applicant and T.H. It invited the court to reject the appeal because the applicant could not be considered to have any legal interest in its outcome.
10. The applicant replied to the above pleadings on 25 August 2014.
11. On 3 November 2014 the applicant submitted examples of the domestic jurisprudence with a view to demonstrating that the domestic law had required that he be given an opportunity to participate in the proceedings. On 21 January 2015 the Ljubljana Higher Court rejected the applicant’s appeal finding that he could not have had any legal interest in the outcome of the proceedings because company A had already appointed a new member to replace him. Therefore, in the court’s view, even had the applicant succeeded in the appeal proceedings he could not have obtained a reinstitution of the previous position.
12. The applicant lodged a constitutional complaint. He, invoking, inter alia, Articles 6 and 13 of the Convention, complained about being unable to participate in the first-instance court proceedings and about the Ljubljana Higher Court’s refusing to deal with his appeal on the merits and thereby denying him again an effective participation.
13. On 10 November 2015 the Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration pursuant to section 55b (2) of the Constitutional Court Act (see paragraph 16 below). The decision was served on the applicant on 13 November 2015.
B. Relevant domestic law
14. The relevant provisions of the Companies Act (Zakon o gospodarskih družbah, ZGD-1) provide as follows:
Section 262
(Contract with a member)
“(1) The rights and obligations of a member of a management or supervisory body which are not laid down by this Act shall be defined in a contract concluded with the company.
(2) The contract shall be approved by the supervisory board or the board of directors; otherwise, the member of a management or supervisory body shall return the benefits arising therefrom.”
Section 263
(Diligence and responsibility)
“(1) In the performance of their duties on behalf of the company, members of a management or supervisory body shall act with the diligence of a conscientious and fair manager and safeguard the trade secrets of the company.
...”
Section 276
Appointment and discharge of supervisory board members by the court
“(1) The management board shall submit a proposal for the appointment of a member of the supervisory board to the court immediately after determining that the number of members is insufficient for a quorum.
(2) Where good reasons exist for doing so, the court shall discharge a member of the supervisory board at the motion of the supervisory board or shareholders whose shares account for at least 10 per cent of share capital.”
15. Section 4 of the Non-litigious Civil Procedure Act (Zakon o nepravdnem postopku) provides that the courts should, unless otherwise provided in law, afford the participants an opportunity to comment on the allegations of other participants and to participate in the evidence taking procedure.
16. Section 55b, paragraph 2, of the Constitutional Court Act (Zakon o ustavnem sodišču) provides as follows:
“(2) A constitutional complaint shall be accepted for consideration:
- if there has been a violation of human rights or fundamental freedoms which has had serious consequences for the complainant;
or
- if it concerns an important constitutional question which exceeds the importance of the particular case in question.”
COMPLAINTS
The applicant complains under Article 6 of the Convention that he learned of the proceedings against him only after the decision had been issued to his detriment. He was unable to comment on the allegations of the party (company P) who pursued the proceedings against him and had no opportunity to present his arguments at an oral hearing. None of the courts dealing with the matter had addressed the applicant’s arguments. Under Article 13 the applicant also complains that the Ljubljana Higher Court did not consider his appeal on the merits.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention, under its civil limb, applicable to the proceedings in the present case?
If yes, did the applicant have a fair hearing in the determination of his civil rights, in accordance with Article 6 § 1 of the Convention? In particular, was his right of access to court and his right to adversarial proceedings respected?
2. Was there a violation of Article 13 of the Convention because the Ljubljana Higher Court did not consider on the merits the applicant’s appeal in which he had complained of his lack of participation in the first-instance proceedings?
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