FOURTH SECTION
DECISION
Application no. 18677/04
VODINVEST - 99
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 5 March 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 5 May 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Vodinvest-99 AD, is a Bulgarian limited liability company based in Plovdiv. It was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In October 1997 the Minister of Agriculture opened a procedure for privatisation of the State-owned company Vodno Stopanstvo - Burgas EOOD.
5. In June 1998 eighteen employees of Vodno Stopanstvo - Burgas EOOD created the applicant company, with the express aim of participating in the privatisation.
6. The applicant company and one more bidder, another company created by employees of Vodno Stopanstvo - Burgas EOOD, participated in the procedure and submitted tenders. Both stated that they wished to benefit from the preferential purchase conditions provided for by law and available to companies counting among their shareholders or associates at least 20% of the employees of the company to be privatised.
7. The two tenders were examined on 22 and 24 June 1998. The commission created for that purpose noted that the applicant company had as its shareholders eighteen employees of Vodno Stopanstvo - Burgas EOOD and the other bidder had thirty-one. According to the applicant company’s documents, the total number of employees of Vodno Stopanstvo - Burgas EOOD was eighty-seven and according to the other bidder there were ninety-eight. Accepting that the correct number was ninety-eight and that the applicant company was thus not eligible to benefit from the preferential conditions, the commission enquired whether the applicant company still wished to participate in the privatisation.
8. As the applicant company failed to confirm this, the commission recommended to the Minister of Agriculture, the body competent to conclude the privatisation contract, that the other bidder be selected. Accordingly, in an order dated 13 July 1998 the Minister chose that bidder. A privatisation contract with it was signed on the same day.
9. Soon after that the applicant company applied for judicial review of the Minister’s order of 13 July 1998. Its application was allowed on 29 September 2000 by a three-member panel of the Supreme Administrative Court (“the SAC”), which quashed the order and remitted the matter to the Minister of Agriculture. It held that the commission tasked with examining the privatisation offers had not had the authority to decide whether the participants had met the preconditions allowing them to benefit from the preferential conditions, nor to ask the applicant company to amend its offer.
10. The three-member panel’s judgment was upheld on 5 March 2002 by a five-member panel of the SAC, which noted in addition that the commission had not established the exact number of Vodno Stopanstvo - Burgas EOOD’s employees, but had merely accepted statements in that regard by one of the bidders. The five-member panel’s judgment was final.
11. In the months that followed this judgment the applicant company sent several letters to the Minister of Agriculture requesting him to take measures to comply with the judgment and reopen the privatisation procedure. The applicant company also approached other State bodies.
12. Following communication of the present application, the Government informed the Court of the measures taken to comply with the judgment of 5 March 2002.
13. Given the complexity of the situation, in 2002 and 2003 the Minister of Agriculture sought the opinion of lawyers, as well as the position of other State bodies involved, such as the Privatisation Agency, the Post‑Privatisation Control Agency, and the Ministry of Finance. The Minister was advised that the most appropriate course of action would be to seek nullification of the privatisation contract before the civil courts. Accordingly, on 17 March 2004 the Minister brought a civil action.
14. In a judgment of 7 April 2005 the Burgas Regional Court dismissed the action. However, on 11 November 2005 the Burgas Court of Appeal reversed that decision and allowed the claim. It found, most notably, that the Minister of Agriculture had not been authorised to conclude a privatisation contract prior to the entry into force of the order selecting the successful candidate, and that the order could only enter into force once all possibilities of judicial review had been exhausted. In the case at hand the order of 13 July 1998 had been contested by the applicant company and set aside, which meant that it had never entered into force. Thus, the privatisation contract, signed without a valid order selecting the successful candidate, was null and void.
15. On 2 August 2006 that judgment was upheld by the Supreme Court of Cassation (Върховен касационен съд).
16. The Court has not been informed of the situation of the company Vodno Stopanstvo - Burgas EOOD following the above developments, and in particular has not been informed whether a new privatisation procedure has been launched.
17. Following communication of the present application, the Government submitted documents showing that on 29 October 2003 the applicant company requested the return of a sum of money it had paid as a deposit to enable it to participate in the privatisation procedure; it stated that it had “completely lost interest” in any further participation. That sum was transferred to the applicant company’s bank account on 5 November 2003.
COMPLAINT
18. The applicant company complained under Article 6 § 1 of the Convention that the authorities had failed to enforce the judgment of 5 March 2002.
THE LAW
19. Article 6 § 1 of the Convention reads, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Arguments of the parties
20. The Government did not dispute the applicability of Article 6 § 1 to the case at hand.
21. They argued, on the other hand, that the application was inadmissible for failure to abide by the six-month time-limit provided for in Article 35 § 1 of the Convention, given that it concerned a judgment delivered on 5 March 2002.
22. The Government argued, secondly, that the only possible course of action for the authorities following the judgment of 5 March 2002 was a civil claim for nullification of the privatisation contract; the Minister of Agriculture had brought such an action. Therefore, the authorities had enforced the judgment at issue. In any event the situation was complicated, because the privatisation contract had been concluded several years prior to the judgment of 5 March 2002, and had already been complied with by the parties.
23. The applicant company agreed with the Government that Article 6 § 1 was applicable to the case.
24. However, it disputed the Government’s remaining arguments. It pointed out, in particular, that the civil action concerning the nullification of the privatisation contract had been brought two years after the judgment of 5 March 2002, and that in any event this was not sufficient, since the proper enforcement of the judgment required that after the actual nullification of the contract the Minister of Agriculture was to resume the privatisation procedure opened in 1998 and re-examine the offers submitted at the time.
B. The Court’s assessment
25. The Court has held that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to have been recognised under domestic law (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009).
26. However, the Court considers that in the present case it is not necessary to examine whether all the conditions referred to in the foregoing paragraph were fulfilled; given its conclusion below (see paragraph 30) that the present application is manifestly ill-founded, it will proceed on the assumption that Article 6 § 1 is applicable.
27. For the same reasons the Court does not find it necessary to examine the Government’s objection (see paragraph 21 above) that the application was inadmissible for failure to abide by the six-month time-limit. Nor is it called upon to decide whether the applicant company has abused its right of individual application, a question which can justifiably be raised given the applicant company’s failure to inform the Court of an important development which occurred prior to the lodging of the present application, namely its decision to withdraw from the privatisation procedure (see paragraph 17 above).
28. The Court notes that the applicant company complained that the authorities had failed to abide by the SAC’s final judgment of 5 March 2002. It reiterates that the execution of a judgment given by a court is to be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II).
29. The Court notes further that the judgment of 5 March 2002 did not directly order the authorities to take a particular action; it quashed the Minister of Agriculture’s order of 13 July 1998 selecting the successful candidate in the privatisation procedure and remitted the matter (see paragraphs 9-10 above). Subsequently, the Minister of Agriculture brought an action seeking to obtain nullification of the privatisation contract which had been concluded pursuant to that order (see paragraphs 13-15 above). The Government considered that the authorities had thus taken sufficient measures to comply with the judgment, while the applicant company disagreed (see paragraphs 22 and 24 above).
30. The Court is of the view that, regardless of whether the measures taken after the judgment of 5 March 2002 were adequate, sufficient and timely given the specific facts of the case, the crucial issue in the present case is whether the applicant company could in fact seek the “enforcement” of that judgment by way of the re-opening of the privatisation procedure. It notes that while the domestic courts – the three-member panel of the SAC and the five-member panel of the same court – quashed the order of 13 July 1998, they did not pronounce on what should or should not follow subsequent to the quashing and annulment, nor ordered the re-opening of the privatisation procedure at any point. The privatisation contract with the other bidder was also declared null and void in subsequent proceedings, to which the applicant company was not a party. Quite apart, therefore, from the declaration of the applicant company that it had “completely lost interest” in any further participation in the privatisation procedure, the judgment of 5 March 2002 could not be interpreted as ordering the re‑opening of the said procedure and the applicant company could not seek any further “enforcement” on the basis of that judgment.
31. It follows that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy