CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 février 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .sB6586327 { width:29.62pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block }          AS TO THE ADMISSIBILITY OF           Application No. 14807/89         by AGROTEXIM HELLAS S.A., BIOTEX S.A.,         HYMOFIX HELLAS S.A., KYKLADIKI S.A.,         MEPEX S.A. and TEXEMA S.A.         against Greece     The European Commission of Human Rights sitting in private on 12 February 1992, the following members being present:   MM.C.A. NØRGAARD, President        J.A. FROWEIN F. ERMACORA G. SPERDUTI G. JÖRUNDSSON A.S. GÖZÜBÜYÜK J.-C. SOYER H. DANELIUS Mrs.G. H. THUNE SirBasil HALL MM.F. MARTINEZ RUIZ C.L. ROZAKIS Mrs.J. LIDDY MM.L. LOUCAIDES M.P. PELLONPÄÄ   Mr. J. RAYMOND, Deputy Secretary to the Commission   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 29 November 1988 by AGROTEXIM HELLAS S.A., BIOTEX S.A., HYMOFIX HELLAS S.A., KYKLADIKI S.A., MEPEX S.A. and TEXEMA S.A., against Greece and registered on 21 March 1989 under file No. 14807/89;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having regard to the observations submitted by the respondent Government on 16 May 1990 and to the applicants' observations in reply presented on 4 July 1990;   Having regard to the parties' submissions in view of and at the oral hearing on the admissibility and merits of the application;   Having deliberated;   Decides as follows:   THE FACTS         The facts of the case as submitted by the parties can be summarised as follows.         The applicant companies are shareholders of the company "Karolos Fix Brewery S.A." registered in Athens.   They own 295,783 of the total 576,000 shares of the said company, i.e. 51.35 %. In the proceedings before the Commission they were initially represented by Mr. Prodromos Dagtoglou, Attorney at Law, and subsequently by Mr.Panagiotis Bernitsas, Attorney at Law.         In 1976 the Karolos Fix Brewery S.A. decided to negotiate development projects for two of its properties in Syngrou Avenue and Patission Road in Athens, where two of its discontinued factories were situated. The company expected these projects to enable it to overcome its financial difficulties. The negociations concerned in particular a project for building a complex of offices and shops on the Syngrou Avenue plot, which project appeared to be supported by the National Bank of Greece, a State controlled bank and the main creditor of the company.         On 9 September 1979 the Municipal Council of the City of Athens (Dioikitiko Symvoulio Dimou Athineon), by its decision (praxi) 595/1979 concerning town planning, designated the property in Patission Road as an area to be turned into a public park.   A similar decision was issued on 28 April 1980 (No. 355/1980) with regard to the property in Syngrou Avenue.   As a result of the above the entreprises negotiating with the company retracted. Moreover, the National Bank of Greece stopped the financing of the company's projects.         On 22 February 1981 the Municipality of Athens occupied the site in Syngrou Avenue and turned part of it into a public park.   Signposts were also erected with the words "Area to be expropriated".   Similar signposts were placed later on the site in Patission Road.   The company requested in vain that these signposts be removed.   The Mayor of Athens declared in speeches and to the press that the said signposts emphasised the will of the City of Athens to acquire the land.   Upon request by the company, the Prosecutor of the Athens Court of Appeal (Eisageleas ton en Athinais Efeton), ruling provisionally, on the occupation of the Syngrou Avenue plot, ordered, on 3 November 1981, the Municipality of Athens and any other third party to cease the occupation of the litigious site. However the occupation did not cease.   On 18 December 1982 the company appealed against the Municipality's implicit refusal of a building permit for the property on Patission Road. This appeal is now pending before the Council of State (Symvoulio tis Epikrateias).   The company's commercial operations went on declining. On 10 August 1983 the General Meeting of the Shareholders decided the winding up of the company and appointed a liquidator.   On 8 August and 9 November 1983 the company, through its liquidator appointed by the General Meeting of the Shareholders, lodged with the First Instance Civil Court of Athens (Polymeles Protodikeio) two actions against the Greek State, the Municipality of Athens and the Mayor of Athens personally.   It claimed compensation for the damage it had suffered from the activities and declarations of the Municipality and of the Mayor.         On 8 November 1983 the Minister of National Economy ordered by Decree No. 1802/1983 the winding up of the company under the provisions of Articles 7 para. 3 and 9 Law 1386/1983 on "ailing" companies. As a result of this decision the company's administration was taken over by the State agency "Organisation for the Redressment of Undertakings" ("Organismos Anasyngrotissis Epicheirisseon", OAE). On 28 June 1984 two liquidators were appointed by decision (No. 6552/1984) of the Athens Court of Appeal (Efeteio Athinon) which replaced the liquidator appointed by the General Meeting of the Shareholders.   The Court of Athens found in particular that, having regard to the importance of the company's property and of the amount of its debts, the appointment of two liquidators, one on the side of the National Bank of Greece - the main creditor of the company - and one on the side of the company itself was required.   The Court of Appeal ruled that the liquidators should act in common.         On 21 November 1983 the Municipal Council of the City of Athens decided to maintain its projects as to the property on Syngrou Avenue. However, no expropriation proceedings started.   On 13 July 1984 the First Instance Court (Polymeles Protodikeio) of Athens gave two judgments (Nos 10848/1984 and 10849/1984) concerning the two civil actions lodged by the company in August and November 1983.   The court found that the various actions complained of could not be regarded as final administrative acts capable of causing damage to the company's property rights. The liquidators appointed on 28 June 1984 did not pursue any remedies against the above judgments of the First Instance Court.   In an interview published on 11 November 1985 the Mayor of Athens confirmed that the placement and maintainance of the signposts indicated the City's will to acquire these properties. The Mayor mentioned that representatives of foreign companies had negotiated projects for the building of a multi-purpose commercial centre and asked for building permits.   He had refused and the Fix company had sued him personally claiming compensation for the damage it had suffered.   On 18 July 1986 two of the applicant shareholders, namely TEXEMA S.A. and KYKLADIKI S.A., summoned the liquidators to take action in order to safeguard the value of the properties.   In March 1988 a building prohibition concerning the company's property was enacted by the administrative board and published on 24 March 1988 in the Official Gazette (FEK 254/td/24.3.88).         A subsequent decision (No. 1317/88) provided that expropriation proceedings should be instituted.   However, on 26 September 1988 the Prefecture of Athens (Nomarchia Athinon), which was the supervising authority of the Municipality of Athens, declared this decision null and void.   On 8 June 1988 the liquidators requested the City to remove the signposts.       By letter of 5 October 1988 the Mayor answered as follows:   "The Municipality of Athens has aimed for years at acquiring the areas of the old factories in order to give them to the public use for the benefit of the city and its inhabitants. For this reason the Municipal Council has passed since 1979 a series of resolutions. ... In view of the above, the desire of the Municipality of Athens to acquire and develop the areas is apparent and it is this very desire that is indicated by the signposts which have been placed."         On 8 April 1989 public work services of the Municipality of Athens occupied the company's plot in Patission Road and demolished the walls of the old factory building.   The liquidators requested the Prosecutor of the Athens Court to order provisional mesures against the occupation of the plot by the Municipality of Athens. On 9 May 1989 the Prosecutor ordered the Municipality of Athens to restore the previous status of the site and prohibited any future disturbance. This order was confirmed by the Prosecutor of the Court of Appeal on 22 November 1989. However the situation remained unchanged.   On 23 October 1989 the Municipality of Athens decided to amend the town planning concerning the property in Patission Road. The relevant decision was published in the Official Gazette on 5 December 1989.   As regards the Syngrou Avenue property the Municipality decided, besides the amendment of the town planning, to expropriate that land. This decision was published in the Official Gazette on 9 November 1989. The company appealed, through its liquidators, to the Council of State against the decisions relating to the property in Syngrou Avenue. No appeal was lodged against the decision concerning the Patission Road land.   On 21 October 1991 the Court of Appeal replaced the two liquidators by another liquidator, representing the interests of the Bank of Greece.     COMPLAINTS         The applicants submit that the activities of the Municipality of Athens in the last ten years hinder the exercise of their right to peaceful enjoyment of their possessions as shareholders of the Karolos Fix Brewery S.A.   Referring to the Sporrong and Lönnroth case (Eur. Court H.R. judgment of 23.9.1982, Series A no. 52), they submit that they are kept in a complete uncertainty as to the fate of their property over a period of ten years.   In this respect the applicants note that the Karolos Fix Brewery S.A. is since 1983 administered by liquidators and that they are not entitled to participate in the company's administration.   They consider, nevertheless, that they have a legitimate interest in seeking legal protection, since the measures affecting the company's property also affect the value of their own shares.               The applicants submit that as a result of the non-exploitation of the company's property in the last ten years, its debt increased and this was reflected in the decline of its shares.   The applicants submit that since 1979 the share value of the Karolos Fix Brewery S.A. slid from 1,200 to 40 Drachmas.         The applicants moreover note that pursuant to the constant case-law of the Court of Cassation (Areios Pagos) the protection of property under Greek law is confined to rights in rem, excluding the rights of shareholders.   They submit that a complaint to the Greek courts that their property rights as shareholders are violated by the situation created by the activities of the City of Athens   would be futile.         The applicants invoke Article 1 of Protocol No. 1 and Articles 6 and 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 29 November 1988 and registered on 21 March 1989.         On 13 February 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.         The Government submitted their observations on 16 May 1990.   The applicants submitted observations in reply on 4 July 1990.   On 8 July 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application. At the hearing, which took place on 12 February 1992, the parties were represented as follows:     For the Government   Mr. Fokion Georgakopoulos, Assistant Legal Adviser of the Legal                                  Council of the State, acting                                  Agent of the Government   Mr. Vassilios Kontolaimos, Assistant Legal Adviser of the Legal                                  Council of the State, Counsel     For the applicant   Mr. Panayiotis Bernitsas,   Lawyer at the Athens Bar,                                  Representative of the applicants   Mrs. Domna Mirasyesi,       Lawyer at the Athens Bar,                                  Counsel   Mr. George Tsironis,        Ex-director general of the                                  Karolos Fix Brewery S.A., Counsel       THE LAW   The applicant companies complain, in their capacity of shareholders of the Karolos Fix Brewery S.A., that the various measures taken by the Municipality of Athens constitute an interference with their right to peaceful enjoyment of their possessions contrary to Article 1 of Protocol No 1 (P1-1) which reads as follows:   1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.   Furthermore the applicants allege that the Greek legal order prevents them from having access to a court in order to seek judicial protection of their rights as shareholders. They are also deprived of any remedy against the acts or omissions complained of which allegedly violate their rights under Article 1 of Protocol No 1 (P1-1). The applicants invoke in this respect Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention.   i)   As to the Commission's competence ratione temporis   The Government first submit that the measures the applicants complain of were taken before 20 November 1985, the date on which the Commission's competence to examine individual applications against Greece took effect. They point out in particular that the public declaration of the Municipality's intention to expropriate the Karolos Fix company's land was made in 1979 and that the occupation of part of the Syngrou Avenue property and the placement of the litigious signposts took place in 1981. The Government submit that the application is incompatible ratione temporis with the provisions of the Convention.   The Commission notes the following:   It is true that the applicants' complaints refer to a series of measures which originated in 1979 and 1981.   Some of the decisions ordering these measures are, as such, outside the Commission's competence ratione temporis, since they were taken before the above- mentioned date.   However, the Commission notes that the measures complained of continued after 20 November 1985. It emphasises in this respect that the applicants do not complain of any "instant" effect of these measures on their rights but of a continuing situation created by the said measures and still existing.   Moreover, the repeated public declarations of the intention to expropriate, the maintainance of the signposts with the indication "Area to be expropriated" and the occupation of the plots occurred or persisted after 20 November 1985.     Consequently, the Commission finds that it is competent to examine the application and that the Government's objection in this respect must be rejected.   ii)   As to the question whether the applicants can claim to be     "victims" of a violation   The Government submit that the applicant companies cannot claim to be victims of the measures affecting the Karolos Fix Brewery S.A. They observe that the natural or legal persons which are shareholders of a company do not "own" the company's property, which belongs to and is administered by the company itself. The legal person of the company being clearly distinct from its shareholders, it is not possible to consider that   measures which allegedly affect the property of the Karolos Fix Brewery S.A. also affect the property rights of the shareholders. The fact that the interests of the shareholders may be affected by the situation of the company does not enable them to claim that their personal property rights are directly interfered with. The effect of the measures taken with regard to the property of the company on the rights of the shareholders is indirect and distant and does not suffice to enable them to claim that they themselves are "victims".   The Government note in this respect that the Commission's case- law clearly indicates that minority shareholders cannot complain of the measures affecting the company. Moreover, the cases in which the situation of a company has been taken into account in order to examine its effects on the rights of the shareholders, were cases in which the applicant shareholder held a substantial majority and was also the manager and the general director of the company.   The applicants in the present case, taken separately, are minority shareholders and are excluded from the administration of the company since 1983. Moreover, they could in their capacity as shareholders request the liquidators of the company to take action against the various measures complained of. They could also lodge an action against the liquidators insofar as the latter's alleged inactivity would have damaged their own rights. Having omitted to take such steps the shareholders cannot claim that they suffered damage from the measures taken by the Municipality of Athens. The devaluation of their shares is not established and, assuming that such devaluation actually took place, it is not established that it was due to the measures complained of.   The applicants contend that Article 25 (Art. 25) of the Convention, as it has been interpreted by the organs of the Convention, enables them to bring an application before the Commission and to complain of the measures taken against the company. They insist on the fact that they detain the majority of the shares of the Karolos Fix Brewery S.A. and that they represent the interests of the Karolos Fix company.   The applicants also emphasise that the company is under liquidation and that its legal personality is maintained only for the purpose of its winding up. The rights of the shareholders are consequently limited.   Moreover, the special liquidation regime to which the company is submitted leads to an even further limitation of their rights.     The Commission recalls that the term "victim" in Article 25 (Art. 25) of the Convention denotes the person directly affected by the act or omission which is at issue (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A No 51, p. 30, para. 66). The Commission has held that an individual who held a substantial majority shareholding in a company could, under certain circumstances, claim to be victim of measures directed against the company (No 1706/62, Dec. 4.10.66, Collection 21, p. 26 and No 7598/76 Kaplan v. United Kingdom, Comm. Report 17.7.80, D.R. 21 pp. 5, 23). In the case of Yarrow and others (No 9266/81, Dec. 28.1.83, D.R. 30, pp. 155, 185) the Commission held that the applicants, who did not hold a majority or controlling interest in the company in question, were not directly and personally affected by the nationalisation of the company, although this measure undoubtedly affected the value of their shares. In that case the Commission found that the applicants could not claim to be victims of the measure of nationalisation.   The Commission finds that, the question whether a shareholder may claim to be victim of measures affecting a company cannot be determined on the sole criterion of whether the shareholder detains the majority of the company shares. This element is an objective and important indication but other elements may also be relevant in view of the circumstances of each particular case. In this respect the Commission recalls that it has previously taken into account the fact that an applicant shareholder was carrying out his own business through the medium of the company and that he had a personal interest in the subject-matter of the complaint (cf. above-mentioned Applications No 1706/62 and 9266/81). It has also considered whether it was open to the company itself, being the direct victim, to lodge an application with the Commission.   In the present case the Commission notes that, although none of the applicants separately holds the majority of the company's shares, the group of the applicant companies holds 51,35% of the Karolos Fix Brewery S.A. shares. It is moreover apparent that the applicant companies have an interest in the subject-matter of the application.   Furthermore, in the Commission's view, the circumstance that the company is under liquidation and subject to the special regime of ailing enterprises is of particular relevance.   The Commission notes in this respect that as a result of the decision of the competent Minister in 1983 the company has been since administered by the State agency OAE and subsequently by liquidators and that the shareholders' rights to participate in the administration and representation of the company have ceased.   The Commission also takes into account the fact that one of the two liquidators initially appointed by   the Court of Appeal represented the interests of the National Bank of Greece, a State controlled bank. It also notes that, according to the decision of the Court of Appeal, the two liquidators should act in common. Finally, the Commission notes that since 21 October 1991 the Court of Appeal replaced the two liquidators by a new single liquidator representing the interests of the National Bank of Greece.   The Commission finds that the company Karolos Fix Brewery S.A., has been essentially under effective State control since 1983. Consequently, this company cannot reasonably be expected to lodge an application with the Commission against the Greek State. In these specific circumstances, the Commission finds that the applicant shareholders are entitled, by lifting the veil of the company's legal personality, to claim that they are victims of the measures affecting the company's property, within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention. In this respect the Commission recalls that not only substantive rights under Section I of the Convention or its Protocols but also Article 25 (Art. 25) of the Convention, which confers upon individuals and non-governmental organisations a right of a procedural nature,   must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory (cf. Eur. Court H.R., Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A No 201, p.36, para. 99).   It follows that the Government's objection on this point must be rejected.   iii) As to the requirements of Article 26 (Art. 26) of the Convention   The Government furthermore object that the applicants have not exhausted the domestic remedies at their disposal and that they have not complied with the six months rule.   The Government submit that the application should be declared inadmissible on this ground.   In particular the Government indicate that it was open to any person who could claim to be injured by the acts or omissions of the Municipality of Athens to introduce a recourse before the administrative tribunal seeking the annulment of the allegedly illegal acts or omissions. It was further open to any injured party to claim compensation for any damage suffered as a result of the measures complained of. Actions before civil tribunals against the alleged interferences with the company's property rights could also be introduced on the basis of the relevant provisions of the Civil Code. The Government emphasise that on various occasions the company sought judicial protection. Thus, in 1983 it claimed damages for the torts due to the activities of the Municipality of Athens and in 1989 it sought the annulment of the decisions of the Municipal Council modifying the town planning and providing for the expropriation of the Syngrou Avenue property. However, these actions were discontinued or are still pending before the domestic courts.   The Government conclude that the domestic remedies existing under Greek law have not been exhausted according to the generally recognised rules of international law.   Moreover, the Government submit that the applicants, in their capacity as shareholders, could take various steps, according to the law on commercial societies, in order to oblige the liquidators to react against the measures taken by the Municipality of Athens. The Government refer in particular to the fact that it was open to the applicant shareholders to ask the Court of Appeal to replace the allegedly inactive liquidators.   Finally, the Government submit that if it were to be found that no remedies were available against the measures complained of, the applicants' complaints concerning acts or events which occurred more than six months before the introduction of the application should be declared to have been submitted out of time.   The applicants submit that no effective remedy was available to them under Greek law. The Commission finds that the Government have not shown that the applicants could, in their capacity as shareholders, exercise the rights of the Karolos Fix Brewery S.A. and pursue the remedies which were available, under Greek law, to the said company, i.e. the legal person directly affected by the litigious measures.   The Commission finds that according to the generally recognised rules of international law, it should not take into consideration measures which were not open to the applicants themselves.   Moreover, the Commission finds that the steps the shareholders could take against the liquidators are not to be considered as effective remedies, according to the generally recognised rules of international law. It recalls in this respect that only those remedies which are capable of remedying the criticised state of affairs directly, and not merely indirectly, are to be considered as effective (No 10092/82, Dec. 5.10.84, D.R. 40, p.118). In the present case any action against the liquidators would be incapable of directly redressing the situation created by the measures taken by the Municipality of Athens.   Finally, the Commission has also had regard to the fact that the orders issued by the Athens prosecutor against the Municipality for cessation of the trespass of the land in question remained ineffective and inoperative.   It follows that the Government's objections as to the exhaustion of domestic remedies must be rejected.   As regards the Government's objection that part of the application has been introduced out of time, the Commission refers to its considerations under point i) above.   It recalls that the applicants' complaints relate to a continuing situation and that in such circumstances the six months period runs from the termination of the situation concerned (No. 6852/74, Dec. 5.12.78 D.R. 15, p. 5). Having regard to the fact that the situation complained of is still continuing, the Commission finds that the Government's objection must be rejected.   iv) As regards the merits of the application   As regards the merits of the applicants' complaint, the Government submit that legal procedures have been initiated for the purpose of expropriating the Karolos Fix Brewery S.A.'s land. Until termination of these procedures the property of the land remains with the company. Moreover, the Government observe that the applicants have not shown that the devaluation, if any, of the value of their shares is due to the measures taken by the Municipality of Athens.   The Government conclude that in these circumstances no interference with the applicants' rights can be found.   As regards the merits of the complaints under Articles 6 and 13 (Art. 6, 13) of the Convention, the Government deny that the applicants are deprived of effective judicial protection.   The applicants submit that the measures complained of constitute serious hindrances in the exercise of their right to peaceful enjoyment of their possessions. They are not in the public interest, they have no legal basis in Greek or international law and are, in any event, disproportionate to the possible aims pursued. The applicants conclude that their rights under Article 1 of Protocol No 1 (P1-1) have been violated.   Moreover, they reiterate their complaints under Articles 6 and 13 (Art. 6, 13) of the Convention.   The Commission examined the parties' submissions and arguments. It finds that the application raises complex issues of fact and law and that it cannot be regarded as manifestly ill founded.   The application must, therefore, be declared admissible, no other ground for declaring it inadmissible having been established.     For these reasons, the Commission by majority     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits.     Deputy Secretary to the Commission     President of the Commission                     (J. RAYMOND)                       (C.A. NØRGAARD)