CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1998

.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 }                      AS TO THE ADMISSIBILITY OF                         Application No. 30417/96                     by Tadeusz OLCZAK                     against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 8 July 1998, the following members being present:             MM    J.-C. GEUS, President                M.A. NOWICKI                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                I. CABRAL BARRETO                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV             Ms    M.-T. SCHOEPFER, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 February 1996 by Tadeusz Olczak against Poland and registered on 11 March 1996 under file No. 30417/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen residing in Stoczek Lukowski is an engineer.        The facts of the case, as submitted by the applicant, may be summarised as follows:     Particular circumstances of the case        On 8 April 1992 the applicant bought shares of the Lublin First Commercial Bank (Pierwszy Komercyjny Bank S.A. w Lublinie), a public company.   His shares represented in total 45 per cent of the company's share capital.        By a decision No. 2/93 of 6 February 1993 the President of the National Bank of Poland, who had regard to the difficult situation of the bank and the danger of its insolvency, with a view to improving its financial standing appointed a Board of Receivers (Zarz*d Komisaryczny) which replaced the existing governing and supervisory bodies of the company.        On 23 October 1993 the Board of Receivers adopted a resolution by virtue of which the company's memorandum of association was amended. The nominal value of the bank's share capital was reduced from old PLZ 50 billion to PLZ 1,098,000,000 by cancelling 31,350 "Series A" shares of PLZ 1,000,000.   The value of 27,450 remaining shares of Series A was reduced from PLZ 1,000,000 to PLZ 40,000.   The sum of PLZ 57,702,000,000 thus generated was to be used in its entirety for covering the bank's losses.   At the same time the share capital of the bank was increased by old PLZ by 250,000,000,000 by the issue of 6,250,000 new "Series B" non-transferable shares with extra voting rights of PLZ 40,000 each.   These new shares were all acquired by the National Bank of Poland.   All the existing shareholders were excluded from the right to acquire new shares, in order to protect the company's interests.   It was further established that on 8 April 1992 the applicant had purchased from D.B., a former owner of 100 per cent share capital, 25,650 "Series A" shares of PLZ 1,000,000 and that thereby the applicant had acquired 45 per cent of the share capital.   As a result of these operations, the applicant's part in the company's share capital decreased to 0.4 per cent.   On the same day the Board adopted another resolution by which it repealed the provision of the bank's memorandum of association which prohibited cancellation of shares and introduced a provision to the effect that the shares could be cancelled by reducing share capital.     a)    Proceedings relating to the annulment of the resolution taken by the Board of Receivers of the Lublin First Commercial Bank        On 25 November 1993 the applicant lodged a civil action with the Lublin Regional Court (S*d Wojewódzki) against the above-mentioned resolution, seeking its annulment.   He submitted that the resolution had arbitrarily lowered the value of his shares, deprived him of the right to acquire new shares and, consequently, he had sustained a severe financial loss.   He also submitted that the resolution was in breach of the applicable laws, in particular banking laws and the Commercial Code.        On 10 December 1993 the Lublin Regional Court ordered that the pleadings be returned to the applicant on the ground that he had not complied with the relevant formal requirements, by failing to indicate the value of the litigation.   The court considered that the applicant's claim was clearly of a pecuniary character.   The value of his claim was equivalent to the value of the loss which he had sustained as a result of the resolution of 23 October 1993.   Thus it was necessary to establish the value of the claim, in pursuance of the provisions of the Code of Civil Procedure concerning the value of litigation.        On 23 December 1993 the applicant appealed against this order, submitting that pursuant to the regulation on court fees, a fixed fee was only to be paid to commence an action for annulment of resolutions of organs of companies.   Thus, it was redundant for him to indicate the value of litigation in his pleadings.   On 27 January 1994 the Lublin Regional Court dismissed the applicant's appeal, considering that the lower court was right in its conclusion that his claim was of a pecuniary character, since his aim was to obtain compensation of his alleged loss resulting from the litigious resolution.        On 16 February 1994 the applicant again lodged a civil action with the Lublin Regional Court, seeking the annulment of the resolution of 23 October 1993.   He submitted that the value of the litigation was PLZ 30,690.        On 25 October 1994 the Lublin Regional Court requested the applicant to pay the court fee of PLZ 1,000,000,000.        On 1 November 1994 the applicant requested exemption from the whole of the court fees.   He submitted that his property had been seized by a bailiff in the context of enforcement proceedings against him which had been instituted by the Lublin First Commercial Bank on 31 May 1993.        On 28 December 1994 the Lublin Regional Court refused to grant the applicant an exemption from the court fees, considering that he had failed to submit detailed information as regards his financial situation and property to the court.   The applicant lodged an interlocutory appeal against this decision.        On 11 January 1995 the Lublin Court of Appeal (S*d Apelacyjny) dismissed the applicant's appeal.   The Court examined the documents submitted by the applicant in support of his appeal and considered that in view of his significant assets, and in particular of the fact that he owned two companies and certain real property, he did not satisfy the requirements for an exemption from court fees.     b)    Proceedings relating to the applicant's appeal against the decision to make an entry in the Commercial Register reflecting the results of the Board of Receivers' resolution of 23 October 1993        On 30 December 1993 the Lublin District Court (Commercial Division) ordered that entries be made in the Register of Companies, reflecting the results of the Board of Receivers' resolution of 23 October 1993.        On 20 January 1994 the applicant lodged an appeal.        On 10 June 1994 the Lublin Regional Court referred a question on points of law to the Supreme Court (S*d Najwyzszy).   The Supreme Court was requested to rule on the correct interpretation of the scope of the Board of Receivers' competence to adopt resolutions on matters reserved for the company's shareholders' general meeting, in particular in respect of reducing the value of share capital and shares.        On 22 July 1994 the Supreme Court, by a resolution III CZP 92/94, stated that the Board of Receivers was competent to take resolutions on all matters reserved by statutes or by the company's memorandum of association for decision by company's shareholders in a general meeting.   The Court considered that, with regard to banks, the provisions of the Banking Act, which was a lex specialis, took precedence over the provisions of the Commercial Code which contained certain limitations on the Board of Receivers' competence.        On 23 September 1994 the Lublin Regional Court dismissed the applicant's appeal.     c)    Proceedings relating to the claim against the First Commercial Bank for annulment of the resolution of 23 October 1993 which the applicant joined as a co-plaintiff        On 7 October 1994 the Lublin Regional Court dismissed the action brought by the Lublin Forestry Enterprise LAS (Lubelskie Przedsi*biorstwo Produkcji Lesnej LAS) against the Lublin First Commercial Bank.   The plaintiff, who had been a shareholder in the Bank, sought the annulment of the resolution of 23 October 1993.   The plaintiff company argued that the resolution should be annulled in pursuance of Article 414 of the Commercial Code which allowed shareholders to claim annulment of the resolutions of the shareholders' in general meeting, if taken deliberately to their detriment.        On 9 November 1994 the applicant requested the Lublin Regional Court's permission to join these proceedings as a co-plaintiff.   On the same date he lodged an appeal against the judgment of 7 October 1994. The applicant contended in his appeal that the impugned judgment was in breach of substantive law in that the Court had wrongly held that the provisions of the Banking Act took precedence over the provisions of the Commercial Code concerning shareholders' competence to contest before the courts certain resolutions of a shareholders' meeting.   The applicant further submitted that the court had failed to draw reasonable conclusions from the evidence, in particular in that it had not established that the impugned resolution had been taken deliberately to the shareholders' detriment.        On 23 June 1995 the Lublin Court of Appeal dismissed the applicant's appeal.   The Court established that the National Bank of Poland had appointed the Board of Receivers in view of the heavy losses which the First Commercial Bank had sustained in 1992, mostly as a result of bad loans.   The purpose of the resolution of 23 October 1993 was to improve the financial standing of the Bank in the interest of its clients and in order to prevent it from insolvency.   The Court further referred to the resolution of the Supreme Court of 22 July 1994.   The Court considered that in the light thereof the judgment under appeal was in conformity with the law.   As regards the applicant's appeal, the Court held that the applicant had not shown that the resolution had been taken deliberately to the shareholders' detriment, under Article 414 of the Commercial Code.   The Court recalled that it was not the   damage suffered by the shareholders which would constitute a sufficient reason for annulling the resolution of a shareholders' meeting, but the deliberate intention to prejudice the shareholders' interests.   The applicant had not shown that the resolution of 23 October 1993 had been taken with such an intention, as in the circumstances of the case it was clear that the National Bank of Poland had acted solely with a view to protecting the interests of the Lublin First Commercial Bank's clients.        On 7 August 1995 the judgment was served on the applicant. The applicant requested the Minister of Justice to lodge an extraordinary appeal on his behalf.   By a letter of 20 December 1995 the Minister of Justice refused to do so, considering that the impugned judgment was in conformity with the law.     Relevant domestic law        Article 76 of the Code of Civil Procedure provides that any person who has a legal interest in the judgment in a case being in favour of one or other of the parties, may join the proceedings as a co-plaintiff or as a co-defendant at any stage of the proceedings, until the hearings before the second-instance court are finished.     COMPLAINTS   1.    The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was expropriated by the resolution of the Board of Receivers of 23 October 1993 which, by first increasing and then reducing the Bank's share capital and by cancelling 5,040 shares owned by him, deprived him of his shares.   He submits that this was in breach of Article 1 of Protocol No. 1.        He asserts that the resolution was in violation of Article 105 para. 2 of the Banking Act which merely allowed, in proceedings to improve a company's financial standing, shareholders' voting rights to be suspended, but not their rights to participate in taking decisions on all matters reserved for decision in a shareholders' meeting.        He further maintains that the Commercial Code permits shares to be cancelled only if the company's memorandum of association allows for this, whereas the Bank's memorandum of association expressly excluded this possibility.   He challenges the lawfulness of the resolution, submitting that the Board of Receivers did not have the power to adopt it.   He finally submits that the National Bank of Poland could have improved the Bank's financial standing by purchasing its shares, but that it chose instead to   expropriate the shareholders.   2.    The applicant complains under Article 6 para. 1 of the Convention that he was deprived of access to court for the determination of his civil rights as the amount of the court fees demanded by the courts was obviously disproportionate, and because the courts disregarded the fact that his property had been seized by a bailiff.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he was deprived of access to court for the determination of his civil rights as the amount of the court fees which the courts requested from him in relation to the proceedings concerning his claim to have   the resolution of 23 October 1993 annulled was obviously disproportionate.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:          "1.In the determination of his civil rights and obligations ...      everyone is entitled to a fair hearing ... by (a) ... tribunal      ..."        The Commission observes that the final decision by which the applicant's request for an exemption from the court fees was dismissed was taken by the Lublin Court of Appeal on 11 January 1995.   Therefore the Commission is not required to decide whether the facts submitted by the applicant in this respect disclose any appearance of a violation of the Convention, as he has not lodged his application within the six- month time-limit provided for in Article 26 (Art. 26) of the Convention.   The Commission further notes that, in any event, this complaint would have to be declared inadmissible as manifestly ill- founded.   The Commission observes in this respect that the applicant later submitted a claim identical with that which he had sought the determination of in the first set of proceedings.   He did so by requesting the Lublin Regional Court to permit him to join, as a co- plaintiff, the proceedings in which the Lublin Forestry Enterprise LAS sought the annulment of the resolution of 23 October 1993.   The Court granted him such permission and later, by the judgment of 23 June 1995, dismissed his appeal and upheld the judgment of the first-instance court, considering that it was in conformity with the applicable laws. Therefore the Commission observes that the applicant's claim was in fact examined on the merits.        It follows that this part of the application is inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.     2.    The applicant further complains under Article 1 of Protocol No. 1 (P1-1) to the Convention that he was expropriated by the resolution of the Board of Receivers of 23 October 1993 which deprived him of his shares in the Bank.        The Commission considers that int cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.        For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicant's      complaint concerning the alleged interference with his      property rights;        unanimously,      DECLARES   INADMISSIBLE    the remainder of the application.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber