CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 11 décembre 2018

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SLOVENIA   (Application no. 36480/07)                           JUDGMENT         STRASBOURG   11 December 2018       This judgment is final but it may be subject to editorial revision. In the case of Lekić v. Slovenia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Ganna Yudkivska,   Robert Spano,   Ledi Bianku,   Helen Keller,   Paul Lemmens,   Valeriu Griţco,   Faris Vehabović,   Ksenija Turković,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström,   Georges Ravarani,   Jovan Ilievski,   Péter Paczolay, judges,   Boštjan Zalar, ad hoc judge, and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 14 March 2018 and 19 September 2018, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 36480/07) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Ljubomir Lekić (“the applicant”), on 4 August 2007. The applicant was represented before the Court by Mr S. Zdolšek, a lawyer practising in Ljubljana, Slovenia, then by Mr A. Saccuci, a lawyer practicing in Rome, Italy.     The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney. 2.     The applicant complained about the striking off of a limited liability company in which he was a minority member and his personal liability for a debt of that company. 3.     The application was assigned to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). Mr Marko Bošnjak, the judge elected in respect of Slovenia, was unable to sit in the case (Rule 28). Accordingly, the President of the Fourth Section decided to appoint Mr Boštjan Zalar to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). In a judgment delivered on 14 February 2017 a Chamber of the Fourth Section unanimously declared the applicant’s complaint under Article 1 of Protocol   No. 1 to the Convention admissible and the remainder of the application inadmissible, and found that there had been no violation of that Article. The Chamber was composed of András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Paulo Pinto de Albuquerque, Iulia Motoc, Gabriele Kucsko-Stadlmayer and Boštjan Zalar, judges, and Marialena   Tsirli, Section Registrar. At the applicant’s request, on 18   September 2017 a panel of the Grand Chamber decided to refer the case to the Grand Chamber according to Article 43 of the Convention. 4.     The composition of the Grand Chamber was subsequently determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. On 18 December 2017 the Grand Chamber rejected the applicant’s objections to the participation of Mr Boštjan Zalar in the proceedings before it. 5.     Both parties submitted further written observations (Rule 59 § 1). In addition, third-party comments were received from the Malta Institute of Management and the Civil Initiative of Forcefully Erased Companies, which had been given leave by the President to intervene (Article   36 § 2 of the Convention and Rule 44 §§ 3 and 4). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 14 March 2018. There appeared before the Court: (a)     for the Government Ms   B. Jovin Hrastnik , Ms   N. Pintar Gosenca ,   Agents ; (b)     for the applicant Mr   A. Saccucci , Ms   G. Borgna, Mr   M. Zamboni ,   Counsel , Mr   D. Lekić,   Adviser .   The Court heard addresses by Mr Saccucci, Ms Borgna, Mr Zamboni and Ms Jovin Hrastnik, and also their replies to questions put by the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1956 and lives in Ljubljana. 8.     On 8 October 1992 the applicant became a member of L.E., which was at that time a public limited company operating under Slovenian law. The share capital of L.E. stood at 2,995,250 Slovenian tolars (SIT) [1] and the applicant’s capital contribution was SIT 332,805.55 [2] (that is, 11.11% of the company’s share capital). L.E. had nine members in total. 9.     On 2 February 1993 the applicant was employed by company L.E. as head of its IT department. In addition, he provided assistance to the finance director (bookkeeping). 10 .     On 19 February 1993 two key members and directors of company L.E., Mr J. Za. and Mr M. D., died in a car accident. The first one, however, remained registered as a member of L.E. The shares of the second were taken over by Ms D. D. Two other members, Mr J. Zu. and Mr D. P., were seriously injured, but also remained registered as members of L.E. Following those events, the applicant assumed the role of acting director of L.E. on 29 April 1993, and then of managing director on 23 February 1995. In that capacity he acted as the company’s representative. 11 .     In 1993 the Slovenian Railways, a statutory company, initiated civil proceedings against L.E., claiming the payment of three sums arising from their business dealings, totalling approximately SIT   5,000,000. The applicant represented L.E. at all hearings held in that case except for the last hearing on 22 November 2000. 12 .     On 9 August 1995 Mr M. K., another member of L.E., died, but nevertheless remained registered as a member. 13 .     In November 1995 L.E. was aligned with the Companies Act 1993, as required (see paragraph   35 below), and at the same time converted from a public limited company into a limited liability company (see paragraph 33 below). At that time L.E. was already both illiquid and insolvent. 14 .     On 6 May 1996 the general meeting of L.E. dismissed the applicant from the post of managing director. Since the members failed to appoint a new director, as required (see paragraph   37 below), the applicant’s dismissal was not entered in the court register and he remained registered as managing director of L.E. 15 .     On 19 June 1997, on the applicant’s initiative, the general meeting of L.E. decided to start winding-up proceedings. The applicant made a winding-up petition on behalf of L.E. on 23 June 1997, declaring that the company had been insolvent for some time and that its total debt was SIT   22,393,952. On 16 July 1997 the competent court ordered L.E. to make, within 15 days, the required advance payment to cover the costs of the publication of the winding-up order in the Official Gazette in the amount of SIT 150,000 [3] . The applicant alleged that some members of L.E. had refused to contribute to the advance payment and had preferred to wait for the competent court to wind up the company of its own motion, in accordance with the then applicable legislation (see paragraph 40 below). 16.     On 31 July 1997 the applicant stopped working for L.E. 17 .     On 25 September 1997 another member of L.E., Mr J. Zu., died, but nevertheless remained registered as a member. 18 .     On 15 October 1997 L.E.’s winding-up petition was rejected for failure to make the required advance payment. 19 .     By a judgment of 22 November 2000, the District Court of Ljubljana ordered L.E. to pay the Slovenian Railways the sums claimed plus interest (see paragraph 11 above). L.E. did not appeal; the judgment became final on 12 January 2001. 20.     On the basis of notification from the competent authority that L.E. had not performed any transactions through its bank account in a period of twelve consecutive months, on 19 January 2001 the Ljubljana District Court – acting in its capacity as the registry court – initiated proceedings to strike off the company from the court register pursuant to the Financial Operations of Companies Act 1999 (hereinafter “the FOCA”; paragraphs 41-52 below). 21.     On the same day, the decision to initiate strike-off proceedings was entered in the court register. The decision was sent to the registered address of L.E., but since no representative of the company was there to receive it, a delivery slip was left in its mailbox, notifying the company that the relevant correspondence could be collected at the post office. On 12 February 2001 the decision was returned to the registry court with the information that the addressee had failed to collect it. The registry court then served it by posting it on its notice board, as provided for by domestic law. 22.     No objection was made to the decision of 19 January 2001, either by L.E. or by its members. Consequently, on 11   May 2001 the registry court issued a decision to strike off L.E. from the court register. The decision was published in the Official Gazette on 30 May 2001 [4] . The registry court also attempted to serve the decision on L.E. by sending it to the company’s address, but like the previous decision, it was returned on 4 June 2001 with the information that the addressee had failed to collect it. The decision was again posted on the registry court’s notice board. Neither company L.E. nor any of its members, who were entitled to lodge an appeal against the strike-off decision, appealed against the decision, so on 17 August 2001 it became final. 23.     On 25 September 2001 L.E. was struck off from the court register and thus ceased to exist. Notification of the strike-off was published in the Official Gazette on 6 February 2002 [5] . At the time of the strike-off, L.E. had nine registered members (including the applicant). The applicant stated that he had become aware that his company had been struck off on 22 December 2004, when a writ was served on him (see paragraph 24 below). 24 .     On 5 April 2002 the above-mentioned creditor applied to the Ljubljana Local Court for the judgment mentioned in paragraph 19 above to be enforced. On 5 June 2002 the court issued a writ of execution, ordering the seizure and sale of all tangible movable property of the applicant and six other members of L.E. It later revoked the writ in respect of Mr J. Za., Mr   M. K. and Mr J. Zu., as they had died (see paragraphs 10, 12 and 17 above). At the request of the creditor, on 30 November 2004 the court expanded the writ, ordering the payment of the judgment debt by direct deduction from the earnings of the applicant and of three other members of L.E. The writ was served on the applicant on 22 December 2004. 25.     On 29 December 2004 the applicant lodged an objection to the writ, arguing that the Local Court had failed to establish his actual role in company L.E. or to acknowledge his status as a passive member (see paragraph 51 below), which would have exonerated him from liability for the debts of the company. He maintained that the creditor’s claim against the company had arisen before he had joined it. Moreover, the applicant was of the view that the onus was on the creditor to establish that he had been an active member of the company. Lastly, he applied for a stay of enforcement. 26.     In its judgment of 12 March 2005, the Ljubljana Local Court found that the onus of proving his status as passive member was on the applicant and that he had failed to prove that he had not been an active member of L.E. The court established that with his 11.11% share in the company, the applicant had enjoyed the rights of a minority member, and furthermore, he had been employed by the company and actively involved in its management since April 1993. In his capacity as acting director and later managing director, he had been authorised to act on behalf of the company. Moreover, even after he had resigned as managing director, he had still been active in the running of the company and had also signed the winding-up petition. Lastly, the court considered that, as a minority member, the applicant could have and should have proposed the appointment of a new director at a general meeting of the company, since pursuant to domestic law all companies had to have a director. For those reasons, the applicant’s objection was rejected. The court also dismissed the applicant’s request for a stay of enforcement, as he had failed to demonstrate that the enforcement would have caused him irreparable or serious damage. 27.     On 9 February 2006 the Ljubljana Higher Court rejected an appeal lodged by the applicant on essentially the same grounds as the first-instance court. It observed, inter alia , that the Constitutional Court had found the measure of lifting the corporate veil under the FOCA to be in line with the principle of the separation of a company’s assets from those of its members and thus consistent with the Constitution. The court considered it irrelevant whether the applicant had become a member of L.E. before or after the creditor’s claim had arisen. Having joined the company, he had assumed its assets as well as its liabilities. It further held that it was not decisive that the applicant had not remained a director of L.E. until the dissolution of that company. What was crucial was that the applicant had been actively involved in its management and that he had had the rights of a minority member pursuant to section 445 of the Companies Act 1993 (see paragraph   37 below). The court noted that, in contrast to section 6 of the Companies Act 1993 which required the creditors of a company to prove that a member of the company had abused the corporate form (see paragraph 34 below), the FOCA had introduced a “non-rebuttable” presumption that the members of a struck-off company were deemed to have undertaken joint and several liability for any outstanding debts of the company. In accordance with the Constitutional Court’s ruling, they could be exonerated from their personal liability only if they demonstrated that they were “passive members” of the company (see paragraphs   46 and 51 below). Lastly, the court took note of the fact that the applicant had indeed made a winding-up petition on behalf of L.E., but it considered this irrelevant because L.E. had at the time failed to make the required advance payment and the petition had therefore been rejected (see paragraphs 15 and   18 above). 28.     On 5 May 2006 the applicant lodged two constitutional complaints. In one of them, he complained that the decisions rendered in the strike-off proceedings against L.E. had been served on that company alone and not on him personally. In the other one, he complained about the outcome of the enforcement proceedings against him. 29 .     On 31 January 2007 the Constitutional Court rejected the applicant’s complaint regarding the strike-off proceedings. The decision was served on the applicant on 5 February 2007. It found that the applicant lacked legal interest in challenging those proceedings, since L.E. had already been struck off from the court register. Consequently, even a positive outcome of the constitutional complaint could not improve the applicant’s position. 30 .     On 9 July 2007 the Constitutional Court also rejected the complaint regarding the enforcement proceedings as manifestly ill-founded. It held that the lower courts had correctly applied the Constitutional Court’s criteria for differentiating between active and passive members to the applicant’s individual situation. 31 .     In 2010 the judgment of 22 November 2000 was enforced in part by direct deduction from the applicant’s salary. On 23 September 2011 the applicant reached an out-of-court settlement with the creditor and paid the agreed amount. The enforcement proceedings against the applicant were terminated on 28 September 2011. In total, the applicant paid EUR 32,795 to the Slovenian Railways. It is not clear how much other members of L.E. have paid to the Slovenian Railways in this connection. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Companies Act 1988 [6] 32.     This Act entered into force in the former Socialist Federal Republic of Yugoslavia, which at that time included Slovenia, on 1 January 1989. It provided a legal framework for the private ownership of companies: private companies could be instituted by a wide range of investors with a relatively low share capital. This Act remained in force even after Slovenia became independent in 1991 and was repealed only by the Companies Act 1993 (see paragraph 33 below). B.     Companies Act 1993 [7] 33 .     Slovenia enacted this Act after it had become independent. It was in force from 10 July 1993 until 4 May 2006. It provided for two main types of companies whose members were, as a rule, not liable to creditors for the obligations of the companies: public limited companies ( delniška družba ; listed on the stock exchange) and limited liability companies ( družba z omejeno odgovornostjo ; not listed). The share capital had to be at least SIT   6,000,000 for public limited companies and SIT 2,100,000 for limited liability companies (pursuant to sections 172 and 410 of this Act, respectively) [8] . As the company under consideration in the present case was converted from a public limited company into a limited liability company in 1995 (see paragraph 13 above), only the legal regime applicable to the latter type of companies is set out below. 34 .     As mentioned above, members of limited liability companies were, as a general rule, not liable to creditors for the obligations of the companies (see section 407 of the Act). The lifting of the corporate veil was permitted only in the following circumstances: if members had abused the corporate form in order to attain an objective that was forbidden to them as individuals; if they had abused the corporate form such as to cause damage to their creditors; if they had used the assets of the company, in breach of the law, as their own personal assets; or if they had reduced the assets of the company, for their own benefit or for the benefit of another person, where they knew or should have known that the company would not be capable of meeting its liabilities to third persons (see section 6 of the Act). Such cases are dealt with by the ordinary courts. 35 .     In addition, members of a limited liability company were liable for the debts of the company if the competent court had struck off the company of its own motion for failure to align itself with the new rules within approximately a year and a half from the entry into force of the Act (see section 580(6) of the Act). On 9 October 2002 the Constitutional Court amended the provision in part, distinguishing between members who were actively involved in the operation of a company and so-called passive members. In accordance with that decision of the Constitutional Court, only active former members could be held personally liable for debts of a company (see paragraph 51 below). 36.     Pursuant to section 413 of the Act, a company director was required to enter the company in the court register. Sections 47, 48 and 413 of the Act provided that an application for entry in the register had to include , inter alia , a list of members, their contributions and the address of the company’s registered office. Furthermore, any change in the data entered in the court register had to be notified to the registry court within three days (for the list of members and their contributions) or within fifteen days (for the company’s registered office). 37 .     Pursuant to section 449 of the Act, a limited liability company had to have at least one director. Certain key decisions regarding the management and operation of a company (such as the appointment of directors or distribution of profits) would be adopted by the company members at a general meeting. In accordance with section 445 of the Act, members whose capital contributions amounted to at least one tenth of the total share capital could demand the convening of a general meeting; if so, they were required to specify the issues on which the general meeting should decide, and the reasons for calling a meeting. Moreover, such members could also request that a specific issue be included on the agenda of a general meeting that had already been convened. In addition, pursuant to section 446 of the Act, a company director had to inform members of the company’s affairs at their request, and allow them access to the company’s records and files. 38 .     The dissolution of companies was regulated by sections 371-98 and   455-56 of the Act. First, a company could resolve by special resolution that it be wound up. In this case, a majority representing at least three-quarters of the share capital was required. Secondly, a company could be wound up by the court, inter alia , if its share capital had been reduced below the statutory limit or if it was unable to pay its debts. Thirdly, any member whose shareholding amounted to at least one tenth of the total share capital could lodge an action with the competent court requesting that the company be wound up, if he or she considered that the company’s aims could not be achieved to a sufficient degree, or if there were any other reasonable grounds for the dissolution of the company. In any of those cases, the creditors of the company were entitled to notify their claims to the liquidator and to enforce their claims against the assets of the company. Lastly, the members of a company could dissolve the company, without winding it up, by requesting that it be struck off from the court register and by attaching to their application a statement made by all members in the form of a notary deed to the effect that all the company’s obligations had been met, that any disputes with employees had been settled and that the members assumed joint and several liability for any outstanding debts of the company. Unlike the winding-up procedure set out above, creditors were not entitled to enforce their claims in the strike-off procedure. Instead, they were able to enforce their claims against the former members of a struck-off company within one year of the publication of the strike-off notice in the court register. 39.     In accordance with section 436(2) of the Act, any company member could withdraw from the company if there were good reasons for doing so. C.     Insolvency Act 1993 [9] 40 .     This Act was in force from 1 January 1994 until 1 October 2008. In 1997 the legislature responded to the problem of a high number of dormant and insolvent companies by amending this Act. An amendment of 1 July 1997 authorised the courts to start, of their own motion, winding-up proceedings against companies which had failed to pay salaries for three consecutive months, or which, for twelve consecutive months, had been illiquid or had had its accounts blocked. Insolvent companies which themselves initiated winding-up proceedings were required to make an advance payment covering the costs of publishing the winding-up order in the Official Gazette. The provisions on winding-up proceedings initiated of a court’s own motion were repealed by another amendment to this Act, which entered into force on 1 July 1999, after it had been established that this process for dealing with dormant companies was not feasible given their large number (more than 6,000 dormant companies at the beginning of 1999) and the high costs of instituting winding-up proceedings which would have to be incurred by the State (around SIT 900,000,000 [10] according to the preparatory work in respect of the FOCA). D.     Financial Operations of Companies Act 1999 [11] 41 .     This Act was in force from 23   July 1999 until 15 January 2008. It introduced new means of dealing with dormant companies. The legislature observed that a great number of private companies were unable to meet their liabilities, thus contributing to poor financial discipline in corporate legal transactions and putting their creditors in a precarious position. Indeed, it would appear from the preparatory work relating to the adoption of the FOCA that on 28 February 1999 6,587 companies had accounts frozen for more than one year; their debts amounted to SIT 84,452,000,000 [12] ; and 6,083 of them (92%) had no employees. Therefore, the Act required companies to conduct their business in such a manner that they were able at all times to fulfil their obligations in due time (section 5). Moreover, they were required to maintain adequate capital in proportion to the volume and type of operations and activities they carried out and to the risks to which they were exposed (section 6). In this connection, the company’s management had to ensure that the company conducted its business in accordance with the law and the principles of financial operations (section   8), that it regularly monitored the risks incurred in conducting those operations and that it took appropriate measures to hedge against such risks (section 9). 42.     If a company became illiquid and thus unable to meet its maturing liabilities on time, the management had to adopt the necessary measures to re-establish liquidity and, if those measures did not bring results within the next two months, to make a winding-up petition (section   12). Likewise, if a company became insolvent and its assets were no longer sufficient to meet its liabilities, the management was required to make a winding-up petition within two months at the latest (section 13). If the management failed to comply with those obligations, they could be found personally liable for any damage caused to the company’s creditors as a result of such a failure; in addition, under certain conditions, the supervisory board and the members of a company could also be found personally liable for any damage caused to the creditors (sections 19-22). 43.     Companies that failed to follow the prescribed procedures in order to re-establish solvency or terminate their operations in cases of insolvency were to be struck off the court register systematically without a prior winding-up procedure. That allowed companies to be dissolved without their assets being collected and used to pay creditors. Strike-off proceedings were to be initiated if, inter alia , it could be presumed that the company in question had no assets, which was deemed to be the case if a company had made no transactions through its registered account for twelve consecutive months (section 25). Organisations effecting payment transactions for the company were required to inform the competent registry court of the existence of such circumstances within a month from their onset (section   26(2)). 44 .     The registry court was to commence strike-off proceedings of its own motion after establishing that the conditions for striking off the company from the register had been met. The decision on the institution of proceedings was served on the company concerned and entered in the court register (section 29). An objection could be lodged within a two-month time-limit by either the company itself, a member of the company or a creditor, on the grounds that (i) the conditions for the strike-off had been erroneously established or were incomplete; (ii) another procedure for the dissolution of the company, notably winding-up, had been initiated; or (iii) a petition for winding-up had been filed on behalf of the company, and advance payment had been made or the petitioner had been relieved from making that payment (section 30). 45 .     If no objection was made to a decision to start strike-off proceedings or if such an objection had been dismissed, the registry court was to issue a decision to strike off the company from the court register, which was served on the company concerned and published in the Official Gazette (sections 32 and 33). An appeal against such a decision could be lodged by the company concerned within thirty days of its service on the company or by members or creditors of the company within thirty days of its publication in the Official Gazette (section   34). If no appeal was lodged against a decision to strike off the company or if such an appeal had been dismissed, the strike-off decision became final and the registry court struck off the company from the court register; a notice was published in the Official Gazette (section 35). 46 .     In order to ensure that the creditors of struck-off companies were protected, the FOCA provided for personal liability of company members: pursuant to section 27(4) of the FOCA in conjunction with section 394 of the Companies Act 1993, company members were deemed to have agreed to assume joint and several liability for any outstanding debts of the struck-off company. The company’s creditors could pursue their claims against the members for up to a year after the publication of the strike-off notice in the Official Gazette. 47.     Due to the wide-reaching consequences of the FOCA, the provisions on measures to be taken in order to ensure that a company had adequate capital and was solvent became operational six months after the Act entered into force. The provisions regulating the strike-off procedure took effect even later. In this regard, the presumption that a company had no assets only took effect when the company had failed to make payments through its bank account for twelve consecutive months after the Act had entered into force (namely, on 23 July 2000). 48 .     The regulation introduced by the FOCA was challenged before the Constitutional Court by many former members of struck-off companies. On 9 October 2002 the Constitutional Court dismissed the challenge in part (see decision U-I-135/00), holding that the measure of striking off a dormant company which had no assets was consistent with the Constitution. An economically dormant company did not conduct business operations, nor did it generate income or make payments. At the same time, its financial situation was not known to its creditors, who relied on the presumption that it had at least a minimum amount of assets. For those reasons, non-operating companies posed a threat to the security of corporate legal transactions and to the position of their creditors. 49 .     The claimants also alleged that they could not effectively protect their rights in the strike-off proceedings, as the decisions on the initiation of proceedings and on the strike-off had not been served on them personally. In response to that argument, the Constitutional Court held that the service of decisions on the company, together with a notification in the court register or in the Official Gazette, was adequate. It observed that the measure was applicable to different forms of companies, some of which belonged to a multitude of members. The personal service of decisions would be too time-consuming, and in certain cases impossible. 50 .     As to the personal liability of former members, the Constitutional Court reiterated that, indeed, in principle they could legitimately expect that their liability for the company’s obligations would not exceed the value of their capital contributions. However, companies were required to ensure that they were operating with adequate capital, and that it did not fall below the statutory minimum. Companies which operated with insufficient capital were weaker economically than those which operated in line with the law, and this affected the overall security of legal transactions. The Constitutional Court held: “... 37.     In view of the above, the introduction of the lifting of the corporate veil was indeed a measure that allowed for the greatest possible protection of the threatened legal good, creditors, and general security of legal transactions. The position of company members was aggravated for the overriding reason of general interest (protection of creditors); the aggravation was made known in advance and was entirely dependent on the reason controlled by companies and/or their members. They were given sufficient time to adjust to new requirements and avoid the aggravation of their legal position. Therefore, the enactment of the lifting of the corporate veil based on the aforementioned reasons does not constitute a violation of the principle of the rule of law. ... 49.     ...Indeed, the need for the additional protection of creditors is even stronger under the [FOCA], which envisages no procedures to ensure repayment to creditors in the event of the dissolution of companies, and in case of potential over-indebtedness of a company, also no procedures to at least ensure the regular responsibility of limited liability companies (namely, that claims are repaid from the companies’ assets and that the equality of the companies’ creditors is ensured). ...” 51 .     Nevertheless, the Constitutional Court recognised the variety of legal and factual positions of members of struck-off companies and established a distinction between “active members”, who were in a position to influence the operation of a company, and “passive members”, who exerted no such influence. It upheld the law in so far as it applied to the former category, but repealed it in respect of passive members. In accordance with that decision of the Constitutional Court, the courts deciding on the personal liability of former members were primarily required to establish whether an individual member had exerted any influence on the operations of the company in issue. They were to base their assessment on a number of criteria, notably the type of company (public limited company or limited liability company), the status of a member (individual or legal entity), and the internal relations between the members. The courts deciding on the issue of personal liability could in addition rely on the general criteria with regard to the lifting of the corporate veil set out in the Companies Act 1993 (see paragraph 34 above). As to the distinction between a public limited company ( delniška družba ) and a limited liability company ( družba z omejeno odgovornostjo ), such as L.E., the Constitutional Court held as follows: “44. Members of limited liability companies are in a different position regarding the management of the company. ... Typically, [a limited liability company] has a smaller number of members with closer links to the company (in contrast to public limited companies with greater autonomy of the management board and reduced importance of the general meeting). A director of a limited liability company is subordinate to its members because they appoint and discharge the director. Members also have the right of access to information concerning the company and the company’s records, which enables them to responsibly participate in the management. It is a basic statutory, membership and contractual right of company members to manage the company; company members are individual holders of the right to manage the company, while the general meeting is a mere form of adopting decisions and is not even mandatory. One of the fundamental obligations of company members is the requirement to maintain the share capital [footnote: The maintenance of the share capital prevents, inter alia , capital decrease in companies. In cases of undercapitalised companies the sanction of lifting of the corporate veil may be instituted in respect of their members].” 52 .     Finding that the FOCA constituted an interference with a number of principles of company law and was having far-reaching and adverse effects on the position of former members of struck-off companies, in 2007 the legislature decided to amend the Act and relieve company members of their personal liability for their company’s debts. The amendment to the FOCA provided that all pending judicial and administrative proceedings in which creditors of struck-off companies were enforcing their claims against former members of the companies were to be terminated systematically. A number of creditors, whose proceedings against members of struck-off companies were pending and who were thus about to lose all possibility of repayment, lodged a complaint challenging the amendment. The Constitutional Court upheld their complaint and revoked the impugned provisions, finding that they did not afford appropriate protection to creditors (decision U-I-117/07 of 21 June 2007). In particular, it held as follows (§§ 15-17): “... 15.     ... In the absence of winding-up, the consequence of relieving active members from unlimited joint and several liability, as laid down in the [impugned amendment], is that, upon the striking-off of such companies, no procedure is envisaged to ensure at least the regular responsibility of limited liability companies (namely, that claims are repaid from the companies’ assets and that the equality of the companies’ creditors is ensured). 16.     The Government maintain that the creditors have the possibility of protecting their rights by other means, such as presenting a winding-up petition. However, once strike-off proceedings have been initiated, a winding-up petition may no longer be presented. ... 17.     The Constitutional Court therefore finds that in respect of the dissolution of a company by striking it off from the court register without winding it up, the legislature did not envisage a procedure which would enable ... the protection of the company’s creditors ... ...” E.     Financial Operations and Insolvency Act 2007 [13] 53.     This Act has been in force since 15 January 2008. It was enacted to replace the FOCA. It retained the possibility of striking off a company from the register without winding it up, but under slightly different conditions. F.     Liability for Corporate Obligations Act 2011 [14] 54 .     The Act has been in force since 17 November 2011. It again relieved former members of struck-off companies from personal liability for debts of the companies. Since the legislative solutions provided for in the Act were similar to those in the amendment to the FOCA (see paragraph 52 above), the Constitutional Court was once again called upon to decide if the Act struck a fair balance between the interests of former members of struck-off companies and the companies’ creditors. The Constitutional Court held that in cases where a creditor’s claims had been recognised by a judicial decision or where the judicial proceedings were pending, as well as in cases where a creditor had not yet lodged a claim against former members of a struck-off company but had a legitimate expectation to be able to do so, there were no constitutionally admissible reasons for interfering with his or her acquired rights. However, it allowed exoneration for members of companies which had been struck off after the entry into force of this Act. G.     Proceedings against Members of Struck-Off Companies (Stay of Proceedings) Act 2018 [15] 55.     This Act entered into force on 27 April 2018, staying all proceedings against members of struck-off companies, initiated under the FOCA or the Financial Operations and Insolvency Act 2007, pending the outcome of the present case. If the Court finally decides that there has been no violation of the Convention in the present case, the proceedings will resume. III.     COMPARATIVE LAW 56 .     The parties and the Malta Institute of Management provided information on the legal regime applicable to the liability of members of limited liability companies for the debts of the companies in the five former republics of the SFRY other than Slovenia [16] (namely, Bosnia and Herzegovina, Croatia, Montenegro, Serbia and the former Yugoslav Republic of Macedonia), Austria, the Czech Republic, Estonia, Germany, Italy, Malta, the Netherlands, Poland, Romania, Russia and Sweden. In most of them (including all former republics of the SFRY), domestic law (statutory or case-law) provides for the lifting of the corporate veil in case of abuse of the corporate form. The grounds for the lifting of the corporate veil are along the lines of those listed in section 6 of the Slovenian Companies Act 1993 (see paragraph 34 above): members have abused the corporate form in order to attain an objective that was forbidden to them as individuals; members have abused the corporate form such as to cause damage to creditors; members have used the assets of a company, in breach of the law, as their own personal assets; or members have reduced a company’s assets, for their own benefit or for the benefit of another person, where they knew or should have known that the company would not be capable of meeting its liabilities to third persons. In addition, in Serbia, members having a controlling interest in a limited liability company which has been struck off of the court’s own motion are liable for its debts regardless of whether they have committed abuse of the corporate form or not. THE LAW 57.     The applicant complained that the failure to serve on him personally the decisions rendered in the strike-off proceedings against company L.E. had amounted to a violation of his right of access to a court under Article   6   § 1 of the Convention. That Article, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Furthermore, relying on Article 1 of Protocol No. 1, he complained, in essence, about his personal liability for a debt of L.E. That Article provides: “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. 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.” I.     SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 58.     The Government submitted that the Court should deal in the present case only with the striking-off of L.E. and not with the applicant’s complaint about his liability for a debt of L.E., a matter which it should rather address in another case that the applicant had lodged under the Convention (application no. 3292/08); they added that they had not yet been given notice of the latter application. 59.     The applicant did not make any comments on this particular issue. 60.     The Court has held on many occasions that the “case” referred to the Grand Chamber embraces all aspects of the application examined by the Chamber in its judgment (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001-VII). While it is true that the applicant has lodged two applications with the Court and that his liability complaint is more developed in the second case, the applicant outlined his liability complaint already in the present case, the Court gave notice of it to the respondent Government and the Chamber dealt with it in its judgment. In view of the above, it falls within the Grand Chamber’s jurisdiction also to examine that complaint. II.     THE GOVERNMENT’S PRELIMINARY OBJECTIONS A.     As regards the strike-off proceedings against L.E. 1.     The parties’ submissions 61.     The Government maintained that a constitutional complaint was not an effective remedy in respect of the strike-off proceedings and that it could not therefore have secured a fresh six-month time-limit for lodging an application with the Court. In this connection, they emphasised that the strike-off proceedings against L.E. and the subsequent enforcement proceedings against the applicant were entirely independent. The latter proceedings, unlike the former, had not been initiated of the court’s own motion, but at the request of a creditor of L.E. Moreover, the outcome of the enforcement proceedings could not have had any impact on the outcome of the strike-off proceedings: even if the enforcement court had acknowledged the applicant’s status as a passive member (which would have absolved him from liability), company L.E. would not have been restored to the register. 62.     The applicant argued that a constitutional complaint was in principle an effective remedy and referred to the Chamber’s finding in the present case that the Constitutional Court had not rejected his complaint as out of time. 2.     The Court’s assessment 63.     In accordance with Article 35 § 4 of the Convention, the Court may “at any stage of the proceedings” reject an application which it considers inadmissible. Thus, even at the merits stage, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 ‑ III, and Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 28-31, 29 June 2012). Accordingly, the Grand Chamber has jurisdiction to examine the issue of compliance with the six-month rule. 64.     The object of the six-month time-limit under Article 35 § 1 of the Convention is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Sabri Güneş , cited above, §§ 39-40). 65 .     The requirements contained in Article 35 § 1 as to the exhaustion of domestic remedies and the six-month pe