CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 mars 2025

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s28F0D84C { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sB6A7F5BF { width:17.54pt; display:inline-block } .s7C6ED563 { width:121.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   SECOND SECTION CASE OF TADIĆ v. CROATIA (Application no. 31038/20)             JUDGMENT   STRASBOURG 18 March 2025   This judgment is final but it may be subject to editorial revision. In the case of Tadić v. Croatia, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Gediminas Sagatys , President ,   Davor Derenčinović,   Juha Lavapuro , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   31038/20) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 July 2020 by a Croatian national, Mr Stipo Tadić (“the applicant”), who was born in 1959, lives in Štefanje and was represented by Ms A. Klarić Rajnović, a lawyer practising in Zagreb; the decision to give notice of the application to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik; the parties’ observations; Having deliberated in private on 25 February 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The application concerns the inability of the applicant to judicially challenge the amount of compensation awarded to him for his squeeze-out from a company in which he was a minority shareholder. BACKGROUND TO THE CASE 2 .     The applicant was a minority shareholder of the S. company. 3 .     On 4 February 2016 a certain Mr M.H. applied to the Croatian Financial Services Supervisory Agency ( Hrvatska agencija za nadzor financijskih usluga ; the “Agency”) for approval of the announcement of a voluntary takeover bid of the S. company. Since he was to become a holder of 96% of the company’s shares, in his takeover bid he undertook to pay to minority shareholders 16.50 Croatian kunas (HRK; approx. 2.20 euros (EUR)) per share. This price was determined as the shares’ fair value established on the basis of an expert report. 4 .     On 4 March 2016 the Agency gave its approval. It found that the price of the shares was determined in accordance with the relevant provisions of the Joint Stock Companies Takeover Act (the “Takeover Act”). 5.     M.H. then published a takeover bid for the S. company and subsequently requested the Central Depository and Clearing Company ( Središnje klirinško depozitarno društvo ; the “CDCC”) to transfer the shares of the minority shareholders to him, in accordance with the Takeover Act. The CDCC did so on 13 May 2016 and paid the minority shareholders the compensation for their shares in the amount set out in the takeover bid (see   paragraph 3 above). proceedings instituted by the applicant Proceedings before the commercial courts 6 .     On 19 June 2016 the applicant and a number of other former minority shareholders of the S. company instituted proceedings before the Zagreb Commercial Court asking it to determine the fair price of that company’s shares. The court then invited them to complete their request, but only one of them, D.S., did so. As the remaining petitioners, including the applicant, had failed to do so, the court, in a decision of 14   September 2016, found that their request had to be considered withdrawn. Neither the applicant nor the remaining petitioners appealed against that decision, which thus became final. 7 .     On 16   September 2016 the Zagreb Commercial Court declared D.S.’s request inadmissible for lack of jurisdiction. That decision was upheld by the High Commercial Court on 16 November 2016. Those courts held that the case concerned a squeeze-out under the Takeover Act, in which the Agency, and not the courts, had jurisdiction to review whether the price of the shares was fair. Proceedings before the administrative courts 8 .     Meanwhile, on 5 April 2016, the applicant instituted judicial review (administrative-dispute) proceedings contesting the Agency’s decision of 4   March 2016 (see paragraph 4 above) in the part approving the price per share set out in the takeover bid, arguing that it had been determined unlawfully. 9.     By a decision of 26 July 2016, the Zagreb Administrative Court declared the applicant’s action inadmissible for lack of legal interest. On 11   January 2017 the High Administrative Court dismissed an appeal by the applicant. 10 .     The administrative courts held that the minority shareholders’ rights or obligations were not being decided in the proceedings before the Agency. Consequently, the Agency’s decision of 4   March 2016 had not violated any of the applicant’s rights or interests based in law. He was therefore not entitled to bring an action for judicial review against it. In holding so, those courts relied on the case-law of the High Administrative Court and the Constitutional Court. 11 .     In his subsequent constitutional complaint, the applicant complained that the decisions of the administrative courts had deprived him of his constitutionally guaranteed right to judicial review of the Agency’s decision, and that he had been denied access to a court. He submitted that the commercial courts had declared D.S.’s request for the protection of the minority shareholders’ rights inadmissible for lack of jurisdiction (see paragraph 7 above), and that those rights could thus have been protected only in the proceedings before the administrative courts. 12 .     By a decision of 15 October 2019, notified on 5   November 2019, the Constitutional Court declared the applicant’s constitutional complaint inadmissible, noting that the administrative courts’ decision was in line with its own practice. THE COMPLAINT 13 .     Before the Court, the applicant complained under Article 6 § 1 of the Convention that he had been unable to challenge before a court the amount of compensation awarded to him for the compulsory transfer of his shares to the majority shareholder. THE COURT’S ASSESSMENT admissibility Applicability of Article 6 § 1 of the Convention 14.     The Government argued that the impugned proceedings before the Agency were one-party proceedings with no opposing parties. Article 6 § 1 of the Convention was therefore inapplicable because its applicability in civil matters depended on the existence of a “dispute” over a civil right recognised under domestic law. 15.     The Court first notes that the proceedings complained of did not consist only of the administrative proceedings before the Agency but also of the ensuing judicial-review (administrative-dispute) proceedings and the proceedings before the Constitutional Court (see paragraphs 8-12 above). In those proceedings a dispute arose between the applicant and the Agency when he brought his action for judicial review against its decision of 4 March 2016 (compare Božić v. Croatia , no. 22457/02, § 26, 29 June 2006). 16.     By that action the applicant sought to challenge the amount of compensation awarded to him for the compulsory transfer of his shares to the majority shareholder, arguing that it had been determined unlawfully (see   paragraph 8 above). The Government did not argue that, under the domestic law, the applicant had not had a right to such a compensation or that that right was not “civil” within the meaning of Article   6 § 1 of the Convention. Nor did they argue (unlike the administrative courts, see   paragraph 10 above) that the Agency’s decision did not entail the determination of that right. Having regard to its case-law on the matter (see Kohlhofer and Minarik v. the Czech Republic , nos. 32921/03 and 2   others, §   81, 15 October 2009), the Court sees no reason to hold otherwise. 17.     The Government’s objection as to the applicability of Article 6 § 1 of the Convention must therefore be rejected. Non-exhaustion of domestic remedies 18.     The Government argued, in the alternative, that the applicant had failed to properly exhaust domestic remedies, in that in his constitutional complaint he had merely alleged a violation of the right of access to a court, without advancing any specific arguments as to why that right had been violated. 19.     Having regard to the way in which the applicant complained before the Constitutional Court and before the Court (see paragraphs 11 and 13 above), the Court considers that in his constitutional complaint the applicant complained of a violation of his right of access to a court with sufficient precision and in a manner which leaves no doubt that the same complaint was subsequently submitted to the Court (compare, a fortiori , Mesić v. Croatia (no. 2) , no.   45066/17, §§ 44-47, 30 May 2023). He thereby provided the national authorities with a sufficient opportunity of putting right the violation alleged. 20.     The Government’s objection based on non-exhaustion of domestic remedies must therefore also be rejected. Conclusion as to the admissibility 21.     The Court notes that the present application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. MERITS 22.     The general principles concerning the right of access to a court have been summarized in   Zubac v. Croatia [GC], no. 40160/12, §§ 76-79, 5 April 2018. In particular, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. That right is not absolute and may be subject to limitations. Nevertheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (ibid., §§ 76 and   78). 23.     In the present case the applicant had no access to a court allowing him to challenge the amount of compensation awarded to him for the compulsory transfer of his shares (see paragraphs 6-12 above). The Government did not contest that but argued, instead, that this complete lack of access to a court was justified by the legitimate aim of guaranteeing the proper administration of justice and the protection of the rights of others. 24.     In determining whether the exclusion of the applicant’s right of access to a court could be considered as proportionate in order to pursue these two aims, the Court takes note of the fact that the relevant provisions of the Takeover Act are based on and transpose into the Croatian legal system the Directive 2004/25/EC of the European Parliament and of the Council of 21   April 2004 on takeover bids (the “Directive”). Recital 8 of the Directive sets out that, in accordance with the right to a fair hearing, decisions of a supervisory authority – i.e. the authority supervising the aspects of bids that are governed by the Directive and ensuring that parties to takeover bids comply with the rules thereof – should in appropriate circumstances be susceptible to review by an independent court or tribunal. 25.     More importantly, as the Court’s own case-law under Article 6 § 1 of the Convention bears out, in the cases concerning the compensation to be paid to minority shareholders who were deprived of their shares in favour of the majority shareholder, a complete denial of their right of access to a court cannot be justified (see, for example, Suda v. the Czech Republic , no.   1643/06, §§ 48-55, 28 October 2010, where the Court held that the applicant’s obligation to submit his pecuniary claim to arbitration bodies that did not meet the fundamental guarantees of Article 6 § 1, without his having waived those guarantees, amounted to a violation of his right to a court; compare also the judgment of the Court of Justice of the European Union of 9   September 2021 in Adler Real Estate and Others , C-546/18, EU:C:2021:711, §§ 53 and 63-68, concerning the application of the Directive). 26.     In light of the above, the Court finds that, in the present case, the complete denial of the applicant’s right of access to a court was not justified by the legitimate aim of guaranteeing the proper administration of justice and the protection of the rights of others. 27.     There has accordingly been a violation of Article   6 § 1 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28.     The applicant claimed pecuniary damage in the amount of EUR   19,500, corresponding to the difference in the amount of compensation paid and the amount of compensation calculated on the basis of the reassessed value of his shares, together with interest on that amount accrued since 13   May 2016. He also claimed non-pecuniary damage in the amount of EUR   6,000. Lastly, he claimed EUR 3,220 in total in respect of costs and expenses incurred before the domestic courts and the Court. 29.     The Government contested these claims. 30.     Since in the present case the Court found a violation of Article   6   §   1 of the Convention on account of the lack of access to a court, it cannot speculate as to what the eventual result might have been if the applicant had been able to effectively challenge the amount of compensation awarded to him. Having regard to the possibility under domestic law for the applicant to seek the reopening of the judicial review proceedings, the Court rejects the applicant’s claim in respect of pecuniary damage (see, mutatis mutandis , Project-Trade d.o.o. v. Croatia , no. 1920/14, §§ 110-11, 19   November 2020). 31.     On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000, plus any tax that may be chargeable. 32.     Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 830 for costs and expenses incurred in the proceedings before the Constitutional Court, plus any tax that may be chargeable to him. The remainder of his claim for costs and expenses incurred before the domestic courts must be rejected, given that he will be able to have them reimbursed should the proceedings complained of be reopened (see, for example, Stojanović v. Croatia , no. 23160/09, § 84, 19 September 2013). 33.     As regards the costs and expenses incurred before it, the Court considers it reasonable to award the applicant EUR 1,660, plus any tax that may be chargeable to him. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds, (a)   that the respondent State is to pay the applicant, within three months, the following amounts: (i)   EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)   EUR 2,490 (two thousand four hundred ninety euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 March 2025, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Dorothee von Arnim   Gediminas Sagatys   Deputy Registrar   President