CEDH · CASELAW;CLIN;ENG — 15 octobre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 123 October 2009 Kohlhofer and Minarik v. the Czech Republic - 32921/03, 28464/04 and 5344/05 Judgment 15.10.2009 [Section V] Article 6 Civil proceedings Article 6-1 Access to court Inability of minority shareholders to challenge winding-up resolution in courts once recorded in commercial register: violation   Facts – By a 2001 amendment to the Commercial Code shareholders of joint-stock companies were given the power to wind up the company and transfer all its assets to any shareholder owning more than 90% of its shares. Minority shareholders were to receive compensation. The applicants were minority shareholders in companies in respect of which such resolutions had been passed at a general meeting. They had sought to challenge the resolutions in the ordinary courts because of perceived irregularities, but in each case their applications were dismissed on the grounds that the ordinary courts were precluded by the Commercial Code from examining the lawfulness of the resolutions once the transfers had been recorded in the commercial register. As minority shareholders, the applicants did not have standing either to participate in the proceedings before the judicial bodies responsible for administering the register, which, despite being informed of the proceedings pending in the ordinary courts, did not hold a hearing or adjourn the registration process. Law – Article 6 § 1: There had been a limitation on the applicants’ access to court to challenge the lawfulness of the resolutions, as the ordinary courts had declined jurisdiction on the grounds that the resolutions had already been registered in the commercial register. That limitation was lawful under domestic law. As to whether it pursued a legitimate aim, the Court recognised that affording companies flexibility to determine their shareholdership and limiting challenges to company resolutions and asset transfers could be seen as enhancing trade and economic development and promoting stability in commercial markets. It thus constituted a legitimate aim in the public interest. On the question of proportionality, the Court noted that the relevant provisions of the Commercial Code had prevented any further examination of the merits of the applicants’ claims and that the applicants had had no standing in the registration proceedings. Their interests under Article 6 §   1 could not, therefore, be protected in those proceedings and the registration had not been adjourned pending the outcome of their challenge, even though they had informed the court responsible for registration of their views. The other legal avenues that had been suggested by the Government dealt with the separate issue of monetary satisfaction and had not been shown to be capable of giving rise to a discussion of the lawfulness of the resolution in circumstances comparable to a review by the ordinary courts. Accordingly, it had not been established that the limitation on the applicants’ access to court was proportionate to the legitimate aim of furthering stability in the business community by preventing abusive challenges to resolutions. Conclusion : violation (five votes to two). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes