TrustHLT/LaCour huggingface dataset:
GR1 (Government): This case is not dealt with by the court under the pilot judgment procedure.
GR1 (Government): No similar application has so far been delivered to the Republic of Slovenia.
GR1 (Government): The circumstances relevant for this case and for the decision, therefore, refer only to the applicant leakage.
GR1 (Government): So first, a few words about these circumstances.
GR1 (Government): The applicant had the status of minority member in a private limited liability company, LE.
GR1 (Government): As such, he had rights explicitly defined in the company's act, which allowed him to influence the company's administration and its business operations.
GR1 (Government): He was employed in the company, and he was also a director of the company.
GR1 (Government): He was at some point dismissed from the office of the director.
GR1 (Government): However, a new director was not appointed.
GR1 (Government): In the court register, the applicant remained registered as director until the striking of the company.
GR1 (Government): He was also the last employee of the company.
GR1 (Government): Therefore, it was him who was best acquainted with the company's financial situation.
GR1 (Government): One year after his dismissal from the office of director, he signed the proposal to initiate bankruptcy proceedings for the company, LE.
GR1 (Government): The company members then failed to pay the costs in the amount of 626 euro necessary for initiation of proceedings.
GR1 (Government): The court, therefore, rejected the proposal.
GR1 (Government): During the same period, court proceedings against the company were pending since the Slovenian Railway Company brought an action against the company, LE.
GR1 (Government): In his submission of 15 December 2017, the applicant now wonders why in the year 2000 he had been invited to a hearing in the case of Slovenian Railway Company.
GR1 (Government): So the government examined why and found that the applicant attended all the hearings in that case, with the exception of the last one, which was held in the year 2000.
GR1 (Government): We here refer to the government's enclosures B19 to B30.
GR1 (Government): So first he attended the hearings as a director.
GR1 (Government): After his dismissal from that post, he attended the next hearing on the basis of a power of attorney, which was signed by himself.
GR1 (Government): The applicant continued to act as a representative of the company, also at the subsequent hearings.
GR1 (Government): In 2000, one of the other company members was also invited to the hearing, but he returned the invitation to the court, pointing out that the applicant was the director.
GR1 (Government): Nevertheless, the applicant continued to act as a director, despite his dismissal, and the other company members also still considered him the director.
GR1 (Government): In 2000, he was invited to the final hearing, and he received the opinion of the court expert.
GR1 (Government): The applicant, based on this opinion, most likely came to the conclusion that the judgment would be unfavorable for the company LE.
GR1 (Government): Therefore, he returned the summons and all the remaining documents to the court and did not attend the last hearing.
GR1 (Government): At the end of 2000, the court granted the action of the Slovenian Railway Company, and the company LE never lodged an appeal against this judgment.
GR1 (Government): So in 2001, the company LE was struck off from the court register because it had no assets.
GR1 (Government): Based on the final judgment of 2000, the Slovenian Railway Company demanded that the active company members pay the debt of the struck off company.
GR1 (Government): So now, about the striking off from the court register.
GR1 (Government): Information on similar measures in other European countries indicates that a number of other countries apply the striking off proceedings.
GR1 (Government): This is also noted by the applicant in his comparative legal analysis.
GR1 (Government): The reasons for the striking off under the Financial Operation of Companies Act are comparable with foreign regulations.
GR1 (Government): According to the applicant, he does not contend that the striking off in itself violated his right to the property.
GR1 (Government): The applicant rather complains because of the lack of foreseeability of the act.
GR1 (Government): He also complains because of the method of service in the striking off proceedings.
GR1 (Government): However, his complaints regarding the lack of foreseeability are a novelty in the proceedings before the grand chamber.
GR1 (Government): Firstly, the complaint concerning the type of legislative process is ill-founded.
GR1 (Government): In its decision of 2002, the Constitutional Court found no violation in the process of adopting the act.
GR1 (Government): The applicant points out that the company LE was one of the first companies to be struck off.
GR1 (Government): The government would like to stress that the provisions on the striking off of those companies that had no assets began to apply as late as one year after the entry into force of the act.
GR1 (Government): Striking off proceedings against the company LE were initiated one year and a half after the entry into force of the act.
GR1 (Government): Consequently, there was more than enough time to learn about legislative provisions and hence to take action with a view to preventing the striking off.
GR1 (Government): It is simply not possible to claim that the consequences of the act were introduced overnight.
GR1 (Government): It is not true that the consequences of the act became clear only when the courts started to carry out the striking off proceedings.
GR1 (Government): The government has submitted the English translation of the act.
GR1 (Government): The court will thus be able to examine its clarity and foreseeability.
GR1 (Government): In the applicant's case, one cannot talk about permanent legislative changes that, as alleged, caused the applicant's uncertainty about the consequences of the act.
GR1 (Government): The only relevant change for the applicant was the adoption of the act itself.
GR1 (Government): As the enforcement order issued against the applicant became final in 2006, the amendments to the act enacted as of 2007 on and thereafter had no impact on the applicant's case.
GR1 (Government): The applicant claims that the Financial Operation of Companies Act was adopted in order to regulate the consequences of the 1993 Companies Act.
GR1 (Government): However, this is not true.
GR1 (Government): It was the Yugoslav Undertakings Act of 1988 that enabled the establishment of a number of private companies, including Company LE.
GR1 (Government): The provisions of that act continued to be applied in Slovenia until the adoption of the Companies Act in 1993.
GR1 (Government): The proposal for the Financial Operation of Companies Act refers to data on companies from 1991 onwards, that is, to the period before the adoption of the Companies Act.
GR1 (Government): Furthermore, the applicant believes that it was not necessary for him to be aware of the Financial Operation of Companies Act.
GR1 (Government): He argues that his situation is comparable to that of the applicant in the case of Vaskaric versus Slovenia.
GR1 (Government): He believes himself to be just a natural person without any official duties in the company.
GR1 (Government): However, data on the applicant's status do not support such a view.
GR1 (Government): The applicant was one of the five remaining company members and was the last employee of the company.
GR1 (Government): He acted as its director and the other members considered him the director.
GR1 (Government): May he indeed claim that he did not need to know about the key provisions of company law in the case of Vaskaric versus Slovenia, only ordinary due diligence in taking care of his affairs could be demanded of the applicant Vaskaric.
GR1 (Government): In contrast, the applicant should have acted at least with the due diligence of a good businessman.
GR1 (Government): The Financial Operation of Companies Act defined the measures to be taken upon the occurrence of illiquidity or over-indebtedness.
GR1 (Government): Where liquidity could not be insured within two months of the occurrence of illiquidity, the board of directors was obliged to file a petition for initiating bankruptcy or compulsory settlement proceedings.
GR1 (Government): The company LE had apparently been illiquid for several years before being struck off.
GR1 (Government): However, in the enforcement proceedings, the company members all claimed that none of them had been an active company member.
GR1 (Government): So according to their view, the company was without any member who could have influenced the administration and operations of the company.
GR1 (Government): Well that is absurd.
GR1 (Government): Who else if not the applicant himself was the person most responsible to take action?
GR1 (Government): As regards the applicant's knowledge of the actual proceedings of striking off, the following is important.
GR1 (Government): In the proceedings of striking off, decisions were served on the company and were also made available by public notice.
GR1 (Government): A legal remedy was available against these two decisions and could have been lodged either by the company or by the company members and creditors.
GR1 (Government): In its decision of 2002, the Constitutional Court examined the service of documents in the proceedings of striking off.
GR1 (Government): It found that the method of service used was the most appropriate one.
GR1 (Government): In certain cases, personal service would be impossible since it is only the director who knows precisely who the actual company members are.
GR1 (Government): In the case of the company LE, the data on the company entered in the court register did not reflect the actual situation.
GR1 (Government): It became evident during the enforcement proceedings where the court was faced with difficulties when serving documents.
GR1 (Government): Namely, four company members had died and it is not clear what happened with their shares.
GR1 (Government): The address of one of the company members entered in the court register was incorrect.
GR1 (Government): The applicant considers it unreasonable to serve documents at the address of the inactive company.
GR1 (Government): However, such a view completely ignores the fact that an inactive company is still formally existing and has a head office, business premises, and a director.
GR1 (Government): May such a company not be served with documents at its address as entered in the court register?
GR1 (Government): The information on similar measures in other European countries indicates various approaches to the service of documents in the proceedings of striking off.
GR1 (Government): It appears that everywhere decisions are served on the company and given public notice of, for example, in the country's official gazette or on the website of the court register.
GR1 (Government): In some countries, though not in all, decisions are also served, for example, on the members of the board of directors.
GR1 (Government): In this respect, the government does believe that the Financial Operation of Companies Act does not deviate from other countries' legal regulation.
GR1 (Government): Therefore, the applicant should have been aware of the proceedings of striking off the company LE.
GR1 (Government): If he was not aware, he himself was responsible for that.
GR1 (Government): Now concerning the personal liability of active company members.
GR1 (Government): In his submission of 15 December 2017, the applicant acknowledges that the personal liability is not per se incompatible with the Convention.
GR1 (Government): However, he believes that there is a problem regarding the foreseeability and proportionality of the measures.
GR1 (Government): The government suggests that the court compare the applicant's current complaints with his application, which does not contain even a single word on foreseeability.
GR1 (Government): There the applicant explicitly stated that the measures applied were in the public interest and in the interest of creditors, and that they were legitimate, but according to his view, they were not proportionate.
GR1 (Government): Slovenian legal theory indicates that countries that regulate the piercing of the corporate veil by way of a general and abstract provision are an exception.
GR1 (Government): In Slovenian law, the basic provision on that is contained in the Companies Act.
GR1 (Government): The provision of financial operation of Companies Act on personal liability is also a provision on piercing of the corporate veil.
GR1 (Government): Apart from Slovenia, this concept is legally regulated primarily in other successor states of the former Yugoslavia and in certain other former socialist countries, such as Hungary and Lithuania.
GR1 (Government): In contrast, the statutory regulation of the piercing of the corporate veil is an exception in countries governed by continental law and in the Anglo-American legal system.
GR1 (Government): There this concept is developed primarily by the case law, taking into account the views of legal theory.
GR1 (Government): This is also indicated by the applicant's comparative legal analysis.
GR1 (Government): Different views are found in the legal theory, and differences between theory and practice occur as well.
GR1 (Government): In such a system, it is not always clear whether a court will assess the case on the basis of the piercing of the corporate veil or on some other legal basis.
GR1 (Government): On the other hand, the flexibility of this concept is increased.
GR1 (Government): Part of legal theory objects to the piercing of the corporate veil because of its legal unforeseeability.
GR1 (Government): According to Slovenian legal theory, the reason for the enactment of the piercing of the corporate veil in the former socialist countries was the rapid change of the system in the late 80s and early 90s and the greater risk of defrauding creditors in transition countries.
GR1 (Government): This case law in those countries, the case law in those countries would probably need a considerably longer time to adopt the decision on the piercing of the corporate veil without such statutory referral.
GR1 (Government): Since the explicit statutory regulation is rare, and since even in countries governed by continental law, this concept is frequently created by the prevailing legal theory and case law, the applicant's complaints regarding the lack of foreseeability of Slovenian legislation seem rather odd.
GR1 (Government): The Slovenian legal theory considers that the piercing of corporate veil requires the assessment on a case-by-case basis.
GR1 (Government): In accordance with that, the Constitutional Court in its decision of 2002 defined the criteria pursuant to which the courts were to assess in each particular case the status of active company member.
GR1 (Government): This assessment was not to be carried out in the proceedings of striking off, but in separate court proceedings where the company member had the status of a party to the proceedings and had legal remedies at his disposal.
GR1 (Government): In the applicant's case, the status of active company member was assessed in enforcement proceedings.
GR1 (Government): In these proceedings, the applicant was of course not able to challenge the final decision on the striking off.
GR1 (Government): It's true that part of Slovenian legal theory is critical of the financial operation of Companies Act.
GR1 (Government): For example, a Slovenian author in her book on the piercing of the corporate veil criticizes the measure at hand.
GR1 (Government): However, the same author explicitly allows that exceptionally the liability of company members might apply in the event of non-existence of management.
GR1 (Government): For example, if the term of office of the director has expired or if he has resigned but a new director has not been appointed.
GR1 (Government): That author is of the opinion that this is an exception where the liability of the members of private limited liability company might be justified by the breach of their due diligence in the matters of the company.
GR1 (Government): This is precisely the situation of the company LE and of the applicant leakage.
GR1 (Government): The applicant takes the view that he had no responsibilities in the company.
GR1 (Government): However, the status of a member of a private limited liability company is not only a right but also entails responsibility.
GR1 (Government): Total indifference on the part of company members regarding the fate of their company is not acceptable.
GR1 (Government): In the event of a difficult financial situation of the company, its financial recovery or its termination in accordance with the law must be provided for.
GR1 (Government): So can the applicant in view of the circumstances of the case indeed claim that he was acting in good faith?
GR1 (Government): In the opinion of the government, he cannot.
GR1 (Government): In conclusion, the key question is whether the measure complained of represented an excessive individual burden for the applicant in the particular circumstances of the present case.
GR1 (Government): These circumstances and options of conduct available to the applicant have already been explained in detail by the government.
GR1 (Government): The applicant and the remaining four company members would have easily been able to avoid the striking of and its consequences.
GR1 (Government): When assessing the individual burden for the applicant, the following is also important.
GR1 (Government): Active company members assumed joint and several liability for outstanding debts of the struck of company.
GR1 (Government): It seems that in the case of company LE, only four of the company members paid the debt.
GR1 (Government): In case there were any further active members, the applicant leakage could require that they pay their share too.
GR1 (Government): Consequently, his contribution to the payment of the company's debt would decrease.
GR1 (Government): The government therefore objects to the claim for 32,795 euro in respect of pecuniary damage.
GR1 (Government): Finally, the government reiterates that enforcement proceedings were concluded with an out of court settlement, that is with an agreement.
GR1 (Government): In this agreement, the applicant acknowledged and subsequently fully repaid the debt.
GR1 (Government): The government concludes that in light of all the circumstances, the applicant leakage may not claim that his rights under the convention and its protocols were violated.
Guido Raimondi (JudgeP): Thank you very much Mrs. Hrastnik.
Guido Raimondi (JudgeP): I thank both parties for their submissions and now I invite my colleagues, the judges of the Grand Chamber who wish to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): Judge Nußberger, please.
Angelika Nußberger (Judge): Thank you very much.
Angelika Nußberger (Judge): I would have one question to the applicants and two questions to the government.
Angelika Nußberger (Judge): The question to the applicants, if I see correctly the timeline, on 19th of July 1997 there was an application for a bankruptcy procedure but it failed because the money was not paid.
Angelika Nußberger (Judge): Two years later on 1st July 1999 the Fokker came into force and after that on 22nd of November 2000 there was a confirmation in court that the claim, that there was a final judgment concerning the claim by the railway company and only one year later there was a strike off.
Angelika Nußberger (Judge): So at the moment when the judgment of the court concerning this claim from the railway company was handed down, what was the expectation of the applicant, what would happen to this final judgment?
Angelika Nußberger (Judge): Because I understand the hope or the expectation that there would be ex-offizio bankruptcy procedures was not possible anymore because Fokker had entered into force at that time.
Angelika Nußberger (Judge): So what was the expectation, what would happen with this final judgment?
Angelika Nußberger (Judge): And now concerning the government, my first question is, you have argued that it was impossible to serve the decision about the striking off to the individual company members.
Angelika Nußberger (Judge): But if it's impossible, the whole system is built on the idea that later on enforcement procedures would be directed against the individual members of the company.
Angelika Nußberger (Judge): So if it's impossible to serve already the striking off, how do you then expect it to function within the enforcement procedure?
Angelika Nußberger (Judge): And my second question to the government is, I understand that you treat in the same way minority shareholders and majority shareholders.
Angelika Nußberger (Judge): So if somebody has 11% as the applicant or has 100%, there would always be this personal liability.
Angelika Nußberger (Judge): So do I understand it correctly that if a company has just one member who has 100%, a creditor would get one debtor?
Angelika Nußberger (Judge): And if the company has, let's say, 10 minority members, then the creditor would immediately get 10 debtors.
Angelika Nußberger (Judge): So is that the system?
Angelika Nußberger (Judge): Have I understood it correctly?
Guido Raimondi (JudgeP): Judge Spano please.
Robert Spano (Judge): I want to begin with a question to the applicant, and it's prompted by the pleadings by the government here today, where the agent for the government refers to the pleading made at paragraph 100 of your observations, where the applicant says he does not contend that a shareholder's personal liability for the outstanding debts of the company is per se incompatible with the convention.
Robert Spano (Judge): Now, that prompts the question on how would the applicant invite the court to draw the line?
Robert Spano (Judge): What are the parameters for convention compliant application of FOCA and non-convention compliant application of the FOCA?
Robert Spano (Judge): And in particular, is it the applicant's view that member states are precluded for imposing personal liability on shareholders in limited liability companies outside the context of abusive conduct?
Robert Spano (Judge): Could you clarify where you think the line under the convention should be drawn?
Robert Spano (Judge): My second question, if I could just get a clarification, and it goes somewhat to the question just posed by Vice President Nußberger, that is the one year vacatio legis on the facts of this case.
Robert Spano (Judge): Now, it seems undisputed that the applicant could have within that period proceeded with triggering bankruptcy proceedings or the winding up.
Robert Spano (Judge): Could you explain your view on the argument presented by the government on that issue?
Robert Spano (Judge): One question to the government, which is a related one.
Robert Spano (Judge): The government says that paragraph 76 of your observations, and I think here is a crucial point in light of your submissions.
Robert Spano (Judge): The point here is that only persons who had rights to manage or participate in the management of the company at the time when the company was struck off without liquidation could be held liable.
Robert Spano (Judge): What do you mean by rights to manage or participate in the management of the company?
Robert Spano (Judge): Are you limiting this view to those that actually hold board member status or director status like the applicant?
Robert Spano (Judge): Because the issue of who has the rights to manage can be dealt with in different ways.
Robert Spano (Judge): Could you clarify what you mean by this term?
Robert Spano (Judge): And are you including there minority shareholders who indeed have rights, for example, to call a general meeting?
Robert Spano (Judge): But as the constitutional court in your own country states in its judgment of 9 October 2002 at paragraph 43, minority shareholders do not have an obligation to influence or have a view on day-to-day regular operations in limited liability companies.