THIRD SECTION DECISION

Transcription

1 THIRD SECTION DECISION Application no /09 by NASSAU VERZEKERING MAATSCHAPPIJ N.V. against the Netherlands The European Court of Human Rights (Third Section), sitting on 4 October 2011 as a Chamber composed of: Josep Casadevall, President, Alvina Gyulumyan, Egbert Myjer, Ineta Ziemele, Luis López Guerra, Mihai Poalelungi, Kristina Pardalos, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above application lodged on 23 October 2009, Having deliberated, decides as follows: THE FACTS 1. The applicant company, Nassau Verzekering Maatschappij N.V., are a limited company (naamloze vennootschap) incorporated under Netherlands law with its offices in Rotterdam. Their business is insurance. The applicant company were represented before the Court by Ms R.L. Bakels, a lawyer practising in The Hague.

2 2 NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS DECISION The circumstances of the case 2. The facts of the case, as submitted by the applicant company, may be summarised as follows. 3. The limited partnership (commanditaire vennootschap) H. was a firm of insurance brokers. The applicant company insured H. against professional liability. 4. One of the clients served by H. was the limited liability company (besloten vennootschap) R. Among the insurance contracts negotiated for R. by H. was a fire insurance policy with a different insurance company (not the applicant) covering a warehouse belonging to R. 5. A dispute arose between H. and R. after the warehouse was damaged by fire. It emerged that the warehouse was underinsured, allegedly as a result of H. s negligence. 6. R. sued H. for the difference between the insurance payout and the actual damage before the Regional Court (rechtbank) of Zutphen. On 21 June 2006 that court ordered H. to pay to R. a total sum of 725,000 euros in damages, plus interest and costs. 7. The time-limit for lodging an appeal with the Court of Appeal (gerechtshof) expired on 21 September The appeal summons (dagvaarding) was served on R. on 27 September 2006, that is six days late. The applicant company state that this resulted from an oversight on the part of the bailiff (deurwaarder). 9. On 10 April 2007 the Court of Appeal of Arnhem gave judgment rejecting H. s appeal as out of time. 10. H. lodged an appeal on points of law with the Supreme Court (Hoge Raad), which confirmed the Court of Appeal s judgment on 24 April The applicant company paid the sums awarded by the Regional Court to R. 12. On 22 October 2009 H. and the applicant company signed a deed of assignment (akte van cessie) containing the following clauses: 8. The parties [i.e. H. and the applicant company] take the view that since it has now been established in law that H. s appeal is inadmissible H. s right of access to a tribunal, enshrined in Article 6 of the Convention, has been violated. H. thus has a claim against the Netherlands State based on violation of Article 6 of the Convention. This claim will be realised by bringing proceedings against the Netherlands State in the European Court of Human Rights on the ground of violation of Article 6 of the Convention. 9. H. is prepared to assign the above-mentioned claim against the Netherlands State to [the applicant company] for the purpose of the intended proceedings. [The applicant company] are prepared to accept this assignment.

3 NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS DECISION 3 COMPLAINT 13. The applicant company complained under Article 6 of the Convention about the rejection of H s appeal, which in their submission constituted a denial of access to court. Relying on Platakou v. Greece, no /97, 39, ECHR 2001-I, they submitted that since bailiffs were public officials, the respondent Party was responsible for their mistakes. THE LAW 14. The applicant company allege a violation of H. s right of access to a tribunal as guaranteed under Article 6 of the Convention. 15. Article 34 of the Convention, in its relevant part, provides as follows: The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto Article 34 of the Convention thus sets two conditions: an applicant must fall into one of the categories of petitioners mentioned in Article 34, and he or she must be able to make out a case that he or she is the victim of a violation of the Convention or the Protocols thereto. According to the Court s established case-law, the concept of victim must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation (see, among other authorities, Gorraiz Lizarraga and Others v. Spain, no /00, 35, ECHR 2004-III, with further references). 17. The applicant company base their claim to standing as applicant before the Court on a deed of assignment from H. The Court must consider whether this is sufficient for the applicant company to be granted the status of victim for the purposes of the above Article. 18. There are examples in the Court s case-law of applicants having been accorded standing despite not having themselves been victims of the violation alleged. Such, for example, have been cases in which the original applicants died during the proceedings before the Court and others with a legitimate interest (normally the applicant s heirs or next-of-kin) have taken their place (see, for example, Deweer v. Belgium, 27 February 1980, 7, Series A no. 35; Vocaturo v. Italy, 24 May 1991, 2, Series A no. 206-C; Dalban v. Romania [GC], no /95, 39, ECHR 1999-VI; Malhous

4 4 NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS DECISION v. the Czech Republic (dec.), no /96, ECHR 2000-XII; Kovačić and Others v. Slovenia [GC], nos /98, 45133/98 and 48316/99, 3, 3 October 2008; compare and contrast Léger v. France (striking out) [GC], no /02, 50, 30 March 2009). The Court has also, on occasion, held that a case could be continued after the death of an applicant, and even in the absence of heirs wishing to continue, where the issues transcended the interests of the applicant and raised an important question of public interest relevant to human rights standards in Contracting States (see Karner v. Austria, no /98, 25, ECHR 2003-IX; compare and contrast Scherer v. Switzerland, 25 March 1994, 32, Series A no. 287). 19. Different considerations have governed the Court s decisions when the applicant had died before the application was brought. Many surviving next-of-kin of persons who had lost their lives in circumstances giving rise to issues under Article 2 of the Convention have been allowed to apply as applicants in their own right (see, for example, McCann and Others v. the United Kingdom, 27 September 1995, 1, Series A no. 324; Çakıcı v. Turkey [GC], no /94, 1, ECHR 1999-IV; Nachova and Others v. Bulgaria [GC], nos /98 and 43579/98, 1-2, ECHR 2005-VII; Ramsahai and Others v. the Netherlands [GC], no /99, 1 and 3, ECHR 2007-II; Giuliani and Gaggio v. Italy [GC], no /02, 1 and 3, 24 March 2011; and Al-Skeini and Others v. the United Kingdom [GC], no /07, 1 and 3, 7 July 2011). This, however, is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system (see Fairfield and Others v. the United Kingdom (dec.), no /04, ECHR 2005-VI). 20. Conversely, where the deceased has been an alleged victim of a violation of a right other than the substantive right protected by Article 2, the Court has generally declined to grant standing to any other person unless that person could, exceptionally, demonstrate an interest of their own (see Nölkenbockhoff v. Germany, 25 August 1987, 33, Series A no. 123; Brudnicka and Others v. Poland, no /00, 30-31, ECHR 2005-II; Ressegatti v. Switzerland, no /02, 25, 13 July 2006; and Grădinar v. Moldova, no. 7170/02, , 8 April 2008; compare and contrast Sanles Sanles v. Spain (dec.), no /99, ECHR 2000-XI; Fairfield and Others (dec.), cited above; Makri and Others v. Greece (dec.), no. 5977/03, ECHR 24 March 2005; and Biç and Others v. Turkey, no /00, 23, 2 February 2006). In certain cases, especially where the right alleged to have been violated was one of those guaranteed by Article 6 of the Convention, the Court has been swayed by considerations of general interest in addition to individual interests of the applicants (see Marie-Louise Loyen and Bruneel v. France, no /00, 29, 5 July 2005, and Micallef v. Malta [GC], no /06, 49-50, 15 October 2009).

5 NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS DECISION As regards limited companies with separate legal personality, the Court has held that they are not normally to be identified with their shareholders in other words, the piercing of the corporate veil or the disregarding of a company s legal personality will be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Convention institutions through the organs set up under its articles of incorporation or in the event of liquidation through its liquidators (see Agrotexim and Others v. Greece, 24 October 1995, 66, Series A no. 330-A). It has, however, on occasion identified situations where it would serve no purpose to distinguish between the company and its shareholders; generally speaking, this has been the case when one person controlled all the shares in the company and provided its management (see Groppera Radio AG and Others v. Switzerland, 28 March 1990, 10 and 49, Series A no. 173; Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, 42, Series A no. 222; Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey, no /90, 21, 31 July 2003; and Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, no /02, 40, 11 October 2007). 22. Similarly, the Court has denied standing to associations whose own interests were not at stake, even though the interests of their members or some of them might be (see, among other authorities, Association des amis de Saint-Raphaël et de Fréjus v. France (dec.), no /98, 29 February 2000, in respect of the applicant association; and Uitgeversmaatschappij De Telegraaf B.V. and Others v. the Netherlands (partial decision), no /06, 18 May 2010, in respect of the Netherlands Association of Journalists and the Netherlands Society of Editors-in-Chief); even when those associations were set up with no other aim than to vindicate the rights of alleged victims (see Smits, Kleyn, Mettler Toledo B.V. et al., Raymakers, Vereniging Landelijk Overleg Betuweroute and Van Helden v. the Netherlands (dec.), nos /97, 39343/98, 39651/98, 43147/98, 46664/99 and 61707/00, 3 May 2001, in respect of the applicant Vereniging Landelijk Overleg Betuweroute); and even though they might be non-governmental organisations whose very purpose was to defend human rights (see Van Melle and Others v. the Netherlands (dec.), no /08, ECHR 29 September 2009, in respect of the applicant Liga voor de Rechten van de Mens). 23. In Novikov v. Russia, no /02, 18 June 2009, the applicant obtained by a deed of assignment a claim to a quantity of goods held by a government agency. He then brought proceedings in the domestic courts and later introduced an application before the Court alleging a violation of Article 1 of Protocol No. 1. The Court found that the applicant had acquired a claim valid under domestic law and qualifying as a possession for the purposes of that Article, so that the could be recognised as a victim within the meaning of Article 34.

6 6 NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS DECISION 24. The present case is different from all of the above. Not only were the applicant company not themselves a party to the impugned domestic proceedings, but they do not derive vicarious victim status from kinship, inheritance, or institutional links to H., nor from any other form of succession. The applicant company have sought to obtain by a deed of assignment, a contract under domestic civil law, the right to lodge an application under the Convention with the European Court of Human Rights. 25. The right of individual petition vouchsafed by Article 34 of the Convention is not a proprietary right. Nor is it transferable as if it were. Whatever the validity in terms of domestic law of the transaction here in issue, it would be out of keeping with the nature of the Convention as an instrument protecting basic human rights and the Court itself as its guardian to allow the status of applicant to be transferred at will. 26. It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 3 (a) and must be rejected in accordance with Article For these reasons, the Court unanimously Declares the application inadmissible. Marialena Tsirli Deputy Registrar Josep Casadevall President