CYIL vol. 12 (2021)

CYIL 12 (2021) PUBLIC CORPORATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTSH fundamental public policy.” 7 In addition, the board of directors of a public corporation is usually appointed by the state authority to set its policy and manage the operations. The term public corporation includes, inter alia , any city, county, or district organised for public purposes. The concept of public corporations in international law should be distinguished from the notion ‘the International Public Corporation’ (IPC). 8 The International Bank for Reconstruction and Development, the International Monetary Fund, and World Bank may serve as the examples of IPCs. These subjects would be covered by the term ‘intergovernmental organisations’ and clearly have a subjectivity in international law that is different from the one of public corporations established by only one state under the provisions of domestic law. The text of the ECHR itself does not contain any definition or even reference to the term ‘public corporation’. However, this term appears on the pages of the judgments and the decisions of the ECtHR. In these texts one may not find a precise definition of the term in question but based on the relevant passages from the jurisprudence of the ECtHR, it is possible to arrive at some conclusions as to how the ECHR understands the notion ‘public corporation’. In the case of Mellacher and Others v. Austria , the government offered as examples of public corporations the Federation, the Provinces, and the municipalities and added that they are the entities “who in this sphere act iure gestionis ”. 9 Similarly in the case of Sojus Trade Company GmbH and Deutsche Consulting GmbH v. Germany , the ECtHR, with reference to the relevant law and practice, classified Kreditanstalt für Wiederaufbau as a public corporation and explained that its capital had been held by the Federal Republic of Germany and the Länder. 10 These cases confirm the fact that for the ECtHR a public corporation is an entity created by the state who may issue the acts iure gestionis. In international law the state accepts responsibility for such acts and does not claim immunity. The ECtHR’s decision in the case of Radio France and Others v. France does not directly mention the term ‘public corporations’ but refers to the concept, which is relevant from the content point of view, namely ‘public-law entities’. 11 Although this decision did not define the term ‘public-law entity’, it did establish that there is a division of public corporations into two separate groups: 1) the territorial authorities and 2) the other entities. The ECtHR points out that the first group of public corporations is never protected by the provisions of the ECHR. With regard to “the other entities”, it depends on the exact features of the public corporation and the context of a dispute. In the case of Radio France and Others v. France , the ECtHR cited as examples of the entities of the second group the General Council of Official Economists’ Associations and the Spanish national railway company. 12 Although with the view of the circumstances of the case, their complaints were declared inadmissible. Theoretically, they may enjoy rights under the ECHR. In a number of judgments and decisions of the ECtHR one may find the term ‘public-law corporation’, 13 which seems to be 7 Oregon Legislature. Available at: https://www.oregonlaws.org/glossary/definition/public_corporation (accessed 8 May 2021). 8 DOTSE A. Tsikata. The International Public Corporation. A Concept More Relevant than Ever? International Organizations Law Review , 29 Jun 2017, Volume 14: Issue 1, pp. 120–153. 9 Mellacher and Others v. Austria (dec.), no. 10522/83, 8 May 1986. 10 Sojus Trade Company GmbH and Deutsche Consulting GmbH v. Germany (dec.), no. 32411/96, 20 April 1999. 11 Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X (extracts). 12 Ibid. 13 See e.g., RENFE v. Spain , no. 35216/97, Commission decision of 8 September 1997, DR 90-B); Malama

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