CYIL vol. 12 (2021)

CYIL 12 (2021) PUBLIC CORPORATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTSH 2) the nature of the company’s activity (a public function or an ordinary commercial business); 3) the context of the company’s operation (such as a monopoly or heavily regulated business); and 4) the degree of the company’s independence from the political authorities: a) institutional independence (the extent of state ownership); and b) operational independence (the extent of state supervision and control). In its decision in the case of Slovenia v. Croatia , the ECtHR observed: “none of the aforementioned factors alone can be considered to be decisive”. 31 The ECtHR never deals with each of the four elements separately, but rather evaluates the position of an applicant company as a whole. All relevant factual and legal circumstances are looked at in their entirety. Most of the elements of the NGO test are closely related and sometimes it is not easy to draw a precise line between them. The ECtHR also decides on whether the state siphoned the corporate funds to the detriment of the company and its stakeholders, failed to keep an arm’s-length relationship with the company, was directly responsible for the company’s financial difficulties, or otherwise acted in abuse of the corporate form. 32 Sometimes, it examines the unity of interests of the public corporation and the state. An example of this would be if the government and the applicant company were represented by the same lawyer in the domestic proceedings and the proceedings before the ECtHR. 33 The NGO test is usually applied by the ECtHR in cases where the status of the legal entity in the proceedings is not sufficiently clear. Often, the ECtHR evaluates only certain elements of the NGO test and skips others. For instance, in the case of JKP Vodovod Kraljevo v. Serbia , it noted that “the company’s legal status under domestic law (the first element of the test) is not decisive in determining whether it is a ‘non-governmental organisation’. In the same case with respect to the second element (the nature of the company’s activity), the ECtHR observed that it is more relevant than the first element. 34 Although the ECtHR denies the fact that any particular element of the NGO test is decisive, analysis of the case-law establishes that the fourth element (degree of the company’s independence from the state) seems to be of most importance to the ECtHR. This conclusion is confirmed by the argumentation in the case of Zastava It Turs v. Serbia , 35 where the ECtHR dismissed the application of the public corporation solely on the fact that it does not enjoy sufficient institutional and operational independence from the state. 36 The other components of the NGO test were not examined at all in this case. To conclude, the analysis validates that certain public corporations, e.g., public service media, may claim to be victims of a violation of the ECHR rights and obtain a corresponding locus standi . This indicates that; although to a limited extent, they can be seen as bearers of rights and duties derived from an international treaty and consequently regarded subjects of international law.

31 Slovenia v. Croatia (dec.) [GC], no. 54155/16, § 63, 18 November 2020. 32 Kuzhelev and Others v. Russia , nos. 64098/09 and 6 others, § 117, 15 October 2019. 33 Transpetrol, a.s. v. Slovakia (dec.), no. 28502/08, § 74, 15 November 2011. 34 JKP Vodovod Kraljevo v. Serbia, nos. 57691/09 and 19719/10, § 26, 16 October 2018. 35 Zastava It Turs v. Serbia , no. 24922/12, 9 April 2013. 36 Ibid., § 22.

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