CYIL vol. 12 (2021)

CYIL 12 (2021) PUBLIC CORPORATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTSH was established in the form of a commercial entity, it can still be regarded as a state body for the purposes of attribution. In accordance with Article 5 of the ARSIWA, the conduct of an entity that is not an organ of the state can still be attributable to it if such an entity is empowered by law to exercise elements of governmental authority. In para. 2 of the commentary to this provision, there is an explanation of the term “entity” in the sense of this Article. The ILC observes that the term at issue may precisely include private corporations provided that in each case the entity is empowered by the law of the state to exercise functions of a public character normally exercised by state organs, and the conduct of the entity relates to the exercise of the governmental authority concerned. 44 Moreover, the fact that an entity can be classified as public or private according to the criteria of a given legal system, the existence of a greater or lesser state participation in its capital, or the fact that it is not subject to executive control are not decisive criteria for the purpose of attribution. 45 In Article 8 of the ARSIWA the ILC reflects on the conduct directed or controlled by a state, concluding that it may also be attributable to the state. In this regard, the commentary of the ILC concerns, in particular, the legal standing of state-owned companies. Here it mentions that corporate entities, although owned by the state, are considered to be separate subjects. Their conduct is prima facie not attributable to the state unless they are exercising elements of governmental authority within the meaning of Article 5 of the ARSIWA. By contrast, when there was evidence that the public corporation is exercising public powers or that the state was using its ownership in order to achieve a particular result, the conduct in question will be seen as an act of the state. 46 When dealing with the attribution of the act and omission of public corporations to the state, the ECtHR applies the same NGO test as described in the previous section of this paper. This test is to a large extent in agreement with the work of the ILC. The ECtHR reiterated that the legal status of an entity under domestic law and its ownership by the state is not decisive for the determination of the attribution of the conduct of public corporations to the state. Similar to the cases where public corporations played the role of the claimant (the applicant), the ECtHR does not focus on the particular elements of the NGO test in the cases discussing the issue of attribution. It rather examines the relevant factual and legal circumstances of the case in their entirety. For example, in the case of Liseytseva and Maslov v. Russia , the ECtHR decided on the responsibility of the state for the debts of the unitary companies established by a municipality. 47 A unitary company is a type of government-owned corporation in some post-Soviet states. Unitary enterprises have no ownership rights to the assets that they use in their operations and this form of public corporation is possible only for state and municipal enterprises. In this case, the Russian government argued that the respondent unitary companies were owned by the respective municipalities, which were not “state authorities”. According to the government the municipal unitary enterprises’ debts were not attributable to the state. They referred to the ARSIWA and emphasized that the conduct of private actors could not be attributed to the state. The Russian government specifically noted

44 Ibid., para. 2 of the commentary to Article 5 of the ARSIWA. 45 Ibid., para. 3 of the commentary to Article 5 of the ARSIWA. 46 Ibid., para. 6 of the commentary to Article 8 of the ARSIWA. 47 Liseytseva and Maslov v. Russia , nos. 39483/05 and 40527/10, § 135, 9 October 2014.

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