NGOs under European Convention on Human Rights / Tymofeyeva

exist. In Agrotexim and Others v. Greece, 268 the application was submitted to the Court by six Greek limited companies, Agrotexim, Viotex, Hymofix, Kykladiki, Mepex and Texema, shareholders in the limited company Karolos Fix Brewery. They complained of the municipality’s unlawful interference with their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1, and the violation of Articles 6 and 13 of the Convention because, under Greek law, as Fix Brewery’s shareholders, it was not possible for them to instigate court proceedings and secure legal protection of their rights. The Court found that the applicant companies did not complain of a violation of the rights vested in themas shareholders of Fix Brewery, such as the right to attend the general meeting and to vote. Their complaints were based exclusively on the proposition that the alleged violation of the Brewery’s right to the peaceful enjoyment of its possessions had adversely affected their own financial interests because of the resulting fall in the value of their shares. The Court concluded that as far it had not been established that it was impossible for Fix Brewery to apply through its liquidators, the applicant companies could not be regarded as being entitled to be direct victims. Such a decision is in line with the practice of the International Court of Justice, namely in the Barcelona Traction case, 269 which serves as a source for the codification of the rules on diplomatic protection. Article 11 of the Draft Articles on Diplomatic Protection 270 envisages that the state of the nationality of the shareholders in a corporation shall not be entitled to exercise diplomatic protection in respect of such shareholders unless the corporation has ceased to exist. In other words, when the nationality of a corporation and its shareholders is different, a corporation is to be protected by the state of the nationality of the corporation, not by the state of the nationality of the shareholders (even if these are business entities). The same applies to the applicant NGO in the proceedings before the Court, when a legal entity is under the process of liquidation. If Fix Brewery would apply to the Court through its liquidator, there is a chance that such an application would be admissible. After termination of the legal existence of Fix Brewery, the six mentioned companies could have received status of direct victims. The judgment in the case of Credit and Industrial Bank v. the Czech Republic 271 serves as an exception to the rule regarding the liquidator’s authorisation to lodge a complaint with the Court. In the actual case, the application was filed with the Convention bodies (at the beginning, to the Commission and then it was forwarded to the Court) by Credit and Industrial Bank (the applicant bank) and Mr Antonín Moravec, the chairman of the bank’s Board of Directors and a majority shareholder of the bank. The Government submitted that from the date when the bank was put into compulsory administration, the authority to act on behalf of the bank and to bring a valid application in its name vested in the compulsory administrator alone, not to its former chairperson. The Court observed that when the application was

Agrotexim, cited above.

268

269 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain). I.C.J. Reports 1970, p. 3. 270 Draft Articles on Diplomatic Protection adopted by the International Law Commission at its fifty eighth session in 2006, Yearbook of the International Law Commission, 2006, vol. II, Part Two. 271 Credit and Industrial Bank v. the Czech Republic , no. 29010/95, ECHR 2003-XI (extracts).

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