I incorrectly predicted that there's no violation of human rights in KOM, SPOLOČNOSŤ S RUČENÍM OBMEDZENÝM v. SLOVAKIA.

Judgment

FIRST SECTION
CASE OF KOM, SPOLOČNOSŤ S RUČENÍM OBMEDZENÝM v. SLOVAKIA
(Application no. 56293/15)

JUDGMENT
STRASBOURG
2 September 2021

This judgment is final but it may be subject to editorial revision. In the case of KOM, spoločnosť s ručením obmedzeným v. Slovakia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Alena Poláčková, Gilberto Felici, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 56293/15) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a limited liability company established under the laws of Slovakia, KOM, spoločnosť s ručením obmedzeným (“the applicant company”), on 4 November 2015;
the decision to give notice to the Slovak Government (“the Government”) of the complaint concerning the applicant company’s right of access to a court and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 6 July 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant company’s right of access to a court and the refusal to exempt it from the relevant court fee on the grounds that, as a business entity, the applicant company itself was solely responsible for carrying out its activities and making a profit. THE FACTS
2. The applicant company is a Slovak limited liability company with a registered office in Rozhanovce. It was represented by Mr T. Kreibik, a lawyer practising in Košice. 3. The Government were represented by their Co-Agent, Ms M. Bálintová, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 14 March 2012 the applicant company brought an action against its former lawyer, seeking damages in an amount exceeding 480,000 euros (EUR) on account of the lawyer’s alleged malpractice in relation to separate legal proceedings. At the same time, relying on Article 138 § 1 of the Code of Civil Procedure (hereinafter “the CCP”), the applicant company asked for an exemption from the court fee amounting to almost EUR 16,600. The applicant company stated that it had been set up solely to run a privatisation project, for the failure of which it had previously sued the State for damages but had been unsuccessful owing to the lawyer’s malpractice. As it was not therefore able to carry out its activity, it had no assets and was in such a difficult financial situation that it could not afford to pay the court fee. The request for an exemption was accompanied by the relevant form, accounting documents, and an income tax declaration certifying that the applicant company had had no tax to pay in 2011. 6. On 5 September 2012 the Michalovce District Court refused to exempt the applicant company from the court fee. It noted that, when deciding on the exemption in accordance with Article 138 § 1 of the CCP, it had to consider not only the financial situation of the person concerned, but also the question of whether the request was based on circumstances which were of a temporary and transitory nature only, and whether the action was groundless or manifestly lacking any prospects of success; moreover, if the exemption was requested by a legal person which was a business entity, the court had to take into account the fact that the latter was bearing a business risk. An unfavourable situation resulting from an unsuccessful entrepreneurial activity could not, in principle, automatically justify exemption and the payment of the fee by the State, as the aim of the fee payment was to partially cover the expenses incurred by the State in relation to court proceedings. The District Court went on to state that the claimant in the present case was a legal person and a business entity. It observed that the intention when companies were set up was not for them to derive profit from individual projects; they were set up to carry out regular entrepreneurial activity. The fact that the applicant company was not carrying out any of the various activities for which it had registered in the register of companies, and that it was not making any profit, could not justify an exemption from the court fee. The responsibility for, and the risk of, carrying out an activity or not and of making a profit lay solely with the business entity. 7. The applicant company appealed, emphasising that exemption was aimed at securing the claimant’s right to bring a claim through the courts and that Article 138 § 1 of the CCP allowed the court to examine nothing other than the financial situation of the person concerned and the prospects of success of the latter’s action, and did not make any distinction between natural and legal persons. Referring to the Supreme Court’s case-law (decisions nos. 5 Obo/127/2008 and 6 Sžo/14/2011) and the Court’s judgment in Jedamski and Jedamska v. Poland (no. 73547/01, 26 July 2005), the applicant company argued that the courts were called upon to examine only the objective inability of the claimant to pay the court fee and not the reasons for which such an inability existed. The District Court had thus exceeded its powers, and its interpretation of the above-mentioned provision was arbitrary and had no basis in law. 8. On 18 December 2012 the Košice Regional Court upheld the non-exemption decision. It noted that although the CCP did not elaborate on the notion of a claimant’s financial situation, there was no doubt that such a situation had to stem from circumstances which were more than temporary or transitory, and which justified the conclusion that it was not fair to ask a claimant to pay the fee. Account had to be taken of the fact that a business entity was set up to run a business and, as such, was expected to secure funds for any possible litigation, in order not to transfer its business risk to the State. Referring to the Supreme Court’s decision no. 5 Odo 68/2008, the Regional Court observed that a lack of financial means did not justify an exemption from the court fee being granted to a legal person. 9. The applicant company lodged a constitutional complaint, claiming that the arbitrary interpretation of Article 138 § 1 of the CCP given by the lower courts had infringed its rights to judicial protection and to a fair trial. 10. By a decision of 23 September 2013, served on 25 November 2013, the Constitutional Court rejected the applicant company’s constitutional complaint as inadmissible (no. IV. ÚS 545/2013). In the Constitutional Court’s view, by claiming that the lower courts’ non-exemption decisions had deprived it of the possibility of seeking protection before the courts, the applicant company had anticipated the decision on its action, or rather the decision on the discontinuation of the proceedings. However, the impugned proceedings were still pending, which prevented the Constitutional Court from reviewing the matter. Moreover, the applicant company could vindicate its right to act before the courts through an appeal on points of law lodged under Article 237 (f) of the CCP. 11. On 26 February 2013 the District Court decided to discontinue the proceedings on account of the fact that the applicant company had not paid the court fee. 12. In an appeal against that decision, the applicant company again challenged the previous non-exemption decisions and complained that it had been deprived of its right to judicial protection. 13. On 29 November 2013 the Regional Court upheld the decision of 26 February 2013 as being in accordance with section 10 of the Court Fees Act. It observed that the applicant company had not been exempted from the court fee, nor had it paid the fee within any additional time-limit, despite having been warned about the relevant consequences. 14. The applicant company challenged the decision of 29 November 2013 by means of an appeal on points of law, asserting under Article 237 (f) of the CCP that it had been prevented from acting before the court. It repeated its arguments concerning the interpretation of Article 138 of the CCP (see paragraph 7 above) and referred again to its objective inability to pay the court fee. 15. By a decision of 10 February 2015, the Supreme Court rejected the appeal on points of law. Reiterating that the admissibility ground under Article 237 (f) of the CCP could only be established if the court had discontinued the proceedings without the relevant legal conditions laid down by section 10 § 1 of the Court Fees Act being complied with, it held that there was nothing to suggest in the present case that the applicant company had been prevented from acting before the court for the purposes of that admissibility ground. The Supreme Court noted that since the applicant company had not challenged the final decision of 18 December 2012 by an appeal on points of law, that decision could not be reviewed by the cassation court, and the arguments contesting the Regional Court’s reasoning based on the interpretation of Article 138 of the CCP could not call in question the discontinuation decision. 16. On 9 April 2015 the applicant company lodged a constitutional complaint against the decisions of 29 November 2013 and 10 February 2015 which, in its view, had not responded to its main arguments or explained why the decisions had deviated from existing case-law. The applicant company further challenged the legal assessment made by the courts in their decisions of 5 September 2012 and 18 December 2012, claiming that they could not have been challenged by an appeal on points of law and that those arbitrary decisions had led to the discontinuation of the proceedings, which had prevented it from acting before the courts. 17. By a decision of 10 June 2015 (no. I. ÚS 248/2015) the Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the Regional Court had adequately explained why the proceedings had to be discontinued, in accordance with the CCP, as an inevitable consequence of the applicant company’s failure to pay the court fee. The Supreme Court’s decision was also acceptable since it had been based on a constitutionally compliant interpretation of the applicable provisions of the CCP, which the applicant company’s arguments against the preceding non-exemption decisions could not put in issue, and it displayed no sign of arbitrariness. Although the impugned decisions did not concern exemption from the court fee, the Constitutional Court also reviewed the lower courts’ arguments concerning the distinction to be made, in the matter of exemption, between natural and legal persons, and upheld them as conforming with the Supreme Court’s case-law (decisions no. 6 Sžo 248/2010 of 30 March 2011, and no. 8 Sžf 48/2011 of 17 May 2012). Referring to the Supreme Court’s decision no. 5 Sžf 41/2010 of 26 October 2010, it observed that the unfavourable economic situation of a business entity could not by itself justify exemption from the court fee. Taking into account the applicant company’s arguments, and its previous decision no. IV. ÚS 545/2013, the Constitutional Court further stated that it was solely up to the general courts to determine whether the conditions set by the law for exemption from the court fee were met, and to establish the relevant criteria stemming from the legal provisions. In the present case, the general courts’ decisions on non-exemption were in conformity with the Constitution and were neither arbitrary nor manifestly unreasonable. In a dissenting opinion joined to the decision, one judge observed that as a result of the Constitutional Court’s previous decision of 23 September 2013, the applicant company had been required to repeat its arguments relating to non-exemption in the discontinuation proceedings. In its second decision, the Constitutional Court should thus not have declined jurisdiction to review the applicant company’s arguments and should not have accepted the Regional Court’s decision of 18 December 2012. Indeed, the latter had been based on an arbitrary interpretation of Article 138 of the CCP, which did not permit a distinction to be made between claimants on account of the reason for their lack of financial resources, and on a hypothetical and speculative assessment of the applicant company’s financial situation. RELEVANT LEGAL FRAMEWORK AND PRACTICE
18. Under Article 138 § 1, the president of a court’s chamber could, upon request, exempt a party to the proceedings from all or part of the court fees where this was justified by the situation of the person concerned, provided that the claim at issue was neither frivolous nor clearly devoid of any prospect of success. Pursuant to Article 138 § 5, the court had to revoke the exemption from the court fees at any time, even with retroactive effect, if it became apparent before the end of the proceedings that the basis for exemption had not existed or had ceased to exist. 19. Article 237 (f) provided that an appeal on points of law against any decision of the appeal court was admissible where a party had been prevented, by the appeal court’s conduct, from acting before the court. 20. Section 10 provided that, if the court fee had not been paid, even within any additional time-limit set by the court, the court had to discontinue the proceedings. The applicant had to be informed about the consequences of the failure to pay the court fee. THE LAW
21. The applicant company complained that its right of access to a court had been violated because the rejection of its request for exemption from the court fees had resulted in its claim not being examined by the court. Article 6 § 1 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
22. The Government pointed out that the key decisions in the present case were those of 5 September 2012 and 18 December 2012 concerning the applicant company’s request for exemption from the court fees, by which the courts had later been bound when deciding on the discontinuation of the proceedings. They observed that, without lodging an appeal on points of law, the applicant company had challenged the above-mentioned decisions by a constitutional complaint which had been rejected by the Constitutional Court’s decision of 23 September 2013 (see paragraph 10 above). In the subsequent discontinuation proceedings, the Supreme Court had stressed that the decision of 18 December 2012 was final and that it did not have jurisdiction to review that decision (see paragraph 15 above); that ruling had been approved by the Constitutional Court in its decision of 10 June 2015 upholding the decisions of 29 November 2013 and 10 February 2015. Even if the Constitutional Court had allowed the applicant company’s second constitutional complaint, it could not have quashed the previous decisions on non-exemption from the court fees, which had not been challenged by that complaint and which would have thus remained binding. 23. On the basis of the above considerations, the Government objected, firstly, that the applicant company had failed to exhaust domestic remedies because it had not lodged an appeal on points of law against the decisions on non-exemption from the court fees. Secondly, the application had been submitted outside the six-month time-limit, because the Constitutional Court’s decision relating to the non-exemption decisions, issued on 23 September 2013, had been served on the applicant company’s representative on 25 November 2013 (see paragraph 10 above). 24. The applicant company emphasised that it had been deprived of its access to court by virtue of the decisions on the discontinuation of the proceedings dated 26 February and 29 November 2013, which had been the subject of the Supreme Court’s decision of 10 February 2015 and the Constitutional Court’s decision of 10 June 2015. It was the latter decision that had to be considered as the final one (and which started the running of the six-month time-limit), all the more so as, by its first decision of 23 September 2013, the Constitutional Court had rejected the complaint against the non-exemption decisions as premature. It followed from that ruling that it was not the decision on non-exemption from the court fees, but the decision on discontinuation, that had constituted an obstacle to access to a court; as such, that was the only decision capable of being challenged by an appeal on points of law under Article 237 (f) of the CCP. 25. The Court observes, firstly, that it follows from the Supreme Court’s decision in the instant case (see paragraph 15 above) that an appeal on points of law was available under Article 237 (f) of the CCP against the decision on the discontinuation of the proceedings, but could only have been admissible if the proceedings had been discontinued without the relevant legal conditions having been fulfilled, that is, if the applicant company had been unduly prevented from acting before the court. This was indeed the essence of the applicant company’s arguments put forward throughout the proceedings. Although the discontinuation of the proceedings was an inevitable consequence of the failure to pay the court fees, the Court does not find it unreasonable to consider that it was the discontinuation decision which created a final barrier to access to a court, and not the decision on non-exemption from the court fees, following which applicants could still decide to pay the fees in order to have their claim adjudicated. This seems to be confirmed by the Constitutional Court’s decision by which the applicant company’s first constitutional complaint against the non-exemption decisions was rejected as premature (see paragraph 10 above) on account of the fact that, according to the Constitutional Court, it was not possible to anticipate a future course of action such as the discontinuation of the proceedings. Therefore, the applicant company cannot be blamed for having waited for the decision on the discontinuation of the proceedings, which it challenged by means of both an appeal on points of law and a new constitutional complaint, thereby satisfying the requirement of exhaustion of domestic remedies. 26. Furthermore, in its decision declaring the applicant company’s second constitutional complaint manifestly ill-founded (see paragraph 17 above), the Constitutional Court, taking into account its previous decision, also carried out a review of the courts’ non-exemption decisions, finding them to conform with the Constitution and to be free from arbitrariness. In doing so, the Constitutional Court in fact examined the applicant company’s arguments challenging the distinction made by the general courts, in the matter of exemptions, between natural and legal persons, and their conclusion that the unfavourable economic situation of a business entity could not by itself justify exemption from the court fees. Given that those issues are at the origin of the present application, the Court sees no reason not to consider the Constitutional Court’s decision of 10 June 2015 as the final decision within the meaning of Article 35 § 1 of the Convention. Given that the application was lodged with the Court on 4 November 2015, it follows that the applicant company’s complaints under Article 6 § 1 fall within the six-month time-limit. 27. Consequently, the Court dismisses the respondent Government’s objections as to non-exhaustion of domestic remedies and non-compliance with the six-month rule. 28. The Court further notes that this complaint is neither manifestly ill‐founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 29. The applicant company challenged the domestic courts’ reasoning made on the basis of the argument that legal persons which were business entities should generally not be exempted from court fees on account of their unfavourable financial situation or lack of funds, since they were set up for business purposes and had to bear business risk. In its view, the assessment carried out by the courts in the instant case was incorrect and had resulted from an arbitrary interpretation of Article 138 § 1 of the Code of Civil Procedure, which did not distinguish between natural and legal persons or between those who were entrepreneurs and those who were not. 30. The applicant company also pointed to the Supreme Court’s decisions nos. 5 Obo/127/2008, 5 Obo 128/2008 and 5 Obo/129/2008, and judgments nos. 3 Obo/59/2009 and 6 Sžo/14/2011, in which the Supreme Court had stated that, in the matter of exemption from court fees, the law set the same criteria for all parties to the proceedings, regardless of whether they were natural or legal persons, entrepreneurs or not. There was no legal basis for rejecting a business company’s request for exemption on the grounds that a business risk would thus be transferred to the State. Under Article 138 § 1 of the CCP, the court had to examine primarily the objective inability of a party to pay the court fee and not the circumstances which led to such an inability (for example a failure to bear a business risk); otherwise only entrepreneurs and solvent business entities would enjoy access to a court, which would be contrary to the fundamental principles of the rule of law. 31. The applicant company further maintained that a company could be established with a view to carrying out a business project and that the impossibility of running such a project could not constitute a ground for the court not to grant it an exemption from the court fees. In the present case, although the applicant company’s lack of assets objectively had not allowed it to pay the court fees, the courts’ decisions had prevented it from accessing the court, thereby upsetting the “fair balance” to be struck between its interest in having its claim adjudicated and the State’s interest in having the costs of judicial proceedings covered. 32. Pointing to the reasoning of the domestic courts (see paragraphs 6, 8 and 15 above) and their interpretation of the term “situation” used in Article 138 § 1 of the CCP (see paragraph 18 above), the Government emphasised that a lack of financial means or an economic loss did not justify the exemption of a business entity from court fees, because otherwise the latter’s business risk would be transferred to the State. That had been confirmed by several decisions of the Supreme Court, namely decisions nos. 5 Odo/68/2008, 5 Sžf/41/2010, 6 Sžo/248/2010 and 8 Sžf/48/2011, relied on by the domestic courts in the present case, in which the latter had adopted a different approach compared with the decisions listed by the applicant company (see paragraph 30 above). The Government thus argued that the courts’ refusal to exempt the applicant company from the court fees had been based on convincing reasons, and that a proper balance had been struck between the interests of the State and the interests of the applicant company. 33. The Court reiterates that the “right to a court” guaranteed by Article 6 § 1 of the Convention is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. The requirement to pay fees to civil courts in connection with claims or appeals they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention. However, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed the right of access and had “a ... hearing by [a] tribunal” (see, among many other authorities, Kreuz (no. 1) v. Poland, no. 28249/95, §§ 52 et seq., ECHR 2001‐VI). 34. Furthermore, the Court considers that restrictions on access to a court which are of a purely financial nature and which are completely unrelated to the merits of the claim or its prospects of success should be subject to particularly rigorous scrutiny from the point of view of the interests of justice (see Teltronic-CATV v. Poland, no. 48140/99, § 61, 10 January 2006). 35. In the present case the applicant company’s proceedings concerning its claim for damages were discontinued because it was unable to pay the court fee of almost EUR 16,600 and had not been granted exemption from it. When refusing the applicant company’s request for exemption from the court fee at issue, the domestic courts relied mainly on the fact that the applicant company was a business entity set up to carry out an entrepreneurial activity, and that as such it had to bear a business risk and could not rely on a lack of funds stemming from the fact that it was not exercising any of the activities for which it had been registered. 36. However, the Court does not find those grounds persuasive, in particular when weighed against the importance of securing to the applicant company “effective” access to a court. It observes firstly that Article 138 § 1 of the CCP does not formulate the grounds for exempting legal persons, companies and business entities from court fees in a different way from the grounds applying to natural persons (see, conversely, Podbielski and PPU Polpure v. Poland, no. 39199/98, § 47, 26 July 2005). Moreover, the Supreme Court’s case-law applying that provision to business entities seems to be divergent, as admitted by the Government (see paragraph 32 above). Secondly, there appears to be no doubt that the applicant company was indigent at the relevant time, given that it had had no tax liability in 2011 and that its main activity should have related to a privatisation project for the failure of which it had previously sued the State for damages (see paragraph 5 above). In such circumstances, the arguments used by the relevant courts in respect of the applicant company’s financial situation appear to have been based on its hypothetical profit rather than on the facts it supplied (see Kreuz (no. 1), cited above, § 63, and Paykar Yev Haghtanak Ltd v. Armenia, no. 21638/03, § 49, 20 December 2007). 37. The Court further observes that the amount that the applicant company was requested to pay did not serve the interests of protecting the other party against irrecoverable legal costs, nor did it constitute a financial barrier protecting the system of justice against an unmeritorious claim by the applicant company. Indeed, the courts did not refuse the exemption from the court fee at issue on the basis of the supposedly frivolous or manifestly ill-founded character of the claim (see, conversely, Zelcer v. Poland (dec.), no. 38774/05, 5 July 2011), within the meaning of Article 138 § 1 of the CCP (see paragraph 18 above). The principal aim seems rather to have been the State’s interest in deriving income from court fees in civil cases (see paragraph 6 above). 38. It is also of significance for the Court that the refusal to grant the exemption and the subsequent decision to discontinue the proceedings took place at the preliminary stage of the proceedings before the first-instance court and resulted in the applicant company’s claims never being examined on the merits (see, mutatis mutandis, Teltronic-CATV, cited above, § 61). 39. Lastly, the Court notes that under Slovak law an exemption from payment of court fees can be revoked by the courts at any time if the basis for that exemption has ceased to exist (see paragraph 18 above). Consequently, allowing the applicant company to proceed with its claim at the initial phase of the proceedings would not have prevented the domestic courts from collecting court fees if at some further stage the applicant company’s financial situation improved (ibid., § 62, and Kreuz (no. 1), cited above, § 65). 40. Assessing the facts of the case as a whole and having regard to the prominent place held by the right to a court in a democratic society, the Court considers that the domestic courts failed to secure a proper balance between, on the one hand, the interest of the State in collecting court fees for dealing with claims and, on the other hand, the interest of the applicant company in pursuing its claim through the courts. 41. For the above reasons, the Court concludes that the imposition of the court fees on the applicant company, resulting in the discontinuation of the proceedings on account of the applicant company’s failure to pay the fees, constituted a disproportionate restriction on its right of access to a court. 42. It accordingly finds that there has been a breach of Article 6 § 1 of the Convention. 43. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
44. The applicant company claimed more than EUR 480,000 in respect of pecuniary damage, corresponding to the damage allegedly suffered in the previous proceedings against the State and sought from its former lawyer in the proceedings which were the subject of the present application. It also requested EUR 10,000 in respect of non-pecuniary damage. 45. The Government objected that there was no causal link between the alleged violation of Article 6 § 1 and the pecuniary damage claimed. As to the non-pecuniary damage, they considered the applicant company’s claim to be overstated and asked the Court to make an adequate award. 46. The Court does not discern any causal link between the violation complained of and the pecuniary damage alleged. It cannot speculate about the outcome of the proceedings had they been in conformity with Article 6 § 1. The Court therefore rejects the claim in its entirety. 47. However, the Court accepts that the applicant company has suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation (see, mutatis mutandis, Teltronic-CATV, cited above, § 70). Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant company EUR 2,000 under this head. 48. The applicant company also claimed EUR 1,900 for the costs and expenses incurred before the Court. 49. The Government pointed out that only an “order for legal services”, but no proof of payment, had been submitted by the applicant company. They requested the Court to grant the applicant company compensation only in respect of reasonably incurred costs and expenses. 50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the circumstances of the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court. 51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant company, within three months, the following amounts at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 September 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_2}
Liv Tigerstedt Péter PaczolayDeputy Registrar President

FIRST SECTION
CASE OF KOM, SPOLOČNOSŤ S RUČENÍM OBMEDZENÝM v. SLOVAKIA
(Application no. 56293/15)

JUDGMENT
STRASBOURG
2 September 2021

This judgment is final but it may be subject to editorial revision. In the case of KOM, spoločnosť s ručením obmedzeným v. Slovakia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Alena Poláčková, Gilberto Felici, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 56293/15) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a limited liability company established under the laws of Slovakia, KOM, spoločnosť s ručením obmedzeným (“the applicant company”), on 4 November 2015;
the decision to give notice to the Slovak Government (“the Government”) of the complaint concerning the applicant company’s right of access to a court and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 6 July 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant company’s right of access to a court and the refusal to exempt it from the relevant court fee on the grounds that, as a business entity, the applicant company itself was solely responsible for carrying out its activities and making a profit. THE FACTS
2. The applicant company is a Slovak limited liability company with a registered office in Rozhanovce. It was represented by Mr T. Kreibik, a lawyer practising in Košice. 3. The Government were represented by their Co-Agent, Ms M. Bálintová, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 14 March 2012 the applicant company brought an action against its former lawyer, seeking damages in an amount exceeding 480,000 euros (EUR) on account of the lawyer’s alleged malpractice in relation to separate legal proceedings. At the same time, relying on Article 138 § 1 of the Code of Civil Procedure (hereinafter “the CCP”), the applicant company asked for an exemption from the court fee amounting to almost EUR 16,600. The applicant company stated that it had been set up solely to run a privatisation project, for the failure of which it had previously sued the State for damages but had been unsuccessful owing to the lawyer’s malpractice. As it was not therefore able to carry out its activity, it had no assets and was in such a difficult financial situation that it could not afford to pay the court fee. The request for an exemption was accompanied by the relevant form, accounting documents, and an income tax declaration certifying that the applicant company had had no tax to pay in 2011. 6. On 5 September 2012 the Michalovce District Court refused to exempt the applicant company from the court fee. It noted that, when deciding on the exemption in accordance with Article 138 § 1 of the CCP, it had to consider not only the financial situation of the person concerned, but also the question of whether the request was based on circumstances which were of a temporary and transitory nature only, and whether the action was groundless or manifestly lacking any prospects of success; moreover, if the exemption was requested by a legal person which was a business entity, the court had to take into account the fact that the latter was bearing a business risk. An unfavourable situation resulting from an unsuccessful entrepreneurial activity could not, in principle, automatically justify exemption and the payment of the fee by the State, as the aim of the fee payment was to partially cover the expenses incurred by the State in relation to court proceedings. The District Court went on to state that the claimant in the present case was a legal person and a business entity. It observed that the intention when companies were set up was not for them to derive profit from individual projects; they were set up to carry out regular entrepreneurial activity. The fact that the applicant company was not carrying out any of the various activities for which it had registered in the register of companies, and that it was not making any profit, could not justify an exemption from the court fee. The responsibility for, and the risk of, carrying out an activity or not and of making a profit lay solely with the business entity. 7. The applicant company appealed, emphasising that exemption was aimed at securing the claimant’s right to bring a claim through the courts and that Article 138 § 1 of the CCP allowed the court to examine nothing other than the financial situation of the person concerned and the prospects of success of the latter’s action, and did not make any distinction between natural and legal persons. Referring to the Supreme Court’s case-law (decisions nos. 5 Obo/127/2008 and 6 Sžo/14/2011) and the Court’s judgment in Jedamski and Jedamska v. Poland (no. 73547/01, 26 July 2005), the applicant company argued that the courts were called upon to examine only the objective inability of the claimant to pay the court fee and not the reasons for which such an inability existed. The District Court had thus exceeded its powers, and its interpretation of the above-mentioned provision was arbitrary and had no basis in law. 8. On 18 December 2012 the Košice Regional Court upheld the non-exemption decision. It noted that although the CCP did not elaborate on the notion of a claimant’s financial situation, there was no doubt that such a situation had to stem from circumstances which were more than temporary or transitory, and which justified the conclusion that it was not fair to ask a claimant to pay the fee. Account had to be taken of the fact that a business entity was set up to run a business and, as such, was expected to secure funds for any possible litigation, in order not to transfer its business risk to the State. Referring to the Supreme Court’s decision no. 5 Odo 68/2008, the Regional Court observed that a lack of financial means did not justify an exemption from the court fee being granted to a legal person. 9. The applicant company lodged a constitutional complaint, claiming that the arbitrary interpretation of Article 138 § 1 of the CCP given by the lower courts had infringed its rights to judicial protection and to a fair trial. 10. By a decision of 23 September 2013, served on 25 November 2013, the Constitutional Court rejected the applicant company’s constitutional complaint as inadmissible (no. IV. ÚS 545/2013). In the Constitutional Court’s view, by claiming that the lower courts’ non-exemption decisions had deprived it of the possibility of seeking protection before the courts, the applicant company had anticipated the decision on its action, or rather the decision on the discontinuation of the proceedings. However, the impugned proceedings were still pending, which prevented the Constitutional Court from reviewing the matter. Moreover, the applicant company could vindicate its right to act before the courts through an appeal on points of law lodged under Article 237 (f) of the CCP. 11. On 26 February 2013 the District Court decided to discontinue the proceedings on account of the fact that the applicant company had not paid the court fee. 12. In an appeal against that decision, the applicant company again challenged the previous non-exemption decisions and complained that it had been deprived of its right to judicial protection. 13. On 29 November 2013 the Regional Court upheld the decision of 26 February 2013 as being in accordance with section 10 of the Court Fees Act. It observed that the applicant company had not been exempted from the court fee, nor had it paid the fee within any additional time-limit, despite having been warned about the relevant consequences. 14. The applicant company challenged the decision of 29 November 2013 by means of an appeal on points of law, asserting under Article 237 (f) of the CCP that it had been prevented from acting before the court. It repeated its arguments concerning the interpretation of Article 138 of the CCP (see paragraph 7 above) and referred again to its objective inability to pay the court fee. 15. By a decision of 10 February 2015, the Supreme Court rejected the appeal on points of law. Reiterating that the admissibility ground under Article 237 (f) of the CCP could only be established if the court had discontinued the proceedings without the relevant legal conditions laid down by section 10 § 1 of the Court Fees Act being complied with, it held that there was nothing to suggest in the present case that the applicant company had been prevented from acting before the court for the purposes of that admissibility ground. The Supreme Court noted that since the applicant company had not challenged the final decision of 18 December 2012 by an appeal on points of law, that decision could not be reviewed by the cassation court, and the arguments contesting the Regional Court’s reasoning based on the interpretation of Article 138 of the CCP could not call in question the discontinuation decision. 16. On 9 April 2015 the applicant company lodged a constitutional complaint against the decisions of 29 November 2013 and 10 February 2015 which, in its view, had not responded to its main arguments or explained why the decisions had deviated from existing case-law. The applicant company further challenged the legal assessment made by the courts in their decisions of 5 September 2012 and 18 December 2012, claiming that they could not have been challenged by an appeal on points of law and that those arbitrary decisions had led to the discontinuation of the proceedings, which had prevented it from acting before the courts. 17. By a decision of 10 June 2015 (no. I. ÚS 248/2015) the Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the Regional Court had adequately explained why the proceedings had to be discontinued, in accordance with the CCP, as an inevitable consequence of the applicant company’s failure to pay the court fee. The Supreme Court’s decision was also acceptable since it had been based on a constitutionally compliant interpretation of the applicable provisions of the CCP, which the applicant company’s arguments against the preceding non-exemption decisions could not put in issue, and it displayed no sign of arbitrariness. Although the impugned decisions did not concern exemption from the court fee, the Constitutional Court also reviewed the lower courts’ arguments concerning the distinction to be made, in the matter of exemption, between natural and legal persons, and upheld them as conforming with the Supreme Court’s case-law (decisions no. 6 Sžo 248/2010 of 30 March 2011, and no. 8 Sžf 48/2011 of 17 May 2012). Referring to the Supreme Court’s decision no. 5 Sžf 41/2010 of 26 October 2010, it observed that the unfavourable economic situation of a business entity could not by itself justify exemption from the court fee. Taking into account the applicant company’s arguments, and its previous decision no. IV. ÚS 545/2013, the Constitutional Court further stated that it was solely up to the general courts to determine whether the conditions set by the law for exemption from the court fee were met, and to establish the relevant criteria stemming from the legal provisions. In the present case, the general courts’ decisions on non-exemption were in conformity with the Constitution and were neither arbitrary nor manifestly unreasonable. In a dissenting opinion joined to the decision, one judge observed that as a result of the Constitutional Court’s previous decision of 23 September 2013, the applicant company had been required to repeat its arguments relating to non-exemption in the discontinuation proceedings. In its second decision, the Constitutional Court should thus not have declined jurisdiction to review the applicant company’s arguments and should not have accepted the Regional Court’s decision of 18 December 2012. Indeed, the latter had been based on an arbitrary interpretation of Article 138 of the CCP, which did not permit a distinction to be made between claimants on account of the reason for their lack of financial resources, and on a hypothetical and speculative assessment of the applicant company’s financial situation. RELEVANT LEGAL FRAMEWORK AND PRACTICE
18. Under Article 138 § 1, the president of a court’s chamber could, upon request, exempt a party to the proceedings from all or part of the court fees where this was justified by the situation of the person concerned, provided that the claim at issue was neither frivolous nor clearly devoid of any prospect of success. Pursuant to Article 138 § 5, the court had to revoke the exemption from the court fees at any time, even with retroactive effect, if it became apparent before the end of the proceedings that the basis for exemption had not existed or had ceased to exist. 19. Article 237 (f) provided that an appeal on points of law against any decision of the appeal court was admissible where a party had been prevented, by the appeal court’s conduct, from acting before the court. 20. Section 10 provided that, if the court fee had not been paid, even within any additional time-limit set by the court, the court had to discontinue the proceedings. The applicant had to be informed about the consequences of the failure to pay the court fee. THE LAW
21. The applicant company complained that its right of access to a court had been violated because the rejection of its request for exemption from the court fees had resulted in its claim not being examined by the court. Article 6 § 1 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
22. The Government pointed out that the key decisions in the present case were those of 5 September 2012 and 18 December 2012 concerning the applicant company’s request for exemption from the court fees, by which the courts had later been bound when deciding on the discontinuation of the proceedings. They observed that, without lodging an appeal on points of law, the applicant company had challenged the above-mentioned decisions by a constitutional complaint which had been rejected by the Constitutional Court’s decision of 23 September 2013 (see paragraph 10 above). In the subsequent discontinuation proceedings, the Supreme Court had stressed that the decision of 18 December 2012 was final and that it did not have jurisdiction to review that decision (see paragraph 15 above); that ruling had been approved by the Constitutional Court in its decision of 10 June 2015 upholding the decisions of 29 November 2013 and 10 February 2015. Even if the Constitutional Court had allowed the applicant company’s second constitutional complaint, it could not have quashed the previous decisions on non-exemption from the court fees, which had not been challenged by that complaint and which would have thus remained binding. 23. On the basis of the above considerations, the Government objected, firstly, that the applicant company had failed to exhaust domestic remedies because it had not lodged an appeal on points of law against the decisions on non-exemption from the court fees. Secondly, the application had been submitted outside the six-month time-limit, because the Constitutional Court’s decision relating to the non-exemption decisions, issued on 23 September 2013, had been served on the applicant company’s representative on 25 November 2013 (see paragraph 10 above). 24. The applicant company emphasised that it had been deprived of its access to court by virtue of the decisions on the discontinuation of the proceedings dated 26 February and 29 November 2013, which had been the subject of the Supreme Court’s decision of 10 February 2015 and the Constitutional Court’s decision of 10 June 2015. It was the latter decision that had to be considered as the final one (and which started the running of the six-month time-limit), all the more so as, by its first decision of 23 September 2013, the Constitutional Court had rejected the complaint against the non-exemption decisions as premature. It followed from that ruling that it was not the decision on non-exemption from the court fees, but the decision on discontinuation, that had constituted an obstacle to access to a court; as such, that was the only decision capable of being challenged by an appeal on points of law under Article 237 (f) of the CCP. 25. The Court observes, firstly, that it follows from the Supreme Court’s decision in the instant case (see paragraph 15 above) that an appeal on points of law was available under Article 237 (f) of the CCP against the decision on the discontinuation of the proceedings, but could only have been admissible if the proceedings had been discontinued without the relevant legal conditions having been fulfilled, that is, if the applicant company had been unduly prevented from acting before the court. This was indeed the essence of the applicant company’s arguments put forward throughout the proceedings. Although the discontinuation of the proceedings was an inevitable consequence of the failure to pay the court fees, the Court does not find it unreasonable to consider that it was the discontinuation decision which created a final barrier to access to a court, and not the decision on non-exemption from the court fees, following which applicants could still decide to pay the fees in order to have their claim adjudicated. This seems to be confirmed by the Constitutional Court’s decision by which the applicant company’s first constitutional complaint against the non-exemption decisions was rejected as premature (see paragraph 10 above) on account of the fact that, according to the Constitutional Court, it was not possible to anticipate a future course of action such as the discontinuation of the proceedings. Therefore, the applicant company cannot be blamed for having waited for the decision on the discontinuation of the proceedings, which it challenged by means of both an appeal on points of law and a new constitutional complaint, thereby satisfying the requirement of exhaustion of domestic remedies. 26. Furthermore, in its decision declaring the applicant company’s second constitutional complaint manifestly ill-founded (see paragraph 17 above), the Constitutional Court, taking into account its previous decision, also carried out a review of the courts’ non-exemption decisions, finding them to conform with the Constitution and to be free from arbitrariness. In doing so, the Constitutional Court in fact examined the applicant company’s arguments challenging the distinction made by the general courts, in the matter of exemptions, between natural and legal persons, and their conclusion that the unfavourable economic situation of a business entity could not by itself justify exemption from the court fees. Given that those issues are at the origin of the present application, the Court sees no reason not to consider the Constitutional Court’s decision of 10 June 2015 as the final decision within the meaning of Article 35 § 1 of the Convention. Given that the application was lodged with the Court on 4 November 2015, it follows that the applicant company’s complaints under Article 6 § 1 fall within the six-month time-limit. 27. Consequently, the Court dismisses the respondent Government’s objections as to non-exhaustion of domestic remedies and non-compliance with the six-month rule. 28. The Court further notes that this complaint is neither manifestly ill‐founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 29. The applicant company challenged the domestic courts’ reasoning made on the basis of the argument that legal persons which were business entities should generally not be exempted from court fees on account of their unfavourable financial situation or lack of funds, since they were set up for business purposes and had to bear business risk. In its view, the assessment carried out by the courts in the instant case was incorrect and had resulted from an arbitrary interpretation of Article 138 § 1 of the Code of Civil Procedure, which did not distinguish between natural and legal persons or between those who were entrepreneurs and those who were not. 30. The applicant company also pointed to the Supreme Court’s decisions nos. 5 Obo/127/2008, 5 Obo 128/2008 and 5 Obo/129/2008, and judgments nos. 3 Obo/59/2009 and 6 Sžo/14/2011, in which the Supreme Court had stated that, in the matter of exemption from court fees, the law set the same criteria for all parties to the proceedings, regardless of whether they were natural or legal persons, entrepreneurs or not. There was no legal basis for rejecting a business company’s request for exemption on the grounds that a business risk would thus be transferred to the State. Under Article 138 § 1 of the CCP, the court had to examine primarily the objective inability of a party to pay the court fee and not the circumstances which led to such an inability (for example a failure to bear a business risk); otherwise only entrepreneurs and solvent business entities would enjoy access to a court, which would be contrary to the fundamental principles of the rule of law. 31. The applicant company further maintained that a company could be established with a view to carrying out a business project and that the impossibility of running such a project could not constitute a ground for the court not to grant it an exemption from the court fees. In the present case, although the applicant company’s lack of assets objectively had not allowed it to pay the court fees, the courts’ decisions had prevented it from accessing the court, thereby upsetting the “fair balance” to be struck between its interest in having its claim adjudicated and the State’s interest in having the costs of judicial proceedings covered. 32. Pointing to the reasoning of the domestic courts (see paragraphs 6, 8 and 15 above) and their interpretation of the term “situation” used in Article 138 § 1 of the CCP (see paragraph 18 above), the Government emphasised that a lack of financial means or an economic loss did not justify the exemption of a business entity from court fees, because otherwise the latter’s business risk would be transferred to the State. That had been confirmed by several decisions of the Supreme Court, namely decisions nos. 5 Odo/68/2008, 5 Sžf/41/2010, 6 Sžo/248/2010 and 8 Sžf/48/2011, relied on by the domestic courts in the present case, in which the latter had adopted a different approach compared with the decisions listed by the applicant company (see paragraph 30 above). The Government thus argued that the courts’ refusal to exempt the applicant company from the court fees had been based on convincing reasons, and that a proper balance had been struck between the interests of the State and the interests of the applicant company. 33. The Court reiterates that the “right to a court” guaranteed by Article 6 § 1 of the Convention is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. The requirement to pay fees to civil courts in connection with claims or appeals they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention. However, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed the right of access and had “a ... hearing by [a] tribunal” (see, among many other authorities, Kreuz (no. 1) v. Poland, no. 28249/95, §§ 52 et seq., ECHR 2001‐VI). 34. Furthermore, the Court considers that restrictions on access to a court which are of a purely financial nature and which are completely unrelated to the merits of the claim or its prospects of success should be subject to particularly rigorous scrutiny from the point of view of the interests of justice (see Teltronic-CATV v. Poland, no. 48140/99, § 61, 10 January 2006). 35. In the present case the applicant company’s proceedings concerning its claim for damages were discontinued because it was unable to pay the court fee of almost EUR 16,600 and had not been granted exemption from it. When refusing the applicant company’s request for exemption from the court fee at issue, the domestic courts relied mainly on the fact that the applicant company was a business entity set up to carry out an entrepreneurial activity, and that as such it had to bear a business risk and could not rely on a lack of funds stemming from the fact that it was not exercising any of the activities for which it had been registered. 36. However, the Court does not find those grounds persuasive, in particular when weighed against the importance of securing to the applicant company “effective” access to a court. It observes firstly that Article 138 § 1 of the CCP does not formulate the grounds for exempting legal persons, companies and business entities from court fees in a different way from the grounds applying to natural persons (see, conversely, Podbielski and PPU Polpure v. Poland, no. 39199/98, § 47, 26 July 2005). Moreover, the Supreme Court’s case-law applying that provision to business entities seems to be divergent, as admitted by the Government (see paragraph 32 above). Secondly, there appears to be no doubt that the applicant company was indigent at the relevant time, given that it had had no tax liability in 2011 and that its main activity should have related to a privatisation project for the failure of which it had previously sued the State for damages (see paragraph 5 above). In such circumstances, the arguments used by the relevant courts in respect of the applicant company’s financial situation appear to have been based on its hypothetical profit rather than on the facts it supplied (see Kreuz (no. 1), cited above, § 63, and Paykar Yev Haghtanak Ltd v. Armenia, no. 21638/03, § 49, 20 December 2007). 37. The Court further observes that the amount that the applicant company was requested to pay did not serve the interests of protecting the other party against irrecoverable legal costs, nor did it constitute a financial barrier protecting the system of justice against an unmeritorious claim by the applicant company. Indeed, the courts did not refuse the exemption from the court fee at issue on the basis of the supposedly frivolous or manifestly ill-founded character of the claim (see, conversely, Zelcer v. Poland (dec.), no. 38774/05, 5 July 2011), within the meaning of Article 138 § 1 of the CCP (see paragraph 18 above). The principal aim seems rather to have been the State’s interest in deriving income from court fees in civil cases (see paragraph 6 above). 38. It is also of significance for the Court that the refusal to grant the exemption and the subsequent decision to discontinue the proceedings took place at the preliminary stage of the proceedings before the first-instance court and resulted in the applicant company’s claims never being examined on the merits (see, mutatis mutandis, Teltronic-CATV, cited above, § 61). 39. Lastly, the Court notes that under Slovak law an exemption from payment of court fees can be revoked by the courts at any time if the basis for that exemption has ceased to exist (see paragraph 18 above). Consequently, allowing the applicant company to proceed with its claim at the initial phase of the proceedings would not have prevented the domestic courts from collecting court fees if at some further stage the applicant company’s financial situation improved (ibid., § 62, and Kreuz (no. 1), cited above, § 65). 40. Assessing the facts of the case as a whole and having regard to the prominent place held by the right to a court in a democratic society, the Court considers that the domestic courts failed to secure a proper balance between, on the one hand, the interest of the State in collecting court fees for dealing with claims and, on the other hand, the interest of the applicant company in pursuing its claim through the courts. 41. For the above reasons, the Court concludes that the imposition of the court fees on the applicant company, resulting in the discontinuation of the proceedings on account of the applicant company’s failure to pay the fees, constituted a disproportionate restriction on its right of access to a court. 42. It accordingly finds that there has been a breach of Article 6 § 1 of the Convention. 43. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
44. The applicant company claimed more than EUR 480,000 in respect of pecuniary damage, corresponding to the damage allegedly suffered in the previous proceedings against the State and sought from its former lawyer in the proceedings which were the subject of the present application. It also requested EUR 10,000 in respect of non-pecuniary damage. 45. The Government objected that there was no causal link between the alleged violation of Article 6 § 1 and the pecuniary damage claimed. As to the non-pecuniary damage, they considered the applicant company’s claim to be overstated and asked the Court to make an adequate award. 46. The Court does not discern any causal link between the violation complained of and the pecuniary damage alleged. It cannot speculate about the outcome of the proceedings had they been in conformity with Article 6 § 1. The Court therefore rejects the claim in its entirety. 47. However, the Court accepts that the applicant company has suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation (see, mutatis mutandis, Teltronic-CATV, cited above, § 70). Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant company EUR 2,000 under this head. 48. The applicant company also claimed EUR 1,900 for the costs and expenses incurred before the Court. 49. The Government pointed out that only an “order for legal services”, but no proof of payment, had been submitted by the applicant company. They requested the Court to grant the applicant company compensation only in respect of reasonably incurred costs and expenses. 50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the circumstances of the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court. 51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant company, within three months, the following amounts at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 September 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_2}
Liv Tigerstedt Péter PaczolayDeputy Registrar President