CASE OF ELCOMP SP. Z O.O. v. POLAND
No violation of Art. 6-1
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. On 10 March 2003 the applicant company lodged a claim for payment of 153,977.48 Polish zlotys (PLN) (EUR 38,500) against a company R. with the Warsaw Regional Court. The case was to be examined by way of a summary procedure. 6. On 18 March 2003 the court ordered the applicant company to pay PLN 2,337.30 (EUR 580) in court fees for lodging its claim. 7. On 25 March 2003 the applicant company filed a motion for exemption from court fees. It argued that its revenue in previous years had decreased significantly and that it had had to pay overdue taxes and debts to its creditors. The applicant company further indicated that it did not own any property of significant value. On 1 April 2003 it submitted to the court its financial report for 2002, tax declarations CIT-8 for 2001 and CIT-2 for 2002, its bank account statements and information concerning its property and the number of employees. 8. On 25 April 2003 the Warsaw Regional Court dismissed the application for exemption. It found that the applicant company had generated substantial gross income (przychód) in 2001 (PLN 4,892,956.09) and 2002 (PLN 1,144,221.34) and would be able to pay PLN 2,300 in court fees. 9. On 15 May 2003 the applicant company appealed. It submitted that on 13 February 2003 it had filed a motion for insolvency. However, the motion had been rejected because the company had insufficient assets to cover the costs of the insolvency procedure. 10. On 17 October 2003 the Warsaw Court of Appeal dismissed the appeal. It underlined that the documents produced by the applicant company indicated that from January to April 2003 it had spent the amount of approximately PLN 800,000 and it had still possessed cash in its cash desk. The court also stressed that commercial entities should have set aside the resources necessary to fund potential litigation. 11. On 30 December 2003 the applicant company paid PLN 2,337.30 in court fees. 12. On 19 January 2004 the Warsaw Regional Court issued an order for payment as sought by the applicant company. The defendant company filed an objection to the order and subsequently the applicant company’s claim was to be examined by way of the ordinary procedure. 13. On 13 February 2004 the Regional Court ordered the applicant company to pay a further PLN 7,011.70 (EUR 1,750) in supplementary court fees. 14. On 11 March 2004 the applicant company filed an application for exemption from supplementary court fees. It submitted copies of the following documents concerning its financial situation: a financial report for 2003, a tax declaration CIT-2 for 2003, bank account statements, VAT-7 declaration for 2003, cash reports for 2003 and information on its property and the number of employees. 15. On 18 March 2004 the Warsaw Regional Court dismissed the application for exemption. It found on the basis of the documentary evidence that from 1 January to 30 November 2003 the applicant company had generated PLN 5,611,522.45 in gross income. The court noted that the applicant company had sustained a loss, but that that was not a sufficient ground to exempt it from court fees. It emphasised that as the applicant company had carried out commercial activity on a large scale, it should have earmarked funds for litigation purposes. On 5 April 2004 the applicant company appealed. 16. On 19 May 2004 the Warsaw Court of Appeal dismissed its appeal, concurring with the reasons given by the Regional Court. It found that in 2003 the applicant company had generated gross income and had possessed enough funds to pay court fees. The Court of Appeal underlined that the applicant company had not demonstrated that it had been in a difficult financial situation; on the contrary, in its appeal it admitted to having funds to pay its debts to the State Treasury. 17. On 29 June 2004 the applicant company paid PLN 7,011.70 in court fees. 18. On 8 November 2004 the Warsaw Regional Court gave judgment. It dismissed the applicant’s company claim against the company R. on the grounds that the relevant limitation period had expired. 19. On 6 December 2004 the applicant company lodged an appeal against the Regional Court’s judgment. On 16 December 2004 it applied for exemption from court fees for pursuing its appeal in the amount of PLN 9,348.90 (EUR 2,330). The applicant company submitted that the current state of its accounts had proved its disastrous financial situation. 20. The Warsaw Regional Court instructed the applicant company to submit, on pain of dismissal of its motion, copies of the following documents: the financial report for the period from 1 January to 31 October 2004, the tax declaration CIT-9 for 2003, the tax declaration CIT-2 for the period from 1 January to 30 November 2004, information about all bank accounts of the applicant company and extracts thereof, information on all transactions made on each account within the last three months, tax declaration VAT-7 for the period from 1 January to 30 November 2004 and information on its property and the number of employees. 21. On 10 January 2005 the applicant company submitted the following declarations: tax declaration CIT-2 for the requested period, declaration CIT-8 for 2003, extract from a bank account of 12 August 2004 and a declaration of the Cooperative Bank in Wyszków of 24 November 2004. It also stated that it did not own any real property. 22. On 11 January 2005 the Warsaw Regional Court dismissed the application for exemption. It found that the applicant company had failed to substantiate its assertion that it had been unable to pay the court fees. It noted that the applicant company had failed to submit all requested documents concerning its financial standing. The court stressed that the applicant company had still carried out its commercial activity on a large scale and that in the period between 1 January and 30 November 2004 it had generated a significant gross income in the amount of PLN 632,655.34 (EUR 158,163). 23. Moreover, the court noted that the applicant company had produced only the cash report for one day (30 November 2004) despite the court’s request to submit all reports for the period between 1 January and 30 November 2004. In the court’s view, that failure might indicate the applicant company’s intention to hide profits that had been actually made. The court had also regard to the declaration of the Wyszków Cooperative Bank that for a long period of time there had been no financial operations on the applicant company’s bank account. In this connection, the court found that the applicant company must have carried out its financial operations in cash since it had been obliged to keep a record of all income and expenses. The court underlined that a commercial entity should not claim that the refusal to exempt it from payment of court fees had constituted a limitation of its rights when it had not earmarked any funds for potential litigation and had carried out its financial operations in such a manner as to avoid the payment of court fees. 24. On 27 January 2005 the applicant company appealed. It argued that the losses in the relevant period had exceeded the company’s gross income and pointed to a significant debt owed to the tax office. 25. On 6 April 2005 the Warsaw Court of Appeal dismissed the appeal. The court found that the applicant company had incurred substantial costs and expenses exceeding its generated gross income, which showed that it had not been properly managed. It also found that since the beginning of the proceedings the applicant company should have put aside money for the costs of future proceedings as it had been still carrying out its commercial activity. The Court of Appeal noted that the applicant company had failed to produce all the requested documents (inter alia, the financial report for the period from 1 January to 31 October 2004 and the VAT-7 declaration for the relevant period). In this connection, it stressed that it was impossible to evaluate the financial situation of the applicant company. Furthermore, the cash report concerned one day only (30 November 2004), while the Regional Court had specifically requested a report for the period between 1 January and 30 November 2004. In respect of the declaration of the Cooperative Bank, the court noted that the company must have carried out its operations in cash or have had accounts in other banks. 26. On 13 July 2005 the Warsaw Regional Court rejected the applicant company’s appeal against the first-instance judgment of 8 November 2004 for failure to pay court fees required for proceeding with its appeal. Other facts as submitted by the applicant company 27. According to the certificate of the tax office of 24 June 2005, the applicant company owed PLN 300,000 to the tax office. 28. On 29 July 2005 the applicant company was exempted from court fees in civil proceedings instituted against it by another company. 29. On 24 April 2003 and 8 March 2005 the Warsaw District Court dismissed the applicant’s company’s requests to institute insolvency proceedings because its assets had been considered insufficient to cover the costs of proceedings, not to mention the debts that the company had accumulated. In the most recent of these decisions the court established that the applicant company had owed money to four companies and the tax office. The liabilities due from its creditors were unenforceable in spite of several sets of proceedings instituted by the applicant company. The company’s assets deposited in its bank account amounted to PLN 2,000; in addition, the company owned old forms for production of vacuum cleaners worth a total amount of PLN 1,300. In sum, the court considered that the applicant company would not be able to satisfy any of its debtors; thus, the insolvency proceedings would be devoid of purpose. 30. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also the judgment delivered by the Court on 10 January 2006 in the case of Teltronic-CATV v. Poland, no. 48140/99, §§ 20-33).