ALLIANZ-SLOVENSKA POISTOVNA, A.S., AND OTHERS v. SLOVAKIA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicants are the following six private insurance companies which were established under the laws of Slovakia in 1991, 1993, 1992, 1994, 1997 and 1991 respectively and have their registered seats in Bratislava (Slovakia): Allianz – Slovenská poisťovňa, a.s.; Česká poisťovňa - Slovensko, akciová spoločnosť; ČSOB Poisťovňa, a.s.; KOMUNÁLNA poisťovňa, a.s. Vienna Insurance Group; Generali Slovensko poisťovňa, a. s. and UNIQA poisťovňa, a.s. The applicant companies were represented before the Court by Mr Ľ. Fogaš, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by Ms M. Pirošíková, their Agent, and Ms M. Bálintová, Co-Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 March 2002 Act no. 95/2002 Coll. on Insurance (“the Act”) came into force. The Act set an obligation for insurance companies doing business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles to pay, on a yearly basis, 8 % of the premiums collected the previous year to the Ministry of the Interior (“the Ministry”). The Ministry would pass on those funds to certain bodies responsible for saving and protecting lives and property in road accidents such as fire brigades, rescue services and emergency hotlines. On 2 December 2002 the applicant companies, who do business in the above-mentioned field, lodged an action against the Ministry with the Bratislava I District Court (Okresný súd). They requested that the District Court rule that they were not obliged to pay 8 % of the premiums they collected as stipulated by the Act. In their view the Act violated their property rights and the nondiscrimination principle guaranteed by the Constitution and the Convention. On 15 October 2003 the District Court terminated the proceedings and stated that there was no other State organ to which the case could be transferred. It held that the relation between the parties was of a public-law nature and could not be considered civil or commercial, in which case it would be covered by the area of private law and the ordinary courts would have jurisdiction to examine it on the basis of the Code of Civil Procedure. No dispute over private-law matters was found to exist. On 30 April 2004 the Bratislava Regional Court (Krajský súd) upheld the decision of the District Court following an appeal by the applicant companies. The view was expressed that the specific obligation had been imposed upon the applicants by legislation and no legal provision permitted ordinary courts to rule on the alleged non-conformity of legislation with the Constitution. That was a matter solely for the Constitutional Court (Ústavný súd) to examine in the context of a motion lodged under Article 125 of the Constitution by one of various specified State organs. The applicants then claimed before the Constitutional Court, in a complaint under Article 127 of the Constitution, that they were not obliged to pay the above-mentioned contributions as the obligation had been imposed on them unconstitutionally. They further complained that the courts had refused to determine their claim. On 15 December 2004 the Constitutional Court declared the complaint inadmissible for the applicant companies’ failure to exhaust ordinary remedies, in view of which the Constitutional Court lacked jurisdiction to consider the complaint. In particular, the Constitutional Court found that the applicant companies had failed to appeal against the decision of 30 April 2004 on points of law under Article 237 (f) of the Code of Civil Procedure, whereas that remedy was available to any party who had been “prevented from acting before a court as a result of the court’s conduct”. On 30 April 2003 the Government passed a resolution proposing that section 30 of the Act be repealed, specifying in the explanatory report that this provision interfered with the insurance companies’ property in a discriminatory manner. The amendment was not adopted by the Parliament, however. In 2008 a new Insurance Act was adopted which maintained the applicant companies’ obligation to pay 8 % of the premiums collected. Section 30 (1) provided that insurance companies which did business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles were obliged to pay to the Ministry, by the end of February, 8 % of the premiums for insurance in the abovementioned field collected in the preceding year. The insurance companies were obliged to report their fulfilment of this obligation to the National Bank of the Slovak Republic within three working days. Section 30 (2) provided that the Ministry (of the Interior), after consulting the Ministry of Finance, would pass on these funds to fire brigades, departments of the Ministry (of the Interior), rescue services and emergency hotlines in order to meet the costs incurred in obtaining, maintaining and operating the material and facilities needed to research the causes of road accidents and to save and protect lives and property in road accidents. In 2008 a new Insurance Act was adopted which replaced the relevant provisions of the 2002 Act. The obligation for the insurance companies to pay 8 % of the premiums collected on a yearly basis was maintained in section 33 of the 2008 Act. By 15 February each year the Ministry (of the Interior) is required to inform the Ministry of Finance about the use made of the contributions paid by the insurance companies. The Ministry (of the Interior) is also under an obligation to make this information public. Section 3 imposes a duty to take out an insurance policy in respect of motor vehicles. With regard to domestic motor vehicles, this duty lies with the vehicle’s holder, owner, operator or lessee (sub-section 1). As to foreign motor vehicles, unless it is otherwise provided for, the person liable to arrange for the insurance of a vehicle is the vehicle’s driver (subsection 2). The duty to take out an insurance policy commences at the latest on the first day on which the motor vehicle is used (sub-section 3). The Constitutional Court has held on many occasions that an examination of complaints lodged by natural or legal persons under Article 127 of the Constitution cannot entail a review of the constitutionality of legislation (see, for example, decisions no. II. ÚS 40/00, no. II. ÚS 5/02, no. II. ÚS 238/03, no. III. ÚS 10/07 or no. IV. ÚS 124/07).