TRPESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicants, Mr Zoran Trpeski (“the first applicant”), Mr Blagoja Nikolovski (“the second applicant”), Mr Dragan Trpevski (“the third applicant”) and Mr Miroljub Trpevski (“the fourth applicant”), are Macedonian nationals who were born in 1955, 1951, 1963 and 1951 respectively, and live in Skopje. They were represented before the Court by Mr Z. Gavriloski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 July 1992 the National Bank issued an operating licence to Ljubljanska Banka - Makedonska Banka a.d. Skopje. Under the latter's Act of Incorporation (Договор за основање и работење), its shareholders were Ljubljanska Banka d.d. Ljubljana, a bank incorporated in Slovenia (“the majority shareholder”), possessing 51% of the share capital (главница), and eighty-one companies from the former Yugoslav Republic of Macedonia. The case originated at the domestic level in events dating back to 1992 and 1994, which took place before the entry into force of the Convention in respect of the respondent State on 10 April 1997. On 30 September 1994 a general meeting of shareholders of Ljubljanska Banka - Makedonska Banka a.d. Skopje, which was attended by a representative of the National Bank, adopted the following changes to its Statute (“the Statute”) (Статут): it changed the name to “Makedonska Banka a.d. Skopje” (“the Bank”); it specified that the first class of shares could be bearer shares (акции на доносител) and registered shares (акции на име); it decided that shareholders could ask the Bank to convert registered shares into bearer shares; and it agreed that bearer shares could be transferred merely by a handover (предавање). The National Bank had already approved these amendments on 27 September 1994. According to a stamp affixed to it, this latter decision was received by the Bank on 3 October 1994. On 30 September 1994 the majority shareholder asked the Bank, under its amended Statute, to convert its shares into bearer shares and to register them as such in the shareholders' register (акционерска книга) (“the register”). On the same day, the majority shareholder concluded three separate agreements (“agreements transferring shares and the corresponding rights (a full endorsement”) договор за пренос на акција и права од акција (полн индосамент)) transferring its shares in the Bank to three companies incorporated in the former Yugoslav Republic of Macedonia (“the buyers”). Under the agreements, the majority shareholder undertook to transfer title to the shares, as well as the corresponding rights and obligations, to the buyers in exchange for payment. The majority shareholder also authorised the first applicant, who had meanwhile become Chief Executive of the Bank, to collect its bearer shares on its behalf and to execute the transfer in accordance with the above agreements. The buyers concluded further agreements of the same type (“the first set of agreements”, договор за пренос на акција и права од акција (полн индосамент)), valid from 30 September 1994, transferring to the first applicant the title to the shares obtained from the majority shareholder. The second, third and fourth applicants stated that the first applicant had paid for the bearer shares on their behalf. Finally, the first applicant transferred a part of these shares under other agreements for full endorsement (“the second set of agreements”, договор за пренос на акција и права од акција (полн индосамент)) to the remaining applicants and Mr D.G. This became valid on 30 September 1994. On 27 October 1994 the Bank received the bearer shares in hard copy from the then authorised printing company. On the same day, the first applicant collected the printed shares from the Bank. He did so under the authorisation described above. He handed over the printed shares to the buyers. The statements of the buyers' managers attested to that fact. On 28 October 1994 the buyers handed over the bearer shares to the applicants and Mr D.G. That fact was supported by statements from the buyers' managers. After these transactions, the applicants' individual share in the Bank's capital was in the following proportion: the first applicant had 10%; the second applicant 5.5%; the third applicant 10%; and the fourth applicant 10%. The applicants did not seek registration of their shares. According to extracts from the register dated 31 December 1994, 31 October 1995 and 31 December 1996 respectively, the structure of the Bank's shareholders remained unchanged during that period, namely the majority shareholder possessed 51% of the Bank's capital. On 23 and 26 September 1997 respectively, the National Bank carried out a supervisory control of the Bank in order to determine its shareholder structure. The supervisory report stated, inter alia, that: “ ... According to the Bank's register of shareholders, the largest shareholder remains Ljubljanska Banka d.d. Ljubljana possessing 51% of the Bank's share capital. Under Article 8 of the Bank's [Statute] adopted on 30 September 1994, Ljubljanska Banka d.d. Ljubljana asked for its shares to be issued as bearer shares ... In October 1994 the shares were printed. Ljubljanska Banka d.d. Ljubljana authorised Mr Zoran Trpeski, the Bank's Chief Executive, to collect its shares (once printed) ...It can therefore be concluded that 51% of the (Bank's) share capital consists of bearer shares which makes it impossible to precisely determine the Bank's share capital ... It is like this because bearer shares can be owned by anyone who physically possesses them. The owner of such shares is, for all practical purposes, unknown ... “ Relying on the above control, on 10 December 1997 the Governor of the National Bank concluded that the majority of the Bank's shares were bearer shares and that consequently, the Bank's shareholder structure could not be determined. He therefore asked the Bank to comply with the then Act on Banks and Savings Institutions of 1996 (see “Relevant domestic law” below) and to convert its bearer shares into registered shares. The Bank was asked to comply within two years of the date that the above Act came into force, that is by 30 April 1998. At the applicants' request, on 15 April 1998, the Bank converted their bearer shares into registered shares and registered them as shareholders. According to the entry in the register, the applicants had obtained possession of the shares on 30 September 1994 on the basis of a (sales) transaction of the same date. It also provided them with registered share certificates (потврда за обична акција на име). The National Bank noted the change of title to 51% of the Bank's capital made under the sales agreements of 30 September 1994 described above. It stated that the Bank had not sought approval for that change, as required under the then Act on Banks and Savings Institutions (see “Relevant domestic law” below). The Bank also failed to notify it about the sales agreements although the senior management had been aware of them. The report also stated that the majority shareholder's request of 30 September 1994 for conversion of its registered shares had been received by the Bank on 3 October 1994. In such circumstances, the majority shareholder had no right to seek conversion given that it had already transferred the title to its registered shares to the buyers, under the sales agreements of 30 September 1994. On 19 July 1999 the Solicitor General (Јавен правобранител) brought a civil action against the applicants, the buyers and Mr D.G. (“the defendants”) asking the Skopje Court of First Instance (“the first-instance court”) to declare null and void the first and second sets of agreements. He also asked the court to issue an interim measure (времена мерка) preventing the applicants and Mr D.G. from disposing of the shares. The Solicitor General claimed that the first applicant, under the first set of agreements, had unlawfully obtained possession of 41% of the Bank's capital without having sought the approval of the National Bank, as required under the then Act on Banks and Savings Institutions; that the amended version of the Statute, under which the shares had been transferred, was unlawful since the National Bank's approval had been received by the Bank on 3 October 1994; and that the first applicant could not have disposed of the shares under the second set of agreements. On an unspecified date, several companies, the Bank's shareholders, (“the other shareholders”) joined the Solicitor General's claim. On 28 July 1999 the first-instance court issued an interim order preventing the applicants and Mr D.G. from disposing of the shares. This decision was upheld by a decision of the Skopje Court of Appeal dated 8 October 1999. On 27 January 2000 the first-instance court declared the first and second sets of agreements null and void (ништoвни). It also granted a pre-emptive right (право на првенствено купување) to the other shareholders, claimants in these proceedings, to purchase the shares under the price set in the agreements. It decided not to grant such right to the State. The first-instance court established that on 30 September 1994, the majority shareholder had transferred to the buyers, under three separate agreements, part of its shares amounting to 41% of the Bank's capital. On the same date, the buyers and the first applicant concluded the first set of agreements, transferring these shares to him. Under the second set of agreements, the first applicant transferred part of these shares to the remaining applicants and Mr D.G. The court ruled that, given the absence of a notification or approval by the National Bank, as required under the then banking rules, the first applicant, under the first set of agreements, had unlawfully obtained possession of 41% of the Bank's capital. It further held that these transactions had been carried out under the amended Statute, which could not be regarded as having been in force at the relevant time, since the Governor's approval of 27 September 1994 had been received by the Bank on 3 October 1994. The National Bank had not been provided with the decision amending the Statute, but only with a consolidated version (пречистен текст). On 11 July 2000 the Skopje Court of Appeal upheld the first-instance court's decision in respect of the first and second sets of agreements. It dismissed the other shareholders' claim for a pre-emptive right to purchase shares. It also dismissed the applicants' arguments that bearer shares were to be regarded as having been transferred by a mere handover and that a written agreement had not been required. It reiterated the first-instance court's finding that the first applicant, under the first set of agreements, had unlawfully obtained 41% of the Bank's capital. On 12 June 2002 the Supreme Court dismissed appeals by the applicants on points of law (ревизија). It reiterated the facts established by the lower courts: that the sales transactions described above had been carried out under the amended Statute which, due to the late receipt of the Governor's approval, had not been in force at the relevant time; that the first applicant, under the first set of agreements, had obtained title to 41% of the Bank's capital; and that the National Bank had not been notified by the Bank or first applicant nor, as required under the then banking rules, sought approval for that fact. This decision was served on the applicants on 11 September 2002. On 11 December 2000 the Bank announced a public call to its shareholders requiring them to convert share certificates into ordinary shares with a different nominal value. On 28 and 29 December 2000 respectively, the applicants asked for their shares to be converted in accordance with the public announcement described above. On 9 January 2001 the Bank refused their requests, relying on the following: i) the Appeal Court's decision of 11 July 2000, ii) the National Bank's approval of 24 October 2000 to one of the buyers to obtain possession of 15% of the Bank's capital and iii) submissions by the Stock Exchange Commission (Комисија за хартии од вредност) dated 30 November 2000 according to which the Bank, under the court decision of 11 July 2000, should register the buyers as shareholders. On 23 April 2001 the applicants brought a civil action against the Bank asking for recognition of title to the shares as noted in the share certificates of 15 April 1998. They claimed that the first and second sets of agreements had not been a legal ground for obtaining title to the bearer shares, as the first class of shares issued by the Bank. They argued that the bearer shares had been transferred to them by a mere handover, as specified under the then applicable rules, after 27 October 1994, the date of their production. The bearer shares therefore had not existed at the time when the agreements had been concluded. On 15 April 1998, the date when they had been provided with the share certificates, none of the applicants' individual share in the Bank's capital had exceeded the statutory threshold which would have required approval by the National Bank. They also asked the court to issue an interim measure preventing the Bank from disqualifying them as shareholders. On 12 June 2001 the first-instance court inspected the Bank's register. According to the record, the buyers and not the applicants were registered in the register as the Bank's shareholders. Under the Court of Appeal's decision of 11 July 2000, the dates of entry in the register were indicated as 24 October and 6 December 2000 respectively. On 5 July 2001, after it had established the facts concerning the agreements of 30 September 1994, the first-instance court dismissed the applicants' claim arguing that shares were to be regarded as movable assets (подвижна телесна ствар) and that there was a close link between shares and corresponding rights attached thereto. It held that the substantive property law (стварно право) applied to the acquisition, possession and transfer of shares and that contract and tort law (облигационо право) applied to the corresponding rights and obligations. It ruled, accordingly, that the lawfulness of possession of a share depended on the existence of a valid legal ground and the subjective conviction of the holder. The court held that the applicants did not have lawful possession of the bearer shares because the first and second sets of agreements had been declared null and void. They had not acted in good faith when obtaining possession of those shares because the first applicant had collected them from the Bank on 27 October 1994 on behalf of the majority shareholder after they had been printed. Finally, in the absence of a valid legal ground, the applicants could not have obtained possession of the shares by a mere handover. The court rejected the applicants' request for an interim measure, deeming it to have been withdrawn. It further advised the applicants to seek reopening of the proceedings if they were successful in the first proceedings. On 14 March 2002 the Skopje Court of Appeal dismissed the applicants' appeal, finding no grounds to depart from the established facts and the reasons given by the first-instance court. It reaffirmed that on 30 September 1994 the applicants did not have actual possession of the bearer shares. The court concluded that the applicants had obtained title to the shares under the agreements which had been declared null and void. On 14 May 2003 the Supreme Court dismissed the applicants' appeal on points of law of 15 May 2002, stating that, given the absence of a valid legal ground for their transfer, they did not have lawful possession of the shares. In this connection, it referred to the first and second sets of agreements being declared null and void. This decision was served on the applicants on 2 September 2003. In June 1998 the Governor of the National Bank revoked the first applicant's licence as a bank manager. That decision was subject to review and was finally superseded by a decision of the Supreme Court of 6 February 2002 limiting the prohibition to exercise his profession at the Bank. On 28 February 2001 the Constitutional Court declared section 28 § 1 of the then valid Act on Political Parties (Закон за политичките партии), under which political parties could earn income from their own assets (приходи, од сопствен имот), unconstitutional. The court found that that provision was imprecise and contrary to the rule of law and worked against the market and entrepreneurship and the functions and objectives of political parties. That decision was given in response to a request by a political party (U.br.45/2000 and 61/2000, published in the Official Gazette no. 23/2001). Section 236 of this Act, as valid at that time, provided that securities (хартии од вредност) could be issued, inter alia, as registered or bearer. Section 237 of this Act provided that an obligation attached to securities was to be regarded as transferred with the transfer of the securities. In accordance with section 239 § § 1, 2 and 4, the rights attached to securities could be obtained by their lawful holder. Any holder of a bearer share was to be regarded as lawful. A diligent holder of a bearer share would lawfully possess it even if the company or its former holder had yielded procession of it unwillingly. Under section 241 the right of a bearer share is transferred by a mere handover. Section 250 § 1 provided that the company, in response to a request and at the holder's expense, can convert the bearer share into a registered share. This act was valid until 2001 when the new Obligations Act came into force. In accordance with section 2 of this Act, as valid at that time, registered or bearer written certificates would be regarded as securities. Section 5 § 2 of this Act provided that corresponding rights and obligations could be obtained by transferring the securities from the company to the buyer or his or her representative. Section 6 § § 1 and 2 provided that a registered share was regarded as having been transferred by a full endorsement (полн индосамент) unless it was explicitly stated that it could not be transferred. A bearer share was regarded as having been transferred by a mere handover. This Act was replaced by the Securities Trading Act of 1997 (see below). In accordance with section 4 of the then valid Securities Trading Act, securities could be registered or bearer. Under section 5 § 2, bearer securities were transferred by a mere handover. In accordance with section 12 § § 2 and 3, there were only registered shares. Bearer shares were null. This Act was replaced by the then Securities Act of 2000 and the current Securities Act of 2005. Section 18 of this Act required that the Governor of the National Bank must approve any acquisition of an individual share of more than 25% of a bank's capital. Pursuant to section 19, a bank was required to notify the National Bank if an individual share exceeded 20%. In case of non-compliance, the bank may be fined (section 126). Under section 4 § 2 of this Act, banks could only issue registered shares. In accordance with section 131-b, banks were required to adjust their operation within two years of the Act entering into force. Section 83 provided that that Act would enter into force eight days after being published in the Official Gazette. Section 289 § § 1 and 2 of this Act provided that registered shares were to be recorded in the register of shareholders. Every person registered in the register of shareholders was to be regarded as a shareholder.