JAKOB'S CENTER D.O.O. v. SLOVENIA
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, JAKOB’S CENTER d.o.o., is a private company with a registered office in Zgornji Brnik. It was represented before the Court by Mr I. Trebec, a lawyer practising in Sežana. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events at issue, the applicant company was acting as a forwarding agent and customs broker for import-export transit operations. In that capacity, it was liable for the payment of customs debts if they were incurred. In 1997, the company carried out a transit procedure for the importation of goods supposedly destined for Bosnia and Herzegovina; however, in reality the goods never reached their destination, but were placed on the Slovenian market. The operation formed part of a wider fraud involving at least one customs official, P.K., and a number of other persons. Once the fraud had been detected, the customs debt incurred as a result of the fact that the goods had not left the national territory was imposed on the applicant company as the principal actor in the transit procedure. 5. On 7 April 1998, the applicant company paid 2,265,033.00 Slovenian tolars (SIT) (approximately 9,452 euros (EUR)) and on 17 November 1998 it paid SIT 1,810,855.00 (approximately EUR 7,557). Although it was not disputed by the authorities that the applicant company was the victim of fraudulent activities by third parties, it could not relieve itself of that liability. 6. The applicant company challenged its liability for the payment of the debt. The Customs Administration of the Republic of Slovenia dismissed its challenge, finding that although it was not the applicant company’s fault that the goods in question had been unlawfully removed from customs supervision, as the principal actor it was nevertheless liable for the payment of the customs debt. Moreover, the Customs Administration noted that any unlawful activity on the part of customs officials bore no relation to the applicant company’s duty to pay the debt. The Administrative Court subsequently dismissed an administrative action lodged by the applicant company. The Supreme Court dismissed an appeal lodged by the applicant company, upholding the position of the lower instances that, by acting as the principal company in the transit procedure, the applicant company had assumed the risk of having to pay customs debt. The Constitutional Court refused to accept the applicant company’s constitutional complaint for consideration. 7. In their submissions the Government noted that in November 2001 the applicant company had instituted commercial proceedings before the Koper District Court against the Republic of Slovenia and P.K. seeking compensation for the customs payment (SIT 4,075,888.00, approximately EUR 17,008), together with statutory default interest and costs of the proceedings. 8. The Government further explained that on 9 May 2006 the Koper District Court had found in favour of the applicant company. 9. The Republic of Slovenia and P.K. lodged an appeal. Thus, when the application was lodged before the Court on 10 April 2007, the proceedings were pending before the Koper Higher Court. 10. On 21 June 2007 the Koper Higher Court upheld the judgment of 9 May 2006, which then became final. 11. On 5 September 2007 the Republic of Slovenia lodged a motion for the protection of legality against the judgment of 21 June 2007 with the Office of the State Prosecutor General of the Republic of Slovenia, which did not accept to file a request for the protection of legality. 12. On 7 September 2007 the Republic of Slovenia enforced the judgment of 9 May 2006 and paid the applicant company EUR 36,908.40 (SIT 8,844,728.97). 13. In its application to the Court the applicant company did not mention the commercial proceedings or the judgment of 9 May 2006, which had been enforced. In its later submissions, it expressed its wish to maintain the application.