CASE OF METALCO BT. v. HUNGARY
Violation of P1-1;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
5. The applicant is a limited partnership under liquidation, with its seat in Pécs. 6. In 1996 the Tax Authority established that the applicant owed some 10 million Hungarian forints (HUF) in outstanding taxes. To secure this claim, on 10 April 1997 it attached a 100%-share the applicant had in another company, which was nominally worth over HUF 103 million. Aware of the applicant’s own intention to sell the share by 30 June 1997, the Tax Authority forbade the transaction but did not proceed to auctioning it within the statutory two-month deadline or afterwards. 7. In the ensuing two-year-long administrative procedure, the applicant’s tax debt was eventually cancelled and the asset unfrozen. However, by that time the company in which the share belonged had been liquidated – as of July 1997 – and the share had lost its value altogether. 8. Some time in 1999 the applicant sued the Tax Authority for damages. On 12 December 2000 the Baranya County Regional Court awarded it HUF 103 million. On 13 June 2002 the Supreme Court quashed this decision. On 3 June 2003 the Regional Court again found for the plaintiff. 9. On appeal, on 6 May 2004 the Pécs Court of Appeal reversed this judgment and rejected the applicant’s action. It held in essence that there had been no causal link between the Tax Authority’s unlawful omission to hold an auction to sell the attached asset within two months from its attachment, as required by section 116(1) of the Enforcement Act 1994, and the damage the plaintiff had sustained. In the court’s view, the burden of proof to show that had there been a timely auction the share could have successfully been sold to a buyer with the requisite liquidity lay with the applicant. However, the applicant could not prove this assertion. The court observed that the buyer suggested by the applicant had never had, according to its books, the capital needed for the acquisition; that the company in which the share belonged had lost all its own capital by early 1997 and been in liquidation as of July 1997; and that its manager had been convicted of fraudulent bankruptcy. 10. On 16 March 2005 the Supreme Court dismissed the applicant’s petition for review. This decision was served on 22 April 2005. The applicant’s request for a re-opening was to no avail.