CASE OF FELIX BLAU SP. Z O.O. v. POLAND
Violation of Art. 6-1
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
5. The applicant company is a limited liability company which at the material time carried on a business of buying debts. 6. On 14 February 2002 the applicant company instituted civil proceedings before the Wrocław Regional Court (Sąd Okręgowy) against the Dolnyśląsk Sickness Fund (Dolnośląska Regionalna Kasa Chorych). The applicant company had agreed to buy from four hospitals the debts owed by the Sickness Fund to the hospitals in the amount of 60,000,000 Polish zlotys (PLN) provided that the company won its case against the Fund. The applicant company sought payment of the above-mentioned sum together with interest, which amounted to PLN 89,316,240 (approximately 22,000,000 euros (EUR)). The hospitals claimed that the Fund should be liable for paying the cost of medical treatment that had exceeded the contract that every hospital had negotiated with the Fund but which had been necessarily sustained by them in providing medical services to insured persons. 7. The applicant company also asked for exemption from court fees, submitting that it had been involved in several court disputes in order to claim debts for medical services. 8. On 12 March 2002 the Wrocław Regional Court partly allowed the claim and exempted the company from court fees in excess of PLN 50,000 (EUR 12,000). The court examined the profit generated by the company and found that the assets deposited in its bank account amounted to PLN 50,000. Moreover, in December 2001 the president of the board had received PLN 43,000 as payment for an unknown service. The court thus concluded that the company had been able to pay this amount of court fees without damaging its operation. 9. On 27 September 2002 the Wrocław Regional Court dismissed the action. The court agreed with the arguments of the defendant, who had refused liability for costs in excess of the amounts agreed in the contracts between the Fund and the hospitals. The court established that the contracts had not been renegotiated and had remained valid, which excluded the Fund’s liability for expenses sustained by the hospitals that exceeded the contracts. 10. The applicant company lodged an appeal against the judgment. 11. On 4 November 2002 the Wrocław Regional Court ordered the applicant company to pay a further PLN 50,000 in court fees for pursuing its appeal. On 8 November 2002 the applicant company applied for an exemption from those fees, claiming that the company had already been exempted from fees and should not be ordered to pay any more at the appeal stage. In its supplementary documents the applicant company submitted that the company did not have the required sum of money in its bank account and that previously it had had to borrow from a private individual. The company was small and new on the market, thus it would not be able to obtain a bank loan. In sum it had not been possible for it to pay a further PLN 50,000 and the refusal to exempt it from court fees would amount to a violation of its right to court. 12. On 26 November 2002 the Wrocław Regional Court dismissed the application for exemption from the court fees. The court established that the monthly turnover of the company had reached PLN 30,000 (EUR 7,500) although in its bank account it only had PLN 3,000. The court, in one point of its reasoned decision, found that the company had generated over PLN 230,000 gross income (przychód), but it had then taken this amount to be net profit (dochód). The court also acknowledged that the applicant company had declared costs and expenses in the amount of about PLN 500,000, and thus generated a net loss. In sum, the court concluded that the company must have had other sources of revenue which would make it possible to pay the court fees. 13. The applicant company appealed against the decision, pointing to the difference between gross and net income. The applicant company maintained that it had been generating no profits but high net losses. The sum of PLN 230,000 was gross income, from which costs and expenses should be subtracted to yield the net loss. It had been a mistake on the part of the court to take this sum to be the net profit. 14. On 19 December 2002 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicant company’s appeal. The court considered that the applicant company had been conducting its business activity and producing gross income. The fact that the company declared high costs for its activity had not justified exemption from court fees as it had freedom to spend its gross income as it chose. The court fees should be considered as one of the costs of its business activity. 15. On 30 April 2003 the Wrocław Regional Court rejected an appeal by the applicant company on grounds of inability to pay the court fees. An appeal by the applicant company against this decision was dismissed on 30 May 2003. 16. On 16 April 2003 the applicant company lodged a constitutional complaint against the provisions governing the imposition of court fees and exemptions from them. 17. On 3 September 2003 the Constitutional Court refused to hear the constitutional complaint. 18. On 4 February 2004 the Constitutional Court dismissed an appeal by the applicant company against the above decision. 19. The applicant company made another unsuccessful attempt to challenge the constitutionality of the provisions governing court fees. However, on 5 May 2004, the Constitutional Court, in a final decision, refused to hear the second constitutional complaint. 20. On 20 December 2002 the Olsztyn Regional Court dismissed a civil claim for payment lodged by the applicant company against the National Health Fund (Narodowy Fundusz Zdrowia). The applicant company lodged an appeal. 21. On 30 June 2003 the Bialystok Court of Appeal dismissed the applicant company’s appeal. 22. On 14 January 2004 the Supreme Court dismissed a cassation appeal lodged by the applicant company. 23. 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 Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).