EHRM, 22-03-2012, nr. 19508/07

The Government submitted that neither the national provisions concerning the granting of legal aid to legal persons, nor their concrete application in the instant case, violated the applicant company's Convention rights. The legal restrictions imposed on the granting of legal aid were legitimate and did not violate the applicant company's right of access to a court. Having regard to the fact that a legal person's liability, particularly that of a limited company, was limited, it was justified to set more restrictive requirements for legal persons with regard to the granting of legal aid. Furthermore, even a domestic company in the applicant company's position would not have been granted legal aid, as the applicant company had not submitted that the non-litigation of the case would run counter to the general interest, as required under section 116 § 1 (2) of the Code of Civil Procedure.

Relying on the Court's case-law, in particular the cases of Del Sol v. France (no. 46800/99, ECHR 2002-II), and Herma v. Germany (dec.), (no. 54193/07, 8 December 2009), the Government maintained that the Convention did not contain an obligation to make legal aid available for all disputes in civil proceedings. In line with this, there was no consensus to be found among the State Parties to the Convention as regarded the granting of legal aid to legal persons. Nor could such an obligation be derived from international practice, or any joint constitutional tradition of the EU Member States. In this connection, the Government further relied on a ruling given by the European Court of Justice on 22 December 2010 in the case of DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany (case no. C 279/09).

The restrictions imposed by the national law on the granting of legal aid to legal persons served a legitimate aim and were proportionate. Section 116 of the German Code of Civil Procedure addressed the question of indigence of a company in the same way as was the case with natural persons. Additionally, the intended action had to have sufficient prospects of success. Beyond this, legal aid was granted to a legal person only if the importance of the case transcended the economic interest of the legal person. The question of which interest had to be taken into consideration depended on the legal interpretation in each individual case. Hence the general interest would require the conduct of litigation especially where the decision would have an impact on large sections of the population or on economic life and would carry social implications. Only this general interest ultimately justified supporting at public expense the conduct of litigation by a company that was not in a position to conduct litigation under its own strength.

A further distinction had to be drawn depending on whether the company pursued profit-making objectives. The purpose of section 116 § 1 (2) of the Code of Civil Procedure, as interpreted by the national case-law, was to exclude those legal persons from benefitting from legal aid which were bringing a matter before the court solely in order to protect their economic and commercial interests. Furthermore, the provision was aimed at preventing wanton litigation from being publicly funded. Moreover, it had to be taken into account that legal persons were granted tax benefits in Germany. Thus, they were allowed to deduct from their tax burden the costs of any litigation pursued with regard to the company.

It was justified to differentiate between legal persons according to their registered office. If the other prerequisites were met, all legal persons from an EU member State, a State party to the Agreement on the European Economic Area, or a State party to the Hague Convention on Civil Procedure were granted legal aid in the same way as domestic legal persons. This difference in treatment was legitimatised by the principle of reciprocity. Foreign legal persons were granted the same legal status as German legal persons if legal persons domiciled in Germany would likewise be granted legal aid in the State concerned under the Hague Convention. This provision had the purpose of motivating other States to accede to the Hague Convention on Civil Procedure, or to accept comparable obligations under international law. Since every State was free to accede to that Convention, this was a reasonable way of motivating other States to do so.

The principle of reciprocity also had an effect on the applicant company, as a legal person domiciled in Germany would not be granted legal aid in Peru. Article 179 of the Peruvian Code of Civil Proceedure only provided for legal aid to indigent natural persons, and only in cases in which the subsistence of the party risked being jeopardised. Legal persons did not have access to such aid as a matter of principle. The judgment of the Peruvian Constitutional Court referred to by the applicant company did not address the question of granting legal aid and did not lead to the conclusion that legal persons had a right under the Peruvian Constitution to be granted legal aid. Nor did the judgment by the lower courts referred to by the applicant company lead to the conclusion that legal persons were, as a general practice, granted legal aid.

While the Peruvian Code of Civil Procedure did not stipulate an advance payment of court fees, the party that had not been able to enforce its claim in a dispute was under an obligation to compensate the prevailing party for the court costs and the costs of the proceedings. As a consequence, the difference in treatment of legal persons not entitled to legal aid under German law and Peruvian law solely concerned the time at which a payment obligation arose, but not the financial impact of the obligation. That difference was balanced by the exemption from advance payment provided for by section 14 of the Court Fees Act.

The decisions taken in the applicant company's individual case had not violated its right of access to a court. The applicant company had been free to pursue its claim by filing a request to be exempted from the obligation to advance the court costs under section 14 § 3 (a) of the Court Fees Act. This provision was based on the prerequistes that the intended claim appeared neither devoid of prospects of success nor wanton and that the plaintiff could not raise the funds for the advance payment. The standards applied by the courts with respect to prospects of success and wantonness were identical to those applied in the examination of a legal aid claim under section 116 of the Code of Civil Procedure. The legal consequences were not placed at the discretion of the trial court. The purpose of this provision was to guarantee that parties had access to a court in situations in which they were unable to raise funds for the advance payment. As the German courts interpretated the procedural law in line with the procedural rights set out by the Basic Law and by the Convention, a positive decision would have been to be expected from the Hamburg Regional Court. Solely the applicant company was responsible for having chosen not make use of this available means.

In so far as the applicant company faced any impending damage, such as its claim becoming statute-barred, it could have been released from the obligation to make advance payment of the court costs under section 14 § 3 (b).

The applicant company had not been prevented from bringing a claim before the Hamburg Regional Court by the fact that representation by counsel was compulsory before that court. Under the relevant provisions of the Federal Code of Attorneys' Fees, payment for counsel became due only after the appeal stage had been completed. The fact that counsel were allowed to request advance payment had clearly not posed a problem for the applicant company as it had obviously been able to find a lawyer who was willing to represent it before all court instances without requesting payment. Under the current law, the applicant company could even have come to an agreement with its counsel regarding the payment of a success fee, or could have turned to a commercial litigation finance provider.

The applicant company had not been prevented from lodging its claim by the obligation under section 110 of the Code of Civil Procedure to provide security for the costs of the proceedings. Defendants only rarely filed a request under that provision. It could not be speculated upon whether the defendant party would have had recourse to this provision and it was unlikely that the Hamburg Regional Court would have granted such a request.

The applicant company contested these arguments. It emphasised from the outset that the instant case was of general relevance for the effective legal protection of small third-world companies doing business in Germany and Europe. As German companies were typically financially stronger than their third-world partners they were, as a rule, in a position to dictate German law and a German venue for their contractual relationships. The denial of legal aid would, therefore, be an incentive for them to drive their third-world counterparts into bankruptcy, as they would be protected from legal prosecution by the denial of legal aid.

According to the applicant company, the reasons put forward by the Government did not justify a limitation on the right of access to a court. Denying legal aid to legal persons who were unable to conduct litigation with their own means violated the principle of equality of arms. The right of access to a court could not be made dependant on considerations of a general and political nature. Even if it were true that domestic legal persons would have been denied legal aid for the same reasons, this would amount to a violation of their right of access to a court.

The stance taken by the Government was contradictory inasmuch as the Government argued, on the one hand, that there was no general obligation to grant legal aid to legal persons, while it sought, on the other hand, to achieve worldwide implementation of exactly that obligation by pursuing worldwide enforcement of Article 20 § 1 of the Hague Convention on Civil Procedure.

It was not correct that German law drew a distinction between no-profit making and profit-making legal persons. German courts had consistently granted legal aid to commercial legal persons, and there was no known decision where a legal person had been denied legal aid on account of the fact that it pursued profit. It followed that the Government could not rely on such a distinction before the Court. Nor could the different treatment of legal persons be justified by tax advantages, as those advantages were enjoyed by legal persons and natural persons carrying on business alike.

It was not correct that the applicant company would have obtained release from the obligation to advance the court fees if it had filed a request to that effect. Moreover, this argument had already been dismissed by the Court in its decision on admissibility. It was left to the discretion of the courts whether to dispense parties from the advance payment of court fees. In view of the decisions given by the German courts on the applicant company's application for legal aid, it appeared highly unlikely that the same courts would have granted the applicant company release from the advance payment.

Even if this had been the case, it would not have solved the applicant company's problems of submitting a guarantee for legal costs under section 110 of the Code of Civil Procedure amounting to some 90,020 euros for each of the defendant parties, and paying its own lawyer's fees. The obstacle of providing a guarantuee for legal costs would in any case have been impossible for the applicant company to overcome. Contrary to the Government's submissions, no defendant in Germany had ever failed to ask for such a guarantuee from non-European plaintiffs. There was, furthermore, no doubt that the Regional Court would have granted such a request. The consequence would have been that the claim would have been dismissed as inadmissible. Moreover, it was not true that the applicant company's counsel had waived his right to a lawyer's fee. In the interest of litigation, he had merely agreed not to demand payment of any fees while the application for legal aid was pending.

The Government could not validly rely on the argument that the refusal of legal aid under section 116 of the Code of Civil Procedure had been motivated by the wish to encourage non-European countries to join the Hague Convention. In none of the decisions denying the applicant company legal aid had the German courts relied on this argument. The point had merely been made that legal aid should be made available to legal persons from those countries which granted German legal persons legal aid in return. The applicant company's enjoyment of its human rights could not be made dependant on the Republic of Peru joining the Hague Convention, since the Hague Convention ruled on many different issues, of which legal aid was only one. There might be, therefore, a number of reasons for a State not to accede the Hague Convention.

The Peruvian law granted full legal aid to national and foreign legal persons alike and did not have a requirement of providing security to the defendant party for the costs of litigation. A German legal person in a similar situation to the applicant company's would thus have been granted legal aid in Peru. Even though section 179 of the Code of Civil Procedure expressly provided for legal aid to be granted to natural persons only, the Constitutional Court of Peru had, in its decision of 4 August 2006 in case no. 4972-2006-PA/TC, expressly ruled that the fundamental right of equal treatment and to effective protection by the courts also applied to legal persons. In accordance with this ruling, legal aid was granted in Peru to legal persons if both the legal person and its shareholders were indigent, as could be seen from four decisions granting legal aid to legal persons by Peruvian courts. There was no indication that Peru denied legal aid specifically to foreign legal persons. As far as could be seen, there was no case-law on the granting or denying of legal aid to foreign legal persons in Peru which led to a conclusion that legal aid had so far either been granted to legal persons straight away or not asked for in view of the fact that the maximum amount to be paid when filing a lawsuit was low (approximately 120 euros).

It was not correct that the applicant company had been free to bring a claim by agreeing to a success fee with its attorney, because this option became lawful only after the relevant events and the relevant claims had become time-barred. Even if this had not been the case, no lawyer was obliged to enter into such arrangement and it would, furthermore, not have solved the problem of having to provide security for the legal costs, which neither the applicant company nor its shareholders were in a position to do.

The applicant company could not have obtained effective legal protection by turning to a commercial litigation finance provider, as it was unlikely that such a provider would have been found to finance the case before the claim became time-barred. Furthermore, the applicant company could not have been expected to give up some 30% of its claim in order to gain access to the courts.

The Court reiterates that the right to a court, of which the right of access constitutes one aspect, is not absolute but may be subject to limitations. Nevertheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Khalfaoui v. France, no. 34791/97, § 35, ECHR 1999-IX; Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; and Paykar Yev Haghtanak Ltd v. Armenia, no. 21638/03, § 44, 20 December 2007).

The Court further reiterates that there is no obligation under the Convention to make legal aid available for all disputes in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (see, among other authorities, Del Sol v. France, no. 46800/99, § 20, ECHR 2002-II, and Agromodel OOD v. Bulgaria, no. 68334/01, § 22, 24 September 2009). It is to be noted that the right of access to a court is not absolute and may be subject to restrictions intended, in particular, to meet the legitimate concern of controlling the use of public funds for sponsoring private litigation (compare, mutatis mutandis, Del Sol, cited above, § 23). Where an individual's access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see P., C. and S. v. the United Kingdom, no. 56547/00, § 90, ECHR 2002-VI, and Agromodel OOD, cited above, § 23).

As the Court has already had the occasion to observe, there does not appear to be a consensus or even a consolidated tendency among the State parties to the Convention as regards the granting of legal aid to legal persons. The law of a substantial number of States does not provide any form of legal aid to legal persons (see Agromodel OOD, cited above, § 24; VPDiffusion SARL, cited above; and paragraph 18 above).

Turning to the circumstances of the instant case, the Court observes that the German civil courts rejected the applicant company's request for legal aid on two grounds: firstly, the courts relied on the fact that section 116 of the Code of Civil Procedure did not provide any form of legal aid to foreign legal persons unless they were registered or residing in another Member State of the European Union or in another State party to the Agreement on the European Economic Area. According to the Hamburg Court of Appeal, the unequal treatment of foreign legal persons was justified by the principle of reciprocity: if equal treatment was codified under constitutional law, there would be no incentive for foreign States to provide German legal persons with the same legal standards. Secondly, the Hamburg Court of Appeal held that, even if the applicant company was to be put on a par with a domestic legal person, legal aid had to be denied because the non-litigation of the applicant company's case did not run counter to the general interest. It considered in this regard that a legal entity retained its right to exist under the legal order only if it was able to pursue its objectives by virtue of its own strength and means.

In order to determine whether the restriction on legal aid in the applicant company's case pursued a legitimate aim and was proportionate, the Court will first examine the argument of reciprocity. The Court notes that section 179 of the Peruvian Code of Civil Procedure (see paragraph 15 above) expressly provides for legal aid to be granted to natural persons only. The Court further observes that the applicant company was unable to submit any case-law with respect to the granting of legal aid to foreign legal persons. Even though this might be due to the circumstance that foreign legal entities, having regard to the comparatively low court fees and to the fact that the Peruvian procedural law does not generally require the payment of an advance court fee, do not request legal aid in Peru, the Court is not convinced that a foreign legal person was eligible for legal aid before the Peruvian courts.

In the light of the above considerations, the Court concludes that the domestic courts based their decision to deny the applicant company legal aid on relevant grounds.

In determining whether the restriction on the right of access to a court can be regarded as proportionate to the aims pursued, the Court considers that specific weight has to be attached to the procedural safeguards provided in the domestic law. The Court observes that the German legal system, under section 14 § 3 (a) of the Court Fees Act, provides for the possiblity to lodge a request to be exempted from the obligation to advance payment of the court fee if the case does not lack prospects of success and does not appear wanton, and where it can be substantiated that immediate payment of the costs would cause difficulties to the applicant company. The Court notes that the possiblity to lodge such a request is open to natural and legal persons alike and does not differentiate between domestic and foreign legal entities. It thus appears that the applicant company would have been in a position to lodge such a request, but refrained from doing so. The Court further observes that it appears from the wording of section 14 § 3 (a) that this provision, unlike the possibility to appeal under section 67 of the Court Fees Act primarily adressed by the Court in its admissiblity decision in the instant case, does not appear to grant any discretion to the trial court if the intended litigation of the case does not lack prospects of success and does not appear wanton and where it can be substantiated that immediate payment of the costs would cause difficulties for the applicant company.

The Court takes note that a possible exemption from the obligation to make advance payment does not liberate a plaintiff from the necessity to satisfy their own counsel's request for advance payment. Furthermore, there remains the possiblity for the defendant to request the plaintiff to provide security for the payment of court fees under section 110 of the Code of Civil Procedure. The Court observes, however, that advance payment of lawyer's fees is not compulsory under German law. It further observes that it has not been established by the applicant company that the question of providing security was raised during the proceedings in the instant case.

Having regard to the above, and in the absence of a consensus among the State Parties to the Convention on the granting of legal aid to legal persons, the Court considers that the limitations imposed on the applicant company's right of access to a court were proportionate to the aims pursued.

It follows that there has been no violation of the applicant company's right of access to a court under Article 6 § 1 of the Convention.