1 août 2015

Looks like discrimination of foreign business in Liechtenstein. AK v Liechtenstein, 38191/12

German citizen AK accused the Constitutional Court of Liechtenstein of discrimination against foreigners in their corporate law. A partially successful judgement was delivered on 09/07/2015. AK insists that there is a long-standing constitutional anti-foreign business case law (§§ 16).

He had a dispute with Liechtenstein citizen FH over the property right in 75 % of the bearer shares in both the EMK stock corporation and the EMK Engineering stock corporation, both companies resident in the Principality (§ 7).  There was an EMK Engineering extraordinary shareholders’ meeting on 23/07/2004 that voted out FH of his office of corporation’s representative and member of its supervisory board, as well as named AK as new CEO (§ 8). All the courts of Liechtenstein supported the Liechtenstein citizen, and consequences of that shareholders’ meeting were set aside.

AK tried to replace all 5 judges of the Liechtenstein Constitutional Court, and his main argument on their bias was that judge H was a brother of FH (§ 18). Other judges were friends and co-workers of judge H. Moreover, other judges were previously working for the Government of Liechtenstein (§§ 19 – 22), which apparently was interested in the outcomes of the proceedings or at least in promotion of its nationals’ interests. The five motions were dismissed one by one by a panel of 4 judges.

The Government argued that Liechtenstein is a very small country, it has a limited number of officials, and therefore its inability to replace even the judge brother of FH was justified (§§ 62 & 64).

The European Court of Human Rights dismissed the argument on discrimination, however found objective partiality for two reasons (§ 79):
  1. AK tried to remove judges accusing them of more of less same sins. Thus in deciding on partiality of a colleague, the judge was in fact deciding on an accusation against himself.
  2. While deciding about partiality of a colleague, a particular judge was himself under attack, since the question of his own partiality was not clear.
The Strasbourg Court decided that there shall be substitute judges to replace all possibly partial judges of each final instance (§ 83).