The ‘significant disadvantage’ in a ‘20 million case’

In a recent case the Court used the ‘significant disadvantage’ criterion to declare a complaint inadmissible. In Liga Portuguesa de Futebol Profissional v. Portugal the Court made a clear distinction between the human rights issue at stake and the case at large (which concerned 20 million euros).

The case concerned court proceedings at a national level in which the Liga Portuguesa wanted to annul a clause in a contract. In accordance with that clause, the Liga Portuguesa had become liable to pay approximately 20 million euros to the Portuguese tax authorities. During proceedings at the Supreme Administrative Court the agent of the prosecution service submitted his opinion. This opinion was not communicated to the Liga Portuguesa.  In its complaint before the Strasbourg Court, the Liga Portuguesa argued that it was not able to exercise its right to participate adequately in the proceedings (Article 6 § 1).

The Government in its turn argued that the complaint should be declared inadmissible under Article 35 § 3 (b). Under this Article the Court shall declare inadmissible any individual application if it considers that the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

In Korolev v. Russia (read a post about the case here) the Court has elaborated on Article 35 § 3 (b).  It explained that the admissibility criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case. It is to the consequences on personal circumstances that the applicant relied on. It asked the Court to take into account that if it is to pay the money, it will go bankrupt (Cf. § 31).

In its decision the Court stated that the sum of approximately 20 million euros claimed by the tax authorities and giving rise to the proceedings could not be treated in the same way as a ‘disadvantage’ within the meaning of Article 35 § 3 (b). The question was whether the failure to communicate the opinion of the agent of the prosecution service at the Supreme Administrative Court could cause the applicant a potential significant disadvantage. In that regard, the Court found that the opinion of the agent of prosecution service – which was only a few lines long – merely considered that the decision at issue had correctly interpreted the applicable law and that no new issue that might call for comments by the Liga Portuguesa had been raised.

The Court therefore considered that in this case, the applicant had not suffered a ‘significant disadvantage’ in the exercise of his right to participate adequately in the proceedings at issue and declared the application inadmissible.

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