As a main rule, a dissolved company cannot appear as a party in a judicial process. In practice, however, deviations from the main rule have been made as regards cases involving tax surcharges. A company which has been dissolved following the completion of bankruptcy has been deemed entitled to review by administrative courts by reference to the European Convention on Human Rights. On the other hand, a company in such a situation has been regarded as not being covered by the right to a new trial in a court of higher instance given that exceptions to the right may be granted for offences of a minor character.
Following two cases in which the European Court of Human Rights has shed light on the exemption rule in the Seventh Additional Protocol, the Supreme Administrative Court has considered that there is cause to again consider whether a dissolved company may be entitled to examination in two court instances in a case regarding tax surcharges. The Supreme Administrative Court notes that, in conjunction with the determination of whether an act is of a minor character and therefore may be exempted from the right to adjudication in more than one court instance, the circumstances – over and above the question regarding imprisonment as a possible sentence – in the individual case shall be considered in light of the purpose and scope of the sanction.
The Supreme Administrative Court notes that it follows directly from the legislation that a decision regarding tax surcharges entails a balancing of proportions and an examination of the circumstances in the individual case. In addition, a tax surcharge may never be converted into a custodial sentence. Against this background, there are no reasons to deviate from the assessment previously made by the Court, i.e. that a tax surcharge constitutes a sanction for an offence of a minor character. It was therefore correct by the administrative court of appeal to disallow the appeal from a dissolved company on the grounds that the company lacked eligibility to act as a party. The Supreme Administrative Court rejects the appeal of the dissolved company.