CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 17819/91                       by H.                       against Austria             The European Commission of Human Rights sitting in private on 3 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 29 November 1990 by H. against Austria and registered on 19 February 1991 under file No. 17819/91;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS        The applicant company runs a sawmill and deals with wood.   Its headquarters is at St. G. and it is represented before the Commission by Mr.   Bruno Binder, a lawyer in Linz.        On 11 June 1988 the applicant company was ordered by the competent authority to pay an equalisation tax (Ausgleichstaxe) for 1987 in the amount of AS 85,000 under Sec. 9 of the Disabled Persons Employment Act (Invalideneinstellungsgesetz).   According to this Act every employer with a staff of over 25 persons has to employ disabled persons.   The Act sets a quota of one disabled person per 25 employees. Employers who qualify under the Act have to pay an equalisation tax if they do not employ disabled persons.   This revenue is used for a Disabled Persons Employment Fund (Ausgleichtaxfonds, Sec. 10 (1) of the Act).        The applicant company's objections were rejected on 22 March 1989 by the Regional Authorities (Landeshauptmannschaft) of Upper Austria on the ground that the tax was due regardless of the reasons for the non-employment of disabled persons.   The authorities also pointed out that the Constitutional Court (Verfassungsgerichtshof) had repeatedly decided that the tax in question was compatible with the constitutional rights.        The applicant company nevertheless lodged a constitutional complaint which was however declared inadmissible on 12 June 1989 as offering no prospects of success.   The Constitutional Court referred in its decision to its constant jurisprudence in respect of the tax in question.        A complaint to the Administrative Court (Verwaltungsgerichtshof) was rejected on 5 April 1990 (received by the applicant company's counsel on 29 May 1990) as being unfounded.   This Court likewise referred to the Constitutional Court's jurisprudence and added that the applicant company's allegations about an irregular determination of the amount of the tax due were unsubstantiated.   COMPLAINTS        The applicant company submits that it has to pay the tax although it tried in vain to find disabled persons as employees.   It considers that the tax in reality constitutes a penal sanction for non-compliance with the obligation to employ disabled persons.   A sanction can however only be imposed where an employer deliberately refuses to give work to disabled persons.   Therefore the taxation violates Article 6 para. 2 of the Convention as it penalises the applicant company although it is willing to employ disabled persons.   Furthermore the applicant company alleges a violation of Article 6 para. 1 which it considers applicable to the proceedings before the Administrative Court as they concern both a civil right and a criminal charge.   As the Administrative Court does not itself establish the facts the proceedings do not, according to the applicant company, comply with para. 1.   THE LAW           The applicant company complains about the imposition of a special tax on certain employers who do not employ disabled persons.           However, the Commission has repeatedly held that the imposition of taxes is in principle justified under para. 2 of Article 1 of Protocol No. 1 (P1-1) to the Convention, also when the imposition only concerns a particular group of the population, such as employers (see No. 6087/73, Dec. 13.5.76, D.R. 5 p. 11, with further references).           In the present case the imposition of the tax in question is clearly linked to an objective factor namely non-employment of disabled persons regardless of whether this is the result of a deliberate policy of the employer or of an impossibility to find suitable disabled persons as employees.   The receipts are paid into a Disabled Persons Employment Fund.   In these circumstances the imposition of the tax cannot be considered as a criminal sanction and Article 6 (Art. 6) of the Convention can therefore not be invoked by the applicant company.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission (unanimously / by a majority )             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                               (C.A. NØRGAARD)