CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 octobre 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. 15464/89                       by A.P.                       against Austria             The European Commission of Human Rights sitting in private on 8 October 1991, the following members being present:                MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   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 4 June 1989 by A.P. against Austria and registered on 8 September 1989 under file No. 15464/89;           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 facts of the case, as submitted by the parties, may be summarised as follows.     Particular circumstances of the case           The applicant, born in 1952, is an Austrian citizen residing in Graz.   Before the Commission he is represented by Mr.   Kurt Bielau, a lawyer practising in Graz.           On 17 December 1986 the applicant acquired land in Graz by auction for AS 4,955,000,-.           On 10 February 1987 the applicant informed the Graz Tax Office for levies and taxes on transactions (Finanzamt für Gebühren und Verkehrssteuern) of the purchase.   He objected to any imposition of taxes under the 1955 Land Acquisition Taxation Act (Grunderwerb- steuergesetz), referring to a decision of the Constitutional Court (Verfassungsgerichtshof) of 10 December 1986.           On 31 March 1987 the Graz Tax Office imposed 8% tax (= AS 396,400,-) against the applicant by virtue of the 1955 Act on the grounds that the annulment of Section 1 para. 1 (1) of the 1955 Act by the Constitutional Court became effective after 30 November 1987, so that the provision continued to apply to all transactions effected until that date except those exempted by the Constitutional Court.           On 30 June 1987, the applicant appealed against the decision of 31 March 1987.   On 20 April 1988 the Styrian Regional Directorate of Finance (Finanzlandesdirektion) dismissed the appeal.           It found that Section 1 para. 1 (2) of the 1955 Act, and not Section 1 para. 1 (1) was applicable to the applicant's case.   Section 1 para. 1 (2) had been annulled on 10 March 1987 but continued to apply to transactions effected before 30 November 1987.   The transaction by the applicant was effected on 17 December 1986 and was accordingly subject to tax under Section 1 para. 1 (2) of the 1955 Act.   In its reasoning the Regional Directorate added that also Section 12 para. 2 of the new 1987 Land Acquisition Taxation Act expressly provided for the old version of the Act to apply to all transactions effected before 1 July 1987.           On 7 June 1988 the applicant lodged a complaint with the Constitutional Court, invoking the principle of equality and his constitutional right to property.           On 27 September 1988 the Constitutional Court in non-public proceedings refused to deal with the case on the ground that it lacked sufficient prospects of success.   The decision was served on the applicant on 14 December 1988.   Relevant domestic law and practice   I.       The 1955 Land Acquisition Taxation Act           Section 1 para. 1 of the 1955 Land Acquisition Taxation Act in its former version provides, as far as relevant:   [Translation]   "(1) The following legal transactions are subject to land acquisition tax, insofar as they concern domestic land:         1.   A sales contract or any other legal transaction          creating a claim to transfer of property,         2. the acquisition of property, if no legal          transaction creating a claim to transfer          of property preceded,         3. ..."   [German]   "(1) Der Grunderwerbsteuer unterliegen die folgenden Rechtsvorgänge, soweit sie sich auf inländische Grundstücke beziehen:         1.   Ein Kaufvertrag oder ein anderes Rechtsgeschäft,          das den Anspruch auf Übereignung begründet,         2. die Erwerbung des Eigentumes, wenn kein den          Anspruch auf Übereignung begründendes          Rechtsgeschäft vorausgegangen ist,         3. ..."     II.      The annulment judgments of the Constitutional Court           In its decision of 10 December 1986 the Constitutional Court annulled Section 1 para. 1 (1) of the 1955 Act, according to which sales contracts or other legal transactions of domestic land are subject to land acquisition tax.           In its reasoning the Constitutional Court referred to its considerations in its decision to introduce norm control proceedings.   It stated the following:   "... the Constitutional Court has one further doubt about the constitutionality of the basic elements determining liability to land acquisition tax, which it has not yet considered in its case-law on the subject: it seems that liability to land acquisition tax, which may be explained primarily in fiscal terms, is open to a large number of casuistic exceptions, leading, as is well-known to the court, both on the part of tax-payers (collectively) and on the part of the public authorities, to enormous administrative expenditure which is out of proportion to the proceeds from the tax.   This seems to contradict the principle of objectivity deriving from that of equality laid down in the Federal Constitution insofar as it appears in general to preclude efficient administrative activity based on the criteria of economy, expediency, and appropriateness".           The Constitutional Court decided that the annulled provisions should continue to apply to any cases based on facts which occurred before 30 November 1987, not, however, to proceedings in which an appeal was pending on 22 November 1986 (i.e. the day of the announcement of the hearing before the Constitutional Court) or in which a complaint has been lodged with the Administrative Court (Verwaltungsgerichtshof) before 5 December 1986, 10.30 a.m. (i.e. the beginning of the hearing before the Constitutional Court).           On 10 March 1987 the Constitutional Court annulled Section 1 para. 1 (2) of the 1955 Act, according to which the acquisition of property is subject to land acquisition tax, if no legal transaction creating a claim to transfer preceded.   The Constitutional Court gave the following reasoning for declaring this provision unconstitutional:   "By decision of 10 December 1986 ... the Constitutional Court annulled Section 1 para. 1 (1) of the Land Acquisition Taxation Act as being unconstitutional.   It had found this provision contrary to the principle of equality with regard to the lack of objectivity in the exemptions from the liability to tax provided for in Section 4 para. 1 (7) (a) of the Land Acquisition Taxation Act.   The same must apply to the present case.   The provision allowing exemptions - found to be contrary to the principle of equality - is not only relevant for the liability to land acquisition tax which is based on the conclusion of sales contracts or other legal transactions creating a claim to transfer of property (Section 1 para. 1 (1) of the Land Acquisition Taxation Act ...), but also for the acquisition of property where no legal transaction creating a claim to transfer of property preceded (Section 1 para. 1 (2) of the Land Acquisition Taxation Act).   Therefore the provision under examination is unconstitutional for the very same reasons which led to the annulment of Section 1 para 1 (1) in the repeatedly quoted decision G 167/86."             According to the decision the annulled provision should continue to apply to any cases based on facts prior to 30 November 1987.   However, it would not apply to proceedings in which an appeal was pending on 27 January 1987 (announcement of the hearing) or in which a complaint has been lodged with the Administrative Court before 10 March 1987 (day of the hearing before the Constitutional Court).   COMPLAINTS   1.       The applicant alleges that the taxation on the basis of the annulled 1955 Land Acquisition Taxation Act violated his rights under Article 1 of Protocol No. 1 to the Convention.   He submits in particular that the 1955 Act had been declared unconstitutional, but continued to be in force and could not be challenged by the applicant in the circumstances of his case.   2.       He also complains under Article 14 of the Convention about discrimination in that the Constitutional Court exempted only a group of cases from the application of the annulled law, namely those in which an appeal was pending or a complaint to the Administrative Court was lodged.   3.       The applicant further claims under Article 13 of the Convention that he did not have an effective remedy to challenge the taxation based on an unconstitutional law.   4.       Finally, the applicant complains that in the proceedings before the Constitutional Court, he did not have a fair and oral hearing within the meaning of Article 6 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 4 June 1989 and registered on 8 September 1989.           On 4 December 1989 the Commission decided to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.           The Government submitted their observations on 12 March 1990 and the applicant replied on 25 April 1990.     THE LAW   1.       The applicant complains that he was required to pay tax under the 1955 Land Acquisition Taxation Act although the Constitutional Court had annulled the relevant provisions of this Act as being unconstitutional.   He considers that there has been a violation of his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention, which reads as follows:   "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."           The Government submit that the taxation of the applicant's acquisition was lawful as Section 1 para. 1 (2) of the 1955 Act was still in force when the acquisition took place.           The Commission first of all observes that the second paragraph of Article 1 of Protocol No. 1 (P1-1) expressly leaves unimpaired the State's right to enforce such laws as it deems necessary to secure the payment of taxes.   Therefore, the duty to pay tax falls within its field of application (cf.   Eur.   Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 30).           The Commission further notes that the Constitutional Court had annulled the relevant provision on 10 March 1987, ruling that it should continue to apply until 30 November 1987.   It follows that Section 1 para. 1 (2) of the 1955 Act was in force on 17 December 1986 when the applicant acquired the land in question.           The Commission observes that the finding of unconstitutionality did not make the application of the 1955 Act to the present case unlawful, as it remained part of the Austrian legal system until 30 November 1987.   It follows that the applicant's complaint of unlawful taxation under Article 1 of Protocol No. 1 (P1-1) of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art.27-2) of the Convention.   2.       The applicant also complains under Article 1 of Protocol No. 1 (P1-1) in conjunction with Article 14 (Art. 14) of the Convention about discrimination in that the Constitutional Court exempted only a group of cases from the application of the annulled law.   He also submits that the 1955 Act itself was discriminatory within the meaning of Article 14 (Art. 14) of the Convention.           The Government contend that neither the decision of the Constitutional Court nor the 1955 Act itself were discriminatory.           The Commission recalls that a treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.   In this respect the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (Eur.   Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 66 et seq., para. 177).           The Commission further recalls that the prohibition against discrimination under Article 14 (Art. 14) of the Convention is also applicable in relation to taxation (Application No. 11089/84, Lindsay v. the United Kingdom, Dec. 11.11.86; Eur.   Court H.R., Darby judgment of 23 October 1990, Series A no. 187, p. 12, para. 30).           The Commission notes that the exemption by the Constitutional Court's ruling was based on Article 140 para. 7 of the Austrian Federal Constitution according to which a law shall continue to apply to the circumstances that have occurred before the annulment decision, the case in point excepted, unless the Court in its judgment decides otherwise.   If the Court has in its judgment set a time-limit, the law shall apply to all the circumstances occurring, the case in point excepted, until the expiry of this time-limit.   According to Article 140 para. 5 of the Federal Constitution the Constitutional Court may set a time-limit for the repeal of up to one year.           In its judgment of 10 March 1987, the Constitutional Court fixed a time-limit of nearly nine months, which means that the annulled legislation continued to apply until 30 November 1987.           The Commission notes that the Constitutional Court's decision affected all cases the circumstances of which occurred before the annulment entered into force except those which were pending before a higher instance at a certain stage of the Constitutional Court's proceedings.           As a consequence the Commission considers that, by exempting cases in which an appeal was pending on certain dates and by setting a time-limit, the Constitutional Court laid down an interim regulation of general application which was neither arbitrary nor based on any criteria of personal status incompatible with Article 14 (Art. 14) of the Convention.           The Commission furthermore recalls the finding of the Constitutional Court that Section 1 para. 1 (2) of the 1955 Act was annulled as the exemption allowed by Section 4 para. 1 (7) (a) of the Act was unreasonable and therefore the basic provision was contrary to the principle of objectivity deriving from that of equality laid down in the Austrian Federal Constitution.           The applicant has not produced any evidence to show that persons in a situation similar to his who acquired their land but did not get a decision before 10 March 1987 were treated under that Act in a way different from that in which he was treated.           The Commission, therefore, cannot find that the applicant could not enjoy his right of property without discrimination on any of the grounds mentioned in Article 14 (Art. 14) of the Convention.           The Commission therefore concludes that the applicant's complaint of discriminatory taxation is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant further complains that he did not have an effective remedy within the meaning of Article 13 (Art. 13) by which he could have challenged the allegedly discriminatory legislation applied to him.   Article 13 (Art. 13) provides:   "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."         The applicant submits that the Constitutional Court having ruled on the effect of the relevant legislation, and his own application to that Court having been rejected, he had no effective remedy.           The Commission recalls the case-law of the Convention organs according to which Article 13 (Art. 13) does not go so far as to guarantee a remedy allowing a legislative act as such to be challenged on the ground of being contrary to the Convention or to equivalent domestic norms (cf.   Eur.   Court H.R., James and Others judgment of 21 February 1986, Series A no. 98, p. 47, para. 85; Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 74, para. 206).           The Commission therefore concludes that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant finally complains that the Constitutional Court's proceedings violated Article 6 (Art. 6) of the Convention. Article 6 (Art. 6), insofar as relevant, reads as follows:   "1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..."           The Commission recalls that disputes as to the liability for payment of taxes do not fall within the ambit of Article 6 (Art. 6) of the Convention.   The proceedings before the Constitutional Court therefore also fall outside the scope of application of Article 6 (Art. 6) of the Convention.           It follows that this complaint is incompatible with the provisions of the Convention ratione materiae and must be rejected according to Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, by a majority,             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission                (H.C. KRÜGER)                              (C.A. NØRGAARD)