CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1992

.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. 15375/89                       by GASUS DOSIER-UND FÖRDERTECHNIK GmbH                       against the Netherlands             The European Commission of Human Rights sitting in private on 21 October 1992, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   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 6 July 1989 by GASUS DOSIER-UND FÖRDERTECHNIK GmbH against the Netherlands and registered on 16 August 1989 under file No. 15375/89;             Having regard to;        -   the observations submitted by the respondent Government on 13 March 1991 and the observations in reply submitted by the applicant on 11 June 1991;        -   the submissions of the parties at the hearing on 21 October 1992;           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, Gasus Dosier und Fördertechnik GmbH (hereinafter referred to as "Gasus"), is a German private company with limited responsibility, having its registered office in Würzburg, Germany. Before the Commission the applicant is represented by J.E. van der Wolf, a lawyer practising in Soest, the Netherlands.         The facts of the case, as submitted by the parties, may be summarised as follows.         In June 1980 Gasus sold a concrete mixing machine to Atlas Junior Beton B.V. (hereinafter referred to as "Atlas"), a Dutch company with limited responsibility in Leiderdorp, the Netherlands.   The transaction was concluded under the condition that the ownership of the machine would be transferred to Atlas after the purchase price had been fully paid by Atlas to Gasus (eigendomsvoorbehoud).   Following a down payment, the machine was delivered to Atlas on 28 July 1980.   On 31 July 1980, whilst the machine was being installed, the movable property found on Atlas' premises, including the concrete mixing machine, were seized (bodembeslag) on the order of the Collector of Direct Taxes (Ontvanger der Directe Belastingen) in Leiden by virtue of Article 16 para. 3 of the Direct Taxes Collection Act of 22 May 1845 (Wet op de invordering van 's Rijks directe belastingen - hereinafter referred to as the "1845 Collection Act") for Atlas' failure to pay taxes.   Gasus was not informed about this seizure and continued installing the concrete mixing machine, which was completed on 2 August 1980.         On 16 October 1980 Atlas was granted a provisional moratorium (voorlopige surséance van betaling) as it could no longer meet its financial obligations and a conservator (bewindvoerder) was appointed. On 23 October 1980 a meeting took place at the office of Atlas' conservator between Atlas, Van Baarsen Wandplaten B.V. (hereinafter referred to as "Van Baarsen"), the tax authorities and the National Investment Bank, the latter being the fiduciary owner of Atlas' assets. During this meeting all parties agreed to the sale of all of Atlas' assets, part of which was seized by the tax authorities, to Van Baarsen for a total amount of 500,000 Dutch guilders.   It was agreed that this transaction would not include goods on which third parties could still exercise any rights.   It was furthermore agreed that one half of the proceeds of this transaction would be paid to the National Investment Bank and the other half to the tax authorities.   The turnover tax Van Baarsen paid on this amount to Atlas was not divided nor paid to the tax authorities who had agreed this amount would remain on Atlas' account.   The sale and delivery of the sold assets, including the concrete mixing machine, took place on the same day.         On 30 October 1980 Atlas was declared bankrupt.         The Government state it was agreed that the seizure by the tax authorities would be rescinded as soon as the tax authorities would have received their share of the proceeds of the sale, i.e. 250.000 Dutch guilders.   This amount was received on 25 August 1981.   The Government further state that on 23 October 1980 the tax authorities were unaware of Gasus' retention of title.         The applicant company states that it has never been informed that the seizure was rescinded on 25 August 1981.   In this connection it refers to a specific statement made by the tax authorities in 1983 in the national proceedings on this issue to the effect that, since it had become clear that Atlas did not own the concrete mixing machine, the latter was not one of Atlas' assets and the tax authorities could continue to apply the right of possession pursuant to Article 16 para. 3 of the 1845 Collection Act (bodemrecht).   The tax authorities added they did not object to the use of the concrete mixing machine by Van Baarsen pending the outcome of the proceedings on the seizure.         On the learning of the fate of the concrete mixing machine, Gasus filed on 4 March 1981 an objection (bezwaarschrift) against the seizure.   The Director of Direct Taxes (Directeur der Directe Belastingen) rejected the objection on 15 May 1981, primarily for having been submitted out of time and subsidiarily as in any event there were no grounds for rescinding the seizure.   Against this decision no appeal is possible.         By summons of 22 May 1981 Gasus started civil proceedings before the Regional Court (Arrondissementsrechtbank) of Utrecht against the Receiver (curator) of Atlas and Van Baarsen demanding that the concrete mixing machine be returned to Gasus.         Furthermore, by summons of 17 September 1981, Gasus started civil proceedings before the Regional Court of The Hague against the tax authorities, the Receiver of Atlas and Van Baarsen, complaining, inter alia, that the seizure was unlawful and that Gasus' rights under Article 6 para. 1 of the Convention had been violated as Article 16 para. 3 of the 1845 Collection Act excludes the possibility for a third party to have the seizure at issue examined by a court.         On 21 December 1983 the Regional Court of The Hague rejected Gasus' complaints.   Gasus' appeal was rejected by the Court of Appeal (Gerechtshof) of The Hague on 3 December 1986.         Gasus' subsequent appeal in cassation to the Supreme Court (Hoge Raad) was rejected on 13 January 1989.   The Supreme Court considered, inter alia, that the possibility for a third party to submit an objection against seizure of his goods to a civil judge is in principle limited to the question whether the conditions of Article 16 para. 3 of the 1845 Collection Act for its applicability have been met, whereas for other complaints third parties can file an objection with the Director of Direct Taxes.   The Supreme Court also considered that it is open to a third party to start civil proceedings in case he is of the opinion that a decision by the Director of Direct Taxes constitutes a tort.         The Supreme Court concluded that in view of these possibilities the requirements of Article 6 para. 1 of the Convention had been complied with.         Insofar as the applicant company relied on Article 1 of Protocol No. 1, the Supreme Court held that this provision was not violated as Article 16 para. 3 of the 1845 Collection Act can be seen as a legal provision, which the State deems necessary to secure the payment of taxes in the sense that this payment will not be frustrated by a reservation of ownership (eigendomsvoorbehoud) of a third party- supplier.         In view of the Supreme Court's decision the applicant company withdrew its proceedings against the Receiver and Van Baarsen before the Regional Court of Utrecht.           As, in Gasus' opinion, the concrete mixing machine has lost by now all its value, it started civil proceedings against the tax authorities, claiming compensation for the loss of the machine, which proceedings are still pending.     DOMESTIC LAW AND PRACTICE         Article 16 of the 1845 Collection Act deals with a specific form of seizure of assets of tax debtors, by the tax authorities (hereinafter referred to as "bodemrecht") in case a tax-debtor fails to pay due taxes.   It gives the tax authorities the right to seize, without a prior judicial authorisation, and subsequently to sell goods, which are situated on the premises of the tax-debtor at the time of the seizure of assets, regardless of who owns these goods.         Article 16 of the 1845 Collection Act provides:   <Translation>         "1.   Third parties, who claim to have a full or partial       right to movable goods which have been seized in view of a       tax debt, can address an objection to the Director of       Direct Taxes, on the condition that the objection is       submitted before the sale and at the latest within seven       days, to be calculated from the date of the seizure.   The       objection will be submitted to the Receiver, who will       provide an acknowledgement of receipt.   The Director will       take a decision as soon as possible.   The sale may not take       place earlier than eight days after the notification of       this decision to the objector and to the person against       whom the seizure is directed, with a further determination       of the day of the sale.         2. By submitting an objection within the meaning of the       previous paragraph, the party concerned does not forfeit       the right to submit his objection to the ordinary judge.         3. Apart from the right of objection, granted by Article       2014 of the Civil Code and by Article 230ff. of the       Commercial Code, third parties, however, may never legally       object to the seizure of assets in connection with taxes,       with the exception of land-tax, if the harvested or not yet       harvested fruits, or movable goods used as furnishings of       a house or farmstead, or for construction or use of the       land, are situated on the premises of the tax-debtor       concerned at the time of the seizure of assets."         Under "premises" is understood a plot or part of a plot of land, which, regardless for what purpose, is in use by the tax-debtor and which he has, independently of others, at his disposal.   Under "furnishings" is understood everything involved in the use of the plot in accordance with its purpose, such as, inter alia, all movable fixtures and fittings, including movable machinery.   It does, however, not include stocks, raw and auxiliary materials and finished goods. During the seizure, an owner can continue to use the seized goods.           The tax authorities have formulated certain criteria for the application of the "bodemrecht", due regard being paid to the interests of genuine property rights of third parties.   These criteria are laid down in Section 30 para. 9 of the Collection Guidelines (Leidraad Invordering-Resolutie van 8 december 1961, nr. B 1/18516) of the Ministry of Finance.         According to these guidelines the application of the "bodemrecht" on the goods of a third party is, in general, justified when, inter alia, the goods are legally owned by a third party mainly in order to exclude the application of the "bodemrecht" or to establish a preferential recovery right for creditors, such as for instance when a supplier of goods retains the ownership of delivered goods.         On 1 June 1990 the 1990 Collection Act and new Collection Guidelines came into force, slightly altering the legal situation with respect to the "bodemrecht".   The position of owners by way of retention of title under the new Act and Collection Guidelines has remained unchanged.     COMPLAINTS   1.     The applicant company complains under Article 6 para. 1 of the Convention that it received no fair trial by an independent and impartial tribunal in the determination of its property rights.   2.     The applicant company also complains under Article 1 of Protocol No. 1 that it was unjustly deprived of its possessions without any compensation.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 6 July 1989 and registered on 16 August 1989.         On 7 November 1990 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were submitted on 13 March 1991 and the applicant's observations in reply were submitted on 4 June 1991.         On 11 May 1992 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.         The hearing took place on 21 October 1992.         The parties were represented as follows:             For the Government     -      Mr. K. DE VEY MESTDAGH, Agent of the Netherlands Government   -      Mr. H.D.O. BLAUW, Counsel   -      Mr. A. VAN EIJSDEN, Adviser, Ministry of Finance   -      Mr. A. VAN VLIET, Adviser, Ministry of Finance           For the applicant   -      Mr. J.E. VAN DER WOLF, Counsel   -      Mr. H.-J. LEUSCHNER, Director and shareholder of the       applicant company   -      Mrs. C. LEUSCHNER, shareholder of the applicant company     THE LAW         The applicant company complains under Article 6 para. 1 (Art. 6-1) of the Convention that it received no fair trial by an independent and impartial tribunal in the determination of its property rights.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "1.   In the determination of his civil rights and       obligations (...) everyone is entitled to a fair (...)       hearing (...) by an independent and impartial tribunal       (...)."         The Government submit that both the Court of Appeal and the Supreme Court assessed the alleged unlawfulness of the seizure and that the Supreme Court in particular examined in detail the question of whether the applicant company had access to an independent and impartial tribunal.   The Government state that an owner, who considers that the tax authorities have unjustly exercised the "bodemrecht", can seize the civil courts not only for an examination of the question whether the conditions for the application of the "bodemrecht" have been met, but also whether the tax authorities have respected the directives of the Collection Guidelines.   The Government subscribe to the Supreme Court's opinion that the means of defence before an independent and impartial court against the action of the tax authorities available to the owner of seized assets are such that the requirements of Article 6 para. 1 (Art. 6-1) of the Convention are met.         The applicant company maintains that it could not have the seizure of its concrete mixing machine examined on the merits by an independent and impartial tribunal as the 1845 Collection Act reserves this to the Director of Direct Taxes.   According to the applicant the domestic courts limited their examination of the seizure to the question whether the concrete mixing machine was eligible for seizure under the Collection Act and did not examine the lawfulness of the seizure.         The Commission notes that under Dutch Law the applicant could, and in fact did, seize the civil courts in order to challenge the application of the "bodemrecht" by the tax authorities, in which proceedings the civil courts do not only examine the question whether the seizure has taken place in accordance with the applicable statutory provisions but also whether the policy rules in the Collection Guidelines have been respected by the tax authorities.         The Commission further notes that, according to the Supreme Court's judgment of 13 January 1989, an owner of goods seized under the 1845 Collection Act has the possibility of recourse to the civil courts when such an owner considers that a decision by the Director of Direct Taxes constitutes a tort.         The Commission is, therefore, of the opinion that the possibilities to have an application of the "bodemrecht" examined by a civil court meet the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant company complains under Article 1 of Protocol No. 1 (P1-1) that it was unjustly deprived of its possessions without any compensation.         Article 1 of Protocol No. 1 (P1-1) provides 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 are primarily of the opinion that the applicant has insufficiently exhausted the domestic remedies in respect of the complaint under Article 1 of Protocol No. 1 (P1-1) by explicitly having denied its applicability in the proceedings before the Regional Court and the Court of Appeal, whereas, although the applicant did raise this complaint before the Supreme Court, it only did so in a general way. According to the Government there was, therefore, no "in depth" discussion on this point in the civil proceedings at issue.         The applicant company considers that the domestic remedies in respect of its complaint under Article 1 of Protocol No. 1 (P1-1) have been exhausted, despite the applicant's initial denial of the applicability of this provision.   It submits that, as the tax authorities relied on this provision in their submissions to the Court of Appeal, the court examined the seizure in the light of Article 1 of Protocol No. 1 .   The applicant company further submits that also the Supreme Court dealt with the complaint under Article 1 of Protocol No. 1 (P1-1), inter alia, on the basis of the   applicant's submissions to the Supreme Court in which it explicitly referred to this provision.         The Commission recalls that the exhaustion of domestic remedies requires that a complaint made before the Commission must have been raised, at least in substance, in the domestic proceedings (cf. No. 12717/87, Dec. 8.9.88, D.R. 57 p. 196), since it falls first to the national authorities to redress any alleged violation of the Convention (cf. No. 10668/83, Dec. 13.5.87, D.R. 52 p. 177).         The Commission notes that the applicant company does not dispute that it denied the applicability of Article 1 of Protocol No. 1 (P1-1) before the Regional Court and the Court of Appeal.   Nor do the Government contest that the Court of Appeal nevertheless examined the "bodemrecht" in the light of Article 1 of Protocol No. 1 (P1-1) following the tax authorities' reference to this provision in their submissions to the Court of Appeal.   The Commission further notes that the applicant complained before the national courts that it was unjustly deprived of its possessions, whereas both the Court of Appeal and the Supreme Court examined this complaint under Article 1 of Protocol No. 1 (P1-1), the latter court on the basis of, inter alia, the applicant's submissions under this provision to the Supreme Court.         In these circumstances the Commission is satisfied that the domestic courts did in fact deal with this complaint in substance and, therefore, considers that this complaint cannot be rejected under Article 26 ((Art. 26) of the Convention for non-exhaustion of domestic remedies.         As to the substance of the applicant's complaint under Article 1 of Protocol No. 1 (P1-1) the Government primarily argue that this provision does not apply to security rights, such as ownership through retention of title.   The Government consider that, therefore, the concrete mixing machine at issue cannot be regarded as Gasus' "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1).         The Government, alternatively, argue that if the concrete mixing machine should be considered as a "possession" within the meaning of Article 1 of Protocol No. 1 (P1-1), there has been no deprivation of the applicant's possessions as the machine was sold by Atlas to Van Baarsen.   The applicant company retained its total claim on Atlas.   The Government considers that the tax authorities cannot be held responsible for either the sale of the concrete mixing machine or for the fact that the Gasus' claim lost most of its value as a result of Atlas' subsequent bankruptcy.   The Government are of the opinion that this complaint falls under para. 2 of Article 1 of Protocol No. 1 (P1-1-2), which paragraph entitles Contracting States to enforce such laws as they deem necessary to control the use of propertly in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.         According to the Government the margin of appreciation Contracting States enjoy under this provision implies that Contracting States can impose restrictions on forms of ownership as security, such as retention of title, by statutory means.   The Government, therefore, conclude that the application of the "bodemrecht" did not violate one of the applicant's rights under Article 1 of Protocol No. 1 (P1-1).         The applicant company refutes the Government's interpretation of "possession" and argues that it is the legal owner of the seized concrete mixing machine.   In its view ownership entails the right to voluntarily restrict the enjoyment of possessions, including selling a possession under retention of title and reclaiming it when necessary. The applicant company further submits that it was, in fact, deprived of its possessions as its concrete mixing machine was seized by the tax authorities and subsequently sold following the tax authorities' consent thereto, these authorities having received 250,000 Dutch guilders from the proceeds of this sale.   Concerning para. 2 of Article 1 of Protocol No. 1 (P1-1) the applicant is of the opinion that Contracting States may place limitations, provided for by law, on the enjoyment of possessions.   The "bodemrecht", however, is a preferential right of the tax authorities aimed at selling certain goods for the payment of taxes due, even if those goods legally do not belong to the tax debtor but to someone else.   The applicant company add that if the application of the "bodemrecht" is to be considered as possible under para. 2 of Article 1 of Protocol No. 1 (P1-1-2), it should be limited to the right to seize and sell a tax debtor's own possessions and should not include the right to seize and sell possessions of third parties.         The applicant company maintains that it was unjustly deprived of its possessions, for which deprivation the Netherlands authorities may be held responsible, and that it did not receive any compensation for this deprivation of foreign property by the Netherlands authorities.         After an examination of the parties' submissions, the Commission considers that the present complaint raises questions of fact and law of such complexity that their determination requires an examination of the merits.   This complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds of inadmissibility have been established.         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the applicant company's complaint that it has been unjustly       deprived of its possessions without any compensation;         DECLARES INADMISSIBLE the applicant company's complaint       that its property rights were not determined by an       independent and impartial tribunal.       Secretary to the Commission             President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)