Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30378/96

by Klaus LINDNER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 February 1996

by Klaus LINDNER against Germany and registered on 5 March 1996 under

file No. 30378/96;

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, born in 1945, is a German national and resident

in Berlin. He is a lawyer and public notary by profession.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

For failure to declare any advance turnover tax

(Umsatzsteuervoranmeldung) for the period between September and

December 1992, the Göttingen Tax Office (Finanzamt) assessed the

applicant's turnover for the relevant period on the basis of the last

year's figures and fixed the amount of the advance turnover tax due on

that basis. In default of payment, the Tax Office subsequently

enforced its decision.

In 1993 the applicant instituted official liability proceedings

before the Göttingen Regional Court (Landgericht) against the Land

Lower Saxony and Germany in respect of breach of official duties

(Amtspflichtverletzung), namely for failure to duly increase lawyers'

fees (Rechtanwaltsgebühren). He submitted that since 1989 he had not

been able to derive any income from his professional activities on the

ground that lawyers' fees as fixed in the relevant legal provisions had

considerably dropped in value in consequence of an increase in cost of

living. He had no taxable income and was not, therefore, obliged to

pay turnover tax.

On 29 July 1993 the Regional Court dismissed the applicant's

action. The Court found that the enforcement proceedings by the

Göttingen Tax Office had been lawful. The applicant had been obliged

to pay the relevant advance turnover tax which did not depend on his

earnings. He merely had to forward the turnover tax payable by his

clients to the Tax Office. In respect of the official liability claims

for the legislator's alleged failure to adjust the scales of lawyers'

fees, the Court found that the Federal Scale of Lawyers' Fees

(Bundesgebühren-ordnung für Rechtsanwälte) generally regulated issues

relating to lawyers' fees. Under its provisions, the individual lawyer

had a subjective right vis-à-vis his client to the payment of his fees,

but no subjective right vis-à-vis the legislator to the fixing of a

particular scale of fees.

On 7 June 1994 the Celle Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal (Berufung). The Court of Appeal

confirmed the lawfulness of the enforcement proceedings. It rejected

the applicant's argument that he was entitled to retain the turnover

tax as long as lawyers' fees had not been duly increased. Moreover,

the Court of Appeal confirmed the first instance court reasoning that

he had no official liability claim arising of the allegedly belated

adjustment of lawyers' fees.

On 15 December 1994 the Federal Court of Justice

(Bundesgerichtshof) dismissed the applicant's request that counsel be

appointed for him on the ground that his envisaged appeal on points of

law (Revision) offered no prospect of success.

On 20 September 1995 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to entertain the applicant's

constitutional complaint (Verfassungsbeschwerde).

B. Domestic law

The lawyers' fees are regulated in the Federal Scale for Lawyers'

fees. According to S. 7, these fees are, as a rule, calculated with

regard to the matter to which the lawyer's professional activity

relates (Gegenstandswert) and determined on the basis of the legal

provisions on the fixing of court fees. The minimum amount of a

lawyer's fee and its increase in relation to the matter, i.e. the

amounts of claims involved, are laid down in S. 11, as amended in

June 1994. Upon the request of the lawyer, the amount of his fees is

fixed in proceedings before the court of first instance dealing with

the initial proceedings (S. 19).

COMPLAINTS

The applicant complains that he had no access to a court and no

effective remedy to complain that the German legislator failed to

provide for a sufficient increase of the lawyers' fees. He submits

that in the context of the compensation proceedings instituted by him,

this matter could not be resolved. He also complains that he has to

pay turnover tax irrespective of his lack of income. He invokes

Articles 6 and 13 of the Convention.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention that he had no access to a court with a view to ensure an

appropriate increase in lawyers' fees, as laid down in the Federal

Scale for Lawyers' Fees.

Article 6 para. 1 (Art. 6-1), as far as relevant, provides as

follows:

"In the determination of his civil rights ..., everyone is

entitled to a ... hearing ... by an independent and impartial

tribunal established by law. ..."

The Commission recalls that Article 6 para. 1 (Art. 6-1)extends

only to "contestations" (disputes) over (civil) "rights and

obligations" which can be said, at least on arguable grounds, to be

recognised under domestic law; it does not in itself guarantee any

particular content for (civil) "rights and obligations" in the

substantive law of the Contracting States. Article 6 para. 1

(Art. 6-1) does not require that there be a national court with

competence to invalidate or override national law (cf. Eur. Court HR,

James and Others v. the United Kingdom judgment of 21 February 1986,

Series A no. 98-B, p. 46, para. 81).

In the present case the applicant had, pursuant to the relevant

legislation, unimpeded access to the German courts regarding any

dispute with a client as to lawyers' fees due under the Federal Scale

of Lawyers' Fees in force. The Commission further notes that he could

address himself to the German civil courts regarding his official

liability claims, both as to the alleged unlawfulness of the tax

enforcement proceedings and the adjustment of the lawyers' fees.

However, the courts found that under German law he had no subjective

right that the legislator should fix a particular scale for lawyers'

fees.

In these circumstances the Commission finds no indication of a

breach of Article 6 para. 1 (Art. 6-1.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. With regard to the above issue, the applicant also invokes

Article 13 (Art. 13) of the Convention, which 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."

Article 13 (Art. 13) requires that "where an individual has an

arguable claim to be the victim of a violation of the rights set forth

in the Convention, he should have a remedy before a national authority

in order both to have his claim decided and, if appropriate, to obtain

redress" (Eur. Court HR, James and Others judgment, op. cit., p. 47,

para. 84).

In the present case, the Commission considers that the

applicant's submissions regarding the German legislator's alleged

failure duly to adjust lawyers' fees does not fall within the ambit of

any of the rights under the Convention or its Protocols. In any event,

the Commission recalls that Article 13 (Art. 13) does not go so far as

to guarantee a remedy allowing a Contracting State's laws as such to

be challenged before a national authority on the ground of being

contrary to the Convention or to equivalent domestic legal norms (Eur.

Court HR, James and Others judgment, op. cit., p. 47, para. 85; The

Holy Monasteries v. Greece judgment of 9 December 1994, Series A no.

301-A, p. 39, para. 90).

The Commission, therefore, finds that there is no appearance of

a breach of Article 13 (Art. 13) in the applicant's case.

Consequently, this part of the application is likewise manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. As regards the remainder of the applicant's submissions, in

particular his obligation to pay turnover tax, the Commission finds no

indication of a violation of his rights under the Convention and its

Protocols. Consequently, this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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LINDNER v. GERMANY

LINDNER v. GERMANY