Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29189/95

by Peter GEDIN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 25 September 1995

by Peter GEDIN against Sweden and registered on 9 November 1995 under

file No. 29189/95;

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, a Swedish citizen born in 1945, resides in

Helsingborg. He is a self-employed lawyer.

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

summarised as follows.

In December 1993 the applicant submitted a value added tax (VAT)

declaration for September and October 1993 to the tax authorities,

indicating that the VAT received and the VAT paid during the period

totalled 7,749 and 1,241 Swedish crowns (SEK) respectively. The VAT

received was, under Section 42 of the Act on Value Added Tax (Lagen om

mervärdeskatt, 1968:430), payable to the tax authorities on 5 December

1993. The applicant did not pay, however. Basing itself on the

applicant's declaration, the tax authorities, on 7 February 1994, fixed

the applicant's VAT debt at SEK 7,749. Under Sections 51 and 52 of the

Act on Value Added Tax, the applicant may, within six years, appeal

against this decision to the administrative courts. He has not done

so, however.

On 20 April 1994, the debt still being outstanding, the tax

authorities registered the applicant as being in arrears with his

taxes. The register on taxes in arrears (restlängden) was sent to the

Enforcement Office (Kronofogdemyndigheten) in order to enforce the

payment of the debt. The Office ordered the applicant to pay before

10 May. On 11 May the VAT paid by the applicant during the period in

question - SEK 1,241 - was deducted from the VAT debt. On 30 May the

applicant paid the remainder of the debt.

When the register on taxes in arrears arrives at the Enforcement

Office the information is entered in an enforcement register

(utsökningsregister). The information in the latter register is kept

for three years and is normally available and accessible to anybody,

i.a. credit information agencies. It is regulated by the Enforcement

Register Act (Utsökningsregisterlagen, 1986:617).

In November 1994 the applicant applied for a mobile telephone

subscription. The telephone company made an inquiry at a credit

information agency and was informed of the registered VAT debt. The

subscription was therefore refused.

On 7 December 1994 the applicant requested the Enforcement Office

to delete the information on the VAT debt from the enforcement

register. He claimed that the debt had been erroneously registered as

he, at the time of the registration, had a larger counter-claim on the

tax authorities consisting of surplus payments of preliminary income

tax for 1993. He had allegedly been told by his accountant that the

VAT debt would be set off against this counter-claim. On 31 May 1994

the tax authorities had decided to reimburse the applicant for surplus

payments totalling SEK 11,599. The amount had been paid to the

applicant in June 1994.

By decision of 28 December 1994, the Enforcement Office refused

to delete the information on the VAT debt. The Office noted that the

debt had been registered due to the applicant's failure to pay in time.

The applicant appealed to the District Court (tingsrätten) of

Stockholm in accordance with the directions given by the Enforcement

Office. In an opinion submitted to the Court, the National Tax Board

(Riksskatteverket) maintained that, according to the applicable legal

provisions, appeals against decisions by the Enforcement Office should

be examined by the Board.

On 1 March 1995 the District Court, agreeing with the opinion of

the National Tax Board, dismissed the applicant's appeal.

On 22 June 1995 the National Tax Board rejected the applicant's

appeal against the Enforcement Office's decision. The Board noted that

the VAT paid by the applicant during the period in question had already

been deducted and that there was no legal basis for further set-offs.

Thus, the debt had been correctly entered in the enforcement register.

The Board's decision was final.

COMPLAINTS

1. The applicant claims that he has been subjected to "economic

slander", as the information originally registered by the tax

authorities and eventually made available to credit information

agencies was false. He does not invoke any Articles of the Convention

in this respect.

2. Under Articles 6 and 13 of the Convention, the applicant further

complains of a lack of access to court. He states that he wished to

bring before a court the question whether he had a valid counter-claim

on the tax authorities which would set off the VAT debt.

THE LAW

1. The applicant claims that he has been subjected to "economic

slander", as the information originally registered by the tax

authorities and eventually made available to credit information

agencies was false. He maintains that, by the registration of the VAT

debt, the tax authorities have deemed him not creditworthy, although

he was not insolvent. In any case, it is unreasonable that the debt

is registered for three years. The registration may have many adverse

effects for the applicant, as is shown by the telephone company's

refusal to give him a telephone subscription. The applicant does not

invoke any Articles of the Convention in this respect.

The Commission considers that this complaint is to be examined

under Article 8 (Art. 8) of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder and crime, for the protection of

health and morals, or for the protection of the rights and

freedoms of others."

The Commission first considers that the registration of the

applicant's VAT debt in the enforcement register available, inter alia,

to credit information agencies can as such be regarded as an

interference with the applicant's right to respect for his private life

as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

It must therefore be examined whether this interference was

justified under para. 2 of that provision. In this respect, the

Commission finds that it was in accordance with the law, in particular

the Enforcement Register Act, and had legitimate aims, namely the

economic well-being of the country and the protection of the rights of

others. The Commission further considers that access to information

of the kind registered in the applicant's case is of great importance

in modern economic life, not least to banks and other credit

institutions. Having regard to the margin of appreciation left to the

Swedish authorities, the Commission therefore considers that the

registration in question can reasonably be regarded as "necessary in

a democratic society" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

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. The applicant complains of a lack of access to court. He states

that he wished to bring before a court the question whether he had a

valid counter-claim on the tax authorities which would set off the VAT

debt. He invokes Articles 6 and 13 (Art. 6, 13) of the Convention.

Article 6 (Art. 6) reads, in so far as relevant, as follows:

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

is entitled to a ... hearing ... by [a] ... tribunal ..."

Article 13 (Art. 13) provides the following:

"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 Commission notes that when the applicant requested the

Enforcement Office and, on appeal, the National Tax Board, to delete

the information on the VAT debt from the enforcement register,

maintaining that the registration was erroneous, he effectively claimed

that the debt should have been set off by his larger counter-claim for

surplus payments of preliminary income tax. The issues raised by this

claim thus concerned the assessment of taxes.

The Commission recalls its established case-law according to

which Article 6 (Art. 6) is not applicable to proceedings regarding

taxation (cf., e.g., No. 11189/84, Dec. 11.12.86, D.R. 50 p. 121, and

No. 13013/87, Dec. 14.12.88, D.R. 58 p. 163).

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

As regards Article 13 (Art. 13) of the Convention, the Commission

recalls that it has been interpreted by the European Court of Human

Rights as requiring a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (cf., e.g., Boyle and Rice v. the United Kingdom judgment

of 27 April 1988, Series A no. 131, p. 23, para. 52).

Having regard to its findings with respect to the separate

complaints submitted, the Commission considers that the applicant does

not have an "arguable claim" of a violation of the Convention.

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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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GEDIN v. SWEDEN

GEDIN v. SWEDEN

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