Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30128/96

by F. S.

against Germany

The European Commission of Human Rights (First Chamber) sitting

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

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 9 October 1995 by

F. S. against Germany and registered on 7 February 1996 under file

No. 30128/96;

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 1923, is a Dutch national and resident in

Doorwerth, the Netherlands. He is a retired consultant by profession.

In the proceedings before the Commission, he is represented by

Mr. R. Stahl, a lawyer practising in Cologne.

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

summarised as follows.

In 1986 the Wetzlar Tax Office (Finanzamt) commenced preliminary

investigations on suspicion of tax evasion against Mr. M., the

applicant's son-in-law, resident in Germany. On 3 September 1986, on

the basis of a search warrant issued by the Wetzlar District Court

(Amtsgericht) on 18 August 1986, officers of the Wetzlar Tax Office

searched Mr. M.'s premises in Büdingen. Several letters addressed to

the applicant were found, opened and read, and seized. They contained

information about various banking accounts. Thereupon, the banking

institutes concerned were requested to submit further information. The

appeals lodged by Mr. M. and also the applicant against the search and

seizure were to no avail. The Wetzlar District Court, relying on

SS. 94 and 98 para. 2 of the Code of Criminal Procedure (Straf-

prozeßordnung), confirmed the seizure by order of 9 February 1987. In

the ensuing investigations, the documents in question were found to be

irrelevant and the originals were returned on 29 January 1990.

Subsequently the Federal Ministry of Finance informed the

applicant that it intended to submit information and documents to the

Dutch tax authorities on his assets, namely his savings on various

banking accounts, as well as his capital income in the Federal Republic

of Germany.

On 20 April 1994 the Cologne Tax Court (Finanzgericht) dismissed

the applicant's request for an interim injunction (einstweilige

Anordnung) prohibiting the Tax Office from disclosing the information

in question to the Dutch authorities. The Court found that the German

authorities were entitled to forward the information in question

pursuant to S. 2 para. 2 of the EC Mutual Administrative Assistance Act

(EG-Amtshilfe-Gesetz). According to this provision, German tax

authorities could inform the tax authorities of another EC Member

State, on their own motion, about matters relevant for the assessment

of taxes if there were reasons to assume that taxes in that other State

were evaded. In the present case, there were such indications as

correspondence regarding the banking accounts concerned had been

exchanged via an address where the applicant had not been resident.

The Court, having regard to the general aim of the EC Mutual

Administrative Assistance Act, namely to support the correct assessment

of taxes in the EC Member States, also considered that the German tax

authorities were not prevented from forwarding the information which

had been lawfully obtained in the context of earlier tax evasion

proceedings.

On 17 May 1995 the Federal Tax Court (Bundesfinanzhof) dismissed

the applicant's appeal (Beschwerde). The Federal Tax Court confirmed

that the Federal Ministry of Finance was entitled to make available to

the Dutch tax authorities the information on the applicant's assets and

capital income. In particular, the storing of documents on the banking

accounts concerned with the applicant's son-in-law in Germany justified

the assumption that these documents were withheld from the Dutch

authorities for the purpose of evading taxes. Thus the conditions

under S. 2 para. 2 of the EC Mutual Administrative Assistance Act were

met. Moreover, there were no other impediments to the transmission of

the information in question. The information had been lawfully

obtained in the context of tax evasion proceedings, and it was

irrelevant that these proceedings had been conducted against a third

person. In the proceedings under the EC Mutual Administrative

Assistance Act the tax authorities were not competent to review the

lawfulness of the seizure orders issued by the competent courts. The

Federal Tax Court also considered that the intended transmission of

information did not entail any breach of the applicant's rights of

personal liberty. In this respect, the Court noted that the

information did not relate to any business secrets, nor could it

disparage the applicant in public. The Dutch authorities were bound

to use the information so obtained only for the purposes of tax

assessment. Finally, there was no disproportionality as the intended

transmission concerned information which the applicant would have had

anyway to provide to the Dutch tax authorities.

On 3 July 1995 the applicant informed the Federal Ministry of

Finance about his intention to file a constitutional complaint

(Verfassungsbeschwerde) with the Federal Constitutional Court (Bundes-

verfassungsgericht). On 18 July 1995 the Federal Ministry of Finance

replied that it had meanwhile transmitted the said information to the

Dutch authorities. The applicant's constitutional complaint was

received by the Federal Constitutional Court on 19 February 1995. On

12 November 1996 the Federal Constitutional Court refused to entertain

the applicant's constitutional complaint.

COMPLAINTS

The applicant complains that the Federal Ministry of Finance

transmitted information concerning his assets and capital income to the

Dutch authorities. He considers that there was a breach of his right

to respect for his private life under Article 8 of the Convention and

of his right to respect for his possessions under Article 1 of Protocol

No. 1.

THE LAW

1. The applicant complains that the transmission in question

violated his right to respect for his private life under Article 8

(Art. 8) of the Convention.

Article 8 (Art. 8), as far as relevant, provides as follows:

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

...

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 ... for the prevention of disorder or crime, ..."

The Commission recalls that the notion of private life is not

limited to an "inner circle" in which the individual may live his own

personal life as he chooses, but extends to relations with the outside

world and may include professional and business activities

(cf., mutatis mutandis, Eur. Court HR, Niemietz v. Germany judgment of

16 December 1992, Series A no. 251-B, pp. 33-34, paras. 29-31).

Moreover, issues of data protection may come within the scope of

Article 8 para. 1 (Art. 8-1) (cf., mutatis mutandis, Eur. Court. HR,

Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22,

para. 48).

The Commission therefore finds that the disclosure of information

on the applicant's assets and capital income to the Dutch tax

authorities amounts to an interference with his right under Article 8

para. 1 (Art. 8-1). Such interference violates Article 8, if it is not

justified under paragraph 2 of Article 8 (Art. 8-2) as being in

accordance with the law and necessary in a democratic society to

achieve one of the aims mentioned therein.

The Commission notes that the transmission of information in

question was based upon S. 2 para. 1 of the EC Mutual Administrative

Assistance Act. The Cologne Tax Court and the Federal Tax Court

confirmed the lawfulness of the impugned measure. The Commission finds

that the applicant's submissions do not disclose any non-observance of

the relevant legal provisions. Consequently, the interference was in

accordance with German law.

The Commission is of the opinion that the measure in question was

taken in the interest of the economic well-being of the country, and

also aimed at the prevention of crime.

It remains to be examined whether the interference was necessary

in a democratic society to accomplish the said aim.

The Commission recalls that, in Article 8 para. 2 (Art. 8-2) as

in several other provisions of the Convention, the phrase "necessary

in a democratic society" implies the existence of a "pressing social

need". The Contracting States enjoy a certain margin of appreciation

in assessing whether such a need exists, but this goes hand in hand

with a European supervision which covers the basic legislation and the

decisions applying it, even those given by an independent court

(cf. Eur. Court HR, Barfod v. Denmark judgment of 22 February 1989,

Series A no. 149, p. 12, para. 28; Silver and Others v. the United

Kingdom judgment of 25 March 1983, Series A no. 61, pp. 37-38,

para. 97).

The Commission must thus determine whether there were relevant

reasons for the transmission of the information in question, and

whether this measure was, in the particular circumstances of the case,

proportionate to the legitimate aims pursued.

In the present case, the Federal Ministry of Finance, on its own

motion, transmitted information on the applicant's assets and capital

income, which had been lawfully obtained in the context of tax evasion

proceedings against the applicant's son-in-law, to the Dutch tax

authorities for the purpose of reviewing the applicant's tax

assessments. The German authorities found that in the applicant's case

there were reasons to assume that he was evading taxes in the

Netherlands. The German tax courts also considered the general aim

of the underlying legislation, namely to support the correct assessment

of taxes in the EC Member States. The Federal Tax Court found no

disproportionality as the intended transmission concerned information

which the applicant would have had anyway to provide to the Dutch tax

authorities.

In these circumstances, the Commission, bearing in mind the

current trend towards strengthening international cooperation in the

administration of justice (see, mutatis mutandis, Eur. Court HR,

Soering v. the United Kingdom judgment of 7 July 1989, Series A

no. 161, p. 45, para. 113; Drozd and Janousek v. France and Spain

judgment of 26 June 1992, Series A no. 240, p. 34, para. 110), finds

that there were relevant and sufficient reasons for the measure

complained of.

Accordingly, the measure complained of can be considered to be

justified under Article 8 para. 2 (Art. 8-2) of the Convention.

It follows that this aspect of the application is manifestly

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

Convention.

2. The applicant has further invoked Article 1 of Protocol No. 1

(P1-1) with regard to the above matter.

The Commission finds that the impugned transmission of the

information on the applicant's assets and capital income does not, in

itself, amount to any interference with his right to the peaceful

enjoyment of his possessions within the meaning of Article 1 para. 1

of Protocol No. 1 (P1-1-1). To the extent that the applicant's

submissions could be understood as a complaint about the implication

of German authorities in the eventual imposition of taxes in the

Netherlands, the Commission observes that, pursuant to paragraph 2 of

this provision, the States may enforce such laws as they deem necessary

to secure the payment of taxes.

It follows that this part of the application is likewise

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

(Art. 27-2).

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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