Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24877/94

by Alfredo CASOTTI, Adolfo FLORIO

and the CONSIGLIO NAZIONALE DELL'ORDINE

DEI CONSULENTI DEL LAVORO

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 22 April 1994 by

Alfredo CASOTTI, Adolfo FLORIO and the CONSIGLIO NAZIONALE DELL'ORDINE

DEI CONSULENTI DEL LAVORO against Italy and registered on 10 August

1994 under file No. 24877/94 ;

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 first applicant is an Italian national, born in 1948 and

residing in Viareggio; he is a labour consultant ("consulente del

lavoro") by profession.

The second applicant is an Italian national born in 1944 and

residing in Potenza; he is also a labour consultant by profession.

The third applicant is the National Council of the Association

of Labour Consultants, a professional association having its seat in

Rome.

The three applicants are represented by Mr. Andrea Giardina,

Giovanni Puoti and Cesare Glendi, lawyers in Rome.

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

summarised as follows.

The first and second applicant have been working as consultants

in labour matters since 1978 and 1977 respectively.

The profession of labour consultant was regulated by Law no. 12

of 11 January 1979, according to which labour consultants deal, on

behalf of any employer, with any question relating to the

administration of personnel. They must enrol in a Register and their

activity is submitted to the control of Provincial Councils, which act

under the supervision of the National Council based in Rome.

According to Law no. 739/1981, which amended article 30 of Law

no. 636/1972, labour consultants, as well as other categories such as

lawyers and accountants, could represent their clients in all

proceedings before tax courts.

Law no. 413 of 30 December 1991 and Law Decree no. 546 of

31 December 1992 reduced the scope of competence of labour consultants

to the extent that the latter may represent their clients before tax

courts only in matters concerning the taxation at source in subordinate

and assimilated employment and the ensuing obligations for employers

("per le materie concernenti la ritenuta alla fonte sui redditi da

lavoro e assimilati e gli obblighi del sostituto d'imposta relativi

alle ritenute medesime"). Law no. 427 of 29 October 1993 extended the

competence to represent taxpayers before tax courts to other categories

of persons who did not possess the professional qualifications

previously required. This new regulation of legal representation before

tax courts entered into force on 1 October 1994.

COMPLAINTS

The applicants complain that, following the entry into force on

1 October 1994 of the new regulation of legal representation before tax

courts, which involves on the one hand the limitation of cases in which

labour consultants may represent their clients before tax courts and

on the other hand the possibility also for other persons who do not

meet the professional qualifications previously required, to represent

taxpayers in certain matters, their income will fall as will their

goodwill.

They allege a breach of Article 1 of Protocol no. 1 to the

Convention.

THE LAW

The three applicants complain that the reform of tax litigation,

involving on the one hand the limitation of cases in which labour

consultants may represent their clients before tax courts and on the

other hand the possibility for new categories of persons who do not

possess the professional qualifications previously required, to

represent taxpayers before tax courts in certain matters, has infringed

their rights under Article 1 of Protocol no. 1 (P1-1), according to

which:

"Every natural and 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".

1. Under Article 25 (Art. 25) of the Convention, "the Commission may

receive petitions ... from any person, non-governmental organisation

or group of individuals claiming to be a victim of a violation by one

of the High Contracting Parties of the rights set forth in this

Convention".

The Commission recalls that in order for applicants to be able

to avail themselves of this provision, they must fulfil two conditions:

they must fall into one of the categories of applicants referred to in

Article 25 (Art. 25) and they must have a claim to be a victim of a

violation of the Convention.

a) As regards the first and the second applicant, who are natural

"persons", the Commission notes that, although it has previously held

that Article 25 (Art. 25) of the Convention entitles individuals to

contend that a law violates their rights by itself, in the absence of

an individual measure of implementation, if they run the risk of being

directly affected by it (cf. Eur. Court HR, Marckx v. Belgium judgment

of 13 June 1979, Series A no. 31, p. 13, para. 27 and Johnston and

others v. Ireland judgment of 18 December 1986, Series A no. 112, p.

21, para. 42), in the present case the question whether these

applicants can claim to be "victims" is closely connected with the

substance of the complaint, so that the Commission will examine the two

questions together.

The Commission recalls that the Convention organs have constantly

held that Article 1 of Protocol no. 1 (P1-1) does no more than enshrine

the right to the peaceful enjoyment of existing possessions (cf. Eur.

Court HR, Marckx v. Belgium judgment of 13 June 1979, p. 23, para. 50).

Therefore, the issue arises in the present case as to whether

these two applicants have a vested right, a violation of which can be

considered as an interference with the peaceful enjoyment of their

possessions within the meaning of the above provision.

The applicants refer to the Van Marle judgment (cf. Eur. Court

HR, Van Marle and others v. the Netherlands judgment of 26 June 1986,

Series A no. 101), in which the Court held that the clientele built up

by self-employed professionals constitutes an asset and hence a

"possession", and argue that the law at issue will cause a fall in

their income and in the goodwill, which constitutes an interference

with their right to the peaceful enjoyment of their possessions.

The Commission notes that the profession of labour consultant is

a liberal one with no fixed income and no guaranteed turnover. It is

naturally subject to the hazards of economic life. The Commission also

recalls its previous case-law to the extent that future income

constitutes a "possession" within the meaning of Article 1 of Protocol

no. 1 (P1-1) only if the income has been earned or where an enforceable

claim to it exists (cf. Nos. 10438/83, Dec. 3.10.84, D.R. 41 p. 170;

24581/94, Dec. 6.4.95, D.R. 81 p. 123 and 29173/95, Dec. 15.5.96,

unpublished).

However, the Commission considers that it is unnecessary to

decide whether Article 1 of Protocol no. 1 (P1-1) is applicable in the

present case, as, even assuming that it is so, this part of the

application is inadmissible for the following reasons.

The Commission observes that the legislative provisions

complained of were designed to promote "general interest", namely to

structure the profession of labour consultant and the functioning of

tax-courts and at the same time to ensure the professional competence

of those who represent taxpayers before those courts.

Moreover, the Commission notes that the applicants have not

submitted any evidence supporting their allegations that their income

and the value of their clientèle have been so adversely affected by the

legislative reforms at issue, as to result in an unfair balancing of

interests.

The Commission considers therefore that, even assuming that there

has been an interference with the applicants' right to the peaceful

enjoyment of their possessions, such interference was justified in

terms of the second paragraph of Article 1 of Protocol no. 1 (P1-1).

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

founded and must be rejected in pursuance of Article 27 para. 2

(Art. 27-2) of the Convention.

b) As regards the National Council of the Association of Labour

Consultants, the Commission observes in the present case that it is not

the association as such which complains of its income diminishing as

a result of that legislation, but rather each of its members taken

individually (cf. Nos. 24581/94, Dec. 6.4.95, D.R. 81 p. 123 and

29173/95, Dec. 15.5.96, unpublished).

The Commission recalls its established case-law to the effect

that a professional association, incapable of claiming to be a "victim"

itself, cannot bring an application against a measure which affects its

members (cf. No. 9939/82, Dec. 4.7.83, D.R. 34 p. 213; No. 24581/94,

D.R. 81 p. 123).

It follows that the applicant association cannot claim that it

is itself a victim of a violation of the Convention. The remainder of

the application is thus incompatible ratione personae with the

provisions of the Convention and must be rejected in accordance with

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 to the First Chamber President of the First Chamber

Menu

CASOTTI, FLORIO AND THE CONSIGLIO NAZIONALE DELL' ORDINE DEI CONSULENTI DEL LAVORO v. ITALY

CASOTTI, FLORIO AND THE CONSIGLIO NAZIONALE DELL' ORDINE DEI CONSULENTI DEL LAVORO v. ITALY

LEXI