Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26593/95

by Gerhard BARTOSCH

against Austria

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

I. BÉKÉS

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 17 February 1995

by Gerhard BARTOSCH against Austria and registered on 27 February 1995

under file No. 26593/95;

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 is an Austrian national born in 1964. He is a

shopkeeper and resides in Linz. Before the Commission the applicant

is represented by Mr. K. Krückl, a lawyer practising in Linz. The

facts of the case, as they have been submitted by the applicant, may

be summarised as follows.

The applicant owns a gift shop in Linz. It is situated in an

arterial road with heavy traffic lacking any attraction for tourists.

In 1992 the Upper Austria Regional Government (Landesregierung)

adopted Regulations on Groups of Compulsory Contributions

(Beitragsgruppenordnung) under the Upper Austria Tourism Act. The area

where the applicant's shop is located was thereby classified as zone 1

(likewise other parts of the town which are regularly visited by

tourists) on the ground that many cyclists coming to Linz passed that

way. The applicant thus became liable to pay, pursuant to Section 41

of the Tourism Act, a compulsory contribution of 0,05 per cent of the

sales in his shop, the minimum amount of the contribution being

400 Austrian schillings.

On 17 August 1993 the applicant was charged a compulsory

contribution of 400 Austrian schillings pursuant to Section 41 para. 3

of the Tourism Act. The contribution was increased by 10 per cent as

he had failed to pay it in time.

The applicant appealed. He alleged that cyclists visiting Linz

were not interested in services provided by him and that, in view of

its location, other tourists would hardly come to his shop. The

applicant maintained that these facts should have been taken into

consideration when he had been charged the compulsory contribution.

He challenged the lawfulness and constitutionality of the legislation

on which the compulsory contribution was based.

On 11 January 1994 the Upper Austria Regional Government

dismissed the applicant's appeal. It held that the compulsory

contribution at issue was in conformity with Section 41 para. 3 of the

Upper Austria Tourism Act. It further held that it was unusual that

a shopkeeper does not profit from tourism, and that such a fact could

be verified in exceptional cases only. The Government considered, with

reference to the Constitutional Court's case-law, that for the purpose

of proper conduct of administration it was justified not to take into

account such unusual cases.

The applicant lodged a complaint with the Constitutional Court

(Verfassungsgerichtshof). He alleged a violation of his right to

equality before the law in that the Regulations on Groups of Compulsory

Contributions violated the principle of equality. He maintained, in

particular, that no increase in sales due to tourism could be

established in the street where his shop was located.

On 28 November 1994 the Constitutional Court refused to deal with

the applicant's complaint. It held that the complaint lacked

sufficient prospects of success and that the case was not excluded from

the jurisdiction of the Administrative Court (Verwaltungsgerichtshof).

The Constitutional Court referred to its earlier case-law according to

which it is justified, for the purpose of proper conduct of

administration, to assess the extent to which tradesmen profit from

tourism on an average basis. Furthermore, according to the case-law

invoked by the Constitutional Court, the requirement of clarity and

effectiveness of legal rules justifies that uniform regulations have

unequal effects on different individuals unless such inequality is

excessive.

COMPLAINTS

The applicant complains about the compulsory contribution which

he had to pay under the Tourism Act. In particular, he complains that

the authorities concerned did not take into consideration that he does

not profit from tourism to the same extent as shopkeepers in areas that

are frequented by tourists. He alleges a violation of Article 1 of

Protocol No. 1 and of Article 14 of the Convention.

The applicant further alleges a violation of Article 6 of the

Convention in that his obligation to pay a compulsory contribution was

not determined by a tribunal.

THE LAW

1. The applicant complains about the contribution which he had to

pay under the Tourism Act. He alleges a violation of Article 1 of

Protocol No. 1 (P1-1) which 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 Commission recalls that the second paragraph of Article 1 of

Protocol No. 1 (P1-1) confirms that States may levy taxes and other

contributions. It is for national authorities, on the basis of their

assessment of political, economic and social needs, to decide on the

levying of taxes or other contributions. Furthermore, the levying of

a tax or other contribution would only be in violation of the right to

peaceful enjoyment of possessions if the person concerned was saddled

with an intolerable burden or if it fundamentally interfered with his

or her financial situation (cf. No. 11036/84, Dec. 2.12.85, D.R. 45

pp. 211, 222; No. 13013/87, Dec. 14.12.88, D.R. 58 pp. 163, 186).

In the present case the applicant was charged 400 Austrian

schillings, i.e. the minimum compulsory contribution due in the

category under which his trade falls. This contribution was increased

by 10 per cent as the applicant had failed to pay it in time. The

Commission has not been provided with any information that would permit

to conclude that these obligations affect the applicant's guarantee of

ownership or interfere with his financial situation to such an extent

that this could be considered disproportionate or an abuse of the

Contracting Party's right to levy taxes or other contributions.

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 alleges that he is a victim of discrimination in

violation of Article 14 of the Convention in conjunction with Article 1

of Protocol No. 1 (Art. 14+P1-1) in that his shop falls under the same

category, as regards compulsory contributions under the Tourism Act,

as other shops whose keepers profit from tourism to a considerably

larger extent. Article 14 (Art. 14) of the Convention provides as

follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission finds that the applicant has failed to

substantiate his complaint. In particular, he has not shown that in

respect of his obligation to pay a compulsory contribution he was

treated less favourably than other persons being in a comparable

position (cf. Eur. Court HR, Van der Mussele judgment v. Belgium of

23 November 1983, Series A no. 70, p. 22, para. 46).

Even assuming that comparable situations existed, the Commission

considers that the difference in treatment resulting from assessment

on an average basis of the extent to which shopkeepers within a certain

area profit from tourism is reasonably justified by the need for proper

conduct of administration and also for clarity and effectiveness of

legal rules.

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.

3. Finally, the applicant complains that his obligation to pay a

compulsory contribution under the Tourism Act was not determined by a

tribunal established by law. He alleges a violation of Article 6

(Art. 6) of the Convention which reads, so far as relevant, as follows:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law." ...

The Commission does not consider it necessary to examine whether

Article 6 (Art. 6) of the Convention is applicable to the applicant's

case as this part of the application is in any event inadmissible for

the following reasons.

Under Austrian law the applicant could have requested that the

decision of the Upper Austria Regional Government concerning his

obligation to pay a compulsory contribution be reviewed by the

Administrative Court but he did not avail himself of this opportunity.

In these circumstances, the Commission considers that the applicant's

right of access to a court as guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention was not affected.

It follows that this part of the application is likewise

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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BARTOSCH v. AUSTRIA

BARTOSCH v. AUSTRIA

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