Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22651/93

by J. R.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 20 February 1993

by J. R. against Germany and registered on 17 September 1993 under file

No. 22651/93;

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 a German citizen, living in Erfstadt-Lechenich.

He is represented by Mr. H. Hagemeier & Partners, a law firm in

Cologne.

It follows from the applicant's statements and the documents

submitted that the applicant, after having exhausted the administrative

proceedings, brought an action against an income tax assessment order

dated 19 November 1987. This action was dismissed by the Cologne

Finance Court (Finanzgericht) on 14 July 1988. The court found that

the applicable Section 32 (a) of the Income Tax Act

(Einkommensteuergesetz) according to which taxes had to be levied in

relation to the economic capacity (wirtschaftliche Leistungsfähigkeit)

and a minimum of 378 DM per month to cover the minimum exigencies of

existence was free from taxation was compatible with constitutional

law. The court noted that after deduction of income taxes, the

applicant still had approximately 20,000 DM for his and his wife's

maintenance, therefore the applicant's request to submit the case to

the Federal Constitutional Court to have the constitutionality of

Section 32 (a) para. 1 of the Income Tax Act was not granted.

On 8 June 1990 the Federal Finance Court (Bundesfinanzhof)

dismissed the applicant's appeal on points of law (Revision).

The applicant then lodged a constitutional complaint.

On 25 September 1992 the Federal Constitutional Court

(Bundesverfassungsgericht) decided at the request (Vorlagebeschluß) of

several Finance courts that Section 32 (a) para. 1 of the Income Tax

Act was unconstitutional. It considered that every tax-payer had the

right to a minimum of existence (Existenzminimum), i.e. that after

having met his tax liabilities he should still dispose of enough money

necessary for his and his family's maintenance (Lebensunterhalt). The

minimum of the existence amount depended on the general economic

situation and the recognized standards in the legal community. The

tax-payer should at least have as much at his disposal as the public

social authorities granted to needy persons out of public funds. The

Federal Constitutional Court requested the legislator to enact a new

provision to replace Section 32 (a) from 1 January 1996 onwards. Until

then, so the court decided, the unconstitutional regulation remained

in force. Neverthless, as from 1993 onwards, income taxation should

be limited so as not to deprive a tax-payer of a minimum of existence.

The applicant's own constitutional complaint was rejected by a

panel of three judges of the Federal Constitutional Court on

22 December 1992. The court referred to its decision of

25 September 1992 and added that the applicant had to accept the

unconstitutional taxation until the relevant legislation had been

amended. Should the legislator decide in the new legislation that it

also applied to the relevant prior assessment periods, then the binding

force of the assessment decisions did not prevent a reconsideration of

the matter under the new regulations.

COMPLAINTS

The applicant considers that the application in his case of a tax

law provision, which the Federal Constitutional Court has held to be

unconstitutional, violates his rights guaranteed by Article 1 of

Protocol No. 1 to the Convention. He alleges a further violation in

that he has to bear the costs of the domestic proceedings although his

arguments about the unconstitutionality of the applicable tax law

provision were justified.

THE LAW

The applicant complains that no retroactive effect was given to

the Federal Constitutional Court's decision of 25 September 1992 and

that the unconstitutional provision of the German Income Tax Act was

applied by the Finance Court in his matter and to his detriment.

The Commission has examined this complaint under Article 1 of

Protocol No. 1 (P1-1) which guarantees the right to the peaceful

enjoyment of possessions, in conjunction with Article 14 (P1-1+14) of

the Convention which forbids discrimination as to the enjoyment of

Convention rights.

However, with regard to the applicant's complaint that no

retroactive effect was given to a Constitutional Court decision

declaring a certain provision of the tax law to be unconstitutional,

the Commission notes that according to the jurisprudence of the

European Court of Human Rights, the principle of legal certainty, which

is necessarily inherent in the law of the Convention, may dispense

States from re-opening legal acts or situations that antedate judgments

of this Court declaring domestic legislation incompatible with the

Convention (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A

no. 31, p. 26, para. 58). The same considerations apply where a

Constitutional Court annuls domestic legislation as being

unconstitutional (No. 17750/91, Dec. 30.6.92, unpublished). In view

of this principle of legal certainty, the Commission finds that the

regulation adopted by the Federal Constitutional Court according to

which the impugned provisions of the Income Tax Act remain in force

until 1 January 1996 is objectively justified. The Commission also

notes that in its decision of 25 September 1992 the Federal

Constitutional Court ordered that from 1993 onwards it had to be made

sure that income tax was not levied in an excessive manner so as to

deprive the tax-payer of a minimum of existence. The Commission

further notes that according to the finding of the Cologne Finance

Court at the relevant time the applicant still disposed of about 20,000

DM to cover his and his wife's maintenance , after payment of taxes.

In these particular circumstances, the Commission cannot find that the

case discloses any appearance of a violation of the Articles cited

above.

Furthermore, the applicant has not shown that the costs which he

had to bear in the domestic proceedings were excessive and arbitrarily

imposed.

It follows that the application has to be rejected as being

manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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J.R. v. GERMANY

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