Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21294/93

by VOGGENBERGER TRANSPORT GmbH

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 25 November 1992

by VOGGENBERGER TRANSPORT GmbH against Austria and registered on

28 January 1994 under file No. 21294/93;

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 facts of the case as submitted by the applicant may be

summarised as follows.

The applicant is a limited company, which is involved in the

transport business and has its seat in Uttendorf, Upper Austria. In the

proceedings before the Commission the applicant company is represented

by Mr. H. Rainer, a lawyer practising in Innsbruck.

A. The particular circumstances of the case

On 7 July 1989 the Braunau Tax Office (Finanzamt) ordered the

applicant company to pay a total of about AS 1.4 million as road taxes

(Straßenverkehrsbeiträge) for 1986, 1987 and 1988, respectively. The

Office found that the applicant company, when assessing in advance the

taxes due, had relied on the tax exemption under S. 2 (9) of the Road

Taxes Act for transports carried out by its semi-trailers, insofar as

their number exceeded the number of its motor vehicles. However, these

semi-trailers had been towed by vehicles belonging to other companies.

As regards these transports, the tax exemption of S. 2 (9) of the Road

Taxes Act (Straßenverkehrsbeitragsgesetz) did not apply.

On 19 June 1991 the Upper Austrian Tax Authority (Finanzlandes-

direktion) dismissed the applicant company's appeal. The Authority

found that the exemption under S. 2 (9) was not applicable to

transports with semi-trailers towed by motor vehicles of another

contributor. The Authority further considered that this interpretation,

taking into account the aim pursued by the provision at issue, did not

go beyond the wording which it had before the amendment of 1 August

1988, containing simply a clarification.

On 9 August 1991 the applicant company brought a complaint before

the Constitutional Court (Verfassungsgerichtshof). It alleged inter

alia that its right to property had been violated, as there had been

no legal basis for the tax authorities' decisions. It submitted in

particular that the wording of S. 2 (9) of the Road Taxes Act in the

version, which was in force before the amendment of 1 August 1988,

unconditionally exempted transports with semi-trailers, the number of

which exceeded the number of motor vehicles of the same contributor.

Moreover, the applicant company claimed that it had, when calculating

its prices, taken the lower amount of taxes into account, and

therefore, the tax authorities' decision had aggravated its financial

difficulties.

On 20 February 1992 the Constitutional Court rejected the

applicant company's complaint for lack of sufficient prospects of

success and referred the case to the Administrative Court.

On 14 May 1992 the Administrative Court (Verwaltungsgerichtshof)

dismissed the applicant's complaint as being ill-founded. The

Administrative Court found that the question had already been decided

upon in its judgments of 22 October 1990 and 22 April 1991, regarding

similar cases. The decision was served on the applicant company on

11 June 1992.

B. Relevant domestic law and practice

According to Section 1 para. 1 of the Road Taxes Act (Straßenver-

kehrsbeitragsgesetz), all domestic transports of goods carried out by

vehicles with Austrian or foreign number plates are taxable. Paragraph

2 states that motor vehicles (Kraftfahrzeuge) and semi-trailers (von

Kraftfahrzeugen gezogene Anhänger) are vehicles within the meaning of

the Act.

Section 2 (9) provides that transports carried out with semi-

trailers, insofar as their number exceeds the number of motor vehicles

belonging to the same contributor, are exempt from the road tax.

An amendment, which entered into force on 1 August 1988, added

a sentence to Section 2 (9) according to which semi-trailers driven by

motor vehicles of another contributor are not to be included in the

above calculation.

The Administrative Court's judgement of 22 April 1991 concerned

a complaint by the applicant company's predecessor, R. V., who owned

the transport business before it was transformed into a limited company

in May 1986. The Administrative Court had confirmed the view of the tax

authorities, applying the same interpretation of S. 2 (9) Road Taxes

Act for 1984 until May 1986 as in the decisions against the applicant

company. As regards R.V.'s argument that the proceedings were unfair

because the tax exemption of S. 2 (9) Road Taxes Act had been applied

in earlier years, the Administrative Court had found that only in

exceptional cases, e.g. where the tax authority had explicitly advised

the contributor in line with the legal view from which it wanted to

deviate, a change in the interpretation of the law would seem unfair.

COMPLAINTS

The applicant company complains under Article 6 of the Convention

and Article 1 of Protocol No. 1 that the decisions by the tax

authorities relating to its obligation to pay road taxes for 1986, 1987

and 1988 respectively, were unlawful and that the proceedings were

unfair.

The applicant company submits in particular that the Tax

Authorities' decisions, were unlawful, as they could not possibly be

based on the version of S. 2 (9) of the Road Taxes Act which was in

force before the amendment of 1 August 1988 and also deviated from the

previous interpretation of this provision. Moreover, the order to pay

an additional AS 1.4 million as road taxes, added to the financial

difficulties of the company.

THE LAW

1. The applicant company complains under Article 1 of Protocol No. 1

(P1-1) that the decisions by the tax authorities relating to its

obligation to pay road taxes for 1986, 1987 and 1988 respectively, were

unlawful.

Article 1 of Protocol No. 1 (P1-1) reads 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 finds that the present case, relating to the

applicant company's obligation to pay road taxes, does not concern a

deprivation of property within the meaning of paragraph 1 of Article 1

(Art. 1-1), but has to be considered as an interference with the

applicant company's right to the peaceful enjoyment of its possessions,

falling within the scope of the second paragraph of this Article.

The Commission recalls that this paragraph requires that the

interference is lawful and serves a legitimate aim (see Eur. Court

H.R., Fredin judgment of 18 February 1991, Series A no. 192, pp. 16-17,

paras. 48-50). Moreover the interference must be proportional,

achieving a fair balance between the demands of the general interest

of the community and the requirements of the protection of the

individual's fundamental rights (Fredin judgment, loc. cit., p. 17,

para. 51).

The applicant company complains that the interference was

unlawful, as the decisions in question could not reasonably be based

on S. 2 (9) of the Road Taxes Act in the version which was in force

before the 1988 amendment and also deviated from the previous

interpretation of the relevant provisions.

As regards the lawfulness of the interference the Commission

recalls that the power of the Strasbourg organs to review compliance

with domestic law is limited (Eur. Court H.R., Fredin judgment loc.

cit., p. 16, para. 50). The applicant's submissions do not suffice to

conclude that the decisions of the Austrian authorities were contrary

to domestic law. Moreover, the Commission notes that S. 2 (9) of the

Road Taxes Act, with the contested interpretation, had already been

applied to the applicant company's predecessor for the years 1984 to

1986. In that case, the Administrative Court, in its decision of

22 April 1991, had found that, only in exceptional circumstances, e.g.

if the tax authorities had explicitly advised a contributor in line

with the legal view from which they wanted to deviate, a change in the

interpretation of a legal provision would seem unfair. The applicant

company could thus foresee the interference complained of.

The Commission further considers that the interference at issue

pursued a legitimate aim, namely the levying of taxes relating to the

transport of goods.

The applicant company submits that the order to pay an amount of

AS 1,4 million in road taxes placed a heavy burden on the company,

adding to its financial difficulties.

As regards the proportionality of the interference, the

Commission recalls that there must be a reasonable relationship between

the means employed and the aim pursued, whereby the State enjoys a wide

margin of appreciation with regard both to choosing the means of

enforcement and to ascertaining whether the consequences of enforcement

are justified in the general interest for the purpose of achieving the

object of the law in question (Eur. Court H. R., Fredin judgment, loc.

cit., p. 17, para. 51).

The Commission notes that the applicant company had in 1986 to

1988 assessed in advance the amount of taxes due, in accordance with

its legal view on S. 2 (9) of the Road Taxes Act. The Commission

considers that the applicant company was aware that it had to pay the

road taxes in advance on the basis of its own assessment while being

subject to later review. In such a situation the applicant company had

to take into account that the final amount might be higher and make

provisions accordingly. In these circumstances, the Commission finds

that the tax authorities' decisions ordering the applicant company to

pay additional road taxes for 1986 to 1988 were not disproportionate.

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 company also complains under Article 6 (Art. 6) of

the Convention, that the proceedings leading to the tax authorities

decisions which ordered it to pay road taxes were unfair.

The Commission recalls that proceedings relating to tax

assessment do not fall within the scope of Article 6 (Art. 6) of the

Convention (No 8903/80, Dec. 8.7.1980, D.R. 21, 246; No 13013/87,

Dec. 14.12.1988, D.R. 58, 163).

It follows that this part of the application is incompatible

ratione materiae within the meaning of 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) (A. WEITZEL)

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VOGGENBERGER TRANSPORT GmbH v. AUSTRIA

VOGGENBERGER TRANSPORT GmbH v. AUSTRIA

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