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K. KG. v. AUSTRIA

Doc ref: 14623/89 • ECHR ID: 001-1354

Document date: September 2, 1992

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Cited paragraphs: 0
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K. KG. v. AUSTRIA

Doc ref: 14623/89 • ECHR ID: 001-1354

Document date: September 2, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 14623/89

by H.K.KG.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 12 January 1989

by H.K.KG. against Austria and registered on 6 February 1989 under file

No. 14623/89;

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 company runs a transport business. Its

headquarters is at A. and it is represented before the Commission by

Mr. Heinz Walther, a lawyer in Klagenfurt.

On 4 September 1986 the applicant company was ordered by the

competent authority to pay an equalisation tax (Ausgleichstaxe) for

1985 in the amount of AS 14,440 under Section 9 of the Disabled Persons

Employment Act (Invalideneinstellungsgesetz). According to this Act

every employer with a staff of over 25 persons has to employ disabled

persons. The Act sets a quota of one disabled person per 25 employees.

Employers who qualify under the Act have to pay an equalisation tax if

they do not employ disabled persons. This revenue is used for a

Disabled Persons Employment Fund (Ausgleichtaxfonds) according to

Section 10 (1) of the Act.

The applicant company's objections were rejected on 23 June 1987

by the Regional Authority (Landeshauptmannschaft) of Carinthia on the

ground that the tax was due regardless of the reasons for the

non-employment of disabled persons. The authority also pointed out

that the Constitutional Court (Verfassungsgerichtshof) had repeatedly

decided that the tax in question was compatible with the constitutional

rights.

The applicant company nevertheless lodged a constitutional

complaint which was however declared inadmissible on 26 September 1987

as offering no prospects of success. The Constitutional Court referred

in its decision to its constant jurisprudence in respect of the tax in

question.

A complaint to the Administrative Court (Verwaltungsgerichtshof)

was rejected on 29 June 1988 (received by the applicant company's

counsel on 14 July 1988) as being unfounded. This Court likewise

referred to the Constitutional Court's jurisprudence and added that the

applicant company's allegations about an irregular determination of the

amount of the tax due were unsubstantiated.

COMPLAINTS

The applicant company submits that it has to pay the tax although

it tried in vain to find disabled persons as employees. It considers

that the tax is excessive as it is unproportionate to the number of

jobs for invalids secured by employment obligations. It also considers

it to be excessive in view of the great number of additional taxes and

contributions imposed on business companies. In addition it argues

that the imposition was unlawful as a taxation scale was applied which

is provided for in an amendment which came into force on 1 January 1986

only.

Furthermore the applicant company alleges a violation of

Article 6 para. 1 which it considers applicable to the proceedings

before the Administrative Court as they concern a civil right. As the

Administrative Court does not itself establish the facts the

proceedings do not, according to the applicant company, comply with

paragraph 1 of this provision.

THE LAW

The applicant company complains about the imposition of a special

tax on certain employers who do not employ disabled persons.

However, the Commission has repeatedly held that the imposition

of taxes is in principle justified under paragraph 2 of Article 1 of

Protocol No. 1 (P1-1-2) to the Convention, in particular when the

imposition only concerns a particular group of the population, such as

employers (see No. 6087/73, Dec. 13.5.76, D.R. 5 p. 11 with further

references, and in the case No. 17819/91, Dec. 3.9.91 (not yet

published) likewise concerning the equalisation tax under the Disabled

Persons Employment Act).

In the present case the imposition of the tax in question is

clearly linked to an objective factor namely non-employment of disabled

persons regardless of whether this is the result of a deliberate policy

of the employer or of an impossibility to find suitable persons as

employees. The receipts are paid into a Disabled Persons Employment

Fund.

The Commission cannot therefore find that in the circumstances

of the applicant company the imposition of the equalisation tax was

excessive or arbitrary.

Finally, according to the Commission's case-law disputes on

taxation do not, in principle, fall under the ambit of Article 6

(Art. 6) of the Convention (cf. No. 9908/82, Dec. 4.5.83, D.R. 32 p.

266 with further references).

It follows that the application is manifestly ill-founded and

partly incompatible with the Convention ratione materiae within the

meaning of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

LEXI

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