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H. v. AUSTRIA

Doc ref: 17819/91 • ECHR ID: 001-982

Document date: September 3, 1991

Inbound citations: 1
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Cited paragraphs: 0
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Outbound citations: 1

H. v. AUSTRIA

Doc ref: 17819/91 • ECHR ID: 001-982

Document date: September 3, 1991

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 17819/91

by H.

against Austria

The European Commission of Human Rights sitting in private

on 3 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 November 1990

by H. against Austria and registered on 19 February 1991 under file

No. 17819/91;

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 sawmill and deals with wood. Its

headquarters is at St. G. and it is represented before the

Commission by Mr. Bruno Binder, a lawyer in Linz.

On 11 June 1988 the applicant company was ordered by the

competent authority to pay an equalisation tax (Ausgleichstaxe) for

1987 in the amount of AS 85,000 under Sec. 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, Sec. 10 (1) of

the Act).

The applicant company's objections were rejected on 22 March 1989

by the Regional Authorities (Landeshauptmannschaft) of Upper Austria

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

non-employment of disabled persons. The authorities 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 12 June 1989 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 5 April 1990 (received by the applicant company's

counsel on 29 May 1990) 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 in reality constitutes a penal sanction for non-compliance

with the obligation to employ disabled persons. A sanction can

however only be imposed where an employer deliberately refuses to give

work to disabled persons. Therefore the taxation violates Article 6

para. 2 of the Convention as it penalises the applicant company

although it is willing to employ disabled persons. 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 both a civil right and a criminal charge. As

the Administrative Court does not itself establish the facts the

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

para. 1.

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 para. 2 of

Article 1 of Protocol No. 1 (P1-1) to the Convention, also 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).

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 disabled persons

as employees. The receipts are paid into a Disabled Persons Employment

Fund. In these circumstances the imposition of the tax cannot be

considered as a criminal sanction and Article 6 (Art. 6) of the

Convention can therefore not be invoked by the applicant company.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission (unanimously / by a majority )

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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