Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13943/88

by A.K.

against Austria

The European Commission of Human Rights sitting in private

on 9 May 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 27 March 1988

by A.K. against Austria and registered on 16 June 1988 under

file No. 13943/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1919 and living

in Vienna. He is represented by Mr. W-D. Arnold, a lawyer in Vienna.

The applicant owns a flat not exceeding 40m² in Salzburg.

As the applicant is not permanently residing in Salzburg the local

authorities consider his property to be a holiday flat (Ferienwohnung)

for which the applicant is levied a night-lodging allowance in form of

a special community tax (Ortstaxe). According to a notice of

assessment of 3 July 1985 this tax amounted to 540 AS for the

period of 1.1.1983 to 31.12.84. The applicant's complaints against

this notice were rejected by the competent authorities. He then

lodged a complaint with the Constitutional Court (Verfassungsgerichts-

hof). On 25 September 1986 this Court transferred the matter to the

Administrative Court (Verwaltungsgerichtshof). It refused to consider

the merits of the case, stating that the applicant disregarded its

constant jurisprudence relating to the tax in question and to a

comparable Tirolian regulation (Tiroler Aufenthaltsabgabegesetz).

There was no appearance of a violation of constitutional rights and

the complaint therefore offered no prospects of success.

On 13 November 1987 the Administrative Court dismissed the

complaint as being unfounded. The decision was received by the

applicant's counsel on 11 January 1988. It states that in previous

tax proceedings relating to the years 1979-1982 the applicant had

declared that his permanent residence was elsewhere and that he

occupied the flat in Salzburg only from time to time. As the

applicant had refused to indicate about how long he used to stay in

Salzburg the relevant information had been obtained from other persons

including the caretaker (Hausmeisterin). According to these

investigations the applicant spent about a month per year in his

Salzburg flat. This estimation was also confirmed by the electricity

consumption for the flat.

The Administrative Court pointed out that Section 1 (1) of the

Community Tax Act - CTA (Ortstaxengesetz) authorises the communities

in the Salzburg region to levy the tax in question by decision of the

community council. According to Section 2 (1) CTA the tax is

calculated on the basis of the number of overnight stays and shall

take into account the communities' investments for tourism but not

exceed a maximum of 7.50 AS per stay. Section 5 provides for certain

exemptions. Section 4 obliges owners who rent their holiday flats to

charge the tax to their guests and to pay it to the authorities the

following months. Under Section 3 they are liable for the payment of

the tax by their guests. Holiday flats are, according to Section 3,

those flats which the owner does not occupy continuously for more than

two months per year, and which are not rented out to other persons for

continuous occupation. According to Section 4 the owner of a holiday

flat not exceeding 40m², who does not live within the community, has

to pay a lump sum tax corresponding to 90 overnight stays.

Insofar as the applicant argued that the lump sum regulation

was discriminatory for various reasons the Administrative Court

referred to the Constitutional Court's jurisprudence, according to

which the principle of equality did not prohibit lump sum tax

regulations which were justified in the interest of administrative

economy. Furthermore it referred to a decision given by the

Constitutional Court in a comparable matter relating to the Salzburg

Visitor's Tax Act (Kurtaxengesetz). In that decision the

Constitutional Court had stated that a lump sum regulation concerning

the visitor's tax for holiday flats was compatible with the

Constitution. Furthermore, the Administrative Court referred to its

own jurisprudence, according to which a lump sum regulation was of

necessity based on an average of figures ascertained by experience and

subject to a margin of fluctuation.

In view of the reference to these principles established in

the jurisprudence, the Administrative Court considered that any

differential treatment resulting from the application of the lump sum

regulation was objectively justified.

Consequently, there was no violation of constitutional rights

and no necessity to submit the case to the Constitutional Court as

requested by the applicant.

Insofar as the applicant had also alleged a violation of

non-constitutional, i.e. ordinary, law, the Administrative Court pointed

out that the applicant had neither alleged nor shown that he lived

more than two months continuously in Salzburg. Consequently it was

justified to consider his property in Salzburg as being a holiday flat

within the meaning of Section 4 CTA.

COMPLAINTS

The applicant submits that his obligation to pay community tax

constitutes a discrimination compared with persons who reside in

Salzburg. He points out that a flat owner who, e.g., rents his flat for

360 days per year to tourists and uses it only on the remaining five

days will have to pay community tax for 360 days plus the lump sum

corresponding to 90 stays. Furthermore, an owner who spends nine

continuous weeks in Salzburg does not have to pay the tax while an

owner who can only spend less than two months there will have to pay

tax corresponding to 90 days regardless of how many days he actually

used his flat.

He alleges violations of Article 1 of Protocol No. 1 read

together with Article 14 of the Convention and of Article 2 of

Protocol No. 4.

He further invokes Article 8 of the Convention which he

considers to be violated because of the investigations made by the

authorities in respect of his use of his flat in Salzburg.

THE LAW

1. The applicant has mainly complained that as the owner of a

flat in Salzburg he is being discriminated against in his right to the

peaceful enjoyment of his possessions as guaranteed by Article 1 of

Protocol No. 1 (P1-1) to the Convention.

Article 14 (Art. 14) provides:

"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 observes in this respect that it is not

competent to examine in the abstract the compatibility of a legislative

regulation with the Convention (Eur. Court H.R., Klass judgment of

6 September 1981, Series A no. 28, para. 33). The applicant has not

shown that the imposition of community tax in the amount of 540 AS

for the period of 1.1.1983 to 31.12.1984 discriminated against him

personally as compared to any other flat owners in Salzburg. Insofar

as owners who are permanently living in Salzburg do not have to pay

such a tax, their situation is not comparable to that of the applicant

who is living in Vienna.

Even if the application of the lump sum tax assessment in the

applicant's case might have led to a differential treatment compared

to holiday flat owners who can afford to live longer than two months

in Salzburg, it has to be observed that it is likewise open to the

applicant to live longer than two months in Salzburg. Furthermore,

the question of whether or not a flat owner has to pay community tax

is not determined by reference to any of the grounds listed in Article 14

(Art. 14) such as, for example, the person's origin, birth or other

status. It is decided on the objective criterion of the actual duration of the

occupation of the flat by its owner per year.

An examination by the Commission of this complaint as it has

been submitted does not therefore disclose any appearance of a

violation of the rights and freedoms set out in the Convention and,

in particular, in Article 1 of the Protocol No. 1 (P1-1) read together with

Article 14 (Art. 14) of the Convention.

2. The Commission has examined the applicant's remaining

complaints. Even assuming that the applicant has exhausted domestic

remedies in this respect, it likewise finds that the remainder of the

application does not disclose any appearance of a violation of the

rights invoked by the applicant.

It follows that this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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