THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53818/00 by T.W. COMPUTERANIMATION GmbH and Others against Austria

The European Court of Human Rights (Third Section) , sitting on 6 February 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs E. Steiner , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 31 July 1999,

Having deliberated, decides as follows:

THE FACTS

The first applicant, T.W. Computeranimation GmbH, is a limited liability company with its seat in Vienna. Its sole shareholders, the second and third applicants, Mr Wolfgang Tesar and Mrs Martina Tesar, are Austrian nationals, who were born in 1956 and 1958, respectively, and live in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the applicants , may be summarised as follows.

On 30 April 1996 the Federal Act on the Restructuring of Economy ( Strukturanpassungsgesetz , Federal Law Gazette no. 201/1996) was inacted by which the Corporation Tax Act ( Körperschaftssteuergesetz ) was amended. The amendment raised the minimum corporation tax (to be paid irrespective of whether benefits had been earned) as provided for in section 24 § 4 of the Corporation Tax Act from 15,000 Austrian schillings (ATS) per year to ATS 50,000 per year.

On 27 June 1997 the Tax Office for Corporations ( Finanzamt für Körperschaften ) issued a tax order on the first applicant ordering it to pay advances for its corporation tax liability of ATS 50,000 for the year 1996. The first applicant’s appeal to the Regional Tax Authority ( Finanzlandes-direktion ) was to no avail.

On 20 November 1996 the first applicant introduced a complaint with the Constitutional Court ( Verfassungsgerichtshof ), complaining that the 1996 amendment of the Corporation Tax Act was unconstitutional. About 11,000 other limited companies equally lodged complaints with the Constitutional Court. The first applicant, like many of the other companies concerned, used a standard complaint which had been elaborated by the legal department of the Austrian Chamber of Commerce. However, in accordance with section 17 § 2 of the Constitutional Court Act ( Verfassungsgerichtshofgesetz ) the first applicant’s complaint had to be signed by a practising lawyer. The applicants submit that the lawyer at issue charged them ATS 18,000 for lodging the application.

The Constitutional Court took up four of the complaints, not including the one lodged by the first applicant, and, on 27 November 1996, introduced ex-officio proceedings for the review of the constitutionality of section 24 § 4 of the Corporation Tax Act.

On 24 January 1997 the Constitutional Court found section 24 § 4 of the Corporation Tax Act to be unconstitutional and ordered that the previous version of this provision enter into force again. Pursuant to Article 140 § 7  of the Federal Constitution ( Bundes-Verfassungsgesetz ) the Constitutional Court further ordered that the 1996 version of section 24 § 4 should not only be inapplicable in the four cases which it had taken up ( Anlaßfälle ) but that its inapplicability should be extended to all cases in which a final decision on the minimum corporation tax liability for 1996 had been taken on the basis of the 1996 version of section 24 § 4, which included the some 11,000 cases pending before it. Furthermore, the Constitutional Court declared that all cases concerning minimum corporation tax pending before it were terminated without a formal decision being taken on each individual claim, including claims for reimbursement of costs incurred in the proceedings.

Also on 24 January 1997, the Constitutional Court, by separate decision, quashed the tax orders in the four cases it had taken up and awarded procedural costs.

On the same day, the Constitutional Court also issued a press release in which it gave a brief summary of the decision taken and the reasons, explaining, inter alia , why it had extended the effect of annulment to all decisions on minimum corporation tax already taken by the tax authorities. The Constitutional Court stated that it had felt obliged to make extensive use of the powers conferred on it by Article 140 § 7 of the Federal Constitution, i.e. the power to extend the effect of the annulment of a provision of law beyond the case in issue, because a formal decision in all of the 11,000 cases would have taken years and would have hindered the Constitutional Court in dealing with other pending cases. This specific interest in protection by the law ( Rechtsschutzinteresse ) had to prevail therefore over the interest that each of the 11,000 pending applications be individually dealt with including any claims for reimbursement of procedural costs.

On 30 January 1997 the operative part of the Constitutional Court’s decision of 24 January 1997, by which it had found section 24 § 4 of the Corporation Tax Act as amended in 1996 to be unconstitutional, was published in the Federal Law Gazette (no. 18/1997).

The effect of the Constitutional Court’s decision was that in all cases, in which minimum corporation tax for 1996 had already been collected, this sum had to be reimbursed by the tax authorities or set off against other tax claims.

On 29 December 1998 the applicants requested the Constitutional Court to reimburse their procedural costs of ATS 18,000.

The applicants submitted that they were aware of the Constitutional Court’s decision which had found section 24 § 4 of the Corporation Tax Act as amended in 1996 to be unconstitutional and confirmed that, meanwhile, the tax authorities had reimbursed the corporation tax paid. Thus, their claim had been satisfied. Referring to section 88 of the Constitutional Court Act, they argued that a party whose claim has been satisfied has a claim to reimbursement of procedural costs. The applicants submitted that they were also aware that the Constitutional Court had awarded procedural costs in the cases it had taken up for decision. They alleged a violation of Article 14 of the Convention, arguing there were no objective reasons to refuse their claim for reimbursement of procedural costs. Furthermore, relying on Article 1 of Protocol No. 1 they complained about the obligation to be represented by lawyer in the proceedings before the Constitutional Court.

On 23 February 1999 the Constitutional Court rejected the applicants’ request for reimbursement of procedural costs. It referred to its decision of 24 January 1997 by which it had declared all proceedings concerning minimum corporation tax pending before it terminated without a formal decision being taken on each individual claim, including claims for reimbursement of costs incurred in the proceedings. Consequently, the Constitutional Court found that it was no longer competent to decide on the applicant’s request.

B. Relevant domestic law

1. The Federal Constitution

Article 140 § 7 of the Federal Constitution reads as follows:

“If an Act has been repealed on the basis that it is unconstitutional or if the Constitutional Court has held under paragraph 4 that an Act is unconstitutional, its decision shall be binding on all courts and administrative authorities. Except in relation to the case before the court, repeal of an Act shall not have retrospective effect, unless specifically so provided in the judgment . If in its repeal decision the Court has set a time-limit under paragraph 5 [for a maximum of one year], the Act shall remain applicable to facts occurring until the expiry of the time-limit, except for facts related to the case before the Court."

2. The Constitutional Court Act

Section 88 of the Constitutional Court Act ( Verfassungsgerichtshof - gesetz ), insofar as relevant, reads as follows:

“A party which loses its case or satisfies the other party’s claim, may, upon request, be ordered to reimburse the procedural costs incurred by the other party. ..."

3. The Corporation Tax Act

Section 24 § 4 of the Corporation Tax Act, as amended by the Federal Law of 30 April 1996 (Federal Law Gazette 201/1996), reads as follows:

“Registered companies which are subject to unlimited tax liability shall pay for every full quarterly period of unlimited tax liability a minimum tax of ATS 12 500. ... The minimum tax is regarded as a tax advance within the meaning of section 45 of the Income Tax Act 1988, to the extent that it exceeds corporation tax liability actually due for the year. The exceeding amount may be carried forward and counted towards corporation tax liability in the following years, provided that in these years the actual corporation tax liability is higher than the minimum tax."

COMPLAINTS

1. The applicants complain under Article 6 of the Convention that the first applicant was obliged to be represented by lawyer in the proceedings before the Constitutional Court. They submit that this requirement did not serve the good administration of justice as the complaint to the Constitutional Court was a standard complaint which had been prepared by experienced lawyers of the Chamber of Commerce. Further, they complain about a violation of the principle of equality of arms as the authority whose decision is complained of is not obliged to be represented by lawyer before the Constitutional Court. Finally, they submit that the proceedings lasted unreasonably long.

2. The applicants complain under Article 1 of Protocol No. 1 about the Constitutional Court’s refusal to award them procedural costs although they “won” their case since the Constitutional Court quashed section 24 § 4 of the Corporation Tax Act as unconstitutional. Furthermore, relying on Article 14 of the Convention, they complain that the Constitutional Court discriminated against them in that it awarded costs to the applicants in the four cases which it had taken up for decision while it did not award costs in their cases.

3. Finally the applicants also allege violations of Articles 3, 4, 8, 10 and 11 of the Convention. They submit that the injustice suffered amounted to torture and that the necessity to address themselves to the European Court of Human Rights qualifies as forced labour. The second and third applicant complain in particular that the time spent on the case impinged on their private and family life. Finally, they consider that the obligation to be represented by lawyer before the Constitutional Court infringes their right to assemble freely in the framework of the Chamber of Commerce.

THE LAW

1. The applicants complain about an undue restriction of their right of access to the Constitutional Court. Further they complain about the length and alleged unfairness of the proceedings. They rely on Article 6 of the Convention which, so far as relevant,  reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

The Court notes that the subject matter of the proceedings which the applicants brought before the Constitutional Court was the constitutionality of provisions of the Corporation Tax Act which had imposed an increased tax liability on the first applicant. However, according to the Court’s case-law, tax disputes do not fall under the civil head of Article 6 ( Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001-VII). Moreover, the present case has no criminal connotation and does therefore not fall under the criminal head of Article 6 either. Consequently, Article 6 does not apply.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicants complain under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention about the Constitutional Court’s refusal to award them procedural costs.

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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.”

Article 1 of Protocol No. 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. Insofar as the applicants rely on Articles 3, 4, 8, 10 and 11 of the Convention, the Court considers that the complaints as submitted by the applicants do not disclose any appearance of a violation of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning the Constitutional Court’s refusal to award them procedural costs;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President