THIRD SECTION

Application no. 75292/10 OTHYMIA INVESTMENTS BV against the Netherlands lodged on 10 November 2010

STATEMENT OF FACTS

1. The applicant company, Othymia Investments B.V., is a limited liability company ( besloten vennootschap ) incorporated under the law of the Netherlands and having its statutory seat in Rotterdam .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant company, may be summarised as follows.

1. The decision to provide information to the Spanish tax authorities

3. On 14 December 2007 the Deputy Minister of Finance ( Staatssecretaris van Financiën ) gave notice ( kennisgeving ) to the applicant company of the fact that he had been requested by the Spanish tax authorities to provide them with information on the relations, the links and transactions between the applicant company and a certain company in Spain as well as information on the bank accounts and the activities of the applicant company with a certain bank.

4. In the notice sent to the applicant company, the Deputy Minister stated that he had complied with this request on 18 August 2007 and 29 November 2007 respectively, pursuant to section 1 (1) of the International Assistance (Levying of Taxes) Act ( Wet op de internationale bijstandsverlening bij de heffing van belastingen ); as appropriate, section 4 of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation; and, as appropriate, section 28 of the Convention on the prevention of double taxation between Spain and the Netherlands.

5. The notice, which had been sent pursuant to section 5 (2) of the International Assistance (Levying of Taxes) Act, listed the information and the enclosures sent to the Spanish tax authorities. They included the shareholders ’ register (register van aandeelhouders ) of the applicant company, the annual accounts ( jaarrekeningen ) of the applicant company for 2003 and 2004, bank statements; two emails, correspondence and other documents concerning the establishment of a certain company, a statement concerning the owners of stocks in a certain company and documents that concerned the sale of stocks. Part of the information sent had been gathered during an inquiry into the applicant company carried out by the Netherlands Tax and Customs Administration ( Belastingdienst ) in August 2006 which had been announced to the applicant company beforehand.

2. The administrative and judicial proceedings

6. On 17 December 2007 the applicant company lodged an objection ( bezwaar ) against the Deputy Minister of Finance ’ s decision to provide the Spanish tax authorities with the requested information. It argued that the provisions stated by the Deputy Minister in his notice could not be relied on as a legal ground for his decision.

7. After a hearing had been held in the applicant company ’ s objection proceedings, the applicant company argued additionally that its privacy of correspondence had been violated by the provision of the documents in issue to the Spanish tax authorities.

8. On 29 August 2008 the Deputy Minister dismissed the applicant company ’ s objection. Its argument in relation to the violation of the right to respect for correspondence was rejected because, firstly, the inquiry had been carried out to provide information under the International Assistance (Levying of Taxes) Act and not under the General Act on State Taxes ( Algemene wet inzake rijksbelastingen ); secondly, the applicant company had not invoked its right to privacy of correspondence during the inquiry in 2006 and, lastly, the correspondence did not concern the applicant company.

9. On 23 September 2008 the applicant company appealed against the decision claiming, inter alia , that its right under Article 8 of the Convention had been violated because there had been no legal basis for the provision of the information to the Spanish tax authorities. It further argued that it might suffer damage as a result of the Deputy Minister ’ s decision, that it would need a judicial decision in order to submit a claim for compensation, and that it had incurred legal costs in relation to the proceedings.

10. On 29 April 2009 the Dordrecht Regional Court ( rechtbank ) declared the appeal inadmissible. It held that the applicant company had no standing because it had not substantiated that it had suffered any loss as a result of the Deputy Minister ’ s decision to provide the Spanish tax authorities with the information.

11. On 4 May 2009 the applicant company lodged a further appeal with the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ) arguing, among other things, that it had an interest in the examination of the lawfulness of the inquiry because the forwarding of its correspondence to the Spanish tax authorities constituted an interference of Article 8 of the Convention for which there had been no legal basis and the necessity of which in a democratic society was open to serious doubt. The applicant company suggested that this claim warranted an examination on the merits by a judicial authority.

12. Additionally, the applicant company argued that not only had prior judicial examination of the Deputy Minister ’ s decision been impossible, owing to the fact that for “urgent reasons” the notice had been given to the applicant company after the implementation of the Spanish request, but the Regional Court ’ s judgment had also made retrospective judicial examination impossible. This lack of an effective remedy appropriate to its complaint under Article 8 of the Convention, so it argued, constituted a violation of Article 13 of the Convention.

13. On 16 June 2010 the Administrative Jurisdiction Division of the Council of State dismissed the applicant company ’ s arguments and upheld the judgment of the Regional Court . In relation to the alleged violation of Article 8 of the Convention it held that the mere fact that the applicant company wanted a judgment of principle on the issue did not constitute a sufficient interest. It further held that the applicant company had not substantiated any damage as a result of the Deputy ’ s Minister ’ s decision. The requirement of actual harm did not impinge on the applicant company ’ s rights to the point of violating Article 13 of the Convention.

B. Relevant domestic law

14. Section 5 of the International Assistance (Levying of Taxes) Act, as applicable at the relevant time, reads as follows:

“Section 5

1. At the request of the competent authorities, Our Minister [of Finance] may decide to provide them with information which they request and which may serve for the levying of taxes within the meaning of section 1, as well as the interest or the administrative sanctions and fines connected therewith.

2. Our Minister shall notify the person from whom the information originated and who is resident or located in the Netherlands , of his decision to comply with the request for information. In so doing, Our Minister shall identify the competent authorities who have made the request and specify the information that will be provided.

...

4. Unless urgent reasons have given rise to it, the implementation of the request for information shall not take place within ten days after the date that notice ... is given.

5. When urgent reasons have given rise to it, Our Minister may ... implement the request for information before the person from whom the information originated has been notified. In this case, notice shall be given as soon as possible but not later than four months after the implementation of the request.”

COMPLAINTS

15. The applicant company complains under Article 13 in conjunction with Article 8 of the Convention that it did not have an effective remedy. In particular, it complains about the failure to examine the alleged absence of a legal basis for the interference with its right to respect for its correspondence on the ground that it had not substantiated any financial loss. In addition, it complains that because of the Deputy Minister ’ s “urgent reasons” both prior and retrospective review of his decision to provide the information to the Spanish tax authorities without prior notification was impossible.

QUESTIONS TO THE PARTIES

1. Did the applicant company have an “arguable claim” that its rights under Article 8 of the Convention had been violated as a result of an interference with its right to respect for its correspondence flowing from the Government ’ s decision to provide the Spanish tax authorities with the information stated in the notice given to the applicant company on 14 December 2007 by the Deputy Minister of Finance (reference: HEF33156 ‑ k) and its enclosures, which included:

(a) the shareholders ’ register ( register van aandeelhouders ) of the applicant company;

(b) the annual accounts ( jaarrekeningen ) of the applicant company for 2003 and 2004;

(c) the bank statements;

( d ) the email dated 13 January 2005;

(e) the correspondence and other documents concerning the establishment of a certain company;

(f) the statement concerning the owners of stocks in a certain company dated 25 August 2005;

(g) the documents that concern the sale of stocks dated 2003;

(h) the email dated 1 July 2005?

2. Did the applicant company have at its disposal an effective domestic remedy for its complaint under Article 8, as required by Article 13 of the Convention (see McFarlane v. Ireland ([GC], no. 31333/06, § 108, ECHR 2010 and, mutatis mutandis , S.T.S. v. the Netherlands , no. 277/05, § 61, 7 June 2011) ?