DISSENTING OPINION OF JUDGE FOIGHEL , JOINED BY JUDGES RUSSO AND JUNGWIERT

I agree with the majority that the present case comes under the rule contained in the second paragraph of Article 1 of Protocol No. 1 (P1-1). I also agree that this rule must be construed in the light of the principle laid down in the first sentence of that Article (P1-1), i.e. that an interference must achieve a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights and that there must be a reasonable relationship of proportionality between the means used and the aim pursued (see paragraph 62 of the judgment).

I regret, however, that I cannot share the majority ’ s opinion that the requirements of a "fair balance" and of proportionality have in the instant case been satisfied.

The reasons for my dissent are the following:

1. The right of the tax authorities under section 16 (3) of the 1845 Act (the bodemrecht), which gives them the power to recover tax debts against certain goods which - as a matter of law - are owned by a third party, is a specific right enjoyed by the tax authorities only. This cannot be compared with the situation in which a group of competing creditors divide the assets of a debtor who has not enough to satisfy them all and it is generally accepted that some privileged creditors may invoke a priority right. In this latter situation the assets in question are all owned by the debtor and not - as in this case - by a third party.

2. The bodemrecht must be evaluated in the light of the fact that according to Netherlands commercial law "retention of title" in sales on credit must be respected by all other creditors; it is a recognised means of protecting the property interests of the vendor, who retains ownership of the goods until they have been fully paid for.

3. The present case therefore concerns a genuine conflict between the tax authorities and a third party who has nothing to do with the amount of tax due to the State by the buyer of the goods. Furthermore, there is not the slightest evidence that "retention of title" was anything other than a normal condition of trade negotiated by the third party, nor that the arrangement was made to defraud the tax authorities or that the third party otherwise acted in bad faith.

4. Even if one accepts that States enjoy a wide margin of appreciation in collecting taxes, in checking statements, in acting on presumptions and in requiring convincing proof if a tax debtor claims that property on his premises belongs not to him but to a third party, there is a limit to what a government may do in this regard.

There is certainly a need to define this limit in cases such as the present, where the tax authorities seize goods which unquestionably belong to third party to recover a tax debt owed by another person.

The limit is to be found above all in the test of proportionality, which is an important element of Article 1 (P1-1). In my opinion, the bodemrecht as applied in this case is not indispensable to the tax authorities and therefore does not meet this test.

5. In the first place, the sum recovered annually by the tax authorities by setting aside the property rights of third parties is negligible. As appears from the documents submitted by the Government themselves, the sums recovered in this way by the forced sale of goods sold under "retention of title" total no more than 1 million Netherlands guilders, compared to a total budget for 1995 of 233 billion.

Furthermore, the more general issue of verification is of no relevance to the present case as there is undisputed contractual evidence that the concrete-mixer was sold under "retention of title" and therefore - according to provisions of commercial law applying also in the Netherlands - belonged to a third party.

Finally, I do not accept that a third party, if he is a private person, should bear the risk that the person with whom he enters into an agreement has not paid all his taxes. Normally the third party will know nothing about his business counterpart ’ s tax status as it is in most countries a punishable act for persons in government employ to disclose information of this nature to any private party, bank or              credit information service.

6. In weighing up the conflicting interests of the tax authorities in collecting taxes and the business community in upholding the validity of "retention of title", I come to the conclusion that in this case there has been a violation of Article 1 of Protocol No. 1 (P1-1).

[1] The case is numbered 43/1993/438/517.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 306-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.