DISSENTING OPINION OF JUDGES BERRO-LEFÈVRE AND LAFFRANQUE

(Translation)

The case that has been examined by the First Section is important, firstly because it deals with a issue which is in constantly development, given the ever-increasing role of information technology in all areas of society, and secondly because the Court’s case-law on the protection of data and information systems is limited.

To our great regret, we disagree with the majority as regards the finding that there has been no violation of Article 8 of the Convention, for two main reasons: in the first place, the domestic law did not establish with sufficient precision the conditions in which the Norwegian tax authorities were entitled to make a complete copy of the server belonging to the applicant companies for the purpose of subsequent consultation in the former’s premises; secondly, the procedure used by those same authorities was not accompanied by sufficient and adequate safeguards against abuse.

With regard to the legal basis, it should be noted from the outset that the requirement of accessibility and foreseeability is intended to ensure adequate protection against arbitrary interference and that, to this end, the scope and manner of exercise of the powers conferred on the relevant authorities must be defined with sufficient clarity (see, in this connection, Malone v. the United Kingdom , 2 August 1984, Series A no. 82, § 67, and Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V).

In holding that the law (section 4-10(1) of the Tax Assessment Act) was accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct, the majority found that the legal provisions in section (4-10 (1) (a) specified the nature of the documents which taxpayers could be required to furnish to the tax authorities in the context of their audit and provided for the possibility of carrying out on-site inspections and examining archives (section 4-10 (1) (b)). On the basis of the Supreme Court’s reasoning in its judgment of 20 November 2007, the majority consequently held, on the one hand, that electronic documents were also covered by the relevant provisions of section 4-10(1)(a), and, on the other, that there was nothing to prevent the tax authorities from making a complete copy of the server for the purpose of consulting it in their premises.

We consider that such an interpretation of the provisions of section 4 ‑ 10 (1) goes too far and cannot be “deduced” from the text in question.

The Norwegian tax system is indeed based on the principle of “self assessment”, and the authorities enjoy wide investigative powers. The tax authorities are entitled to order a taxpayer to grant access for inspections of the taxpayer’s business premises and can request anything, on the presumption that there exists additional information which could be found in other documentation; this includes reviewing the company’ archives.

We could agree that it would have been difficult for the authorities, faced with a situation where the archives of several companies were held together on the same server (mixed archives), to identify the information relevant to the company being audited, and that it was for those companies to organise their affairs in such a way that their data could be separated.

In contrast, in our opinion, the provisions of section 4-10 (1) b do not permit those same authorities to make a complete copy of the backup server for the purpose of consulting its contents in their own premises. Furthermore, the Supreme Court was itself conscious of the difficulty when it recognised that “the answer did not follow directly from section 4 ‑ 10 (1) (b) of the Tax Assessment Act” (paragraph 49).

In our opinion, the justifications given both by the Supreme Court and the majority of the Chamber judges are insufficient. Neither the necessity for an interpretation of the text adapted to the situation, nor the time ‑ consuming nature of an on-site inspection justified such an extensive interpretation of the legislation. As Mr Justice Skoghoy pointed out in his minority dissenting opinion “the provision was limited to ‘review’. To demand a copy was something else and much more far reaching. The reason why the majority in Parliament in 1980 had been in favour of conferring on the tax authorities a power to search and seize material was that they had believed that the authorities should be able to ensure that important documents had not been “hidden or destroyed (notably burned)”. If the tax authorities were allowed to demand a copy of the archive, they would in reality be empowered to seize, a power which the majority in Parliament in 1984 had not wished to give them when removing a provision to that effect before the entry into force of the relevant part of the Tax Assessment Act.”

The “seizure” of the backup tape concerned a large amount of data pertaining to a wide group of people and important interests, such as private individuals’ e-mails and correspondence by employees and other persons working for the companies. Such a scenario implies that the requirement for precision had to be strict. This view is supported in, for example, Petri Sallinen and Others v. Finland , no. 50882/99, 27 September 2005, § 90, in which the Court states that “search and seizure represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear and detailed rules on the subject”.

In this respect, we cannot follow the Chamber’s reasoning in paragraph 173 of the judgment, where it finds that the copying of complete electronic archives for subsequent use constituted a lesser form of interference because it took place as part of a tax audit, in contrast to cases where seizure takes place in the context of criminal proceedings.

Firstly, the Government themselves have recognised in their observations that the refusal to cooperate with an order pursuant to section 4-10 (1) (b) is liable to punishment pursuant to section 12-1 (1) of the Tax Assessment Act, which provides for a fine or imprisonment for a term not exceeding 2 years.

Furthermore, the nature of the interference, and the risks linked to danger of abuse is equally great, whatever the purpose of the seizure. In the criminal field, however, the Court’s case-law surrounds such measures with a number of important safeguards against abuse and arbitrariness, and particularly “whether the search was based on a warrant issued by a judge and based on reasonable suspicion [and] whether the scope of the warrant was reasonably limited” (see Niemietz v. Germany , 16 December 1992, § 37, and Wiser and Bicos Beteiligungen GmbH v. Austria , no. 74336/01, 16 October 2007, §56).

In our case, however, even supposing that the entitlement to interfere may be more extensive where the business premises of a legal person are concerned (see Société Colas Est and Others v. France , no. 37971/97, § 49, ECHR 2002-III), the tax authorities were given wholly unfettered discretion to copy the entire backup tape – without need of warrant or judicial authorisation – and we note that only a minor part of the information contained therein was relevant for the tax audit of B.L.H. The tax authorities were given broad powers to consult documents, including those of no relevance for tax audit purposes, and the decision to copy the server was linked to their discretion, without the need to provide reasons.

The applicant companies were under a legal obligation to comply with the order to grant access to the server, which was copied in its entirety, while, at the same time, the Norwegian authorities had no grounds to suspect (at least on the basis of the documents or information already in their possession) that the applicants had failed to fulfil their tax obligations.

In our opinion, the majority has not sufficiently emphasized the seriousness of the interference: having failed to attach sufficient weight to the coercive nature of the measure, it has disregarded the potential legal consequences of the backup copy for the applicants, without affording them adequate and effective safeguards against abuse. This view finds strong support in Judge Skoghoy’s dissenting opinion: “The fact that the taxpayer ... has the right to be present when the tax authorities open and conduct their review of the archive does not in any way guarantee against abuse. It would not be possible to control whether this right is being respected. Important legal protection and personal integrity considerations therefore argue against granting the tax authorities the right to demand copies of the archive”.

In the absence of any suspicion of fraud by the company being audited, the Government do not explain why a measure on such a scale was necessary, although an on-site inspection of the server, in accordance with the law, would have enabled the same objectives to be achieved effectively. Of course, it was probably more convenient for the tax authorities to make a copy, but the disadvantages inflicted on all three applicants as well as their employees through the impugned measure far outweigh the alleged advantages which the authorities may have obtained by conducting an examination at their own premises. It is important to emphasise at this point that Kver and IOR, like the first audited company BLH, have found that significant amounts of important documents were copied and they expect these documents to be reviewed by the tax authorities.

We regret that the majority attach decisive weight to the interests of the taxation authorities, without giving sufficient consideration to the interests of the other parties affected. We consider that the protection afforded to legal persons in this regard must also entail the consideration that people working for such companies are, as a group, afforded protection from arbitrary interference. Employees and other people working for the applicant companies must also have such protection, where professional and private correspondence and a large volume of work-related documents, irrelevant to tax-audit purposes, are taken by the authorities and lie open for review in their premises.

Copying of backup tapes means that the authorities have access to surplus information of a different nature. Electronically stored data can be reconstructed, or might be disseminated far more easily than information on paper. There is no regulation in the law regarding the keeping, handling, return and destruction of this copied material.

In sum, we consider that the order to hand over a backup tape on which all or most of the companies’ documents were kept greatly exceeded the wording of the legal provision, from which no such power could be deduced. We conclude that the domestic law does not indicate with sufficient clarity the scope and manner of exercise of the authorities’ discretion in the area under consideration, and that the interference was in any event disproportionate. There has been a violation of Article 8 of the Convention.