CONCURRING OPINION OF JUDGE LEMMENS

1 . It is not without some hesitation that I agree with my colleagues that there has been no violation of Article 8 of the Convention. In this separate opinion, I would like to express the reasons for my hesitation.

2. The facts of the case give me the impression that there was “tax harassment” on the part of the tax authorities after they found out that the applicant company had started proceedings to enforce the judgment rendered in its favour against the Iron and Steel Company, even though an appeal was still pending before the Court of Cassation.

Two visits were carried out by the tax inspectors before they decided to request a warrant to search the applicant company ’ s addresses. The first time they arrived without any prior announcement of their visit and invited the company to submit to them “all documents related to its income and expenditure”. The applicant company ’ s representatives replied that they could make the documents available within fifteen days (see paragraph 11 of the judgment). The company subsequently made the documents ready for inspection at its premises, and asked to be given prior notice of the tax inspectors ’ visit in order to prepare the room and the staff who would present the documents (see paragraph 12 of the judgment). Rather than making use of the offer to inspect the documents at these premises, the tax inspectors replied that it was not possible to do so “as the address was not registered” (see paragraph 13 of the judgment). I regard this as a formalistic reply. Be that as it may, some weeks later the tax inspectors presented themselves a second time at the said premises, but again without any prior notice. On that occasion the applicant company ’ s representatives initially refused to cooperate, as they had not received such notice. Nevertheless, after some discussion, the books for 1998 were presented to the tax inspectors. The latter apparently refused to do their work, complaining that they could not do so “in view of the tension caused by the company ’ s staff” (see paragraph 15 of the judgment). I cannot but wonder whether it was not the tax inspectors themselves who, by their unexpected visit, were the cause of the tension.

Then followed the request for a search warrant. The tax inspector S.N. argued “that the company ’ s representatives had acted in a hostile manner and tried to obstruct the work of the inspectors by hiding information such as their names and the official address of the company, as well as by unjustly accusing her” (see paragraph 16 of the judgment). She also argued that, since the authorities were not required to inform tax payers in advance of an audit, the applicant company ’ s request to have several days ’ notice was unacceptable (ibid.). I would like to note that I find these arguments rather unconvincing. They reflect an authoritarian view of the role of the public authorities, without any consideration for the legitimate interests of those under their control.

The search warrant issued by the Magistrates ’ Court did not specify the documents that could be seized. It mentioned, in a very general way, “the account books and other documents to be examined” (see paragraph 17 of the judgment). This amounted, in my opinion, to an authorisation for a fishing expedition.

Later the same day, the search took place and a large number of documents were seized (see paragraph 18 of the judgment).

A few weeks later the tax inspectorate requested specific, additional documents, which were submitted without any problem (see paragraphs 23 ‑ 24 of the judgment).

3. The majority do not accept the applicant company ’ s arguments about the absence of a proper justification for the search-and-seizure operation (see paragraph 88 of the judgment). My own views are more reserved. While the applicant company ’ s representatives may not have been very cooperative during the first two visits of the tax inspectors, the conduct of the tax authorities themselves was not above criticism. They did not seem to be interested in finding a solution that would be acceptable to both parties. I should add that there is no indication that during these visits the applicant company was trying to hide any books or other documents from them.

The majority do accept, however, that the search-and-seizure warrant “was couched in very broad terms”, by authorising “in a general and unlimited manner the search and seizure of ‘ the books of accounts and other documents ’ , which did not in any manner restrict the scope of the search to be conducted” (see paragraph 90 of the judgment). I fully agree with that assessment.

4. On the basis of the latter assessment, and taking into account the fact that the applicant company complained primarily about the disproportionate nature of the interference with the right to respect for its “home”, the question was, as is stated in the judgment, “whether the deficiencies in the limitation of the scope of the warrant were offset by sufficient procedural safeguards, capable of protecting the applicant company against any abuse or arbitrariness” (see paragraph 90 of the judgment).

The majority attach importance to the fact that the Tax Procedure Act provided for the drafting of an inventory after the breaking of the seals of the bags containing the seized documents. They also note that the applicant company did not accept the invitation to be represented at this operation. They conclude “that the applicant company [thus] implicitly but unequivocally waived an important guarantee offered to it by the domestic legal system” (see paragraph 94 of the judgment). In my opinion, this guarantee was not very helpful in the case of the search and seizure carried out at the applicant company ’ s premises. There was never any complaint about documents having disappeared or not being returned to the applicant company. Rather, the complaint was about the search and seizure as such. The harm was already done by the time the bags were to be opened and an inventory was to be made.

The majority further reject the applicant company ’ s argument “concerning its inability to have access to the seized documents”, noting that the documents were at the disposal of the company and that it did not make any request for the return of its books and documents (see paragraph 95 of the judgment). While the possibility of inspecting the seized documents at the offices of the tax authorities was capable of alleviating certain of the practical inconveniences resulting from the seizure, it is in my opinion speculative to mention the possibility of obtaining the return of any of them. Section 144 of the Tax Procedure Act placed an obligation on the tax authorities to return irrelevant documents to their owners, and the tax authorities did not see any need to apply this provision in the applicant company ’ s case.

5. The reason why in the end I concurred with the majority is that it was possible for the applicant company to contest the search and seizure throughout the taxation proceedings, and that the Tax Court, in a reasoned decision, found all of its complaints to be unsubstantiated (see paragraph 96 of the judgment).

If I had to decide directly on the proportionality of the interference with the applicant company ’ s rights under Article 8 of the Convention, I might have come to another conclusion than the domestic courts. However, when it comes to assessing whether an interference was proportionate or not, these courts must be given some margin of appreciation, provided that they proceed on the basis of a correct interpretation of the relevant Convention standards and a reasonable assessment of the facts. Moreover, where a search and seizure is carried out at the business premises of a legal person, rather than in the home of a physical person, the seriousness of the interference with fundamental rights must be placed in perspective (see paragraph 99 of the judgment, where the majority mention a “wider margin of appreciation”).

Having regard to the analysis made by the Tax Court in the proceedings concerning the 2001 tax year (see paragraph 34 of the judgment), and even though I do not agree with all of its assessments, I concede that the domestic courts were entitled to find that the search and seizure had not been conducted unlawfully. Since our Court does not act as a court of appeal, but only as a court reviewing the acts of the competent domestic authorities, I therefore concur with the majority that there has been no violation of Article 8.

The reader will understand from the foregoing that this conclusion is reached without much enthusiasm. The conduct of the tax authorities was, in my opinion, far from exemplary.

[1] . Approximately 2,900,000 euros (EUR) at the time

[2] . Approximately EUR 76,000 and 360,000 respectively, at the time

[3] . Approximately EUR 68,000 and 34 6 ,000 respectively, at the time