AS TO THE ADMISSIBILITY OF
Application No. 24877/94
by Alfredo CASOTTI, Adolfo FLORIO
and the CONSIGLIO NAZIONALE DELL'ORDINE
DEI CONSULENTI DEL LAVORO
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 April 1994 by
Alfredo CASOTTI, Adolfo FLORIO and the CONSIGLIO NAZIONALE DELL'ORDINE
DEI CONSULENTI DEL LAVORO against Italy and registered on 10 August
1994 under file No. 24877/94 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is an Italian national, born in 1948 and
residing in Viareggio; he is a labour consultant ("consulente del
lavoro") by profession.
The second applicant is an Italian national born in 1944 and
residing in Potenza; he is also a labour consultant by profession.
The third applicant is the National Council of the Association
of Labour Consultants, a professional association having its seat in
Rome.
The three applicants are represented by Mr. Andrea Giardina,
Giovanni Puoti and Cesare Glendi, lawyers in Rome.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first and second applicant have been working as consultants
in labour matters since 1978 and 1977 respectively.
The profession of labour consultant was regulated by Law no. 12
of 11 January 1979, according to which labour consultants deal, on
behalf of any employer, with any question relating to the
administration of personnel. They must enrol in a Register and their
activity is submitted to the control of Provincial Councils, which act
under the supervision of the National Council based in Rome.
According to Law no. 739/1981, which amended article 30 of Law
no. 636/1972, labour consultants, as well as other categories such as
lawyers and accountants, could represent their clients in all
proceedings before tax courts.
Law no. 413 of 30 December 1991 and Law Decree no. 546 of
31 December 1992 reduced the scope of competence of labour consultants
to the extent that the latter may represent their clients before tax
courts only in matters concerning the taxation at source in subordinate
and assimilated employment and the ensuing obligations for employers
("per le materie concernenti la ritenuta alla fonte sui redditi da
lavoro e assimilati e gli obblighi del sostituto d'imposta relativi
alle ritenute medesime"). Law no. 427 of 29 October 1993 extended the
competence to represent taxpayers before tax courts to other categories
of persons who did not possess the professional qualifications
previously required. This new regulation of legal representation before
tax courts entered into force on 1 October 1994.
COMPLAINTS
The applicants complain that, following the entry into force on
1 October 1994 of the new regulation of legal representation before tax
courts, which involves on the one hand the limitation of cases in which
labour consultants may represent their clients before tax courts and
on the other hand the possibility also for other persons who do not
meet the professional qualifications previously required, to represent
taxpayers in certain matters, their income will fall as will their
goodwill.
They allege a breach of Article 1 of Protocol no. 1 to the
Convention.
THE LAW
The three applicants complain that the reform of tax litigation,
involving on the one hand the limitation of cases in which labour
consultants may represent their clients before tax courts and on the
other hand the possibility for new categories of persons who do not
possess the professional qualifications previously required, to
represent taxpayers before tax courts in certain matters, has infringed
their rights under Article 1 of Protocol no. 1 (P1-1), according to
which:
"Every natural and 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".
1. Under Article 25 (Art. 25) of the Convention, "the Commission may
receive petitions ... from any person, non-governmental organisation
or group of individuals claiming to be a victim of a violation by one
of the High Contracting Parties of the rights set forth in this
Convention".
The Commission recalls that in order for applicants to be able
to avail themselves of this provision, they must fulfil two conditions:
they must fall into one of the categories of applicants referred to in
Article 25 (Art. 25) and they must have a claim to be a victim of a
violation of the Convention.
a) As regards the first and the second applicant, who are natural
"persons", the Commission notes that, although it has previously held
that Article 25 (Art. 25) of the Convention entitles individuals to
contend that a law violates their rights by itself, in the absence of
an individual measure of implementation, if they run the risk of being
directly affected by it (cf. Eur. Court HR, Marckx v. Belgium judgment
of 13 June 1979, Series A no. 31, p. 13, para. 27 and Johnston and
others v. Ireland judgment of 18 December 1986, Series A no. 112, p.
21, para. 42), in the present case the question whether these
applicants can claim to be "victims" is closely connected with the
substance of the complaint, so that the Commission will examine the two
questions together.
The Commission recalls that the Convention organs have constantly
held that Article 1 of Protocol no. 1 (P1-1) does no more than enshrine
the right to the peaceful enjoyment of existing possessions (cf. Eur.
Court HR, Marckx v. Belgium judgment of 13 June 1979, p. 23, para. 50).
Therefore, the issue arises in the present case as to whether
these two applicants have a vested right, a violation of which can be
considered as an interference with the peaceful enjoyment of their
possessions within the meaning of the above provision.
The applicants refer to the Van Marle judgment (cf. Eur. Court
HR, Van Marle and others v. the Netherlands judgment of 26 June 1986,
Series A no. 101), in which the Court held that the clientele built up
by self-employed professionals constitutes an asset and hence a
"possession", and argue that the law at issue will cause a fall in
their income and in the goodwill, which constitutes an interference
with their right to the peaceful enjoyment of their possessions.
The Commission notes that the profession of labour consultant is
a liberal one with no fixed income and no guaranteed turnover. It is
naturally subject to the hazards of economic life. The Commission also
recalls its previous case-law to the extent that future income
constitutes a "possession" within the meaning of Article 1 of Protocol
no. 1 (P1-1) only if the income has been earned or where an enforceable
claim to it exists (cf. Nos. 10438/83, Dec. 3.10.84, D.R. 41 p. 170;
24581/94, Dec. 6.4.95, D.R. 81 p. 123 and 29173/95, Dec. 15.5.96,
unpublished).
However, the Commission considers that it is unnecessary to
decide whether Article 1 of Protocol no. 1 (P1-1) is applicable in the
present case, as, even assuming that it is so, this part of the
application is inadmissible for the following reasons.
The Commission observes that the legislative provisions
complained of were designed to promote "general interest", namely to
structure the profession of labour consultant and the functioning of
tax-courts and at the same time to ensure the professional competence
of those who represent taxpayers before those courts.
Moreover, the Commission notes that the applicants have not
submitted any evidence supporting their allegations that their income
and the value of their clientèle have been so adversely affected by the
legislative reforms at issue, as to result in an unfair balancing of
interests.
The Commission considers therefore that, even assuming that there
has been an interference with the applicants' right to the peaceful
enjoyment of their possessions, such interference was justified in
terms of the second paragraph of Article 1 of Protocol no. 1 (P1-1).
It follows that this part of the application is manifestly ill-
founded and must be rejected in pursuance of Article 27 para. 2
(Art. 27-2) of the Convention.
b) As regards the National Council of the Association of Labour
Consultants, the Commission observes in the present case that it is not
the association as such which complains of its income diminishing as
a result of that legislation, but rather each of its members taken
individually (cf. Nos. 24581/94, Dec. 6.4.95, D.R. 81 p. 123 and
29173/95, Dec. 15.5.96, unpublished).
The Commission recalls its established case-law to the effect
that a professional association, incapable of claiming to be a "victim"
itself, cannot bring an application against a measure which affects its
members (cf. No. 9939/82, Dec. 4.7.83, D.R. 34 p. 213; No. 24581/94,
D.R. 81 p. 123).
It follows that the applicant association cannot claim that it
is itself a victim of a violation of the Convention. The remainder of
the application is thus incompatible ratione personae with the
provisions of the Convention and must be rejected in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary to the First Chamber President of the First Chamber
Full & Egal Universal Law Academy