SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40442/98
by George DROSOPOULOS
against Greece
The European Court of Human Rights (Second Section), sitting on 7 December 2000 as a Chamber composed of
MrA.B. Baka, President,
MrC.L. Rozakis,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrA. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 26 December 1997 and registered on 25 March 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Greek national, born in 1938 and living in Athens. He is represented before the Court by Mr Th. Zigras, a lawyer practising in Athens.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1972 the applicant was appointed a public notary in Athens. He specialised in contracts for the sale of cars.
In 1995 disciplinary proceedings were instituted against the applicant for not having paid to the notaries' association (simvoleografikos sillogos) of Athens, Piraeus, the Aegean and the Dodecanese 30% of the fees he had received from contracts for the sale of cars and motorbikes between 10 March 1993 and 5 May 1994. According to the disciplinary charges the applicant had acted contrary to Article 102 § 4 of Law 670/1977.
The applicant appeared before the five-member Disciplinary Tribunal constituted within the Court of Appeal (Pendameles Pitharhiko Dikastirio tou Efetiou) of Athens on 14 December 1995. He argued, inter alia, that the obligation to pay 30% of his fees to the association amounted to a confiscation.
In a decision issued on the same date the disciplinary tribunal found that the obligation in question constituted a legitimate restriction of professional liberty. It also found that the applicant had indeed failed to pay to the notaries' association 30% of the fees (which amounted to 32 163 511 drachmas) he had received in connection with the sale of cars and motorbikes during the period in question. As a result, the tribunal decided, by majority, to strike the applicant out of the roll of the association.
On 2 February 1996 the applicant, who could not any longer practise as a public notary, appealed on points of law. On 9 May 1997 the Court of Cassation (Arios Pagos) rejected his appeal. The Court of Cassation considered that the limitation on professional freedom introduced by Article 102 § 4 of Law 670/1977 was justified in the public interest since its aim was to introduce a measure of fairness in the distribution of the earnings from the particular category of sales among the public notaries. It also considered that all public notaries were treated equally since they were subject to the same obligation. The applicant obtained a copy of the relevant decision on 27 June 1997.
In 1990 and 1993, the Public Prosecutor of the First Instance Court of Athens had instituted proceedings against the applicant for the same offence, namely his refusal to pay different sums for the periods between 11 November 1986 and 1st September 1988, 2 September 1988 and 3 September 1989 and 4 September 1989 and 9 March 1993. The five-members Disciplinary Tribunal had suspended his right to practise for a period of forty days.
B. Relevant domestic law and practice
Article 102 § 4 of Law 670/1977 reads as follows:
“In case of preliminary or final contracts for the transfer of the property of cars or motorcycles, the public notary is obliged to deposit to the notaries' association or the authorised public notary, for allocation between all public notaries with registered offices in the regions stated in paragraphs 1 and 3 of Article 98 ... 30% of his fees.”
According to the established case-law of the courts, the above-mentioned provision does not impose on the public notaries different obligations for the drawing up of the same kind of contracts. It simply restricts the rights of all public notaries for the drawing up of a certain category of contracts. Moreover, that provision does not obstruct the free economic activity and free choice or practice of the profession of public notary, nor does it restrict their financial liberty. The obligation to pay 30% of the gross earnings is justified by the aim pursued by that provision, namely to avoid that all contracts are drawn up by a small number of privileged public notaries who may have a great number of acquaintances (Judgment of the Supreme Court 384/1979, Nomiko Vima no 27, p. 1439).
It transpires from Articles 95 §§ 1 and 2, 99 and 101 of Law 670/1977 that public notaries are always entitled to a fee when they draw up contracts, with the exception of deeds in which the contracting parties are the State, co-operatives and public law corporations. In such cases, the public notary is obliged to reimburse the collected fees within ten days to the notaries' association which distribute them among its members in accordance with Article 101. That provision, which applies specifically to “state” contracts aims at preventing certain public notaries from taking advantage of their acquaintances and influence and thus monopolising the drawing up of contracts involving high amounts of money.
COMPLAINT
The applicant alleges that the obligation to pay 30% of the fees he had earned amounts to an unjustified interference with his right to property under Article 1 of Protocol No. 1. He points out that he had earned this money because of his professional efforts, that he had to pay 30 % of his gross earnings, which amounted to 60% of his profits, and that the obligation to pay 30% of the notaries' fees did not apply to other types of contracts, such as contracts for the sale of immovable property.
THE LAW
The applicant alleges a violation of Article 1 of Protocol No. 1, which reads as follows:
“Every natural or 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. The Government invites the Court to dismiss the application under Article 35 of the Convention for failure to comply with the six-month time‑limit. The Court of Cassation delivered judgment on 9 May 1997. The judgment was finalised on 12 June 1997 and from that date on the applicant, who had a reasonable interest as to the outcome of his case, was able to be informed of the decision.
The Court recalls that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the object and purpose of Article 35 § 1, of the Convention are best served by counting the six‑month period as running from the date of service of the written judgment (see the Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1547, § 33). Where, as in the present case, the domestic law does not provide for service, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to find out its content (Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999).
The Court notes that Article 31 § 1 b) of the Code of Public Notaries provides for the serving of a court judgment when a court pronounces the striking off the Register of the notaries' association. The judgment takes effect on the date following its serving.
In the present case the judgment of the Court of Cassation was served to the applicant on 2 July 1997. By making an application to the Court on 26 December 1997, the applicant satisfied the requirement of Article 35 in this regard.
2. The Government also invites the Court to reject the application as incompatible ratione materiae with the provisions of the Convention. The percentage of the fees which a public notary is obliged to pay to the notaries' association by virtue of Article 102 § 4 of Law 670/1977, is not his personal property but the property of the association and cannot thus be considered as “possessions” within the meaning of Article 1 of Protocol No. 1. The Court of Cassation reached the same conclusion in a judgment which interpreted a provision of Article 102 § 1 a) of the Code of Public Notaries and by which the public notary is obliged to pay to the notaries' association 68% of his fees when he draws up contracts with banks operating in Greece.
The Court notes that the above-mentioned percentage is part of the fees paid to the public notary by his client, according to a contractual obligation, when the public notary draws up contracts for the sale of cars and motorcycles. The public notary “earns” this sum as a result of the sale. Once the public notary has been paid his fees, he is “obliged to deposit” according to the wording of Article 102 § 4 of Law 670/1977, that percentage to the notaries' association. It follows that the transfer of property of that part of the fees takes place with the deposit of the percentage to the notaries' association, by virtue of Article 102 § 4 of Law 670/1977. Until this moment, the impugned percentage may be considered as “possessions” for the purposes of Article 1 of Protocol No. 1. Consequently, the Government's objection in this respect must be rejected.
3. As regards the merits of the application, the Court recalls that under its case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 29‑30, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (Immobiliare Saffi v. Italy [GC], No. 22774/93, § 44, ECHR 1999‑V).
It transpires from the relevant legislation that the obligation of a public notary to pay 30% of his fees to the notaries association amounts to a measure aiming at securing the payment of taxes or contributions, as mentioned in the second paragraph of Article 1.
The applicant alleges that the application of Article 102 § 4 in his respect deprived him of 30% of his fees without that serving the general interest. The Government's contention to the contrary, who put on the same footing contracts for car sales and contracts concluded with banks or the State, is inadmissible because it overlooks the different origin of those contracts. The choice of certain public notaries for the drawing up of contracts for car sales is justified by the confidence of the client in the capacities of the public notary and not by the intervention of a public body or the notaries' association in favour of these notaries. The obligation introduced by Article 102 § 4 has not a reasonable basis because the drawing up of such contracts is optional under that provision. As a result, the number of such contracts is low compared to contracts of a different kind and the percentage which must reimbursed to the notaries' association excessively high. It should also be noted that he did not receive the dividends to which he was entitled as the notaries' association had confiscated these dividends since 1992. As that percentage is calculated on the basis of the gross earnings of the public notary, the real loss is higher, that is 60 % of the profits, since expenses such as the rent of the office of the public notary and the salaries of the notary's clerks should be added to that percentage. Finally, taxation established under Article 102 § 4 is unfair because it concerns only one category of income, fees from the transfer of cars and motorbikes. No similar contributions are provided in respect of fees from the transfer of real property.
The Court recalls that a financial liability arising out of the raising of taxes or contributions may adversely affect the guarantee secured under Article 1 of Protocol No. 1 if it places an excessive burden on the person or entity concerned or fundamentally interferes with his or its financial position. However, it is in the first place for the national authorities to decide what kind of taxes or contributions are to be collected. The decisions in this area will commonly involve the appreciation of political, economic and social questions which the Convention leaves within the competence of the Contracting States. The margin of appreciation of the Contracting States is therefore a wide one (Eur. Comm. H. R., No. 13013/87, dec. 14.12.88, D.R. 58, pp. 163, 186).
As regards the lawfulness and purpose of the interference, the Court notes that the obligation to pay to the notaries' association 30% of the fees was prescribed by Article 102 § 4 of Law 670/1977 and was designed to reduce the risk that contracts for cars and motorbikes sales are monopolised by a small number of public notaries due to their influence and acquaintances. The Court is satisfied that this was a legitimate aim “in accordance with the general interest” for the purposes of the second paragraph of Article 1.
As regards the proportionality of the interference, the Government contend that the impugned percentage is not excessive, taking account of the large number of contracts entrusted by car retailers to certain public notaries and of the financial considerations of these contracts. Moreover, the Government underline the fact that all public notaries receive dividends resulting from the drawing up of contracts concluded by some of them with public bodies; the financial considerations of this kind of contracts are much more important than those of the contracts related to car sales. Finally, they maintain that by undertaking to specialise in such contracts, the applicant knew from the beginning that he would be subject to the provisions of Article 102 § 4.
It is not for the Court to assess whether the level of the contribution instituted under Article 102 § 4 is excessive as such. The Court will confine itself to examining whether the application of the above-mentioned provision to the applicant upset the fair balance between the protection of the right to property and the requirements of the general interest, as required by Article 1 of Protocol No. 1.
The Court recalls that Article 102 § 4 aims at redistributing wealth from more favoured public notaries to less favoured ones and that all public notaries receive dividends from the drawing up of contracts for car sales or for contracts concluded with public bodies by other public notaries. As regards the applicant, the Court notes that from 22 April 1993 to 5 October 1994, he drew up seven thousand contracts and, although he received the relevant fees, he failed to pay 30% of these fees to the notaries' association. That sum amounted to 32 163 511 drachmas and constituted one third of the profits of the applicant during that period. The Court also notes that the applicant, who had been suspended from practise in the past for the same reasons, received until 1991 the dividends resulting from the drawing up of contracts for car sales or for contracts concluded with public bodies by other public notaries.
In these circumstances, the Court considers that the applicant's obligation to pay to the notaries' association 30% of his fees could not affect his right of ownership or interfere with his financial situation to such an extent that this could be considered disproportionate under Article 1 of Protocol No. 1.
It follows that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Erik FriberghAndrás Baka
RegistrarPresident
Full & Egal Universal Law Academy