AS TO THE ADMISSIBILITY OF
Application No. 29189/95
by Peter GEDIN
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, 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 25 September 1995
by Peter GEDIN against Sweden and registered on 9 November 1995 under
file No. 29189/95;
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 applicant, a Swedish citizen born in 1945, resides in
Helsingborg. He is a self-employed lawyer.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In December 1993 the applicant submitted a value added tax (VAT)
declaration for September and October 1993 to the tax authorities,
indicating that the VAT received and the VAT paid during the period
totalled 7,749 and 1,241 Swedish crowns (SEK) respectively. The VAT
received was, under Section 42 of the Act on Value Added Tax (Lagen om
mervärdeskatt, 1968:430), payable to the tax authorities on 5 December
1993. The applicant did not pay, however. Basing itself on the
applicant's declaration, the tax authorities, on 7 February 1994, fixed
the applicant's VAT debt at SEK 7,749. Under Sections 51 and 52 of the
Act on Value Added Tax, the applicant may, within six years, appeal
against this decision to the administrative courts. He has not done
so, however.
On 20 April 1994, the debt still being outstanding, the tax
authorities registered the applicant as being in arrears with his
taxes. The register on taxes in arrears (restlängden) was sent to the
Enforcement Office (Kronofogdemyndigheten) in order to enforce the
payment of the debt. The Office ordered the applicant to pay before
10 May. On 11 May the VAT paid by the applicant during the period in
question - SEK 1,241 - was deducted from the VAT debt. On 30 May the
applicant paid the remainder of the debt.
When the register on taxes in arrears arrives at the Enforcement
Office the information is entered in an enforcement register
(utsökningsregister). The information in the latter register is kept
for three years and is normally available and accessible to anybody,
i.a. credit information agencies. It is regulated by the Enforcement
Register Act (Utsökningsregisterlagen, 1986:617).
In November 1994 the applicant applied for a mobile telephone
subscription. The telephone company made an inquiry at a credit
information agency and was informed of the registered VAT debt. The
subscription was therefore refused.
On 7 December 1994 the applicant requested the Enforcement Office
to delete the information on the VAT debt from the enforcement
register. He claimed that the debt had been erroneously registered as
he, at the time of the registration, had a larger counter-claim on the
tax authorities consisting of surplus payments of preliminary income
tax for 1993. He had allegedly been told by his accountant that the
VAT debt would be set off against this counter-claim. On 31 May 1994
the tax authorities had decided to reimburse the applicant for surplus
payments totalling SEK 11,599. The amount had been paid to the
applicant in June 1994.
By decision of 28 December 1994, the Enforcement Office refused
to delete the information on the VAT debt. The Office noted that the
debt had been registered due to the applicant's failure to pay in time.
The applicant appealed to the District Court (tingsrätten) of
Stockholm in accordance with the directions given by the Enforcement
Office. In an opinion submitted to the Court, the National Tax Board
(Riksskatteverket) maintained that, according to the applicable legal
provisions, appeals against decisions by the Enforcement Office should
be examined by the Board.
On 1 March 1995 the District Court, agreeing with the opinion of
the National Tax Board, dismissed the applicant's appeal.
On 22 June 1995 the National Tax Board rejected the applicant's
appeal against the Enforcement Office's decision. The Board noted that
the VAT paid by the applicant during the period in question had already
been deducted and that there was no legal basis for further set-offs.
Thus, the debt had been correctly entered in the enforcement register.
The Board's decision was final.
COMPLAINTS
1. The applicant claims that he has been subjected to "economic
slander", as the information originally registered by the tax
authorities and eventually made available to credit information
agencies was false. He does not invoke any Articles of the Convention
in this respect.
2. Under Articles 6 and 13 of the Convention, the applicant further
complains of a lack of access to court. He states that he wished to
bring before a court the question whether he had a valid counter-claim
on the tax authorities which would set off the VAT debt.
THE LAW
1. The applicant claims that he has been subjected to "economic
slander", as the information originally registered by the tax
authorities and eventually made available to credit information
agencies was false. He maintains that, by the registration of the VAT
debt, the tax authorities have deemed him not creditworthy, although
he was not insolvent. In any case, it is unreasonable that the debt
is registered for three years. The registration may have many adverse
effects for the applicant, as is shown by the telephone company's
refusal to give him a telephone subscription. The applicant does not
invoke any Articles of the Convention in this respect.
The Commission considers that this complaint is to be examined
under Article 8 (Art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder and crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The Commission first considers that the registration of the
applicant's VAT debt in the enforcement register available, inter alia,
to credit information agencies can as such be regarded as an
interference with the applicant's right to respect for his private life
as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.
It must therefore be examined whether this interference was
justified under para. 2 of that provision. In this respect, the
Commission finds that it was in accordance with the law, in particular
the Enforcement Register Act, and had legitimate aims, namely the
economic well-being of the country and the protection of the rights of
others. The Commission further considers that access to information
of the kind registered in the applicant's case is of great importance
in modern economic life, not least to banks and other credit
institutions. Having regard to the margin of appreciation left to the
Swedish authorities, the Commission therefore considers that the
registration in question can reasonably be regarded as "necessary in
a democratic society" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains of a lack of access to court. He states
that he wished to bring before a court the question whether he had a
valid counter-claim on the tax authorities which would set off the VAT
debt. He invokes Articles 6 and 13 (Art. 6, 13) of the Convention.
Article 6 (Art. 6) reads, in so far as relevant, as follows:
"1. In the determination of his civil rights ..., everyone
is entitled to a ... hearing ... by [a] ... tribunal ..."
Article 13 (Art. 13) provides the following:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission notes that when the applicant requested the
Enforcement Office and, on appeal, the National Tax Board, to delete
the information on the VAT debt from the enforcement register,
maintaining that the registration was erroneous, he effectively claimed
that the debt should have been set off by his larger counter-claim for
surplus payments of preliminary income tax. The issues raised by this
claim thus concerned the assessment of taxes.
The Commission recalls its established case-law according to
which Article 6 (Art. 6) is not applicable to proceedings regarding
taxation (cf., e.g., No. 11189/84, Dec. 11.12.86, D.R. 50 p. 121, and
No. 13013/87, Dec. 14.12.88, D.R. 58 p. 163).
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
As regards Article 13 (Art. 13) of the Convention, the Commission
recalls that it has been interpreted by the European Court of Human
Rights as requiring a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (cf., e.g., Boyle and Rice v. the United Kingdom judgment
of 27 April 1988, Series A no. 131, p. 23, para. 52).
Having regard to its findings with respect to the separate
complaints submitted, the Commission considers that the applicant does
not have an "arguable claim" of a violation of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy