AS TO THE ADMISSIBILITY OF
Application No. 22651/93
by J. R.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 20 February 1993
by J. R. against Germany and registered on 17 September 1993 under file
No. 22651/93;
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 is a German citizen, living in Erfstadt-Lechenich.
He is represented by Mr. H. Hagemeier & Partners, a law firm in
Cologne.
It follows from the applicant's statements and the documents
submitted that the applicant, after having exhausted the administrative
proceedings, brought an action against an income tax assessment order
dated 19 November 1987. This action was dismissed by the Cologne
Finance Court (Finanzgericht) on 14 July 1988. The court found that
the applicable Section 32 (a) of the Income Tax Act
(Einkommensteuergesetz) according to which taxes had to be levied in
relation to the economic capacity (wirtschaftliche Leistungsfähigkeit)
and a minimum of 378 DM per month to cover the minimum exigencies of
existence was free from taxation was compatible with constitutional
law. The court noted that after deduction of income taxes, the
applicant still had approximately 20,000 DM for his and his wife's
maintenance, therefore the applicant's request to submit the case to
the Federal Constitutional Court to have the constitutionality of
Section 32 (a) para. 1 of the Income Tax Act was not granted.
On 8 June 1990 the Federal Finance Court (Bundesfinanzhof)
dismissed the applicant's appeal on points of law (Revision).
The applicant then lodged a constitutional complaint.
On 25 September 1992 the Federal Constitutional Court
(Bundesverfassungsgericht) decided at the request (Vorlagebeschluß) of
several Finance courts that Section 32 (a) para. 1 of the Income Tax
Act was unconstitutional. It considered that every tax-payer had the
right to a minimum of existence (Existenzminimum), i.e. that after
having met his tax liabilities he should still dispose of enough money
necessary for his and his family's maintenance (Lebensunterhalt). The
minimum of the existence amount depended on the general economic
situation and the recognized standards in the legal community. The
tax-payer should at least have as much at his disposal as the public
social authorities granted to needy persons out of public funds. The
Federal Constitutional Court requested the legislator to enact a new
provision to replace Section 32 (a) from 1 January 1996 onwards. Until
then, so the court decided, the unconstitutional regulation remained
in force. Neverthless, as from 1993 onwards, income taxation should
be limited so as not to deprive a tax-payer of a minimum of existence.
The applicant's own constitutional complaint was rejected by a
panel of three judges of the Federal Constitutional Court on
22 December 1992. The court referred to its decision of
25 September 1992 and added that the applicant had to accept the
unconstitutional taxation until the relevant legislation had been
amended. Should the legislator decide in the new legislation that it
also applied to the relevant prior assessment periods, then the binding
force of the assessment decisions did not prevent a reconsideration of
the matter under the new regulations.
COMPLAINTS
The applicant considers that the application in his case of a tax
law provision, which the Federal Constitutional Court has held to be
unconstitutional, violates his rights guaranteed by Article 1 of
Protocol No. 1 to the Convention. He alleges a further violation in
that he has to bear the costs of the domestic proceedings although his
arguments about the unconstitutionality of the applicable tax law
provision were justified.
THE LAW
The applicant complains that no retroactive effect was given to
the Federal Constitutional Court's decision of 25 September 1992 and
that the unconstitutional provision of the German Income Tax Act was
applied by the Finance Court in his matter and to his detriment.
The Commission has examined this complaint under Article 1 of
Protocol No. 1 (P1-1) which guarantees the right to the peaceful
enjoyment of possessions, in conjunction with Article 14 (P1-1+14) of
the Convention which forbids discrimination as to the enjoyment of
Convention rights.
However, with regard to the applicant's complaint that no
retroactive effect was given to a Constitutional Court decision
declaring a certain provision of the tax law to be unconstitutional,
the Commission notes that according to the jurisprudence of the
European Court of Human Rights, the principle of legal certainty, which
is necessarily inherent in the law of the Convention, may dispense
States from re-opening legal acts or situations that antedate judgments
of this Court declaring domestic legislation incompatible with the
Convention (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A
no. 31, p. 26, para. 58). The same considerations apply where a
Constitutional Court annuls domestic legislation as being
unconstitutional (No. 17750/91, Dec. 30.6.92, unpublished). In view
of this principle of legal certainty, the Commission finds that the
regulation adopted by the Federal Constitutional Court according to
which the impugned provisions of the Income Tax Act remain in force
until 1 January 1996 is objectively justified. The Commission also
notes that in its decision of 25 September 1992 the Federal
Constitutional Court ordered that from 1993 onwards it had to be made
sure that income tax was not levied in an excessive manner so as to
deprive the tax-payer of a minimum of existence. The Commission
further notes that according to the finding of the Cologne Finance
Court at the relevant time the applicant still disposed of about 20,000
DM to cover his and his wife's maintenance , after payment of taxes.
In these particular circumstances, the Commission cannot find that the
case discloses any appearance of a violation of the Articles cited
above.
Furthermore, the applicant has not shown that the costs which he
had to bear in the domestic proceedings were excessive and arbitrarily
imposed.
It follows that the application has to be rejected as being
manifestly ill-founded in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy