AS TO THE ADMISSIBILITY OF
Application No. 14623/89
by H.K.KG.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 12 January 1989
by H.K.KG. against Austria and registered on 6 February 1989 under file
No. 14623/89;
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 company runs a transport business. Its
headquarters is at A. and it is represented before the Commission by
Mr. Heinz Walther, a lawyer in Klagenfurt.
On 4 September 1986 the applicant company was ordered by the
competent authority to pay an equalisation tax (Ausgleichstaxe) for
1985 in the amount of AS 14,440 under Section 9 of the Disabled Persons
Employment Act (Invalideneinstellungsgesetz). According to this Act
every employer with a staff of over 25 persons has to employ disabled
persons. The Act sets a quota of one disabled person per 25 employees.
Employers who qualify under the Act have to pay an equalisation tax if
they do not employ disabled persons. This revenue is used for a
Disabled Persons Employment Fund (Ausgleichtaxfonds) according to
Section 10 (1) of the Act.
The applicant company's objections were rejected on 23 June 1987
by the Regional Authority (Landeshauptmannschaft) of Carinthia on the
ground that the tax was due regardless of the reasons for the
non-employment of disabled persons. The authority also pointed out
that the Constitutional Court (Verfassungsgerichtshof) had repeatedly
decided that the tax in question was compatible with the constitutional
rights.
The applicant company nevertheless lodged a constitutional
complaint which was however declared inadmissible on 26 September 1987
as offering no prospects of success. The Constitutional Court referred
in its decision to its constant jurisprudence in respect of the tax in
question.
A complaint to the Administrative Court (Verwaltungsgerichtshof)
was rejected on 29 June 1988 (received by the applicant company's
counsel on 14 July 1988) as being unfounded. This Court likewise
referred to the Constitutional Court's jurisprudence and added that the
applicant company's allegations about an irregular determination of the
amount of the tax due were unsubstantiated.
COMPLAINTS
The applicant company submits that it has to pay the tax although
it tried in vain to find disabled persons as employees. It considers
that the tax is excessive as it is unproportionate to the number of
jobs for invalids secured by employment obligations. It also considers
it to be excessive in view of the great number of additional taxes and
contributions imposed on business companies. In addition it argues
that the imposition was unlawful as a taxation scale was applied which
is provided for in an amendment which came into force on 1 January 1986
only.
Furthermore the applicant company alleges a violation of
Article 6 para. 1 which it considers applicable to the proceedings
before the Administrative Court as they concern a civil right. As the
Administrative Court does not itself establish the facts the
proceedings do not, according to the applicant company, comply with
paragraph 1 of this provision.
THE LAW
The applicant company complains about the imposition of a special
tax on certain employers who do not employ disabled persons.
However, the Commission has repeatedly held that the imposition
of taxes is in principle justified under paragraph 2 of Article 1 of
Protocol No. 1 (P1-1-2) to the Convention, in particular when the
imposition only concerns a particular group of the population, such as
employers (see No. 6087/73, Dec. 13.5.76, D.R. 5 p. 11 with further
references, and in the case No. 17819/91, Dec. 3.9.91 (not yet
published) likewise concerning the equalisation tax under the Disabled
Persons Employment Act).
In the present case the imposition of the tax in question is
clearly linked to an objective factor namely non-employment of disabled
persons regardless of whether this is the result of a deliberate policy
of the employer or of an impossibility to find suitable persons as
employees. The receipts are paid into a Disabled Persons Employment
Fund.
The Commission cannot therefore find that in the circumstances
of the applicant company the imposition of the equalisation tax was
excessive or arbitrary.
Finally, according to the Commission's case-law disputes on
taxation do not, in principle, fall under the ambit of Article 6
(Art. 6) of the Convention (cf. No. 9908/82, Dec. 4.5.83, D.R. 32 p.
266 with further references).
It follows that the application is manifestly ill-founded and
partly incompatible with the Convention ratione materiae within the
meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy