AS TO THE ADMISSIBILITY OF
Application No. 30378/96
by Klaus LINDNER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 8 February 1996
by Klaus LINDNER against Germany and registered on 5 March 1996 under
file No. 30378/96;
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, born in 1945, is a German national and resident
in Berlin. He is a lawyer and public notary by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
For failure to declare any advance turnover tax
(Umsatzsteuervoranmeldung) for the period between September and
December 1992, the Göttingen Tax Office (Finanzamt) assessed the
applicant's turnover for the relevant period on the basis of the last
year's figures and fixed the amount of the advance turnover tax due on
that basis. In default of payment, the Tax Office subsequently
enforced its decision.
In 1993 the applicant instituted official liability proceedings
before the Göttingen Regional Court (Landgericht) against the Land
Lower Saxony and Germany in respect of breach of official duties
(Amtspflichtverletzung), namely for failure to duly increase lawyers'
fees (Rechtanwaltsgebühren). He submitted that since 1989 he had not
been able to derive any income from his professional activities on the
ground that lawyers' fees as fixed in the relevant legal provisions had
considerably dropped in value in consequence of an increase in cost of
living. He had no taxable income and was not, therefore, obliged to
pay turnover tax.
On 29 July 1993 the Regional Court dismissed the applicant's
action. The Court found that the enforcement proceedings by the
Göttingen Tax Office had been lawful. The applicant had been obliged
to pay the relevant advance turnover tax which did not depend on his
earnings. He merely had to forward the turnover tax payable by his
clients to the Tax Office. In respect of the official liability claims
for the legislator's alleged failure to adjust the scales of lawyers'
fees, the Court found that the Federal Scale of Lawyers' Fees
(Bundesgebühren-ordnung für Rechtsanwälte) generally regulated issues
relating to lawyers' fees. Under its provisions, the individual lawyer
had a subjective right vis-à-vis his client to the payment of his fees,
but no subjective right vis-à-vis the legislator to the fixing of a
particular scale of fees.
On 7 June 1994 the Celle Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal (Berufung). The Court of Appeal
confirmed the lawfulness of the enforcement proceedings. It rejected
the applicant's argument that he was entitled to retain the turnover
tax as long as lawyers' fees had not been duly increased. Moreover,
the Court of Appeal confirmed the first instance court reasoning that
he had no official liability claim arising of the allegedly belated
adjustment of lawyers' fees.
On 15 December 1994 the Federal Court of Justice
(Bundesgerichtshof) dismissed the applicant's request that counsel be
appointed for him on the ground that his envisaged appeal on points of
law (Revision) offered no prospect of success.
On 20 September 1995 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to entertain the applicant's
constitutional complaint (Verfassungsbeschwerde).
B. Domestic law
The lawyers' fees are regulated in the Federal Scale for Lawyers'
fees. According to S. 7, these fees are, as a rule, calculated with
regard to the matter to which the lawyer's professional activity
relates (Gegenstandswert) and determined on the basis of the legal
provisions on the fixing of court fees. The minimum amount of a
lawyer's fee and its increase in relation to the matter, i.e. the
amounts of claims involved, are laid down in S. 11, as amended in
June 1994. Upon the request of the lawyer, the amount of his fees is
fixed in proceedings before the court of first instance dealing with
the initial proceedings (S. 19).
COMPLAINTS
The applicant complains that he had no access to a court and no
effective remedy to complain that the German legislator failed to
provide for a sufficient increase of the lawyers' fees. He submits
that in the context of the compensation proceedings instituted by him,
this matter could not be resolved. He also complains that he has to
pay turnover tax irrespective of his lack of income. He invokes
Articles 6 and 13 of the Convention.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention that he had no access to a court with a view to ensure an
appropriate increase in lawyers' fees, as laid down in the Federal
Scale for Lawyers' Fees.
Article 6 para. 1 (Art. 6-1), as far as relevant, provides as
follows:
"In the determination of his civil rights ..., everyone is
entitled to a ... hearing ... by an independent and impartial
tribunal established by law. ..."
The Commission recalls that Article 6 para. 1 (Art. 6-1)extends
only to "contestations" (disputes) over (civil) "rights and
obligations" which can be said, at least on arguable grounds, to be
recognised under domestic law; it does not in itself guarantee any
particular content for (civil) "rights and obligations" in the
substantive law of the Contracting States. Article 6 para. 1
(Art. 6-1) does not require that there be a national court with
competence to invalidate or override national law (cf. Eur. Court HR,
James and Others v. the United Kingdom judgment of 21 February 1986,
Series A no. 98-B, p. 46, para. 81).
In the present case the applicant had, pursuant to the relevant
legislation, unimpeded access to the German courts regarding any
dispute with a client as to lawyers' fees due under the Federal Scale
of Lawyers' Fees in force. The Commission further notes that he could
address himself to the German civil courts regarding his official
liability claims, both as to the alleged unlawfulness of the tax
enforcement proceedings and the adjustment of the lawyers' fees.
However, the courts found that under German law he had no subjective
right that the legislator should fix a particular scale for lawyers'
fees.
In these circumstances the Commission finds no indication of a
breach of Article 6 para. 1 (Art. 6-1.
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. With regard to the above issue, the applicant also invokes
Article 13 (Art. 13) of the Convention, which provides:
"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."
Article 13 (Art. 13) requires that "where an individual has an
arguable claim to be the victim of a violation of the rights set forth
in the Convention, he should have a remedy before a national authority
in order both to have his claim decided and, if appropriate, to obtain
redress" (Eur. Court HR, James and Others judgment, op. cit., p. 47,
para. 84).
In the present case, the Commission considers that the
applicant's submissions regarding the German legislator's alleged
failure duly to adjust lawyers' fees does not fall within the ambit of
any of the rights under the Convention or its Protocols. In any event,
the Commission recalls that Article 13 (Art. 13) does not go so far as
to guarantee a remedy allowing a Contracting State's laws as such to
be challenged before a national authority on the ground of being
contrary to the Convention or to equivalent domestic legal norms (Eur.
Court HR, James and Others judgment, op. cit., p. 47, para. 85; The
Holy Monasteries v. Greece judgment of 9 December 1994, Series A no.
301-A, p. 39, para. 90).
The Commission, therefore, finds that there is no appearance of
a breach of Article 13 (Art. 13) in the applicant's case.
Consequently, this part of the application is likewise manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. As regards the remainder of the applicant's submissions, in
particular his obligation to pay turnover tax, the Commission finds no
indication of a violation of his rights under the Convention and its
Protocols. Consequently, this part of the application is also
manifestly ill-founded within the meaning of 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 President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy