Information Note on the Court’s case-law 12
November 1999
Špaček, s.r.o. v. the Czech Republic - 26449/95
Judgment 9.11.1999 [Section III]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Secure the payment of taxes
Accessibility of regulations relating to business accounts: no violation
Facts: In 1993 the applicant company was notified that it had to pay additional income tax, including a penalty, for 1991 because its predecessor company had not increased its income tax base by including certain assets, as required by Regulations on the procedure for passing from single to double-entry book-keeping. These regulations had been published by the Ministry of Finance in a Financial Bulletin in May 1991. The applicant's appeals were dismissed by the Finance Department and the Municipal Court and a constitutional appeal was dismissed as ill-founded, the Constitutional Court holding that there was no requirement for the regulations to be published in the Official Gazette.
Law: Government's preliminary objection: The Government was estopped from raising the objection that the applicant could not claim to be a victim, since the measure at issue had been directed against its predecessor. Moreover, the fact that the applicant company was subject to bankruptcy proceedings could not affect its status as victim.
Article 1 of Protocol No. 1: The main question was the publicity afforded to the principles governing calculation of the income tax base. The Court accepted that the relevant Rules and Regulations were issued under a general authorisation for the Ministry of Finance to regulate accounting and fell fully within the competence of the Ministry. It recalled that the Convention did not contain any specific requirements as to the degree of publicity to be given to a particular legal provision. It noted that the Financial Bulletin was created for the purpose of informing the public about measures adopted by the Ministry of Finance and was given the same publicity as the Official Gazette and that there was no requirement that such measures be published in the Official Gazette itself. Furthermore, the applicant's predecessor had applied the accounting principles included in Rules published in a previous Financial Bulletin and had thus accepted the Financial Bulletin as an official public source of binding regulations, which it had followed in keeping its accounts. It had been aware of the way in which the Ministry of Finance published its accounting principles and could easily have sought information about any possible transitional provisions, if necessary with the advice of specialists. Taking into consideration that the applicant as a legal entity, contrary to an individual taxpayer, could and should have consulted the competent specialists, the publication of the Regulations in the Financial Bulletin was sufficient. The Regulations were adequately accessible and foreseeable and the interference had a sufficient legal basis in Czech law to comply with the requirements of the second paragraph of Article 1 of Protocol No. 1.
Conclusion: no violation (unanimous).
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This summary by the Registry does not bind the Court.
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