AS TO THE ADMISSIBILITY OF
Application No. 21294/93
by VOGGENBERGER TRANSPORT GmbH
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 25 November 1992
by VOGGENBERGER TRANSPORT GmbH against Austria and registered on
28 January 1994 under file No. 21294/93;
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 facts of the case as submitted by the applicant may be
summarised as follows.
The applicant is a limited company, which is involved in the
transport business and has its seat in Uttendorf, Upper Austria. In the
proceedings before the Commission the applicant company is represented
by Mr. H. Rainer, a lawyer practising in Innsbruck.
A. The particular circumstances of the case
On 7 July 1989 the Braunau Tax Office (Finanzamt) ordered the
applicant company to pay a total of about AS 1.4 million as road taxes
(Straßenverkehrsbeiträge) for 1986, 1987 and 1988, respectively. The
Office found that the applicant company, when assessing in advance the
taxes due, had relied on the tax exemption under S. 2 (9) of the Road
Taxes Act for transports carried out by its semi-trailers, insofar as
their number exceeded the number of its motor vehicles. However, these
semi-trailers had been towed by vehicles belonging to other companies.
As regards these transports, the tax exemption of S. 2 (9) of the Road
Taxes Act (Straßenverkehrsbeitragsgesetz) did not apply.
On 19 June 1991 the Upper Austrian Tax Authority (Finanzlandes-
direktion) dismissed the applicant company's appeal. The Authority
found that the exemption under S. 2 (9) was not applicable to
transports with semi-trailers towed by motor vehicles of another
contributor. The Authority further considered that this interpretation,
taking into account the aim pursued by the provision at issue, did not
go beyond the wording which it had before the amendment of 1 August
1988, containing simply a clarification.
On 9 August 1991 the applicant company brought a complaint before
the Constitutional Court (Verfassungsgerichtshof). It alleged inter
alia that its right to property had been violated, as there had been
no legal basis for the tax authorities' decisions. It submitted in
particular that the wording of S. 2 (9) of the Road Taxes Act in the
version, which was in force before the amendment of 1 August 1988,
unconditionally exempted transports with semi-trailers, the number of
which exceeded the number of motor vehicles of the same contributor.
Moreover, the applicant company claimed that it had, when calculating
its prices, taken the lower amount of taxes into account, and
therefore, the tax authorities' decision had aggravated its financial
difficulties.
On 20 February 1992 the Constitutional Court rejected the
applicant company's complaint for lack of sufficient prospects of
success and referred the case to the Administrative Court.
On 14 May 1992 the Administrative Court (Verwaltungsgerichtshof)
dismissed the applicant's complaint as being ill-founded. The
Administrative Court found that the question had already been decided
upon in its judgments of 22 October 1990 and 22 April 1991, regarding
similar cases. The decision was served on the applicant company on
11 June 1992.
B. Relevant domestic law and practice
According to Section 1 para. 1 of the Road Taxes Act (Straßenver-
kehrsbeitragsgesetz), all domestic transports of goods carried out by
vehicles with Austrian or foreign number plates are taxable. Paragraph
2 states that motor vehicles (Kraftfahrzeuge) and semi-trailers (von
Kraftfahrzeugen gezogene Anhänger) are vehicles within the meaning of
the Act.
Section 2 (9) provides that transports carried out with semi-
trailers, insofar as their number exceeds the number of motor vehicles
belonging to the same contributor, are exempt from the road tax.
An amendment, which entered into force on 1 August 1988, added
a sentence to Section 2 (9) according to which semi-trailers driven by
motor vehicles of another contributor are not to be included in the
above calculation.
The Administrative Court's judgement of 22 April 1991 concerned
a complaint by the applicant company's predecessor, R. V., who owned
the transport business before it was transformed into a limited company
in May 1986. The Administrative Court had confirmed the view of the tax
authorities, applying the same interpretation of S. 2 (9) Road Taxes
Act for 1984 until May 1986 as in the decisions against the applicant
company. As regards R.V.'s argument that the proceedings were unfair
because the tax exemption of S. 2 (9) Road Taxes Act had been applied
in earlier years, the Administrative Court had found that only in
exceptional cases, e.g. where the tax authority had explicitly advised
the contributor in line with the legal view from which it wanted to
deviate, a change in the interpretation of the law would seem unfair.
COMPLAINTS
The applicant company complains under Article 6 of the Convention
and Article 1 of Protocol No. 1 that the decisions by the tax
authorities relating to its obligation to pay road taxes for 1986, 1987
and 1988 respectively, were unlawful and that the proceedings were
unfair.
The applicant company submits in particular that the Tax
Authorities' decisions, were unlawful, as they could not possibly be
based on the version of S. 2 (9) of the Road Taxes Act which was in
force before the amendment of 1 August 1988 and also deviated from the
previous interpretation of this provision. Moreover, the order to pay
an additional AS 1.4 million as road taxes, added to the financial
difficulties of the company.
THE LAW
1. The applicant company complains under Article 1 of Protocol No. 1
(P1-1) that the decisions by the tax authorities relating to its
obligation to pay road taxes for 1986, 1987 and 1988 respectively, were
unlawful.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by
the general principles of international law.
The preceding provisions shall not, however, in any
way impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Commission finds that the present case, relating to the
applicant company's obligation to pay road taxes, does not concern a
deprivation of property within the meaning of paragraph 1 of Article 1
(Art. 1-1), but has to be considered as an interference with the
applicant company's right to the peaceful enjoyment of its possessions,
falling within the scope of the second paragraph of this Article.
The Commission recalls that this paragraph requires that the
interference is lawful and serves a legitimate aim (see Eur. Court
H.R., Fredin judgment of 18 February 1991, Series A no. 192, pp. 16-17,
paras. 48-50). Moreover the interference must be proportional,
achieving a fair balance between the demands of the general interest
of the community and the requirements of the protection of the
individual's fundamental rights (Fredin judgment, loc. cit., p. 17,
para. 51).
The applicant company complains that the interference was
unlawful, as the decisions in question could not reasonably be based
on S. 2 (9) of the Road Taxes Act in the version which was in force
before the 1988 amendment and also deviated from the previous
interpretation of the relevant provisions.
As regards the lawfulness of the interference the Commission
recalls that the power of the Strasbourg organs to review compliance
with domestic law is limited (Eur. Court H.R., Fredin judgment loc.
cit., p. 16, para. 50). The applicant's submissions do not suffice to
conclude that the decisions of the Austrian authorities were contrary
to domestic law. Moreover, the Commission notes that S. 2 (9) of the
Road Taxes Act, with the contested interpretation, had already been
applied to the applicant company's predecessor for the years 1984 to
1986. In that case, the Administrative Court, in its decision of
22 April 1991, had found that, only in exceptional circumstances, e.g.
if the tax authorities had explicitly advised a contributor in line
with the legal view from which they wanted to deviate, a change in the
interpretation of a legal provision would seem unfair. The applicant
company could thus foresee the interference complained of.
The Commission further considers that the interference at issue
pursued a legitimate aim, namely the levying of taxes relating to the
transport of goods.
The applicant company submits that the order to pay an amount of
AS 1,4 million in road taxes placed a heavy burden on the company,
adding to its financial difficulties.
As regards the proportionality of the interference, the
Commission recalls that there must be a reasonable relationship between
the means employed and the aim pursued, whereby the State enjoys a wide
margin of appreciation with regard both to choosing the means of
enforcement and to ascertaining whether the consequences of enforcement
are justified in the general interest for the purpose of achieving the
object of the law in question (Eur. Court H. R., Fredin judgment, loc.
cit., p. 17, para. 51).
The Commission notes that the applicant company had in 1986 to
1988 assessed in advance the amount of taxes due, in accordance with
its legal view on S. 2 (9) of the Road Taxes Act. The Commission
considers that the applicant company was aware that it had to pay the
road taxes in advance on the basis of its own assessment while being
subject to later review. In such a situation the applicant company had
to take into account that the final amount might be higher and make
provisions accordingly. In these circumstances, the Commission finds
that the tax authorities' decisions ordering the applicant company to
pay additional road taxes for 1986 to 1988 were not disproportionate.
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 company also complains under Article 6 (Art. 6) of
the Convention, that the proceedings leading to the tax authorities
decisions which ordered it to pay road taxes were unfair.
The Commission recalls that proceedings relating to tax
assessment do not fall within the scope of Article 6 (Art. 6) of the
Convention (No 8903/80, Dec. 8.7.1980, D.R. 21, 246; No 13013/87,
Dec. 14.12.1988, D.R. 58, 163).
It follows that this part of the application is incompatible
ratione materiae within the meaning of 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) (A. WEITZEL)
Full & Egal Universal Law Academy