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CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS COURT (CHAMBER) CASE OF GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS (Application no /89) JUDGMENT STRASBOURG 23 February 1995 GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT 1 In the case of Gasus Dosier- und Fördertechnik GmbH v. the Netherlands 1, The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ) and the relevant provisions of Rules of Court A 2, as a Chamber composed of the following judges: Mr R. RYSSDAL, President, Mr F. GÖLCÜKLÜ, Mr R. MACDONALD, Mr C. RUSSO, Mr S.K. MARTENS, Mr I. FOIGHEL, Mr G. MIFSUD BONNICI, Mr P. JAMBREK, Mr K., and also of Mr H. PETZOLD, Registrar, Having deliberated in private on 22 September 1994 and 24 January 1995, Delivers the following judgment, which was adopted on the lastmentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights ( the Commission ) on 9 December 1993, within the threemonth period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no /89) against the Kingdom of the Netherlands lodged with the Commission under Article 25 (art. 25) on 6 July 1989 by a limited liability company possessing legal personality under German law (Gesellschaft mit beschränkter Haftung), Gasus Dosier- und Fördertechnik GmbH. The Commission s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was 1 The case is numbered 43/1993/438/517. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. 2 Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently. 2 GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 1 of Protocol No. 1 (P1-1). 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant company indicated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30) but declined to appear at the Court s hearing. The German Government, having been informed by the Registrar of their right to intervene (Article 48 (b) of the Convention and Rule 33 para. 3 (b)) (art. 48-b), indicated by a letter of 27 December 1993 that they did not intend to do so. 3. The Chamber to be constituted included ex officio Mr S.K. Martens, the elected judge of Netherlands nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 24 January 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr R. Macdonald, Mr C. Russo, Mr N. Valticos, Mr I. Foighel, Mr G. Mifsud Bonnici, Mr P. Jambrek and Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr F. Gölcüklü, substitute judge, replaced Mr Valticos, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1). 4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Netherlands Government ( the Government ) and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant company s memorial on 16 May 1994 and the Government s memorial on 15 June Additional documents were received from the applicant company on 19 August 1994 and from the Government on 24 August. The Delegate did not submit any observations in writing. 5. In accordance with the President s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 19 September The Court had held a preparatory meeting beforehand. There appeared before the Court: - for the Government Mr K. de VEY MESTDAGH, Ministry of Foreign Affairs, Agent, Mr H.D.O. BLAUW, Rijksadvocaat, Counsel, Mr A. VAN VLIET, Ministry of Finance, Mr A. VAN EIJSDEN, Ministry of Finance, Advisers; - for the Commission Mrs G.H. THUNE, Delegate. The Court heard addresses by Mrs Thune and Mr Blauw, and also replies to questions put by the Court and by several of its members. GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT AS TO THE FACTS 3 I. PARTICULAR CIRCUMSTANCES OF THE CASE 6. The applicant company, Gasus Dosier- und Fördertechnik GmbH (hereinafter Gasus ), are a limited liability company under German law with their registered office in Würzburg, Germany. A. Background to the case 7. On 17 June 1980 Gasus s agent in the Netherlands received an order from a Netherlands company, Atlas Junior Beton B.V. (hereinafter Atlas ) of Leiderdorp, for a concrete-mixer and ancillary equipment. The order was confirmed in writing by Gasus themselves on 18 June Gasus appended to their letter their general conditions of sale, which contained the following passages: We retain ownership of the goods delivered until all amounts due, both present and future, including ancillary claims arising from business with the customer, have been settled in full. and In the case of foreign business (Auslandsgeschäfte), only the law of the German Federal Republic shall apply. Gasus subsequently received an order for additional ancillary equipment and confirmed it in writing on 21 July 1980, again appending their general conditions of sale. It was understood, inter alia, that Atlas would provide lifting equipment and some of the manpower needed for assembling the machine, the main part of which weighed five tonnes. Between 25 July and 28 August 1980 Gasus sent Atlas invoices totalling 125, German marks (DEM), to which Atlas did not object. Gasus received only DEM 21,672 in payment before the events complained of. B. Seizure of the concrete-mixer and bankruptcy of Atlas 8. The machine was installed on Atlas s premises by Gasus; the work took from 28 July until 2 August On 31 July 1980 the Tax Bailiff (belastingdeurwaarder) seized all the movable assets on Atlas s premises for forced sale in pursuance of three writs of execution (dwangbevelen) issued by the Collector of Direct Taxes (Ontvanger der directe belastingen - the Tax Collector ) totalling 67, Netherlands guilders (NLG). The official record (proces-verbaal) 4 GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT contains a mention of the concrete-mixer. Notice of the seizure was served on Atlas but not on Gasus. 10. Being unable to meet their financial obligations, Atlas sought a moratorium (surséance van betaling) which was granted by the Hague Regional Court (arrondissementsrechtbank) on 16 October The receiver (bewindvoerder), a lawyer appointed by the Regional Court, saw that it was not possible for Atlas to continue their activities independently and managed to interest another company, Van Baarsen Wandplaten B.V. ( Van Baarsen ), in taking them over. Under pressure from Atlas s clients, who insisted that a satisfactory arrangement for continuing production should be reached by 23 October 1980, Atlas, the receiver and Van Baarsen reached an agreement on that date for a takeover by Van Baarsen. This agreement was only able to come about with the co-operation of Atlas s mortgagees - two banks who had financed Atlas and had stipulated that the ownership of certain of its movable assets should be fiduciarily transferred as a security - and the Tax Collector, who had seized all the movable assets present on Atlas s premises. The agreement was subject to the condition that no third parties could assert a better right to the goods covered by it. Van Baarsen would pay a lump sum of NLG 500,000 for taking over Atlas s machines and inventory goods. Half that sum would be paid to the tax authorities and the other half to a bank, NIB, which was the fiduciary owner of certain goods not subject to seizure by the tax authorities. Van Baarsen continued Atlas s activities on the latter s premises from 27 October, using what had been Atlas s workforce and machines. 12. On 21 October 1980 Gasus sent a letter to Atlas s receiver, which reached him on 24 October. In it they stated that of the moneys due to them from Atlas they had received only DEM 21,672 and they requested payment of the remainder. They also gave notice that the concrete-mixer would be taken back on 30 October if sufficient guarantees for payment were not provided by 28 October. No payment was made but it does not appear that Gasus took any action. 13. Atlas were declared bankrupt on 30 October 1980, at the request of their receiver and with the agreement of their management, and the receiver was reappointed as trustee in bankruptcy (curator). The bankruptcy proceedings were terminated on 20 June 1990 for lack of any further assets to distribute. None of Atlas s unsecured creditors recovered any part of their claims. 14. On 4 March 1981 the Commissioner of Direct Taxes (directeur der directe belastingen) received a letter from Gasus in which they, being by then aware of the fact that the machine had been seized, filed an administrative objection (bezwaarschrift) to the seizure. By a letter of 15 May 1981 the Commissioner declared the administrative objection inadmissible because it had not been filed within seven days of the seizure GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT as required by section 16 (1) of the 1845 Tax Collection Act (Invorderingswet 1845, the 1845 Act - see paragraph 29 below), adding that in any case he saw no reason to rescind the seizure order and that in deciding not to do so, he had not been influenced by the fact that the administrative objection was out of time. 5 C. Proceedings before the Utrecht Regional Court 15. On 22 May 1981 Gasus brought proceedings against Atlas s trustee in bankruptcy and Van Baarsen before the Utrecht Regional Court to obtain an order for the concrete-mixer to be returned. In the proceedings before the Commission Gasus stated that both the trustee and Van Baarsen had acknowledged Gasus s ownership but had refused to give up the machine as it was still being held by the tax authorities. These proceedings appear not to have been pursued to a conclusion. 16. On 17 September 1981 Gasus sued the Tax Collector, the trustee in bankruptcy and Van Baarsen in the Hague Regional Court, objecting to the seizure and seeking an order to the Tax Collector to release the concretemixer from seizure and another order to the trustee and Van Baarsen not to hinder the exercise of Gasus s rights. Gasus s position may be summarised as follows. Their objection to the seizure (verzet) was based on the argument that the concrete-mixer had not been operational on 31 July 1980, so that it could not have been part of the furnishings of a house or farmstead within the meaning of section 16 (3) of the 1845 Act (see paragraph 29 below). In the alternative, the seizure was, on various grounds, wrongful in civil law (onrechtmatig). Finally, the fact that section 16 (3) prevented third parties from challenging a seizure affecting their own goods amounted to a denial of access to court as guaranteed by Article 6 para. 1 (art. 6-1) of the Convention. 17. The Tax Collector filed lengthy pleadings in reply. The trustee and Van Baarsen did not themselves make any submissions on the merits but requested that the Tax Collector s statements in defence (conclusie van antwoord) and subsequent rejoinder (conclusie van dupliek) be treated as their own. 18. The Regional Court delivered its judgment on 21 December Taking the same view as the Tax Collector, it held that the fact that the concrete-mixer had not been operational at the time of the seizure did not invalidate the seizure itself. Since the proceedings concerned an objection to seizure under section 16 (3) of the 1845 Act, the court could not entertain Gasus s complaint that the seizure was unlawful; the only permissible purpose of such proceedings was to examine whether the requirements of section 16 (3) were met. Furthermore, Article 6 para. 1 (art. 6-1) of the Convention did not apply - and had therefore not been violated - because section 16 related to the imposition and collection of taxes, empowering 6 GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT State authorities to make decisions in the normal discharge of their duties under public law, and thus did not concern civil rights and obligations . D. Proceedings before the Hague Court of Appeal 19. Gasus appealed to the Hague Court of Appeal, summoning Atlas s trustee in bankruptcy on 19 March 1984 and the Tax Collector and Van Baarsen on 20 March. Gasus s first ground of appeal (grief) was that the Regional Court had erred in holding that the seizure was valid even though the concrete-mixer had not been operational at the time. The second and third grounds of appeal were founded on the Regional Court s refusal to deal with Gasus s allegations of unlawfulness and to accept their arguments based on Article 6 para. 1 (art. 6-1) of the Convention. The Tax Collector replied that Gasus s complaints concerning section 16 (3) of the 1845 Act amounted to an allegation of deprivation of their possessions in violation of Article 1 of Protocol No. 1 (P1-1). He denied, however, that there had in fact been such violation. 20. Following the exchange of pleadings by the parties to the proceedings, a hearing was held on 16 September At this hearing counsel for Gasus continued to rely on Article 6 para. 1 (art. 6-1) of the Convention. In his view, what was decisive for that provision (art. 6-1) to be applicable was whether the plaintiff sought protection of a right that was to be classed as civil within the meaning of the provision (art. 6-1). Since Gasus sought to be protected against infringement by the Tax Collector of their ownership of the concrete-mixer, undoubtedly a civil right within the meaning of the provision (art. 6-1), Article 6 para. 1 (art. 6-1) applied; it had, moreover, been violated since section 16 (3) of the 1845 Act amounted to a limitation of access to court with respect to assets of the kind mentioned in it. While agreeing that Gasus had been deprived of one of their possessions and had suffered damage as a result, Gasus s counsel expressly declined to rely on Article 1 of Protocol No. 1 (P1-1). Contrary to what the Tax Collector had suggested both at first instance and on appeal, section 16 (3) had nothing to do with deprivation of property but barred access to court for those who sought to be protected from the seizure and sale of their property. That was clear from its wording. That also followed, incidentally, from Article 14 of the Constitution, which prohibited expropriation without compensation: if section 16 (3) were a provision concerning deprivation of property, it would contravene Article 14 of the Constitution. On the principle that a provision of Netherlands legislation could not be construed so as to be incompatible with the Constitution, section 16 (3) therefore had to be construed as merely barring access to court. The questions raised by section 16 (3) were thus of a procedural , not a substantive nature, and GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT therefore the more appropriate Convention provision was Article 6 para. 1 (art. 6-1) and not Article 1 of Protocol No. 1 (P1-1). Since section 16 (3) obviously violated Article 6 para. 1 (art. 6-1), it should - pursuant to Article 94 of the Constitution - not be applied. This meant that section 456 and the following sections of the Code of Civil Procedure applied without restriction, and this in turn meant that Gasus could rely on their right of ownership of the concrete-mixer, which was therefore not subject to seizure. 21. The Court of Appeal gave judgment on 3 December Like the Regional Court, it held that the seizure was not vitiated by the fact that the concrete-mixer had not been fully operational at the time; the concrete-mixer s intended use had already been established and all efforts had been directed towards making it operational and ensuring that it would serve Atlas on a lasting basis. The concrete-mixer thus qualified as furnishings of Atlas s factory building. The first ground of appeal therefore failed. The second and third grounds of appeal were also dismissed. After establishing that the right claimed by Gasus was a civil right for the purposes of Article 6 para. 1 (art. 6-1), the Court of Appeal went on to hold: The question is therefore whether in the present case access to a tribunal and due process were sufficiently secured to Gasus. To answer this, it is necessary to ascertain what provisions, in so far as relevant to the present case, govern ownership and the procedure connected with it. In the Articles of... section I [of the Convention] apart from the aforementioned Article 6 (art. 6), a number of fundamental rights are laid down and - where necessary - defined. The right of ownership is not one of them. This is provided for in Protocol No. 1 (P1) to the Convention... [Article 1 of Protocol No. 1 (P1-1)] does therefore authorise national legislatures to pass laws restricting the enjoyment of possessions or even entirely depriving the individual of that enjoyment for specific purposes relating to the general interest; however, when it comes to the question of whether such a law has been properly applied in a specific case, the owner concerned remains entitled, as provided in Article 6 (art. 6) of the Convention, to access to a tribunal and to due process in order to have the application of the law assessed. One such provision of domestic law which is authorised by Article 1 of Protocol No. 1 (P1-1) is section 16 (3) of the 1845 Act. The rule laid down therein implies that seizure levied by the tax authorities in order to collect a tax debt in fact deprives a third party of his ownership of an item of movable property provided that when the seizure was effected the item of property was on the tax debtor s premises and served as furnishing of them. Whether, when judged by this condition, the seizure of his property was rightly effected is a matter which any affected third party can have reviewed by the ordinary civil courts in proper legal proceedings. In assessing the lawfulness of the seizure, the court may not take into account whether or not the relevant property is owned by the tax debtor, because precisely this point is not 7 8 GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS JUDGMENT relevant - save for certain exceptions which are of no consequence here - in view of the scope of the subsection. This also reveals the meaning of the provision that third parties may never bring an action to challenge seizures for tax purposes. It means not that they may not bring an action before the courts but rather that, having brought an action in the courts, they may not successfully submit, as a basis for their action, that the seizure is unlawful because the goods seized belong to them and not to the tax debtor. Consequently, the provisions of section 456 (1) of th
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