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You are here: BAILII >> Databases >> European Court of Human Rights >> GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. THE NETHERLANDS - 15375/89 [1995] ECHR 7 (23 February 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/7.html
Cite as: 20 EHRR 403, (1995) 20 EHRR 403, [1995] ECHR 7

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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. Jungwiert,

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

last-mentioned date:

_______________

Notes by the Registrar

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.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on

9 December 1993, within the three-month 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. 15375/89)

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

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 1994. 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 1994. The Court had held a preparatory

meeting beforehand.

There appeared before the Court:

(a) 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;

(b) 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.

AS TO THE FACTS

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 1980. 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 125,401.24 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 1980.

9. 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 67,741.59

Netherlands guilders (NLG). The official record

(proces-verbaal) 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 1980.

11. 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 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.

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 concrete-mixer 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 1983. 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 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 1986.

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 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 1986.

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 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 the Code of Civil

Procedure are of no avail to them in this respect because

section 16 (3) of the 1845 Act derogates from them as a

lex specialis.

It follows from the above that there has been no

violation of Article 6 (art. 6) of the Convention and

that the Regional Court was correct in not dealing with

the allegation that the Collector acted unlawfully by

seizing the concrete-mixer belonging to Gasus ..."

E. Proceedings before the Supreme Court

22. Gasus entered an appeal on points of law (beroep in

cassatie) with the Supreme Court (Hoge Raad) on 3 March 1987.

They filed grounds (middelen van cassatie) that were each

subdivided into a large number of parts. The Advocate-General

(advocaat-generaal) noted that several grounds and many of

their component parts were merely variations on a single

theme.

The Court of Appeal had erred in considering the matter

under Article 1 of Protocol No. 1 (P1-1). Section 16 (3) of

the 1845 Act was a "procedural" provision, not a "substantive"

one, and should therefore have been examined only in the light

of Article 6 (art. 6); the fact that lack of access to a

tribunal could lead to loss of property indicated only that

the interests protected by Article 6 (art. 6) were very real.

Gasus went on to submit that section 16 (3) violated

Article 6 (art. 6) as it only allowed third parties to

challenge seizure of their goods on the premises of another by

the tax authorities on the ground that those goods were not

"fruit", or "furnishings", or intended for the "cultivation or

use of land". If the goods concerned fell into one of those

categories, there was no other ground on which to base an

action. Section 16 (3) had been inspired by the need to

prevent tax evasion, but had been rendered obsolete by

developments in business practice and commercial law,

retention of title now being a generally accepted and quite

legal form of security. The Tax Collector had acted

unlawfully in seizing the concrete-mixer since Gasus had not

actually been conniving at tax evasion.

In any event, even if Article 1 of Protocol No. 1 (P1-1)

applied (which Gasus submitted it did not), it only allowed

States to interfere with the tax debtor's peaceful enjoyment

of his possessions to secure payment of the taxes he owed. It

did not allow them to deprive third parties of their

possessions.

It was not to be assumed that Article 1 of Protocol No. 1

(P1-1) legitimised greater interferences with citizens' rights

than did Article 14 of the Constitution, which forbade

expropriation without compensation. If section 16 (3) of the

1845 Act were seen as a "substantive" provision, it clearly

amounted to a provision making deprivation of property by the

State possible in the public interest.

Finally, the Tax Collector had not at any time informed

Gasus of the seizure as he should have done.

23. Following the advisory opinion (conclusie) of its

Procurator-General (procureur-generaal), the Supreme Court

rejected the appeal on 13 January 1989. Its reasoning was as

follows:

"3.1. The purport of grounds of appeal I-III is to argue

that the provisions of section 16 (3) of the 1845 Act of

22 May 1845 ... are incompatible with Article 6 (art. 6)

of the Convention and/or Article 1 of Protocol No. 1

(P1-1). In the assessment of this argument, the

following is of importance:

(a) Section 16 of the 1845 Act, in particular the third

paragraph thereof, implies that the Tax Collector has a

right of recovery against third parties' goods listed in

that paragraph and `situated on the premises of the tax

debtor at the time of the seizure'.

(b) The objection which third parties may make before the

civil courts to the seizure of their goods is in

principle limited to the question whether the conditions

for its applicability described in section 16 (3) have

been satisfied; in other respects, third parties may file

an administrative objection to the Commissioner of Direct

Taxes by means of the complaint procedure referred to in

subsection 1 of that section ...

(c) It follows from the provisions of chapter V of the

General State Taxes Act (Algemene wet inzake

rijksbelastingen) and section 5, opening words and

subsection (m), of the Administrative Decisions Appeals

Act (Wet administratieve rechtspraak

overheidsbeschikkingen) that no appeal lies to an

administrative tribunal against the Commissioner's

decision on the administrative objection. Consequently,

the third party may bring an action against such a

decision in the civil courts, possibly in summary

proceedings (kort geding), on the basis that there has

been an unlawful act. In so doing, the third party may

also base his claim of unlawfulness on the allegation

that the Commissioner has acted in breach of a general

principle of good governance (algemeen beginsel van

behoorlijk bestuur).

(d) The provisions of the 1961 Tax Collection Guidelines

(Leidraad invordering - Resolution of 8 December 1961,

no. B 1/18516), in particular paragraph 30, are also of

importance in this connection. Although the

1961 Guidelines do not contain rules of law, principles

of good governance imply that the Commissioner may not

deviate to the disadvantage of a third party from the

rules laid down in the Guidelines, as the court considers

they should be interpreted. If he does depart from them,

he is in principle acting unlawfully vis-à-vis the third

party.

(e) As regards the content of paragraph 30 of the

Guidelines, the following features of the provisions

contained in sub-paragraph 9 should be mentioned briefly.

It is in keeping with the Commissioner's policy that the

third party's title will in principle be respected in

cases of `real ownership'. But recovery against the

goods of a third party is generally justified if `the

circumstance that the goods legally belong to another

person has mainly been brought about to exclude the

possibility of recovery against such goods for debts of

the taxpayer or to ensure that the third party has a

priority right to recover against such goods'. One of

the examples quoted here is where a supplier of goods

reserves the ownership of them. It has been established

that Gasus did this as supplier of the goods which are

the subject of the litigation.

(f) It is also provided in paragraph 30, sub-paragraph 8,

of the 1961 Guidelines that an administrative objection

made by a third party shall be dealt with even if it is

not filed in time, i.e. within the said period of seven

days from the date of seizure as referred to in

section 16 (1) of the 1845 Act. It follows that a third

party who files an administrative objection out of time

is entitled to have it dealt with. As the third party

need not be aware that the seizure has occurred and thus

that time has started to run - neither the law nor the

Collection Guidelines require service on, or any other

form of warning to, a third party - it must be assumed -

partly in the light of Article 6 (art. 6) of the European

Convention - that the third party may have recourse to

the civil courts in this case in the manner described

above under (c) and (d).

3.2. Against this background, the arguments advanced in

grounds of appeal I-III cannot be accepted as correct.

A third party whose goods have been seized has

opportunities for redress against the acts of the Tax

Collector or the Commissioner as the case may be, before

an independent and impartial tribunal established by law

such that the requirements of Article 6 para. 1

(art. 6-1) of the Convention are met.

Nor can it be said that the recovery, on the basis of

section 16 (3) of the 1845 Act, of goods belonging to a

third party such as Gasus - who as supplier of the goods

has reserved title to them - is not compatible with

Article 1 of Protocol No. 1 (P1-1). That is because

section 16 (3) is to be regarded as a statutory provision

which the State regards as necessary in order to secure

the payment of taxes in such a manner as to ensure that

this payment is not frustrated by reservation of title by

a third-party supplier.

Grounds of appeal I-III fail in view of the above,

irrespective of the validity of the arguments set out by

the Court of Appeal, which these grounds attack.

3.3. As, according to the explanation given of it,

ground of appeal IV builds on the previous grounds, it

must fail likewise. In so far as it is suggested that

section 16 (3) should not be applied as it has been

`rendered obsolete by developments in business practice

and commercial law', the ground is unfounded.

3.4. Ground of appeal V takes issue with the Court of

Appeal's opinion that the Tax Collector does not have a

duty to give notice, in the sense that he should have

given notice to Gasus after the seizure of the goods that

they had been seized. The ground fails.

As already indicated at 3.1. (f) above, neither the

1845 Act nor the Tax Collection Guidelines contain any

such obligation to provide a warning. Although such an

obligation may in special circumstances be inferred from

unwritten law, no such special circumstances have been

alleged by Gasus in this connection.

3.5. Since none of the grounds of appeal justifies

overturning the judgment appealed against, the appeal

must be dismissed."

The above judgment of the Supreme Court was published in

the Rechtspraak van de Week, (Weekly Law Reports - RvdW) 1989,

28; in the Vakstudie Nieuws (Professional Studies News) 1989,

p. 363; in the Nederlandse Jurisprudentie (Netherlands Law

Reports - NJ) 1990, 211, and in the Beslissingen in

Belastingzaken (Reports of Decisions in Taxation Cases - BNB)

1989/129. It was welcomed by commentators as providing

clarity as to the scope of judicial protection available

against use by the tax authorities of section 16 (3)

(commentaries on the Supreme Court's judgment in the present

case, by E.A. Alkema in NJ 1990, 211, and by H.J. Hofstra in

BNB 1989/129; commentary by W.H. Heemskerk of the Supreme

Court's judgment of 26 May 1989, NJ 1990, 131).

II. Relevant domestic law and practice

A. Relevant provisions of the Netherlands Constitution

24. The 1983 Constitution does not, in terms, guarantee a

right to property. Article 14 reads:

"1. Expropriation may only be ordered in the general

interest and against compensation determined in advance,

in accordance to rules laid down by statute or delegated

legislation.

2. ...

3. In the cases indicated by statute or delegated

legislation there is a right to compensation or partial

compensation for damage if property is destroyed or

rendered unusable in the general interest by the

competent authorities or if the exercise of the right of

ownership is curtailed."

Article 104 reads:

"The Kingdom's taxes shall be levied pursuant to statute.

Other charges levied by the Kingdom shall be governed by

statute."

Under Netherlands constitutional law, courts may not

examine statutes for compliance with the Constitution.

Article 120 reads:

"The courts shall not judge the constitutionality

(grondwettigheid) of statutes and treaties."

B. Relevant provisions of the Civil Code (Burgerlijk

Wetboek), the Commercial Code (Wetboek van Koophandel)

and the Code of Civil Procedure (Wetboek van Burgerlijke

Rechtsvordering)

25. At the material time the 1838 Civil Code was still in

force. In so far as it concerned property law it was

succeeded in 1992 by a new Civil Code; a number of provisions

of the Commercial Code and the Code of Civil Procedure were

changed or repealed at the same time. The following relates

to the law as it stood at the time of the events complained

of.

26. According to section 1177 of the Civil Code, debts could

in principle be recovered against all goods belonging to the

debtor, whether movable or immovable. Statutory provisions

elsewhere allowed of certain limited exceptions not relevant

to the present case.

Section 1178 added the principle of paritas creditorum:

all creditors were entitled to recover debts against the

property of the debtor in proportion to the size of their

claims, unless any one of them could claim a right to

preferential payment. Such a right derived, inter alia, from

specific legal provisions granting a priority right

(privilege). These priority rights were based on the nature

of the debt (section 1180) and their order of precedence was

laid down by law. Most priority rights were to be found in

the Civil Code, but not those of the tax authorities, for

which the Civil Code referred to specialist legislation

(section 1183 (1)).

A priority right might concern a particular asset or all

goods belonging to the debtor; in general, priority rights of

the former type took precedence over priority rights of the

latter (section 1184).

Section 1185 enumerated debts covered by a priority right

to certain assets belonging to the debtor. These included,

inter alia, rent owed under a tenancy agreement and the price

owed to a vendor of movable property.

Section 1186 read as follows:

"1. The landlord may exercise his priority right [by

recovery against] fruit still attached to the trees by

branches, or to the ground by roots, as well as fruit,

whether harvested or not, present on the premises (die

zich op den bodem bevinden), and all things present on

the premises serving either as furnishings of the rented

property or farm or for cultivation of the land, such as

cattle, agricultural implements and the like, regardless

of whether or not the above-mentioned objects belong to

the tenant.

2. However, if the tenant has goods in his possession

under a hire-purchase agreement, the landlord shall not

be entitled to exercise his priority right against the

vendor if the hire-purchase agreement relates to seeds or

implements or if it is proved that the landlord knew of

the hire-purchase agreement.

3. ..."

Section 1190 read as follows:

"The vendor of movable goods which have not yet been paid

for may exercise his priority right against the sale

price of those goods if they are still in the debtor's

possession, irrespective of whether a time has been

specified for the sale."

Section 1191 read as follows:

"1. If no time has been specified for the sale, the

vendor shall even be entitled to reclaim the goods as

long as these are in the possession of the purchaser, and

to prevent the resale thereof, provided that they are

reclaimed within thirty days of delivery.

2. Sections 231, 233, 234, 236 and 237 of the Commercial

Code shall apply by analogy."

It should be noted that section 1191 did not concern a

priority right but granted the vendor the right to rescind the

sale by means of a statement made to the purchaser and to

recover the ownership of the goods previously sold and

delivered. The vendor might then reclaim his goods, even -

within certain limits - from third parties. Sections 231 et

seq. of the Commercial Code regulated the use of a similar

right in case of bankruptcy of the debtor (see paragraph 35

below).

27. Sections 439 and following of the Code of Civil Procedure

laid down rules for recovery against a debtor's movable

property. As a rule, such recovery started with seizure,

which usually required a court judgment (although the law

provided for exceptions, for example in tax cases, see

paragraph 28 below). Section 456, which was referred to in

section 16 of the 1845 Act, is of relevance:

"1. He who claims to be the owner, in whole or in part,

of the seized goods, may file an objection to the sale

thereof by means of a summons containing the grounds of

the objection addressed to the party for whom the seizure

has been effected (arrestant) and the person against whom

it is directed, and served on the custodian: all on pain

of nullity.

2. ...

3. ..."

C. Seizure by the tax authorities of goods belonging to

third parties and present on the premises of the tax

debtor (bodembeslag)

28. At the material time, pursuant to section 12 of the

1845 Act, tax debts took priority over all other debts with

the exception of the court costs and other costs involved in

forced sale of goods and debts secured by a mortgage. Goods

belonging to third parties seized pursuant to section 16 (3)

(see paragraph 29 below) were also subject to this priority

(judgment of the Supreme Court of 5 October 1979, NJ 1980,

280).

Section 14 of the 1845 Act entitled the tax authorities

to seize a tax debtor's movable and immovable assets and sell

them to recover the debt. A prior judgment establishing the

debt and ordering the debtor to pay was not required. Seizure

pursuant to this provision was based on a writ of execution

made out by the Tax Collector. Such a writ was served on the

debtor and seizure and forced sale of his goods followed in

the event of failure to pay. Section 14 explicitly stipulated

that such a writ had the same legal effects as a judgment.

Accordingly, section 14 (2) laid down that the Tax Collector's

writ of execution would be executed under the provisions of

the Code of Civil Procedure governing the execution of

judgments (see paragraph 27 above).

Section 15 gave the tax debtor the right to file an

objection in the civil courts against a writ of execution,

although the grounds on which such an objection might be based

were limited. It also specified that such an objection had no

suspensive effect, although it was possible to seek an order

for the suspension of execution in summary proceedings (kort

geding).

29. Complementing the right to oppose the writ of execution

granted the debtor by section 15, section 16 granted a similar

right to third parties claiming ownership of movables seized

on the debtor's premises. Section 16 should be read in light

of section 14, which stated that the relevant provisions of

the Code of Civil Procedure are applicable. Its purpose was

to limit the rights of third parties under section 456 (see

paragraph 27 above). Section 16 read:

"1. Third parties claiming to be fully or partially

entitled to movable goods which have been seized in

connection with a tax debt can address an administrative

objection to the Commissioner of Direct Taxes, provided

that the administrative objection be submitted before the

sale and no later than seven days from the day of the

seizure. The administrative objection shall be submitted

to the Tax Collector, who shall acknowledge receipt. The

Commissioner shall decide as soon as possible. The sale

shall not take place within eight days of the service of

this decision to the objector and to the person against

whom the seizure is directed, [the service] again

indicating a day for the sale.

2. The interested party shall not forfeit his right to

submit his objection to the ordinary courts by filing an

administrative objection in accordance with the preceding

paragraph.

3. However, apart from the right to reclaim their

property granted them by ... section 230 and following of

the Commercial Code, third parties may never bring an

action to challenge seizure in connection with taxes,

with the exception of land tax, if the fruit, whether

harvested or not, or movable goods serving either as

furnishings of a house or farmstead or for the

cultivation or use of land are located on the premises of

the tax debtor concerned at the time of the seizure."

"Premises" was interpreted as meaning a plot of land or

part of a plot of land which is in actual use by the tax

debtor and which he has at his disposal independently of

others (see, inter alia, judgment of the Supreme Court of

18 October 1991, NJ 1992, 298; see also paragraph 30,

sub-paragraph 4, of the 1961 Guidelines).

"Furnishings" were all objects destined to make possible

such use of the premises as was in conformity with the purpose

for which the tax debtor actually intended to use them. They

were held to include movable machines (see, inter alia, the

judgment of the Haarlem Regional Court of 18 February 1964,

NJ 1965, 402, and the judgment of the Amsterdam Court of

Appeal of 7 December 1979, quoted in the judgment of the

Supreme Court of 9 January 1981, NJ 1981, 656; see also

paragraph 30, sub-paragraph 4, of the 1961 Guidelines) but not

stocks of raw materials, finished products or vehicles

(judgment of the Supreme Court of 11 March 1927, NJ 1927,

p. 494; 1961 Guidelines, ibid.).

The right of the tax authorities to seize all movables

found on the premises of the tax debtor, including goods

belonging to third parties, implied the right of recovery on

the latter goods (paragraph 30, sub-paragraph 1, of the 1961

Guidelines and the Supreme Court's judgment in the present

case - see paragraph 23 above).

Recovery was normally by public auction of the goods

(section 14 (2) of the 1845 Act read in conjunction with

section 463 of the Code of Civil Procedure). It was

nonetheless considered permissible, if the tax debtor was

bankrupt, for the Tax Collector to agree to allow the trustee

to sell them privately (judgment of the Supreme Court of

26 May 1989, NJ 1990, 131).

30. To promote the uniform application of the law, the

Minister of Finance established, by decision of

8 December 1961, the 1961 Guidelines. These were official

instructions to the tax authorities, who were subordinate to

him, indicating the way in which the law should be interpreted

and applied. The 1961 Guidelines were published; individuals

were entitled to rely on them in legal proceedings against the

tax authorities because they were binding on the latter

pursuant to general principles of good governance. The

Supreme Court, in its judgment of 28 March 1990 (NJ 1991,

118), later confirmed this by ruling that guidelines such as

these were to be applied in relation to interested parties as

rules of law.

Paragraph 30 of the 1961 Guidelines concerned the

interpretation and application of section 16. Sub-paragraph 9

gave further instructions relating to the way in which

administrative objections under section 16 (1) and (2) (see

paragraph 29 above) were to be dealt with. Sub-paragraph 9

read:

"The decision of the Commissioner should not only be

governed by legal considerations. Once sufficient

clarity has been obtained in respect of the legal

relations at issue, considerations of fairness

(billijkheid) and the requirements of proper policy

should be given great importance. It is in accordance

with such a policy that the property rights of a third

party are spared where a personal tax or social-security

contribution debt is to be collected and also where

genuine property (reële eigendom) of a third party is

involved, provided, however, that the following is taken

into account.

...

The above does not alter the fact that there can be no

grounds for any reticent policy in clear cases of

connivance between the tax debtor and the third party to

create a sham property situation in an attempt to prevent

recovery on goods.

From the point of view of fairness and good policy

recovery on goods of a third party is generally justified

in cases of recovery of commercial tax and

social-security contribution debts and when the economic

relationship between the tax debtor and the goods

provides reason to consider these goods as his and the

circumstance that legally the goods belong to someone

else has been created mainly to exclude recovery at the

expense of the tax debtor or to enable the third party to

obtain a preferential right of recovery on these goods.

Examples of this are cases of goods delivered under a

hire-purchase agreement or under various forms of leasing

or other forms in which the supplier of the goods retains

the ownership thereof.

In addition, one might consider in this connection those

cases in which ownership of the goods has been

transferred to a third party as a security.

..."

31. In its judgment of 9 January 1981 (NJ 1981, 656), the

Supreme Court rejected the proposition that section 16 (3)

applied only to goods on the tax debtor's premises the

ownership of which had been transferred to a third party in

order to prevent the tax authorities from recovering tax debts

by the forced sale of those goods. Although it did appear

from the drafting history of that provision that it had been

prompted at the time (1845) by the desire to counter certain

abuses, this did not mean that the occurrence of an abuse had

been made a requirement for the provision's applicability,

section 16 being derived from the landlord's priority right as

defined in section 1186 of the Civil Code (see paragraph 26

above). Section 16 had afterwards several times been the

subject of debate between the Government and Parliament and

this debate supported the idea that the purport of section 16

was, in the words of the Supreme Court, "to afford the tax

authorities the possibility of recovery against the goods

seized, notwithstanding any third-party rights, as if they

belonged to the tax debtor".

32. It was not possible for suppliers of goods to obtain

information from the tax authorities as to whether their

clients had any outstanding tax debts and whether there was

accordingly any risk of seizure. According to section 67 (1)

of the General Act on State Taxes (Algemene wet inzake

rijksbelastingen) tax officials were, and are, under an

obligation to keep such information secret.

33. A right similar to that of the Tax Collector under

section 16 of the 1845 Act was enjoyed by the customs

authorities. They were empowered by section 151 of the

General Customs and Excise Act (Algemene wet inzake de douane

en de accijnzen) to recover import duties and excise against

the goods for which these were due, along with any

administrative fines or interest, irrespective of who could

claim rights to the goods concerned.

D. Consequences of bankruptcy of the purchaser

34. When a natural or legal person was declared bankrupt, all

seizures affecting his property lapsed (section 33 (2) of the

Bankruptcy Act (Faillissementswet)). This included the

seizure of his property by the tax authorities, but not the

seizure pursuant to section 16 (3) of the 1845 Act of the

goods of third parties.

35. In cases in which movable goods had been sold and

delivered but not paid for in full, section 230 of the

Commercial Code allowed the vendor to reclaim the goods if the

purchaser went bankrupt, provided that the goods could still

be identified (section 231) and that the vendor exercised his

right within thirty days of delivery to the purchaser

(section 232). The vendor had then to refund any payment he

might already have received as well as certain expenses that

might in the meantime have been incurred (sections 233 and

235). The purchase agreement was then considered rescinded

and ownership of the goods was deemed always to have remained

with the vendor (judgment of the Supreme Court of

12 June 1970, NJ 1971, 203).

The vendor's rights under sections 230 and following of

the Commercial Code had to be respected by the tax authorities

(section 16 (3) of the 1845 Act - see paragraph 29 above).

E. Procedural provisions

36. As followed from section 16 (1) of the 1845 Act, third

parties claiming a title to goods seized on the premises of

the tax debtor could submit an administrative objection to the

Tax Collector, who forwarded it to the Commissioner of Direct

Taxes. Although section 16 (1) contained a seven-day

time-limit, administrative objections submitted after its

expiry nevertheless were dealt with and the Tax Collector was

required to suspend the forced sale of the seized goods if

that was still possible (paragraph 30, sub-paragraph 8, of the

1961 Guidelines).

There were no restrictions as to the grounds on which an

administrative objection to the tax authorities might be

based.

37. After obtaining a decision from the Commissioner or - if

preferred - without first obtaining such a decision, a third

party could bring an action before the Regional Court under

section 456 of the Code of Civil Procedure (see paragraph 27

above).

However, section 16 (3) of the 1845 Act limited the

grounds for such an action to the question whether the seized

goods were in fact "fruit, whether harvested or not, or

movable goods serving either as furnishings of a house or

farmstead or for the cultivation or use of land" (judgment of

the Supreme Court of 9 January 1981, NJ 1981, 656, and the

judgment of the Supreme Court in the present case - see

paragraph 23 above).

38. The possibilities of redress by the civil courts were

clarified by the Supreme Court's judgment in the present case

(see paragraph 23 above). That judgment made it clear that in

bringing a case before the civil courts a third party did not

have to confine himself to the questions outlined in

paragraph 37 above but could also base his action on a

wrongful act in civil law (section 1401 of the Civil Code)

committed by the Tax Collector, thus enabling the courts to

review compliance with the 1961 Guidelines by the Tax

Collector in authorising the seizure and by the Commissioner

of Direct Taxes in rejecting the third party's objections.

F. Retention of title

39. Section 455 of the German Civil Code (Bürgerliches

Gesetzbuch) reads as follows:

"If the vendor of a movable good has retained ownership

until the price has been paid, it should be assumed in

case of doubt that the transfer of ownership takes place

subject to a suspensive clause of full payment of the

price and that the vendor is entitled to rescind the

contract if the purchaser comes to be in default of

payment."

According to section 346 of the German Civil Code, in the

event of rescission each party had to return to the other

everything already received under the contract.

At the time of the events complained of, there was no

statutory provision in Netherlands law similar to section 455

of the German Civil Code but retention of title was frequently

resorted to and upheld by the courts in disputes between

private parties.

G. Developments with regard to the right of the tax

authorities to seize goods belonging to third parties

and present on the premises of the tax debtor

40. In 1974 a report was published by a government committee

(the "Houwing Committee") set up to review the law on priority

rights (see paragraph 26 above). With regard to the right

granted the tax authorities by section 16 (3) of the 1845 Act

the report expressed the opinion that this right should be

limited to cases in which other creditors besides the tax

authorities had stipulated rights wholly or essentially

amounting to security for debts; this would broadly correspond

to the policy followed by the tax authorities themselves as

laid down in the 1961 Guidelines (see paragraph 30 above). It

also suggested extending the right of seizure to all movable

goods intended for permanent professional use by the

enterprise concerned.

41. The right of the tax authorities pursuant to

section 16 (3) came under increasing criticism. For this

reason, the Government, when introducing legislation aimed at

modernising the law on the collection of tax debts, did not -

for the time being - propose any significant changes to the

priority right of the tax authorities or the right of seizure.

They stated, when introducing the relevant Bill, that that

required further study, for which an Interdepartmental Working

Party was to be set up. This position was criticised in

Parliament, particularly by those parties which considered the

wide powers of seizure enjoyed by the tax authorities

unjustified, but the Government maintained their position.

Nevertheless, the submission to Parliament of the new Bill led

once more to critical debate both within Parliament and

outside it.

42. The Bill referred to in the previous paragraph became the

new Tax Collection Act, which entered into force on

1 June 1990 (Invorderingswet 1990 - "the 1990 Act").

For all practical purposes, it retains intact the

arrangement of the 1845 Act as regards the priority of tax

debts, even extending the time-limit involved. It also

contains a provision (section 22) which is in practice almost

identical to section 16 of the 1845 Act (see paragraph 29

above), the only real difference being that in the third

paragraph an exhaustive list is given of the taxes concerned.

According to section 70 of the 1990 Act section 22 would

cease to operate on 1 January 1993, unless by that date a Bill

had been introduced for its replacement or for prolonging its

validity for up to one year; in fact, a Bill (no. 22,942)

meeting these requirements was submitted to the Lower House of

Parliament on 30 November 1992.

43. The Interdepartmental Working Party (see paragraph 41

above) published its report in 1990. Bill no. 22,942 - which

is based on, and closely follows, the report of the

above-mentioned Interdepartmental Working Party - proposes to

amend the Civil Code and the 1990 Act in such a way as to

grant the tax authorities a right of recovery against all

goods not belonging to the tax debtor but intended for his

permanent use in the exercise of his profession. Third

parties would not be able to oppose to the Tax Collector any

negotiated right which served essentially as a security. The

Tax Collector would, however, be required to enquire of the

tax debtor whether any of the seized goods belonged to third

parties.

PROCEEDINGS BEFORE THE COMMISSION

44. Gasus applied to the Commission on 6 July 1989. They

alleged that they had not had access to an independent and

impartial tribunal, in violation of Article 6 para. 1

(art. 6-1), and that they had been deprived of their

possessions in violation of Article 1 of Protocol No. 1

(P1-1).

45. On 21 October 1992 the Commission declared the

application (no. 15375/89) admissible as regards the

complaints under Article 1 of Protocol No. 1 (P1-1) and

inadmissible as to the remainder. In its report of

21 October 1993 (Article 31) (art. 31), the Commission

expressed the opinion, by six votes to six with the casting

vote of its President, that there had been no violation of

Article 1 of Protocol No. 1 (P1-1). The full text of the

Commission's opinion and of the four separate opinions

contained in the report is reproduced as an annex to this

judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex

will appear only with the printed version of the judgment

(volume 306-B of Series A of the Publications of the Court),

but a copy of the Commission's report is obtainable from the

registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

46. The Government concluded their memorial by stating the

opinion that Gasus's application based on a violation of

Article 1 of Protocol No. 1 (P1-1) should be declared

inadmissible since domestic remedies had not been exhausted

(Article 26 of the Convention) (art. 26), and that the

application was in any event unfounded.

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

47. The applicant company essentially complained of a

violation of Article 1 of Protocol No. 1 (P1-1). According to

the Government, however, the applicant company had not, or not

sufficiently, raised this complaint in the national courts.

The Government relied on Article 26 (art. 26) of the

Convention, which provides:

"The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the

generally recognised rules of international law ..."

They pointed to the fact that in the domestic proceedings

the applicant company had based their arguments, in so far as

they related to the Convention, on Article 6 (art. 6) only.

Before the Court of Appeal and the Supreme Court Gasus had

actually denied that Article 1 of Protocol No. 1 (P1-1) was

applicable.

In the opinion of the Commission, the entire proceedings

at national level had concerned the question whether or not

the applicant company had been unlawfully deprived of its

possessions. Besides, both the Court of Appeal and the

Supreme Court had examined this question under Article 1 of

Protocol No. 1 (P1-1).

48. The Court reiterates that the purpose of the requirement

that domestic remedies must be exhausted is to afford the

Contracting States the opportunity of preventing or putting

right - normally through the courts - the violations alleged

against them before those allegations are submitted to the

Convention institutions (see, as the most recent authority,

the Hentrich v. France judgment of 22 September 1994, Series A

no. 296-A, p. 18, para. 33). This means that the complaint

which it is intended to bring before the Commission must first

be raised, at least in substance and in compliance with the

relevant requirements of domestic law, before the appropriate

national courts (see, inter alia, the Saïdi v. France judgment

of 20 September 1993, Series A no. 261-C, p. 54, para. 38).

49. It is true that Article 1 of Protocol No. 1 (P1-1) was

referred to for the first time by the Tax Collector; it is

also the case that the applicant company consistently denied

its applicability and argued it before the Supreme Court only

in an alternative submission. Nevertheless, in the event both

the Court of Appeal and the Supreme Court were able to deal

with the allegation of a violation of that provision (P1-1)

and in fact did so.

Accordingly, the applicant company did provide the

Netherlands courts, and more particularly the Netherlands

Supreme Court (see paragraph 23 above), with the opportunity

of preventing or putting right the alleged violation of

Article 1 of Protocol No. 1 (P1-1). The preliminary objection

therefore fails.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

50. The applicant company complained about the seizure by the

tax authorities and subsequent sale with their connivance of

the concrete-mixer. They relied on Article 1 of

Protocol No. 1 (P1-1), which reads:

"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 Government maintained that there had been no

violation of that provision (P1-1). In its report the

Commission came to the same conclusion.

A. Whether there was an interference with the applicant

company's "peaceful enjoyment of [their] possessions"

51. The applicant company pointed out that they had sold the

concrete-mixer to Atlas subject to retention of title until

the full price had been paid. Since at the time of the

seizure the full price had not been paid, the ownership of the

concrete-mixer still remained with Gasus. This, in their

contention, meant that the seizure and subsequent selling of

that machine by the Netherlands tax authorities had interfered

with their right of ownership.

The Commission also considered that there had been an

interference with Gasus's "peaceful enjoyment of [their]

possessions".

52. The Government argued that retention of title was more in

the nature of a security right in rem than of "true" ownership

and that the "enjoyment" of it was limited to security for

payment of the purchase price. "True" or "economic" ownership

was vested in the purchaser, who stood to lose by damage to or

loss of the goods purchased and stood to gain by their use or

resale. At the time of the events complained of, the

concrete-mixer was thus no longer a "possession" whose

"peaceful enjoyment" was guaranteed to Gasus by Article 1 of

Protocol No. 1 (P1-1).

53. The Court recalls that the notion "possessions" (in

French: biens) in Article 1 of Protocol No. 1 (P1-1) has an

autonomous meaning which is certainly not limited to ownership

of physical goods: certain other rights and interests

constituting assets can also be regarded as "property rights",

and thus as "possessions", for the purposes of this provision

(P1-1). In the present context it is therefore immaterial

whether Gasus's right to the concrete-mixer is to be

considered as a right of ownership or as a security right in

rem. In any event, the seizure and sale of the concrete-mixer

constituted an "interference" with the applicant company's

right "to the peaceful enjoyment" of a "possession" within the

meaning of Article 1 of Protocol No. 1 (P1-1).

B. The applicable rule

54. The Court will usually confine its attention, as far as

possible, to the issues raised by the specific case before it.

In the present case, however, it must examine section 16 (3)

of the 1845 Act since the interference complained of resulted

from the application of that provision.

55. As the Court has often held, Article 1 (P1-1) guarantees

in substance the right of property. It comprises three

distinct rules. The first, which is expressed in the first

sentence of the first paragraph and is of a general nature,

lays down the principle of peaceful enjoyment of property.

The second, in the second sentence of the same paragraph,

covers deprivation of possessions and makes it subject to

certain conditions. The third, contained in the second

paragraph, recognises that the Contracting States are entitled

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other

contributions or penalties.

However, the three rules are not "distinct" in the sense

of being unconnected: the second and third rules are concerned

with particular instances of interference with the right to

peaceful enjoyment of property and should therefore be

construed in the light of the general principle enunciated in

the first rule (see, among many other authorities, the AGOSI

v. the United Kingdom judgment of 24 October 1986, Series A

no. 108, p. 17, para. 48).

56. The applicant company based their entire argument on the

premise that they had been deprived of their possessions.

57. In the Commission's opinion, sale under retention of

title created a "special legal situation" in which the

respective rights of the vendor and the purchaser depended on

the domestic legal rules applicable to the transaction.

Normally, the vendor and the purchaser would both be holders

of a limited property right protected by Article 1 of

Protocol No. 1 (P1-1), but the exact scope of the right

enjoyed by each party might be different according to the

legal system involved. In particular, it depended on domestic

law to what extent retention of title protected the vendor's

property against claims by other creditors. If these other

creditors were entitled to have the property seized and sold

in settlement of their claims, the result was that the vendor

was deprived of his property right. This, in the Commission's

view, was what had happened to the applicant company in the

present case. The applicable rule was therefore the one

contained in the second sentence of the first paragraph.

58. The Government denied that the applicant company had been

deprived of their possessions. Firstly, what the tax

authorities had done was to seize the concrete-mixer, not to

confiscate it; the seizure had left Gasus's property rights

intact. Secondly, although the concrete-mixer had eventually

been sold and although the sale had been made possible by the

seizure, it had been effected under a private contract entered

into by Atlas and Van Baarsen. Thirdly, they argued that the

expression "deprivation" implied that the natural or legal

person concerned was left empty-handed; in fact, Gasus had

retained their claim against Atlas for payment of the balance

of the purchase price, and the Government were not to be

blamed if recovery turned out to be impossible as a result of

Atlas's subsequent bankruptcy.

59. The Court considers that the interference complained of

in this case was in fact the result of the tax authorities'

exercise of their powers under section 16 (3) of the 1845 Act.

The purpose of that Act was to regulate the collection of

direct taxes within the Netherlands, and section 16 (3) formed

part of the provisions concerning the enforcement of unpaid

tax debts. Like all other creditors, the tax authorities

could recover unpaid tax debts against all the tax debtor's

seizable assets; under section 16 (3) they were, moreover,

empowered to seize and recover against all movable property

found on the tax debtor's premises which qualified as

"furnishings", irrespective of whether or not these goods

belonged to the tax debtor (see paragraphs 29 to 31 above).

It was in the exercise of this power that the tax authorities

seized the concrete-mixer to which Gasus claimed title, in

partial enforcement of Atlas's unpaid tax debts.

Against this background, the most natural approach, in

the Court's opinion, is to examine Gasus's complaints under

the head of "securing the payment of taxes", which comes under

the rule in the second paragraph of Article 1 (P1-1). That

paragraph explicitly reserves the right of Contracting States

to pass such laws as they may deem necessary to secure the

payment of taxes. The importance which the drafters of the

Convention attached to this aspect of the second paragraph of

Article 1 (P1-1) may be gauged from the fact that at a stage

when the proposed text did not contain such explicit reference

to taxes, it was already understood to reserve the States'

power to pass whatever fiscal laws they considered desirable,

provided always that measures in this field did not amount to

arbitrary confiscation (see Sir David Maxwell-Fyfe, Rapporteur

of the Committee on Legal and Administrative Questions, Second

Session of the Consultative Assembly, Sixteenth Sitting

(25 August 1950), Collected Edition of the Travaux

préparatoires, vol. VI, p. 140, commenting on the text of the

proposed Article 10A, ibid., p. 68).

The fact that current tax legislation makes it possible

for the tax authorities, on certain conditions, to recover tax

debts against a third party's assets does not warrant any

different conclusion as to the applicable rule. Neither does

it suffice in itself to describe section 16 (3) of the

1845 Act as granting powers of arbitrary confiscation.

Conferring upon a particular creditor the power to

recover against goods which, although in fact in the debtor's

possession, are legally owned by third parties is, in several

legal systems, an accepted method of strengthening that

creditor's position in enforcement proceedings. Under

Netherlands law as it stood at the material time, landlords

had a comparable power with respect to unpaid rent, as they

did also under French and Belgian law; the Government have

also cited several provisions in the tax laws of other member

States that give similar powers to the tax authorities in

special cases. Consequently, the fact that the Netherlands

legislature has seen fit to strengthen the tax authorities'

position in enforcement proceedings against tax debtors does

not justify the conclusion that the 1845 Act, or

section 16 (3) of it, is not aimed at "securing the payment of

taxes", or that using the power conferred by that section

constitutes a "confiscation", whether "arbitrary" or not,

rather than a method of recovering a tax debt.

C. Compliance with the conditions laid down in the second

paragraph

60. As follows from the previous paragraph, the present case

concerns the right of States to enact such laws as they deem

necessary for the purpose of "securing the payment of taxes".

In the present case the Court is not called upon to

ascertain whether this right, as the wording of the provision

may suggest, is limited to procedural tax laws (that is to

say: laws which regulate the formalities of taxation,

including the enforcement of tax debts) or whether it also

covers substantive tax laws (that is to say: laws which lay

down the circumstances under which tax is due and the amounts

payable); the 1845 Act, which is at issue in the present case,

was plainly a procedural tax law.

In passing such laws the legislature must be allowed a

wide margin of appreciation, especially with regard to the

question whether - and if so, to what extent - the tax

authorities should be put in a better position to enforce tax

debts than ordinary creditors are in to enforce commercial

debts. The Court will respect the legislature's assessment in

such matters unless it is devoid of reasonable foundation.

61. Section 16 (3) of the 1845 Act gave the tax authorities

the power to recover tax debts against certain goods which,

although in fact in the possession of their debtor - since

they were on his premises and served as "furnishings" - were

owned, as a matter of law, by a third party. It thus

dispensed the tax authorities from having to consider whether

these goods were actually the property of the tax debtor. The

purpose of the provision was obviously to facilitate the

enforcement of tax debts, which in itself is clearly in the

general interest.

It is true that the 1961 Guidelines curtailed the tax

authorities' powers under section 16 (3). As restricted by

those guidelines, section 16 (3) empowered the tax authorities

to recover only certain tax debts - including those such as

the ones owed by Atlas - against "furnishings" owned by third

parties where third-party ownership was intended solely to

frustrate recovery against the tax debtor or to afford the

third party a preferential right of recovery over the goods

concerned (see paragraph 30 above). This, however, did not

affect the essential aim of section 16 (3), which remained, as

was stressed by the Government, to secure tax revenue in the

general interest.

62. According to the Court's well-established case-law, the

second paragraph of Article 1 of Protocol No. 1 (P1-1) must be

construed in the light of the principle laid down in the

Article's (P1-1) first sentence (see, among many other

authorities, the above-mentioned AGOSI judgment, ibid.).

Consequently, an interference must achieve 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. The concern to achieve this balance is

reflected in the structure of Article 1 (P1-1) as a whole,

including the second paragraph: there must therefore be a

reasonable relationship of proportionality between the means

employed and the aim pursued.

63. Gasus stressed that they had been deprived of their

property in payment of a tax debt owed by a third party, the

Netherlands company Atlas.

They pointed out that they were in no way responsible for

causing the tax debt. Moreover, they could not possibly have

been aware of it, since in the Netherlands the tax authorities

were not allowed to give such information to anyone but the

actual debtor.

Finally, the fact that the fiduciary title - to goods not

considered "furnishings" - of one of Atlas's bankers, NIB, had

been respected, whereas Gasus's retention of title had not,

demonstrated that the interference with Gasus's rights had

been arbitrary. In their submission, retention of title was

closer to "true" ownership than fiduciary title was. The

latter involved transfer of ownership from a borrower, who

remained entitled to use and often even to sell the goods, to

a lender who had never had any interest of his own in the

goods. Retention of title, on the other hand, was the

continuation of the ownership of the former owner until the

purchaser had fulfilled his obligations.

64. In the opinion of the Commission, the measure in issue

had been taken in accordance with specific rules of

Netherlands law. Consequently, the applicant company could

have taken these rules into account, if need be with

appropriate legal advice; they could have decided not to sell

the concrete-mixer at all, or they could have limited their

risk by negotiating "specific security" in addition to the

retention of their title or by taking out insurance.

65. The Government preferred to view the case as one

concerning the conflicting interests of creditors faced with a

common debtor whose assets were insufficient to satisfy them

all. Although Netherlands law theoretically recognised the

principle of paritas creditorum, it had, like other legal

systems, created priority rights favouring certain creditors

over others and had ranked the rights of the tax authorities

very high.

According to the report of the Interdepartmental Working

Party (see paragraph 43 above), which the Government submitted

to the Court, both the high rank of the tax authorities'

priority right and their extensive rights of seizure were

justified by, inter alia, the following differences between

the tax authorities and private creditors: the tax authorities

did not choose their debtors; they were expected to show

greater leniency than other creditors and were enabled by

their priority right (which ensured that tax debts would be

paid in any case) to be flexible as regards both the timing of

assessments and the collection of the amount due; they were

obliged to grant credit; and they were not able to make

allowance for the risk that the parties they dealt with might

prove insolvent. In addition commercial creditors could in

many cases obtain a higher preference by entering into

agreements like fiduciary transfer of ownership and retention

of title, and the right to seize goods nominally belonging to

third parties served to correct the imbalance thereby created.

Contrary to what Gasus had suggested, their position and

that of NIB were not comparable. While it was true that NIB's

merely fiduciary ownership had been respected whereas the

applicant company's retention of title had not, the reason for

this was precisely that the goods to which NIB's ownership

related were not "furnishings" for the purpose of

section 16 (3) of the 1845 Act and therefore not subject to

seizure. There was therefore no arbitrary distinction in this

respect.

In any event, according to the 1961 Guidelines, "true"

ownership (i.e. ownership not merely negotiated as a security

right in rem) had to be respected by the tax authorities. In

the Government's view, Netherlands law was free to define its

understanding of the concept of ownership and could therefore

restrict certain forms in the general interest. Other

Contracting States limited the protection afforded by

retention of title even further than did the Netherlands.

Finally, the Government recalled that Gasus had retained

their claim against Atlas for payment of the purchase price.

This meant that Gasus had not been left empty-handed.

Although Atlas's bankruptcy had deprived the claim of its

value, that was not a state of affairs for which the

Government could be held responsible.

66. The Court notes at the outset that the grant to the tax

authorities of a power to recover tax debts against goods

owned by certain third parties - such as a seller of goods who

retains his title - does not in itself prompt the conclusion

that a fair balance between the general interest and the

protection of the individual's fundamental rights has not been

achieved. The power of recovery against goods which are in

fact in a debtor's possession although nominally owned by a

third party is a not uncommon device to strengthen a

creditor's position in enforcement proceedings; it cannot be

held incompatible per se with the requirements of Article 1 of

Protocol No. 1 (P1-1). Consequently, a legislature may in

principle resort to that device to ensure, in the general

interest, that taxation yields as much as possible and that

tax debts are recovered as expeditiously as possible.

Nonetheless, it cannot be overlooked that, quite apart from

the dangers of abuse, the character of legislation by which

the State creates such powers for itself is not the same as

that of legislation granting similar powers to narrowly

defined categories of private creditors. Consequently,

further examination of the issue of proportionality is

necessary in this case.

67. In this connection, the Court also notes that in

assessing the proportionality of the powers under

section 16 (3) and their use in the present case it is

immaterial that Gasus were a limited company with legal

personality under German law and had their registered office

in Germany. Gasus had sold and delivered their concrete-mixer

to a purchaser based in the Netherlands and installed it on

his premises. Gasus could therefore not have expected

otherwise than that the effectiveness of their retention of

title in the face of seizure depended on Netherlands law. It

consequently makes no difference whether a seller who retains

title and who finds himself a victim of use by the tax

authorities of their power under section 16 (3) has his

domicile or registered office in the Netherlands or elsewhere.

In either case the essential question must be whether as a

consequence of the tax authorities' actions against the goods

to which title has been retained the vendor has had to bear

"an individual and excessive burden" (see particularly the

James and Others v. the United Kingdom judgment of

21 February 1986, Series A no. 98, p. 34, para. 50).

68. Whatever the nature of retention of title compared with

"true" or "ordinary" property rights - a question on which the

Court discerns no common ground among the Contracting States -

it is apparent that whoever sells goods subject to retention

of title is not interested so much in maintaining the link of

ownership with the goods themselves as in receiving the

purchase price. A State may therefore legitimately, within

its margin of appreciation, differentiate between retention of

title and other forms of ownership.

It matters little whether such differentiation takes the

form of substantive limitations of the right of ownership or

is expressed in terms of procedural law; as the Court pointed

out in its Fayed v. the United Kingdom judgment of

21 September 1994, such a distinction may be no more than a

question of legislative technique (Series A no. 294-B, p. 50,

para. 67).

69. It cannot be ignored that in general the cases in which

the tax authorities will make use of their high-ranking

priority rights and their powers under section 16 (3) of the

1845 Act are precisely those where the tax debtor is unable to

satisfy all his creditors. This necessarily implies that in

these cases commercial creditors will not be fully paid if

they receive any payment at all.

The Court therefore does not agree with the Government

that the fact that the applicant company's claim against Atlas

was rendered worthless is not a consequence of the action

taken by the tax authorities.

70. It is nonetheless true, as observed by the Commission,

that the applicant company were engaged in a commercial

venture which, by its very nature, involved an element of risk

(see, mutatis mutandis, the Pine Valley Developments Ltd and

Others v. Ireland judgment of 29 November 1991, Series A

no. 222, p. 26, para. 59). The facts of the case show that

Gasus were in fact sufficiently aware of their risk to take

steps to limit it.

Having allowed Atlas to pay the purchase price of the

concrete-mixer in instalments, and being aware of the danger

that Atlas might default on its payments, Gasus reserved their

title to the concrete-mixer until the full price had been

paid. This, under Netherlands law, provided them with a

considerable degree of security, as their claims to the

concrete-mixer thus took priority over those of all other

creditors except the tax authorities, who were entitled under

section 16 (3) of the 1845 Act to seize it and take the

proceeds for the State.

Like the Commission, the Court considers that Gasus could

have eliminated their risk altogether by declining to extend

credit to Atlas: they could have stipulated payment of the

entire purchase price in advance or else refused to sell the

concrete-mixer in the first place. It also accepts that the

applicant company might have obtained additional security, for

example in the form of insurance or a banker's guarantee,

which pass the risk on to another party.

It is therefore unnecessary for the Court to establish

whether the applicant company could have ascertained the

existence and extent of Atlas's tax debts, this point being in

dispute. Nor is it material that the applicant company bore

no responsibility for the tax debt.

In the present context it is not without relevance that

the owners of goods subject to seizure under section 16 (3) of

the 1845 Act had knowingly allowed them to serve as

"furnishings" of the tax debtor's premises. They might

therefore well be held responsible to some extent for enabling

the tax debtor to present a semblance of creditworthiness.

71. Furthermore, whether or not the tax authorities are under

any legal or other obligation to be more flexible in respect

of tax debtors in temporary financial difficulties, they do

not have the same means at their disposal as commercial

creditors for protecting themselves against the consequences

of their debtors' financial problems. Nor have they any other

means of protecting themselves against their debtors' attempts

to solve such problems by vesting the title to their

"furnishings" in another party as a device for borrowing

against a security.

72. The Court accepts the Government's argument that the fact

that the concrete-mixer to which Gasus had reserved title was

seized while goods subject to NIB's fiduciary ownership rights

were spared does not suffice to demonstrate that the seizure

of the concrete-mixer was arbitrary. Whereas the

concrete-mixer supplied by Gasus qualified as "furnishings",

this was not the case with the goods over which NIB could

claim rights. This distinction was based on the law, as

elucidated by a long-established body of case-law, and

accorded with the stated policy of the Minister of Finance.

73. Finally, in the Court's opinion, it should be taken into

account that, as was made clear by the Supreme Court in its

judgment in this case, under Netherlands law third parties

whose goods are seized under section 16 (3) of the 1845 Act

may have the use that has been made of the powers conferred by

that section adequately reviewed by a tribunal under a

procedure which meets the requirements of Article 6 para. 1

(art. 6-1) of the Convention.

74. In view of the above, the Court comes to the conclusion

that the requirement of proportionality has been satisfied.

Accordingly, there has been no violation of Article 1 of

Protocol No. 1 (P1-1).

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government's preliminary

objection;

2. Holds by six votes to three that there has been no

violation of Article 1 of Protocol No. 1 (P1-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

23 February 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the

dissenting opinion of Mr Foighel, joined by Mr Russo and

Mr Jungwiert, is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

DISSENTING OPINION OF JUDGE FOIGHEL,

JOINED BY JUDGES RUSSO AND JUNGWIERT

I agree with the majority that the present case comes

under the rule contained in the second paragraph of Article 1

of Protocol No. 1 (P1-1). I also agree that this rule must be

construed in the light of the principle laid down in the first

sentence of that Article (P1-1), i.e. that an interference

must achieve 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 and that

there must be a reasonable relationship of proportionality

between the means used and the aim pursued (see paragraph 62

of the judgment).

I regret, however, that I cannot share the majority's

opinion that the requirements of a "fair balance" and of

proportionality have in the instant case been satisfied.

The reasons for my dissent are the following:

1. The right of the tax authorities under section 16 (3) of

the 1845 Act (the bodemrecht), which gives them the power to

recover tax debts against certain goods which - as a matter of

law - are owned by a third party, is a specific right enjoyed

by the tax authorities only. This cannot be compared with the

situation in which a group of competing creditors divide the

assets of a debtor who has not enough to satisfy them all and

it is generally accepted that some privileged creditors may

invoke a priority right. In this latter situation the assets

in question are all owned by the debtor and not - as in this

case - by a third party.

2. The bodemrecht must be evaluated in the light of the fact

that according to Netherlands commercial law "retention of

title" in sales on credit must be respected by all other

creditors; it is a recognised means of protecting the property

interests of the vendor, who retains ownership of the goods

until they have been fully paid for.

3. The present case therefore concerns a genuine conflict

between the tax authorities and a third party who has nothing

to do with the amount of tax due to the State by the buyer of

the goods. Furthermore, there is not the slightest evidence

that "retention of title" was anything other than a normal

condition of trade negotiated by the third party, nor that the

arrangement was made to defraud the tax authorities or that

the third party otherwise acted in bad faith.

4. Even if one accepts that States enjoy a wide margin of

appreciation in collecting taxes, in checking statements, in

acting on presumptions and in requiring convincing proof if a

tax debtor claims that property on his premises belongs not to

him but to a third party, there is a limit to what a

government may do in this regard.

There is certainly a need to define this limit in cases

such as the present, where the tax authorities seize goods

which unquestionably belong to third party to recover a tax

debt owed by another person.

The limit is to be found above all in the test of

proportionality, which is an important element of Article 1

(P1-1). In my opinion, the bodemrecht as applied in this case

is not indispensable to the tax authorities and therefore does

not meet this test.

5. In the first place, the sum recovered annually by the tax

authorities by setting aside the property rights of third

parties is negligible. As appears from the documents

submitted by the Government themselves, the sums recovered in

this way by the forced sale of goods sold under "retention of

title" total no more than 1 million Netherlands guilders,

compared to a total budget for 1995 of 233 billion.

Furthermore, the more general issue of verification is of

no relevance to the present case as there is undisputed

contractual evidence that the concrete-mixer was sold under

"retention of title" and therefore - according to provisions

of commercial law applying also in the Netherlands - belonged

to a third party.

Finally, I do not accept that a third party, if he is a

private person, should bear the risk that the person with whom

he enters into an agreement has not paid all his taxes.

Normally the third party will know nothing about his business

counterpart's tax status as it is in most countries a

punishable act for persons in government employ to disclose

information of this nature to any private party, bank or

credit information service.

6. In weighing up the conflicting interests of the tax

authorities in collecting taxes and the business community in

upholding the validity of "retention of title", I come to the

conclusion that in this case there has been a violation of

Article 1 of Protocol No. 1 (P1-1).



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