Protection of property (Article 1 of Protocol No. 1 to the Convention)
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1992 by a new Civil Code; a number of provisions of the Commercial Code and the Code of Civil Procedure were changed or repealed at the same time.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 [3]. 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).
The Court held that there had been no violation of Article 1 (protection of property) of Protocol No. 1, finding that the requirement of proportionality between the means employed and the aim pursued had been satisfied. It considered in particular that the interference complained of in this case was in fact the result of the tax authorities’ exercise of their powers under the 1845 Tax Collection Act (Invorderingswet). It also noted that the present case concerned the right of States to enact such laws as they deem necessary for the purpose of securing the payment of taxes and recalled that, in this matter, 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.