Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in LOC .

She worked at the ORG - owned company “ PERSON ” ( “ the SMZ ” ) . Following her retirement from the ORG on DATE the applicant worked for the ORG 's subsidiary company “ LOC ( “ the FAC ” ) until DATE .

She instituted several sets of court proceedings against her former employers , seeking initially recovery of salary arrears and subsequently compensation for late payment of salary pursuant to LAW . Under that provision , retired employees were entitled to claim compensation if their salary or related payments due to them were not paid on DATE of termination of employment , i.e. such compensation concerned delays in payment after termination of employment .

NORP In DATE the applicant lodged a claim with ORG of PERSON ( “ the ORG ” ) against the SMZ . She sought recovery of salary arrears .

On DATE the court awarded her CARDINAL NORP hryvnyas ( ORG ) in salary arrears . The period of the applicant 's work concerning which she was awarded the above sum in salary arrears was not specified .

On DATE the applicant instituted a new set of proceedings in the same court against the ORG , seeking compensation for the latter 's failure to pay her salary arrears in due time .

On DATE the court , referring to paragraph CARDINAL of Article CARDINAL of LAW , awarded her UAH CARDINAL,CARDINAL.CARDINAL in compensation for non - payment of salary arrears for the period of DATE , during which her salary arrears had remained unpaid . The court noted that the respondent company failed to appear before it without informing about the reasons for its absence . It further observed that in his written statement submitted to the court on DATE the company 's representative accepted the applicant 's claim as regards the amount of compensation for the period of DATE .

The judgments of DATE ( salary arrears ) and CARDINAL DATE ( compensation for late payment ) were not appealed against and became final . The enforcement proceedings in respect of these judgments were instituted on DATE and CARDINAL DATE respectively . On DATE the applicant received the full amounts of the awards .

On DATE the ORG lodged a request with ORG for leave to appeal against the judgment of CARDINAL DATE under the new cassation procedure . In its appeal the ORG alleged that it had not been responsible for the delay in payment of salary arrears to the applicant , that its representative before the first instance court had not been given the right to accept the applicant 's claim , that the ORG had not been duly informed about the date and time of the hearing before that court , and that the latter 's judgment did not contain calculations of the awarded amount . On DATE ORG granted such leave and invited the applicant to participate in the hearing on the ORG 's appeal scheduled for CARDINAL DATE . On the latter date ORG of ORG quashed the judgment of DATE on the ground that ORG had examined the case in the absence of the ORG and remitted it for fresh consideration .

Meanwhile , on DATE the applicant lodged a new claim with ORG , seeking compensation for the period of DATE , during which the ORG had failed to pay her salary arrears awarded by the judgment of DATE .

On DATE the applicant requested ORG to examine her claims of CARDINAL DATE and DATE jointly . In the course of a hearing on DATE the court allowed the applicant 's request .

On DATE the court adopted a judgment dismissing the applicant 's claims . Its relevant provisions read as follows :

“ ... The court , having heard the plaintiff [ and ] having examined the materials of the civil case , considers that the claims are unsubstantiated and may not be allowed for the following reasons .

In particular , the court established that on DATE the plaintiff had retired [ from the SMZ ] ... By the judgment of ORG ... of DATE , she was awarded CARDINAL [ NORP hryvnyas ] in salary arrears ... Therefore , the dispute concerning the recovery of sums in the event of termination of employment was determined and [ the matter ] turned to the stage of enforcement . The said judgment was enforced on DATE ...

In accordance with LAW of GPE , if [ the employer ] fails to pay the employee [ whose contract of employment was terminated ] the sums due to him within the time - limits set by the law , [ the former ] shall pay the employee his average wages for the whole period of the delay until DATE of the factual payment .

As it appears from the materials of the case , the plaintiff retired on DATE , the sum of her salary arrears on DATE of the retirement was CARDINAL [ NORP hryvnyas ] which was recovered by the judgment of DATE .

Therefore , the dispute concerning the recovery of sums in the event of termination of employment was determined on DATE and [ the matter ] turned to the stage of enforcement . The plaintiff lodged with the court her first claim for compensation under LAW of GPE on DATE ... having missed the DATE term envisaged by Article CARDINAL of LAW of GPE . The plaintiff and her representative did not furnish sufficient and objective evidence demonstrating that there had been a reasonable excuse for missing the procedural term , and she did not request an extension of [ that ] term ; thus , the court [ discerns ] no grounds to renew it in accordance with the requirements of LAW of LAW of GPE .

In the light of the foregoing ... [ the court ]

Decided :

To dismiss the claim of GPE ... ”

The applicant appealed , contending that the time - limit at issue had started to run on DATE , DATE when she had received her belated salary payment .

On DATE the ORG ( the former ORG ) upheld the judgment of CARDINAL DATE . It rejected the applicant 's contention that the limitation period under LAW had started to run on DATE , when she had actually obtained the amount awarded by the judgment of DATE . It held that the “ factual payment ” had been made on DATE and that the limitation period had started to run from DATE .

On DATE a panel of CARDINAL judges of ORG rejected the applicant 's request for leave to appeal in cassation as unsubstantiated .

In DATE the applicant instituted proceedings in ORG against the SMSK , seeking recovery of salary arrears and compensation for their prolonged non - payment .

On DATE the court awarded her ORG CARDINAL in salary arrears and compensation for late payment of these arrears for the period of DATE . This judgment was not appealed against and became final . On an unspecified date PERSON instituted enforcement proceedings in respect of the judgment . On DATE the enforcement proceedings were discontinued upon the applicant 's request . On DATE the applicant received the full amount of the award of CARDINAL DATE .

NORP In DATE the applicant again instituted proceedings in ORG against the SMSK , seeking compensation for the latter 's failure to pay her salary arrears from CARDINAL DATE .

On DATE the court rejected the applicant 's claims as unsubstantiated . The applicant appealed in cassation , contending that the proceedings instituted by her in DATE concerned salary arrears and compensation for their non - payment during DATE , while in her new claim lodged with the courts in DATE she requested compensation for the period after DATE .

On DATE ORG quashed the decision of the first - instance court and adopted a new decision by which it discontinued the proceedings in the applicant 's case . It held that the matter had already been determined by ORG on DATE . The relevant parts of the decision of DATE read as follows :

“ ... In accordance with LAW , the court shall discontinue the proceedings , if there is a judgment , which has entered into the force of the law , concerning a dispute between the same parties , on the same subject - matter and grounds .

It appears from the case materials that on DATE ORG adopted a judgment , by which the plaintiff was awarded CARDINAL [ NORP hryvnyas ] in respect of salary arrears and average wages for the delay in payment in the event of termination of employment during DATE to CARDINAL DATE ...

Therefore , [ the court finds that ] the dispute concerning the recovery of wages for the period of the delay in payment has been determined on DATE and that the admission of a new claim concerning the same subject - matter and based on the same grounds would be contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure ...

Pursuant to ORG CARDINAL and CARDINAL of the Code of Civil Procedure of GPE , [ the court ]

Decided :

To quash the judgment ... of DATE and to discontinue the proceedings concerning the claim of GPE ... against [ the SMSK ] ... ”

On DATE ORG ( ORG court dealing with disputes between companies and other economic entities before DATE ) initiated bankruptcy proceedings against the ORG . The applicant and Mr PERSON joined the proceedings as the ORG 's creditors . By a decision of DATE , the arbitration court ordered the inclusion of ORG awards of CARDINAL July CARDINAL and CARDINAL DATE in the applicant 's favour into the list of creditor 's claims .

By a decision of DATE , partially amended by a decision of DATE , the same court quashed the decision of DATE and discontinued the bankruptcy proceedings on the ground that the ORG had paid the amounts claimed by the applicant and Mr PERSON in full .

On CARDINAL and DATE respectively , Mr PERSON and the applicant lodged with the court requests for supervisory review of the decisions of DATE and DATE .

On DATE ORG rejected the request of Mr PERSON as unsubstantiated .

By a letter of DATE , ORG informed the applicant that her request for supervisory review had not been submitted to ORG as it had been directed against the same decisions as the request of Mr PERSON

On DATE the applicant instituted proceedings in ORG of PERSON against ORG , seeking compensation for the latter 's failure to consider her request for supervisory review of its decisions of DATE and DATE .

On DATE ORG discontinued the proceedings on the ground that the applicant 's claim was not to be considered by the courts , as ORG enjoyed immunity from civil proceedings in respect of its procedural activities . On DATE ORG upheld the decision of the firstinstance court .

The relevant provisions of the LAW read as follows :

“ ... A judge shall not [ deal with ] a claim :

CARDINAL ) NORP if there is a judgment , which has entered into the force of the law , concerning a dispute between the same parties , concerning the same subject and based on the same grounds , or a court 's ruling endorsing the plaintiff 's withdrawal of the claim or a friendly - settlement agreement between the parties ... ”

“ ... A court shall discontinue the proceedings :

CARDINAL ) if there is a judgment , which has entered into the force of the law , concerning a dispute between the same parties , concerning the same subject and based on the same grounds , or a court 's ruling endorsing the plaintiff 's withdrawal of the claim or a friendly - settlement agreement between the parties ... ”

In the course of consideration of a case in cassation the court shall verify whether the first instance court 's judgment is lawful and well - founded ...

The court shall not be bound by the reasons of an appeal in cassation ... and must review the entire case .

The [ first instance court 's ] judgment shall be quashed in cassation and the proceedings shall be discontinued or the claim shall be left without consideration on the grounds envisaged in Articles CARDINAL and CARDINAL of the Code .

The relevant provisions of the LAW , as worded at the material , read as follows :

“ An enterprise , entity , or organisation shall pay the sums due to a [ dismissed or retired ] employee on DATE of termination of his employment . If the employee did not work on DATE of his [ dismissal or retirement ] , the abovementioned sums shall be paid to him not later than the day following DATE of the submission of his payment request .

In the event of a dispute over the amount to be paid to a [ dismissed or retired ] employee , [ the employer ] ... shall pay the undisputed amount within the time - limit envisaged by this [ provision ] . ”

“ In the absence of a dispute over the amount to be paid to a [ dismissed or retired ] employee , [ the employer ] ... shall pay him his average wages for the whole period of the delay in payment of the amounts envisaged by LAW of this Code until DATE of their factual payment , if the delay was due to the fault of [ the employer ] ...

In the event of a dispute over the amount to be paid to a [ dismissed or retired ] employee , [ the employer ] ... shall pay him compensation envisaged by this [ provision ] , if the dispute was resolved in favour of the employee . If the dispute was resolved partly in favour of the employee , the amount of compensation for the delay shall be determined by the body deciding on the dispute ... ”

“ An employee may submit an application concerning a labour dispute directly to a ... court within DATE following DATE on which he became or should have become aware of a violation of his right ... ”

The relevant extracts from ORG read as follows :

“ CARDINAL . Having established , in the course of consideration of a case concerning recovery of [ average ] salary in connection with a delay in payment in the event of termination of employment , that an employee was not paid the amounts due to him ... on DATE of his [ dismissal or retirement ] ... a court shall award , under LAW , the employee average salary for the whole period of the delay in payment ; if no such payment has been made before the consideration of the case [ the court shall award average salary ] until the date of the adoption of the judgment , safe in case the employer proofs that it was not responsible [ for the delay ] . The mere absence of funds shall not exclude the employer 's responsibility .

In case no payment [ in the event of termination of employment ] took place because of a dispute on the amount to be paid , the claims concerning the responsibility for the delay ... shall be allowed in full , if the dispute was determined in favour of the plaintiff or if a court dealing with the case reaches such a conclusion . In case the claim is partly allowed , the court determines the amount of compensation for the delay in payment , taking into account the disputed sum which [ the plaintiff ] was entitled to receive , the part of the claim it constituted , the value of the part [ of the claimed amount ] in comparison with average salary and other specific ...

NORP ... A failure to pay sums due to an employee on DATE of his dismissal or , if he was absent from work on DATE , on DATE following the submission of his request for payment constitutes a ground for responsibility under LAW . In this case , the running of a DATE time - limit for lodging an application with a court commences on DATE following the payment of the above mentioned sums , irrespective of the delay in payment .

A failure to meet the DATE time - limit for an application to a court as such constitutes a ground for dismissal of the claim , however , if the court finds that [ the claim ] is unsubstantiated , it shall dismiss [ the claim ] on [ the latter ] ground ... ”


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE . The applicant was married on DATE in GPE . His marriage was dissolved on DATE .

On DATE his former wife lodged an application ( no.CARDINAL/CARDINAL ) with ORG for adjudication of certain property disputes between her and the applicant . On DATE the court issued an interim injunction prohibiting the applicant from selling , transferring or otherwise disposing of certain of his properties consisting of an apartment , a plot of land and CARDINAL bank accounts . On DATE the applicant submitted his defence and counter - claims . He claimed that he and his former wife had entered into an agreement in DATE for the settlement of any potential property dispute . On DATE his former wife filed her response to the applicant ’s defence , and her defence in respect of his counter - claim .

The case was adjourned on CARDINAL occasions at the request of the applicant . The hearing of the interim order application began on DATE . On DATE it was decided that the prohibitory injunction would remain in force pending the final determination of the proceedings . An amendment was made in respect of the applicant ’s plot of land , which would only be bound in respect of CARDINAL of the undivided share of the property .

On DATE , the applicant lodged an appeal against the injunction . He maintained that the court had erred in law in issuing it solely on the basis of the affidavit of his former wife and without further evidence substantiating her allegations . In another ground of appeal he complained about the delay that had occurred in the proceedings , which had severely restricted his professional activities .

On DATE ORG dismissed the appeal and upheld the injunction as the applicant ’s former wife had entered into sufficient detail in her affidavit to justify non inclusion of further relevant documents . The court nevertheless expressed its concern about the delay in the proceedings .

The examination of the main application ( no.CARDINAL/CARDINAL ) by ORG began on DATE . Of the CARDINAL sittings held DATE and DATE CARDINAL was adjourned at the applicant ’s request .

On DATE , ORG ordered the applicant to pay QUANTITY ( ORG ) plus interest to his former wife . The court dismissed the applicant ’s submission that an agreement had been concluded between himself and his former wife . The counter - claim lodged by the applicant was dismissed in its entirety . Moreover , the court considered that the applicant ’s evidence had been unreliable and given in bad faith . It noted that he had been unable to control himself during the proceedings and had become disrespectful towards the court and his former wife ’s counsel .

On DATE , the applicant lodged an appeal with ORG .

On DATE , the applicant ’s former wife lodged with ORG an application by summons requesting a ‘ garnishee ORG ( third party debt order ) . The application was set for hearing on DATE . On DATE the applicant filed an objection and maintained that the application had been filed in bad faith .

On DATE the applicant applied for suspension of the execution of the court ’s decision dated DATE , until the examination of his appeal . This was set for hearing on DATE . On DATE the applicant ’s wife objected to his application as the applicant had not complied with the aforementioned court order .

On DATE ORG , following a hearing , dismissed the application for suspension of the court ’s decision dated DATE . The court declined to grant the requested order in light of the applicant ’s unreliability and the evident danger that his former wife would remain without a remedy in the event that the order was granted . The court rejected the applicant ’s allegations that the application was made in bad faith and found his claim that he would face considerable financial difficulties in the event of non suspension unsubstantiated . The application was accordingly dismissed with legal costs awarded to the applicant ’s former wife .

On DATE the court granted the garnishee order . Accordingly the applicant ’s bank was ordered to pay his former wife the amount of ORG CARDINAL with PERCENT interest from DATE until payment and expenses . The court ordered the applicant ’s former wife to guarantee the return to the applicant of the whole amount payable upon the execution of the court ’s decision dated DATE in the event that his appeal was successful . The guarantee would be renewable until the completion of the appeal proceedings . On DATE , the applicant lodged an appeal with ORG against the decision of ORG dated DATE .

On DATE ORG granted the applicant ’s appeal against the family court ’s judgment of DATE and against its order of CARDINAL DATE . It noted that the first - instance court had found the applicant an absolutely unreliable witness and his evidence was , as such , dismissed in its entirety . It further noted that the first - instance court had based its conclusion as to the applicant ’s reliability as a witness on various factors including his behaviour in and outside the court room . It was held that the first - instance court ought not to have taken those factors into account in the assessment of the applicant ’s evidence and therefore the case was remitted for a retrial , but only in respect of the former wife ’s claim over the applicant ’s plot of land .

On DATE judgment was issued by the family court in favour of the applicant ’s former wife . The court noted that the proceedings had been delayed by the applicant , who failed to appear before the court on CARDINAL occasions . It was found that no agreement had been concluded between the applicant and his wife as to any potential property dispute . Given his former wife ’s contribution to his enrichment during the period of their wedlock it was held that she was entitled to a third of the value of his plot of land .

On DATE the applicant lodged an appeal against the decision of the family court before ORG . These proceedings are currently pending .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant was born in DATE and lives in LANGUAGE .

The applicant , a civil servant for DATE , had been in the service of ORG . On DATE she was dismissed , with effect from DATE . Her dismissal was part of a wave of similar measures throughout the entire civil service .

On dismissal , the applicant was statutorily entitled to CARDINAL months’ salary for DATE and DATE , during which time she was exempted from working . In addition , she was to receive severance pay amounting to CARDINAL months’ salary in application of section LOC ) of Act no . XXIII of DATE on ORG ( see paragraph CARDINAL below ) .

These benefits were subsequently taxed at PERCENT in their part exceeding MONEY ( ORG ) . The exceeding part was ORG CARDINAL , the tax amounting to ORG CARDINAL . This represented an overall tax burden of PERCENT on the entirety of the severance , as opposed to the general personal income tax rate of PERCENT in the relevant period .

The tax amount in question was never disbursed to the applicant , but was withheld by the employer and directly transferred to the tax authority on DATE .

Section CARDINAL of Act no . XXIII of DATE on ORG provides as follows :

“ ( CARDINAL ) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... .

( CARDINAL ) The amount of severance shall be , if the civil servant ’s service has been at least :

g ) DATE : CARDINAL months’ salary ...

The amount of severance shall be increased by CARDINAL months’ salary if the service relationship is terminated within DATE prior to the civil servant ’s qualification for old - age pension [ section LAW ) ] or anticipated old - age pension . ”

On DATE Parliament adopted Act no . XC of DATE on ORG ( “ the LAW ” ) . The LAW , which was published in ORG on CARDINAL DATE , introduced inter alia a new tax on certain payments to employees in the public sector whose employment was terminated . Consequently , severance pay and other payments related to the termination of employment exceeding ORG CARDINAL became subject to a PERCENT tax . However , income tax and social security contributions already paid could be deducted from the tax . Notwithstanding the limit of ORG CARDINAL , the statutory provisions on the sum of severance pay DATE in some cases amounting to CARDINAL months’ remuneration – were not modified . The bill preceding the LAW justified the tax with reference to public morals and the unfavourable budgetary situation of the country .

The Act entered into force on DATE ; however , the tax was to be applied to the relevant revenues as from DATE . Simultaneously , the LAW was also amended , establishing retroactive tax liability in respect of the given tax year concerning “ any remuneration against good morals ” paid in the public sector .

The LAW was challenged before ORG within the framework of an abstract ex post facto control . This court found the relevant provisions unconstitutional in decision no . CARDINAL . ( X.CARDINAL.)AB on DATE .

According to ORG , revenues earned solely on the basis of relevant statutory provisions ( that is , the overwhelming majority of the revenues concerned by the disputed legislation ) could not be regarded as being against good morals , and therefore not even the constitutional amendment justified a retroactive PERCENT tax . ORG pointed out that it reviewed the rate or amount of taxes only exceptionally ; however , it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated , i.e. was disproportionate and unjustified . Considering also the “ PERCENT rule ” ( GPE ) set out by ORG – according to which the overall tax load on assets must be limited to PERCENT of the yield on those assets – the court found that the PERCENT tax was excessive and punitive , yet it equally applied to severance pay earned in a fully untainted manner . The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established . ORG annulled the relevant provisions retroactively , that is , from DATE of the Act ’s entry into force . It relied on the above arguments , rather than on considerations about the protection of property , to which its scrutiny did not extend in the case .

The Constitutional Court ’s decision contained in particular the following considerations :

“ CARDINAL . ... [ The LAW ] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria , that is , to those ... received from any source specified in the LAW and exceeding the [ relevant ] amount .... The LAW does not apply only to budgetary institutions but to other , ORG - owned employers as well . The use of private resources depends on the ORG relatively free choices and autonomous decisions . However , decisions concerning public funds are different . [ The impugned legislation ] relates to public funds , and determines – at least indirectly – the use of public resources .

... Depending on the circumstances , [ the ] PERCENT tax may apply to payments which derive from the obligatory application of cogent legal provisions . ... In these cases , the special tax does not function as a regulatory instrument , given its inescapable factual basis . Nor does it aim to prevent abusive payments ; its purpose is rather to levy almost the entire income [ in question ] for the central budget . ...

The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified . ...

The material case concerns a substantial punitive tax which also applies to payments which are received , by virtue of law and within the limits of the proper exercise of rights , upon the termination of employment in the public sector . The LAW would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation . It would deprive the taxable persons of incomes originating in unconditional statutory entitlements . ...

To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax . The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law . However , imposing a tax or other similar duty is no constitutional means to achieve such purpose . Several constitutional instruments are at the disposal of the legislator to accomplish its objective . It may reduce or even abolish some ORG allowances falling under the scope of the LAW for the future , or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit . Nonetheless , the discretion of the legislator only prevails in the framework of international and NORP community law . ”

Upon a new bill introduced on DATE as the date of ORG decision , on DATE ORG re - enacted the PERCENT tax with certain modifications , according to which this tax applied from DATE ; however , for the majority of those affected ( excluding some senior officials ) it only applied to revenues above ORG CARDINAL . The new legislation was published in ORG of DATE and entered into force on DATE .

At the same time , ORG again amended the LAW , allowing retroactive taxation going back DATE . Furthermore , ORG powers were limited : the amended articles of the LAW contained a restriction on ORG ’s right to review legislation on budgetary and tax issues . This restriction DATE which has also been maintained in the new LAW in force from DATE allows for constitutional review only in respect of violations of the right to life and human dignity , the protection of personal data , freedom of thought , conscience and religion , and the rights related to NORP citizenship .

Upon a petition for an abstract ex post facto control , on CARDINAL DATE ORG annulled – notwithstanding its limited powers – the DATE retroactive application of PERCENT tax in decision no . CARDINAL , relying on the right to human dignity . However , the reasoning of the decision underlined that only the taxation of revenues gathered before the DATE tax year constituted a violation of the right to human dignity . ORG did not find unconstitutional as such the Act ’s presumption that the relevant revenues infringed good morals ; however , it ruled that this presumption should be susceptible to a legal challenge . In view of its limited jurisdiction , it did not consider the substantive aspects of the tax .

“ CARDINAL . ... ORG has held that the retroactive effect of the LAW does not only apply to incomes earned contra ORG mores , but also to incomes originating in unconditional statutory entitlements . Payments of statutory amounts [ which have not been abolished ] can not be regarded as being contra DATE mores .

As regards the prospective provisions of the LAW , ORG has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector , and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements . However , in this case the legislator interpreted the “ special rate ” as an entire withdrawal of the income , by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden .

In pursuit of decision [ no . ORG ( X.CARDINAL.)AB ] , ORG amended the rules on ORG competence as well as the provision of LAW determining the distribution of public burden , and re - enacted the special tax . ...

... [ The new legislation ] contains no reference to the notion “ contra ORG mores ” , and allows for retroactive law - making with regard to DATE in arrears as well as for [ any ] imposition falling short of [ the total ] deprivation of income . ...

CARDINAL.CARDINAL.CARDINAL . ... The legal relations falling under the scope of the special tax are typically regulated by the so - called “ legal status ” Acts [ i.e. the Acts concerning the legal status of civil servants ] . [ In this context , the ] salary is specified by the so - called “ pay scale ” , which is independent from the parties and obligatory for them .

[ Moreover , ] the personal scope of the special tax also includes employers and employees , mainly those who belong under LAW , who can significantly influence the amount of the allowance received upon the termination of employment . ...

In this respect , the special tax is a tax whose purpose is not to generate [ ORG ] revenue . It is , in this connection , a regulatory instrument . ... Certain taxes may serve not only the purpose of increasing ORG revenue , but also function as regulatory instruments . Secondarily , but not insignificantly , [ this ] taxation can be also seen as part of the ORG ’s economic policy . In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion . ...

... The special tax is not a general income tax applicable to all types of income , but rather a particular tax levied on non - repetitive , non - regular payments which relate to certain factual circumstances ( i.e. the termination of a legal relation ) and which exceed a certain limit . ...

Such a tax with ex nunc effect can not be considered to violate the right to protection of human dignity or to constitute an improper interference by the ORG with individual autonomy . Taking into account its base , the incomes not belonging in that base and their amounts , the special tax can not be considered as completely dispossessing the tax subjects . ...

The individual ’s acquisition of the income subject to the special tax is restricted by a public - law limitation originating in that tax ...

TIME . ... In case of misuse of public resources , the limitation on payments might even have retroactive effect , [ under ] section CARDINAL/I ( CARDINAL ) of the LAW . ORG has already emphasised in its decision [ no . TIME ( X.CARDINAL.)AB ] that a retroactive special tax may be imposed on unfairly high payments , on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated DATE ; the LAW aiming at preventing abuses and endorsing the society ’s sense of justice is not unconstitutional in itself , but must remain within the framework of LAW .

However , to impose tax on incomes [ lawfully ] acquired during DATE ... can not be considered as the implementation of the new paragraph ( CARDINAL ) of section CARDINAL of the LAW , but rather interference by a public authority with individual autonomy going to such lengths that can not have constitutional justification , and therefore violates the ORG human dignity . ...

The special tax does not provide for a fair and just assessment of individual circumstances ; its retroactive rules apply to everyone [ with CARDINAL exceptions mentioned above ] without differentiation . Nor does it take into account objective circumstances concerning a wide range of taxpayers , such as the economic crisis or emergency situations , which may disadvantageously influence the ORG circumstances . ... ”

On DATE ORG again re - enacted the retroactive application of the PERCENT tax . The amendment to Act no . ORG of DATE was published in ORG on DATE and entered into force on DATE . It provided that only relevant revenues earned after DATE should be subject to the tax . The amended legislation did not contain any remedy available to those affected .

The LAW , as in force as of DATE , provides ( in sections CARDINAL - CARDINAL/B ) that the special tax rules are applicable to incomes received on DATE or after . Incomes shall be subject to a PERCENT special tax where the private individual has worked at an economic operator or an organisation operating from public money , the payment is effected on account of the termination of the private individual ’s work relationship , and the amount of the income exceeds ORG CARDINAL ( in certain cases CARDINAL ) CARDINAL . Incomes received DATE and DATE were declared by private individuals by means of self - assessment , in tax returns submitted by CARDINAL DATE or CARDINAL DATE ( depending on the taxpayer group ) . The tax was payable by the same dates .

Members of ORG , vice mayors and Members of ORG declared their income earned in DATE and subject to the special tax in a different manner , in a separate tax return submitted by DATE . They paid the special tax by DATE . Persons subjected to the payment of special tax declared their taxable incomes earned DATE and CARDINAL DATE by way of tax returns submitted by CARDINAL DATE or DATE ( depending on the taxpayer group ) , and paid the tax by the same dates . In all other cases , the special tax is deducted by the payment issuer as withholding tax , and the deduction is indicated in the private individual ’s tax return for the given revenue year .

Any charges paid by or deducted from the private individual including , in particular , personal income tax or individual contributions shall be regarded as tax advances paid on the special tax .

The Charter of Fundamental Rights of ORG provides as follows :

“ CARDINAL . The ORG recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity , illness , industrial accidents , dependency or old age , and in the case of loss of employment , in accordance with the rules laid down by Community law and national laws and practices . ”

ORG held in Case C-CARDINAL/CARDINAL PERSON , [ DATE ] ORG I-CARDINAL as follows :

“ CARDINAL . The aim pursued by the severance allowance of protecting workers with DATE of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article CARDINAL ) of Directive ORG . ”

ORG of DATE on remuneration policies in the financial services sector ( CARDINAL ) provides as follows :

“ CARDINAL . Excessive risk - taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member GPE and globally ....

Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective . Therefore , there is a need to establish principles on sound remuneration policies . ”

In the case PERSON , PERSON des services fiscaux d’Eure - et - Loir concerning the compatibility with ORG primary law of a national provision on the procedure for calculating a wealth tax , Advocate General PERSON reiterated that the principle that rules governing tax law and the exercise of fiscal power must not have confiscatory effects is a “ well - known and widely - recognised idea ” ( Case ORG , PERSON , PERSON ORG services fiscaux d’Eure - et - Loir DATE , ORG , CARDINAL , ORG Villalón ) .

In a judgment of CARDINAL DATE , ORG held that , according to LAW , the use of property served the purpose of private gain and the public good . In that sense , property tax , combined with other taxes , might take PERCENT of the income from property ( GPE ) . The overall tax burden should moreover not run counter to the principle of equality demanding the division of burden depending on the contributing capacity ( BVerfG , CARDINAL BvL CARDINAL , CARDINAL.CARDINAL.CARDINAL ) .

In its subsequent decision of DATE ( BVerfG , QUANTITY , CARDINAL ) , ORG found that even though tax load fell within the ambit of LAW , that is , the protection of property , the overall burden through business and personal income tax , in the particular circumstances , did not infringe the complainant ’s right to property . In the instant case the overall tax burden in business and personal income tax combined amounted to PERCENT . ORG noted in this regard that it was permissible to charge high income with higher tax burden , as long as the taxable person , after deduction of the relevant tax , disposed of a remaining income representing his private performance .

NORP In decision no . CARDINAL - CARDINAL DC ( DATE ; Act pertaining to work , employment and purchasing power ) , the ORG constitutionnel held as follows :

“ CARDINALo The requirement deriving from LAW of DATE would not be complied with if taxation were to be of a confiscatory nature or subjected a certain category of taxpayers to an excessive burden in comparison with their ability to pay taxes . The principle of the capping of the proportion of a tax household ’s income allocated to paying direct taxes , far from infringing the principle of equality before public burden sharing , is intended to avoid a patent infringement of this same principle ; ”

ORG held that a taxation scheme that is confiscatory in its effects and not limited in time would infringe the essence of the right to property ( Decisions of ORG , ORG CARDINAL Ia CARDINAL , CARDINAL ; BGE CARDINAL II CARDINAL , CARDINAL ) . To date , ORG has not found that any taxation scheme was confiscatory .

Decision no . BGE CARDINAL II CARDINAL , CARDINAL contains the following passage :

“ CARDINAL bb ) ... In taxation matters , however , it [ the guarantee of property , as set out in LAW ] does not go beyond the prohibition of confiscatory taxation . Therefore , a tax to be levied may not damage the very essence of private property . It is the task of the legislative branch to preserve the substance of the taxpayer ’s assets and to allow him the chance to create new ones . In fact , a tax rate expressed in percentages is not the only decisive criterion in order to determine whether a taxation scheme has a confiscatory effect . It is necessary to examine the burden of the imposition for a rather long period and by not taking into account extraordinary circumstances . In order to accomplish this , all specific facts must be taken into consideration : the length and the gravity of the interference as well as the accumulation with other taxes or charges and the possibility to shift the tax to another person ... ” .

Decision of ORG no . CARDINAL contains the following passage :

“ CARDINAL ORG has held that it is not compatible with LAW if an annuity for life , inherited by bequest , of initially CHF DATE is – regardless of the ability to pay other taxes of the person in receipt of the pension –taxed at PERCENT in total , in terms of inheritance and income taxes as well as other expenses , which ( taking into account of the tax sum due for MONEY CARDINAL ) were necessary for their financing ( Decision P.CARDINAL/CARDINAL , published in : ORG CARDINAL p. CARDINAL et seq . ) . In that specific case the specific circumstances were relevant because the heir could not secure her own existence after paying the taxes for the annuity for life . ”

In GPE v. PERSON , CARDINAL GPE CARDINAL , CARDINAL ( DATE ) ORG dealt with the following problem : According to the provisions of LAW , after DATE no salary or compensation was to be paid to certain individuals , who were then government employees , out of any moneys then or thereafter appropriated , except for services as jurors or members of armed forces unless they were prior to that date again appointed to jobs by the President with advice and consent of the ORG . In the background of the statute challenged lay the ORG of Representatives’ feeling that in DATE many ‘ subversives’ were occupying influential positions in the Government and elsewhere and that their influence must not remained unchallenged . In DATE the respondents , PERSON , PERSON and PERSON , were and had been for DATE working for the Government . The Government agencies which had lawfully employed them were fully satisfied with the quality of their work and wished to keep them employed in their jobs . ORG held that the purpose of the provision challenged was not merely to cut off the ORG compensation through regular disbursing channels , but permanently to bar them from government service and it was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency . ORG reiterated that the LAW barred such legislative acts by providing that “ LAW or ex post facto PERSON shall be passed ” . It found that the relevant provision was designed to apply to particular individuals and operated as a legislative decree of perpetual exclusion from a chosen vocation . It ruled that this permanent proscription from any opportunity to serve the Government was punishment of those individuals without a judicial trial and thus carried the usual characteristics of bills of attainder . ORG found that “ legislative acts , no matter what their form , that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial , are ‘ bills of attainder’ prohibited by LAW .

The subject matter of the case PERSON GPE , CARDINAL GPE DATE ) was as follows : The petitioners ( PERSON and PERSON . ) furnished various materials to PERSON for use in construction of boats . Upon PERSON ’s default , the Government exercised its option as to CARDINAL of the boat hulls still under construction and removed these properties to out - of - state naval shipyards for use in the completion of the boats . When the transfer occurred , the petitioners had not been paid for their materials and they were not paid afterwards , either . The petitioners therefore contended that they had liens . ORG held “ that there was a taking of these liens for which just compensation is due under LAW . It is true that not every destruction or injury to property by governmental action has been held to be a ‘ taking’ in the constitutional sense . This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable ‘ LOC and what destructions are ‘ consequential’ and therefore not compensable ... LAW guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which , in all fairness and justice , should be borne by the public as a whole . A fair interpretation of this constitutional protection entitles these lienholders to just compensation here . ”

In ORG v. ORG , CARDINAL GPE CARDINAL ( DATE ) ORG held that ORG DATE amounted to an unconstitutional regulatory taking of property . It held that the economic impact of the LAW was substantial as to the petitioner , in that it required ORG to contribute large sums of money to a pension fund for employees employed in DATE solely because those payments could not be allocated to other coal companies that were currently operating in the coal industry . The retroactive effect of the LAW imposed a substantial economic injury on ORG that could not have been anticipated . Moreover , the challenged statute interfered with ORG Enterprises’ expectations in that in DATE the company sold off its remaining holdings in coal operations and completely quitted this industry . The statute ’s requirement for ORG to undertake the obligation at issue clearly interfered with the expectations of ORG when it sold off its interest in coal operations . Lastly , the nature of the government action was unusual because it retroactively applied a substantial economic burden on ORG . For ORG , the character of the government action was substantial and invasive . The balance of the factors resulted in the finding of an unconstitutional taking requiring just compensation .