CYIL 2014

298

ALLA TYMOFEYEVA

CYIL 5 ȍ2014Ȏ

The most widespread issue invoked by legal entities under Article 8 is unlawful

search and seizure. This subject relates to both the right to respect for “home” and

for correspondence. In the case of

Bernh Larsen Holding AS and Others v. Norway,

the applicants were three Norwegian companies which shared a common server

containing common information on technology systems. The regional tax authorities

requested one of the applicant companies, Bernh Larsen Holding (“B.L.H.”), to

allow tax auditors to make a copy of all the data on the server. B.L.H. did not agree

and instituted proceedings against the tax authority. However, all the domestic courts

upheld the decision in accordance with which it was obliged to give the authorities

access to the server.The applicant companies alleged before the Court that, by taking the

backup copy of the server, the tax authorities had obtained great quantities of personal

data, which did not contain information of significance for tax assessment purposes.

This complaint was declared admissible. Finding that there was an interference, which

was prescribed by law and pursued a legitimate aim of the public interest in ensuring

efficient inspection for tax assessment purposes, the Court assessed its “necessity in a

democratic society”. The Court mentioned that there was no reason to call into doubt

the Norwegian legislature’s view that the review of archives was a necessary means

of ensuring efficient verification of information submitted to the tax authorities. It

concluded that the tax authorities’ possibilities to act should not be limited by the

fact that a tax payer was using a “mixed archive”, even if that archive contained data

belonging to other tax payers. Moreover, there were adequate safeguards against abuse

– namely, one of the applicant companies had been notified of the tax authorities’

intention to carry out a tax audit a year in advance. Additionally, the applicant

companies were entitled to object to the measure and had done so. The backup copy

of the server had been placed in a sealed envelope and deposited at the tax office

pending a decision on their complaint. Further, under national law the taxpayers

had a right to be present when the seal was broken, and to receive a copy of the audit

report and the return of irrelevant documents. In sum, the Court held that there had

been no a breach of Article 8 of the Convention.

Unlike in the above case, in the case of

Wieser and Bicos Beteiligungen GmbH v.

Austria

the Court found a violation of the Convention in respect of both applicants.

The application was lodged by Mr Gottfried Wieser, an Austrian national, and Bicos

Beteiligungen GmbH, a limited liability company with its seat in Salzburg (“the

applicants”). The first applicant was a lawyer and the owner and general manager of the

second applicant, a holding company.The second applicant was the sole owner of another

company, Novamed. Both companies were based at the first applicant’s law office.

Following a request for legal assistance from the Italian authorities in connection

with a criminal investigation, a regional court issued a warrant to search the companies’

head offices. Having made a search, the authorities seized and sealed the documents

belonging to the applicants. Relying on Article 8 of the Convention, the applicants

Bernh Larsen Holding AS and Others v. Norway

, no. 24117/08, 14 March 2013.

Wieser and Bicos Beteiligungen GmbH v. Austria

, no. 74336/01, ECHR 2007-IV.