AS TO THE ADMISSIBILITY OF

                      Application No. 13943/88
                      by A.K.
                      against Austria


        The European Commission of Human Rights sitting in private
on 9 May 1989, the following members being present:

              MM. J.A. FROWEIN, Acting President
                  S. TRECHSEL
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY
             Mr.  L. LOUCAIDES

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 27 March 1988
by A.K. against Austria and registered on 16 June 1988 under
file No. 13943/88;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is an Austrian citizen born in 1919 and living
in Vienna.  He is represented by Mr.  W-D. Arnold, a lawyer in Vienna.

        The applicant owns a flat not exceeding 40m² in Salzburg.
As the applicant is not permanently residing in Salzburg the local
authorities consider his property to be a holiday flat (Ferienwohnung)
for which the applicant is levied a night-lodging allowance in form of
a special community tax (Ortstaxe).  According to a notice of
assessment of 3 July 1985 this tax amounted to 540 AS for the
period of 1.1.1983 to 31.12.84.  The applicant's complaints against
this notice were rejected by the competent authorities.  He then
lodged a complaint with the Constitutional Court (Verfassungsgerichts-
hof).  On 25 September 1986 this Court transferred the matter to the
Administrative Court (Verwaltungsgerichtshof).  It refused to consider
the merits of the case, stating that the applicant disregarded its
constant jurisprudence relating to the tax in question and to a
comparable Tirolian regulation (Tiroler Aufenthaltsabgabegesetz).
There was no appearance of a violation of constitutional rights and
the complaint therefore offered no prospects of success.

        On 13 November 1987 the Administrative Court dismissed the
complaint as being unfounded.  The decision was received by the
applicant's counsel on 11 January 1988.  It states that in previous
tax proceedings relating to the years 1979-1982 the applicant had
declared that his permanent residence was elsewhere and that he
occupied the flat in Salzburg only from time to time.  As the
applicant had refused to indicate about how long he used to stay in
Salzburg the relevant information had been obtained from other persons
including the caretaker (Hausmeisterin).  According to these
investigations the applicant spent about a month per year in his
Salzburg flat.  This estimation was also confirmed by the electricity
consumption for the flat.

        The Administrative Court pointed out that Section 1 (1) of the
Community Tax Act - CTA (Ortstaxengesetz) authorises the communities
in the Salzburg region to levy the tax in question by decision of the
community council.  According to Section 2 (1) CTA the tax is
calculated on the basis of the number of overnight stays and shall
take into account the communities' investments for tourism but not
exceed a maximum of 7.50 AS per stay.  Section 5 provides for certain
exemptions.  Section 4 obliges owners who rent their holiday flats to
charge the tax to their guests and to pay it to the authorities the
following months.  Under Section 3 they are liable for the payment of
the tax by their guests.  Holiday flats are, according to Section 3,
those flats which the owner does not occupy continuously for more than
two months per year, and which are not rented out to other persons for
continuous occupation.  According to Section 4 the owner of a holiday
flat not exceeding 40m², who does not live within the community, has
to pay a lump sum tax corresponding to 90 overnight stays.

        Insofar as the applicant argued that the lump sum regulation
was discriminatory for various reasons the Administrative Court
referred to the Constitutional Court's jurisprudence, according to
which the principle of equality did not prohibit lump sum tax
regulations which were justified in the interest of administrative
economy.  Furthermore it referred to a decision given by the
Constitutional Court in a comparable matter relating to the Salzburg
Visitor's Tax Act (Kurtaxengesetz).  In that decision the

Constitutional Court had stated that a lump sum regulation concerning
the visitor's tax for holiday flats was compatible with the
Constitution.  Furthermore, the Administrative Court referred to its
own jurisprudence, according to which a lump sum regulation was of
necessity based on an average of figures ascertained by experience and
subject to a margin of fluctuation.

        In view of the reference to these principles established in
the jurisprudence, the Administrative Court considered that any
differential treatment resulting from the application of the lump sum
regulation was objectively justified.

        Consequently, there was no violation of constitutional rights
and no necessity to submit the case to the Constitutional Court as
requested by the applicant.

        Insofar as the applicant had also alleged a violation of
non-constitutional, i.e. ordinary, law, the Administrative Court pointed
out that the applicant had neither alleged nor shown that he lived
more than two months continuously in Salzburg.  Consequently it was
justified to consider his property in Salzburg as being a holiday flat
within the meaning of Section 4 CTA.


COMPLAINTS

        The applicant submits that his obligation to pay community tax
constitutes a discrimination compared with persons who reside in
Salzburg.  He points out that a flat owner who, e.g., rents his flat for
360 days per year to tourists and uses it only on the remaining five
days will have to pay community tax for 360 days plus the lump sum
corresponding to 90 stays.  Furthermore, an owner who spends nine
continuous weeks in Salzburg does not have to pay the tax while an
owner who can only spend less than two months there will have to pay
tax corresponding to 90 days regardless of how many days he actually
used his flat.

        He alleges violations of Article 1 of Protocol No. 1 read
together with Article 14 of the Convention and of Article 2 of
Protocol No. 4.

        He further invokes Article 8 of the Convention which he
considers to be violated because of the investigations made by the
authorities in respect of his use of his flat in Salzburg.


THE LAW

1.      The applicant has mainly complained that as the owner of a
flat in Salzburg he is being discriminated against in his right to the
peaceful enjoyment of his possessions as guaranteed by Article 1 of
Protocol No. 1 (P1-1) to the Convention.

        Article 14 (Art. 14) provides:

"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."

        The Commission observes in this respect that it is not
competent to examine in the abstract the compatibility of a legislative
regulation with the Convention (Eur.  Court H.R., Klass judgment of
6 September 1981, Series A no. 28, para. 33).  The applicant has not
shown that the imposition of community tax in the amount of 540 AS
for the period of 1.1.1983 to 31.12.1984 discriminated against him
personally as compared to any other flat owners in Salzburg.  Insofar
as owners who are permanently living in Salzburg do not have to pay
such a tax, their situation is not comparable to that of the applicant
who is living in Vienna.

        Even if the application of the lump sum tax assessment in the
applicant's case might have led to a differential treatment compared
to holiday flat owners who can afford to live longer than two months
in Salzburg, it has to be observed that it is likewise open to the
applicant to live longer than two months in Salzburg.  Furthermore,
the question of whether or not a flat owner has to pay community tax
is not determined by reference to any of the grounds listed in Article 14
(Art. 14) such as, for example, the person's origin, birth or other
status.  It is decided on the objective criterion of the actual duration of the
occupation of the flat by its owner per year.

       An examination by the Commission of this complaint as it has
been submitted does not therefore disclose any appearance of a
violation of the rights and freedoms set out in the Convention and,
in particular, in Article 1 of the Protocol No. 1 (P1-1) read together with
Article 14 (Art. 14) of the Convention.

2.      The Commission has examined the applicant's remaining
complaints.  Even assuming that the applicant has exhausted domestic
remedies in this respect, it likewise finds that the remainder of the
application does not disclose any appearance of a violation of the
rights invoked by the applicant.

        It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.


Secretary to the Commission           Acting President of the Commission




       (H.C. KRÜGER)                          (J.A. FROWEIN)