EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26297/95

G. S.

against

Austria

REPORT OF THE COMMISSION

(adopted on 3 March 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-29) 3

A. The particular circumstances of the case

(paras. 17-23) 3

B. Relevant domestic law

(paras. 24-29) 3

III. OPINION OF THE COMMISSION

(paras. 30-51) 5

A. Complaint declared admissible

(para. 30) 5

B. Point at issue

(para. 31) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 32-50) 5

CONCLUSION

(para. 51) 8

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Austrian citizen, born in Vienna and resident in Obernberg -am-Inn, Austria. He was represented before the Commission by Mr M. Pochendorfer , a lawyer practising in Ried-im-Innkreis .

3. The application is directed against Austria. The respondent Government were represented by their Agent, Mr F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns licence to run a pharmacy.> The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 9 December 1994 and registered on 25 January 1995.

6. On 12 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 26 July 1996 after an extension of the time-limit fixed for this purpose. The applicant replied on 18 September 1996.

8. On 10 September 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 24 September 1997 and they were invited to submit further information or observations on the merits as they wished.

10. After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention1, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

11.  Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

C. The present Report

12.  The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

B. CONFORTI

Sir Nicolas BRATZA

MM. I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 3 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. On 21 September 1988 the applicant applied to the Provincial Governor ( Landeshauptmann ) for Upper Austria for the grant of a licence to run a pharmacy in Ried-im-Innkreis .

18. On 23 May 1990 the Provincial Governor for Upper Austria dismissed the applicant's application. The Governor, having regard to observations filed by sixteen neighbouring municipalities and by the Upper Austrian Board of Pharmacists ( Apothekerkammer ), noted that two pharmacies existed already in the town concerned and a third licence had meanwhile been granted to another pharmacist, Ms. W.  Taking into account the population, no further licence could be granted.

19. On 22 June 1990 the applicant lodged an appeal with the Federal Ministry for Health, Sports and Consumer Protection ( Bundesministerium für Gesundheit , Sport und Konsumentenschutz ).

20. On 17 July 1990 the Provincial Governor dismissed the applicant's request to participate as a party in the proceedings regarding the licence which had been granted to another pharmacist.  His appeal with the Federal Ministry for Health, Sports and Consumer Protection was to no avail.

21. On 12 June 1991 the Federal Ministry for Health, Sports and Consumer Protection dismissed the applicant's appeal against the decision of 23 May 1990.

22. On 30 July 1991 the applicant filed an appeal with the Austrian Administrative Court ( Verwaltungsgerichtshof ).

23. By letter of 5 December 1995 the applicant informed the Administrative Court that, following an agreement with the pharmacist W., he withdrew his appeal.  On 11 December 1995 the Administrative Court terminated the proceedings.

B. Relevant domestic law

24. The relevant law is to be found in the Pharmacy Act ( Apothekengesetz ) of 1907, RGBl . Nr . 5/1907 ( Reichsgesetzblatt , Official Gazette of the Austrian Empire), as last amended in 1993, BGBl . Nr . 96/1993 ( Bundesgesetzblatt , Federal Official Gazette).

25. As regards the running of pharmacies, the legislator considered that, on the one hand, pharmacies render medical services in the public interest and, on the other hand, they are commercial enterprises.  In order to avoid speculation in an open market, the legislator opted for a licensing system, based on need.

26. Pursuant to S. 10 of the Pharmacy Act, a licence to open a new pharmacy is granted upon request if:

"1. a medical practitioner is permanently exercising his profession in the municipality where the new pharmacy is to be set up;

2. there is a need for a new pharmacy."

There is in particular no need for a new pharmacy if

"1. the number of persons to be supplied by the pharmacy to be set up is less than 5,500, or

2. the distance between the new pharmacy to be set up and the nearest existing pharmacy is less than 500 metres , or

3. the number of persons who continue to be supplied by one of the pharmacies existing in the vicinity will decrease as a result of the new pharmacy and drop below 5,500."

27. The owner of a pharmacy and the manager in charge are obliged to run the pharmacy without interruption (S. 13).

28. Under S. 19 para. 1 (1), a licence to run a pharmacy may be revoked if the pharmacy has not become operational within one year after receipt of the licence .

29. Article 6 of the Austrian Basic Law ( Staatsgrundgesetz ) provides that all citizens have liberty of movement and the freedom to choose their place of residence, that they are entitled to acquire real estate of any kind and freely dispose of it, and that, in accordance with the relevant legislation, they can exercise any profession ( Erwerbszweig ).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

30. The Commission declared admissible the applicant's complaint about the length of the proceedings relating to his request for a licence to run a pharmacy.

B. Point at issue

31. The point at issue is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

32. Article 6 para. 1 of the Convention, in so far as relevant, reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a ... public hearing ... by an independent and impartial tribunal established by law."

a. Applicability of Article 6

33. The applicant maintains that the proceedings at issue concerned his civil rights within the meaning of Article 6 para. 1. He submits that the grant of such a licence has a direct influence on a pharmacist's possibilities to exercise his or her profession and that the licence is in itself a property right.

34. The Government submit that Article 6 para. 1 does not apply to the proceedings in question which related to issues within the domain of public law. In this respect the Government refer to a judgment of the Austrian Administrative Court (No. 11937/1988) according to which "revoking a licence to exercise a gainful profession (like running a pharmacy) as well as granting a licence are State measures which in the Austrian legal tradition are rooted in public law and do not belong to the sphere of civil justice because they do not govern legal relationships between citizens. Although such measures are of essential economic significance for those concerned in that they may have a considerable impact on their assets, the measures concerned do not determine disputes that have arisen from 'civil rights' as such."

35. The Commission recalls that, in their case-law, the Convention organs have already been confronted with the question whether or not proceedings relating to licences involve a determination of civil rights within the meaning of Article 6 para. 1.

36. One group of cases originates in the case of König v. Germany, where the right to continue to run a private clinic and the right to continue to exercise the medical profession were found to be civil rights within the meaning of Article 6 para. 1 of the Convention (Eur. Court HR, König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29-33, paras. 86-96; see also Pudas v. Sweden judgment of 27 October 1987, Series A no. 125-B, pp. 13-16, paras. 30-38; Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, pp. 16-19, paras. 16-44; Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 8, 12, 16, paras. 9, 27, 43).

37. In its König judgment, the Court had regard to the "responsibility which the medical profession bears towards the society at large", namely, to have "the care of the health of the community as a whole", and considered that "this responsibility ... does not alter the private character of the medical practitioner's activity: whilst of great importance from the social point of view, that responsibility is accessory to his activity and its equivalent is to be found in other professions whose nature is undeniably private" (cf. König judgment, op. cit., p. 32, para. 93). Comparable considerations concerning the public law aspects inherent in other licensing systems are to be found in the ensuing judgments.

38. A further group concerns the issuing of a licence , a matter still left open in the König judgment (op. cit., p. 31, para. 91). The case of Benthem v. the Netherlands related to appeal proceedings against the grant of a licence to bring into operation an installation for the delivery of liquid petroleum gas to motor vehicles (cf. Eur. Court HR, Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97). The Court found that a "genuine and serious" dispute as to the "actual existence" of the right to a licence arose at least after the appeal, lodged by a Government body, against the grant of the licence by the competent authority (op. cit., p. 15, para. 33), and that to the grant of the licence to which Mr. Benthem claimed to be entitled to was one of the conditions for the exercise of part of his activities as a businessman (op. cit., p. 16, para. 36). In the case of H. v. Belgium, Mr. H.'s claim under the relevant legal provisions that he had the right to practise the profession of avocat again, since he had satisfied the legal conditions, gave, in the opinion of the Court, rise to a dispute concerning a "right", irrespective of the discretion left to the competent body in deciding whether indeed the conditions had been met. Moreover, this asserted right was found to be of a civil nature (op. cit., pp. 32-34, para. 44-48; see also Eur. Court HR, Le Compte , Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 21-22, paras. 47-48; Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14-16, paras. 27-29). In a case concerning Switzerland, the Court, having regard to the freedom of professional activity, as guaranteed under the Swiss Constitution, found that the examination of an application for an authorisation to practise medicine involved a genuine and serious dispute over a right which could be said, on arguable grounds, to be recognised under domestic law; and that the right in issue was of a civil nature (cf. Eur. Court HR, Kraska v. Switzerland judgment of 19 April 1993, Series A no. 254, pp. 48-49, paras. 24-27; see also De Moor v. Belgium judgment of 23 June 1994, Series A no. 292-A, pp. 15-16, paras. 42-47).

39. In the present case, the Commission notes that Article 6 of the Austrian Constitution guarantees the freedom of exercising any profession.  Moreover, S. 10 of the Pharmacy Act provides for a right to a licence , once the conditions are met. It is true that some of the conditions excluding the grant of a licence to set up a new pharmacy seem to confer some discretion upon the competent authorities; however, these matters are eventually susceptible of judicial assessment. The Commission finds, therefore, that the Provincial Governor for Upper Austria had to determine a " contestation " (dispute) concerning a right asserted by the applicant.

40. Furthermore, the Commission, referring to the above case-law on the medical profession, considers that the right in issue was a "civil right": while the profession of pharmacists in Austria has features of a public-law nature in that the running of pharmacies is subject to legislation enacted in the public interest and depends on the issue of an authorisation by the Provincial Governor, the applicant intended to run his pharmacy as a professional activity with the object of earning profits and on the basis of contracts concluded between him and his clients.

41. In sum, the Commission finds that Article 6 para. 1 applies to the instant case.

b. Compliance with Article 6 para. 1

42. As regards the commencement of the proceedings, the Commission notes that the applicant lodged his request for the licence in question on 21 September 1988. On 23 May 1990 the Provincial Governor dismissed his application. On 22 June 1990 he appealed to the Federal Ministry for Health, Sports and Consumer Protection. In these circumstances, the Commission considers that the date to be taken into account is at the latest 22 June 1990 (cf., mutatis mutandis , Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2180, para. 54).

43. The proceedings ended on 11 December 1995, when the Administrative Court terminated the proceedings. Accordingly, the relevant period is more than five years and five months.

44.  The applicant maintains that the length of the proceedings in his case, in particular the length of the proceedings before the Austrian Administrative Court, was in breach of the "reasonable time" requirement laid down in Article 6 para. 1 of the Convention. He submits in particular that he entered into the above agreement with W., inter alia , on account of the length of the proceedings.

45. The Government consider that proceedings concerning the grant of a licence like the one in question are complex in that various inquiries are necessary. The Government maintain that, having regard to the conduct of the proceedings by the domestic authorities and in particular to the quantity and importance of the tasks attributed to the Austrian Administrative Court, the overall length did not exceed a reasonable time.

46. The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

47. The applicant's main complaint relates to the length of the proceedings before the Austrian Administrative Court, namely, more than four years and four months. These proceedings terminated without a decision on the merits when the applicant withdrew his appeal following an agreement with another pharmacist.

48. The Government's explanations as to the complexity of the case, necessitating enquiries with various administrative bodies, relate solely to the length of the proceedings before the first two administrative authorities. The Commission considers that no justification has been advanced for the dilatory conduct of the proceedings before the Administrative Court. A mere reference to the quantity and importance of the tasks attributed to the Austrian Administrative Court is not sufficient to explain a period of inactivity of well over four years.

49. In this context, the Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

50. Consequently, in the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

51. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

M.-T. SCHOEPFER    S. TRECHSEL

    Secretary     President

to the Commission of the Commission