Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26297/95

by G. S.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 December 1994

by G. S. against Austria and registered on 25 January 1995 under file

No. 26297/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

26 July 1996 and the observations in reply submitted by the

applicant on 18 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1949, is an Austrian national and resident

in Obernberg-am-Inn. He is a pharmacist by profession. Before the

Commission he is represented by Mr. M. Pochendorfer, a lawyer

practising in Ried/Innkreis.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 21 September 1988 the applicant applied with the Provincial

Governor (Landeshauptmann) for Upper Austria for the grant of a licence

to run a pharmacy in Ried-im-Innkreis.

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. The

applicant lodged an appeal with the Federal Ministry for Health, Sports

and Consumer Protection (Bundesministerium für Gesundheit, Sport und

Konsumentenschutz) on 22 June 1990.

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.

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.

On 30 July 1991 the applicant filed an appeal with the Austrian

Administrative Court (Verwaltungsgerichtshof). 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

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).

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.

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 meters, 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."

The owner of a pharmacy and the manager in charge are obliged to

run the pharmacy without interruption (S. 13).

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.

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).

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings relating to his request for a

licence to run a pharmacy. He submits that he entered into the above

agreement with W. inter alia on account of the length of the

proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 December 1994 and registered

on 25 January 1995.

On 12 April 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

26 July 1996. The applicant replied on 18 September 1996.

THE LAW

The applicant complains about the length of the proceedings

relating to his request for a licence to run a pharmacy. He invokes

Article 6 para. 1 (Art. 6-1) of the Convention.

This provision, as far as relevant, provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ...".

According to the applicant, the proceedings at issue concerned

his civil rights within the meaning of Article 6 para. 1 (Art. 6-1).

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. Moreover, in his view the

length of the proceedings in his case, in particular the length of the

proceedings before the Austrian Administrative Court, is in breach of

the "reasonable time" requirement laid down in Article 6 para. 1

(Art. 6-1) of the Convention.

The Government refute these allegations. They submit in

particular that Article 6 para. 1 (Art. 6-1) 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."

The Government also consider that proceedings concerning the grant of

such a licence 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.

The Commission has taken cognizance of both parties' submissions.

After a preliminary examination thereof the Commission has reached the

conclusion that the case raises serious issues as to the interpretation

and application of Article 6 (Art. 6) of the Convention and that these

issues can only be determined after a full examination of their merits.

It follows that the application cannot be regarded as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, unanimously, the Commission

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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