AS TO THE ADMISSIBILITY OF

                      Application No. 28866/95

                      by Josef and Manfred FEHR

                      Hans MÄHNER

                      Eduard KESSLER

                      BAHTIM Gaststätten GesmbH

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 14 September 1995

by Josef and Manfred FEHR, Hans MÄHNER, Eduard KESSLER, BAHTIM

Gaststätten GesmbH against Austria and registered on 5 October 1995

under file No. 28866/95;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first and second applicants, Mr. Josef and Mr. Manfred Fehr

are Austrian citizens residing in Feldkirch and owners of a firm.  The

third applicant, Mr. Hans Mähner, is an Austrian citizen residing in

Feldkirch and also the owner of a firm. The fourth applicant,

Mr. Eduard Kessler, is an Austrian citizen residing in Riezlern where

he runs a hotel. The fifth applicant is a private company (Gesellschaft

mit beschränkter Haftung) having its place of business in Bregenz where

it runs a restaurant.  Before the Commission all four applicants are

represented by Mr. Weh, a lawyer practising in Bregenz.

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

summarised as follows.

A.   Particular circumstances of the case

a.   The first and second applicants (Fehr)

     On 20 July 1992 the applicants filed a request with the Feldkirch

Employment Office (Arbeitsamt) for the granting of a work permit for

the worker M.D., a citizen of former Yugoslavia.

     On 11 September 1992 the Employment Office dismissed the request

in accordance with Section 4 para. 6 of the Employment of Foreigners

Act (Ausländerbeschäftigungsgesetz).  The Employment Office found that

the maximum quota fixed for the employment of foreigners in Vorarlberg

had been exceeded and the Mediation Committee (Vermittlungsausschuß)

had not supported the granting of the work permit.  Moreover, none of

the conditions of Section 4 para. 6 (2)-(4) of the above Act were met.

     On 29 September 1993 the applicants appealed. They contested,

inter alia, the lawfulness of a determination of a maximum quota for

the employment of foreigners in general and the correctness of the

figures, in particular.  They also complained that, in case the maximum

quota had been exceeded, the competence to grant work permits was de-

facto transferred to the Mediation Committee.

     On 19 May 1993 the Vorarlberg Regional Employment Office

(Landesarbeitsamt) dismissed the appeal.  It observed that the Federal

Minister for Labour and Social Affairs (Bundesminister für Arbeit und

Soziales) had fixed the maximum quota for the employment of foreigners

in Vorarlberg for 1993 at 17.000.  According to official statistics the

number of foreign employees in Vorarlberg however amounted to 24.565.

The maximum quota set forth for Vorarlberg had therefore clearly been

exceeded.  As the Mediation Committee had not supported the granting

of the work permit and as the applicants had not submitted any

exceptional reasons for the granting of the work permit, the appeal had

to be dismissed.

     On 5 July 1993 the applicants filed a complaint with the

Constitutional Court (Verfassungsgerichtshof).  Invoking Article 6 of

the Convention, they submitted that the refusal of a work permit

interfered with the civil rights of employers and employees.  Therefore

they had been entitled to a hearing by an independent court.  They also

submitted that the maximum quota for foreign employees for Vorarlberg

had been fixed arbitrarily, as the figures given by the authorities

were not correct, and was not open to review.  Moreover, it was a

consequence of the fixing of a maximum quota that the competence to

grant work permits was de-facto transferred to the Mediation Committee.

     On 28 September 1993 the Constitutional Court refused to deal

with the case for lack of prospects of success and remitted the case

to the Administrative Court (Verwaltungsgerichtshof).

     On  27 January 1994 the applicants supplemented their complaint

with the Administrative Court.  They submitted in particular that the

Vorarlberg Employment Office had not sufficiently investigated whether

the maximum quota had been exceeded and merely had referred to official

statistics.

     On 21 April 1994 the Administrative Court discontinued the

proceedings as the Regional Employment Office had meanwhile quashed its

decision of 19 May 1993.

     On 13 April 1994 the Regional Employment Office informed the

applicants in detail about the manner in which the number of work

permits issued is calculated and the relevant figures.  It stated that

the maximum quota had been exceeded and since the applicants had not

submitted any arguments which would have justified the issuing of a

working permit under Section 4 para. 6 of the Employment of Foreigners

Act, the work permit would have to be refused.

     On 29 April 1994 the applicants commented on the above

information.  In their view the Regional Employment Office had wrongly

calculated the relevant figures as it had apparently not taken into

account that some of the foreigners to whom a work permit had been

issued had in the meantime become Austrian nationals, had left the

country, had died or were retired.

     On 10 August 1994 the Regional Employment Office replied and

stated that all the elements invoked by the applicant had been taken

into account, moreover the relevant figures were constantly reviewed

and updated.

     On 16 August 1994 the applicants repeated that the relevant

figures were incorrect.

     On 27 September 1994 the Regional Employment Office again

dismissed the appeal.  It stated that the Ministry for Labour and

Social Affairs had fixed the maximum quota for the employment of

foreigners in Vorarlberg at 16.000 for 1994 whereas in August 1994 the

number of work or equivalent permits issued amounted to 23.764.  The

Mediation Committee composed of representatives of employers and

employees had not supported the granting of the work permit and no

exceptional grounds existed which could otherwise justify the issuing

of a work permit.

     On 7 November 1994 the applicants filed a complaint with the

Administrative Court and submitted, in particular, that the Regional

Employment Office had failed to establish in an objective way that the

maximum quota for Vorarlberg had been exceeded.  Instead it had

referred to official statistics which were not open to review.

     On 24 February 1995 the Administrative Court dismissed the

complaint.  It found that the Regional Employment Office had shown in

which way the statistics were calculated, assessed and updated and that

the applicant therefore had had the opportunity to comment on the

figures resulting from the statistics.  These statistics had to be seen

as documentary evidence which could be disproved.  The general

allegations of the applicant had not been sufficient to cast doubts on

the manner in which the number of work permits already issued had been

calculated.  Since the Vorarlberg Employment Office had correctly found

that the maximum quota for the employment of foreigners in Vorarlberg

had been exceeded and since the applicant had not shown the existence

of any exceptional grounds which could otherwise justify the issuing

of a work permit, the decision of the Regional Employment Office was

not unlawful.

b.   The third applicant (Mähner)

     The essential facts concerning this applicant are almost

identical with those concerning the first and second applicants.  Thus,

only the main steps of the proceedings will be described here.

     On 3 February 1994 the applicant filed a request for the granting

of a work permit for the worker N.H., a citizen of Bosnia-Herzegovina.

     On 24 February 1994 the Feldkirch Employment Office dismissed the

request under Section 4 para. 6 of the Employment of Foreigners Act on

the ground that the Mediation Committee had not supported the granting

of the work permit.

     On 10 March 1994 the applicant filed an appeal with the

Vorarlberg Regional Employment Office contesting that the maximum quota

for Vorarlberg had been exceeded.

     On 27 September 1994 the Regional Employment Office dismissed the

appeal on the ground that the maximum quota had been exceeded, the

Mediation Committee had not supported the granting of the work permit

and no exceptional grounds existed which could otherwise justify the

issuing of a working permit.

     On 7 November 1994 the applicant filed a complaint with the

Administrative Court and submitted the same arguments as the first and

second applicants in their complaint with the Administrative Court of

7 November 1994.

     On 24 February 1995 the Administrative Court dismissed the

applicant's complaint on the same grounds as in its decision of the

same date concerning the first and second applicants.

c.   The fourth applicant (Kessler)

     The essential facts concerning this applicant are almost

identical with those concerning the above applicants.  Thus, only the

main steps of the proceedings will be described here.

     On 21 October 1992 the applicant filed a request for the granting

of a work permit for the worker M.T., a citizen of former Yugoslavia.

     On 4 February 1993 the Klein-Walsertal Employment Office

dismissed the request.

     On 24 May 1993 the Vorarlberg Regional Employment Office

dismissed the applicant's appeal on the ground that the maximum quota

for Vorarlberg had been exceeded and that the Mediation Committee had

not supported the granting of the work permit.

     On 28 September 1993 the Constitutional Court, upon the

applicant's complaint, refused to deal with the case and remitted it

to the Administrative Court.

     On 21 April 1994 the Administrative Court discontinued the

proceedings as the Regional Employment Office had meanwhile quashed its

decision of 24 May 1993.    On 27 September 1994 the Regional

Employment Office again dismissed the appeal on the ground that the

maximum quota had been exceeded, the Mediation Committee had not

supported the granting of the work permit and no exceptional grounds

existed which could otherwise justify the issuing of a work permit.

     On 7 November 1994 the applicant filed a complaint with the

Administrative Court and submitted the same arguments as the first and

second applicants in their complaint with the Administrative Court of

7 November 1994.

     On 24 February 1995 the Administrative Court dismissed the

applicant's complaint on the same grounds as in its decision of the

same date concerning the first and second applicants.

d.   The fifth applicant (Bathim Gaststätten GesmbH)

     On 23 December 1992 the applicant filed a request for the

granting of a work permit for the worker N.A., a Turkish citizen.

     On 14 January 1993 the Bregenz Employment Office dismissed the

request.

     On 25 May 1993 the Vorarlberg Regional Employment Office

dismissed the applicant's appeal.  It found that the applicant had

failed to request the Employment Office to propose to it a suitable

employee.  Furthermore, the maximum quota fixed for Vorarlberg had been

exceeded and the Mediation Committee had not supported the granting of

the work permit.

     On 28 September 1993 the Constitutional Court, upon the

applicant's complaint refused to deal with the case for lack of

prospects of success and remitted the case to the Administrative Court.

     On 21 April 1994 the Administrative Court quashed the decision

of the Regional Employment Office of 25 May 1993 for procedural errors.

The Administrative Court found in particular that the Vorarlberg

Employment Office, when stating that the maximum quota had been

exceeded, had merely referred to official statistics, without laying

the relevant evidence open.  Therefore the applicant had no possibility

to comment on the evidence and the Administrative Court did not have

the possibility to review the compliance of the contested decision with

the law.  Only the laying open of the statistics and the method of

calculation would make a review of the lawfulness of the decision

possible.

     On 21 June 1994 Regional Employment Office again dismissed the

applicant's appeal, this time on the ground that N.A. had no residence

permit as required by Section 4 para. 3 (7) of the Employment of

Foreigners Act.

     On 28 June 1994 the applicant filed a complaint with the

Constitutional Court, submitting that Section 4 para. 3 (7) of the

Employment of Foreigners Act providing that a work permit could only

be granted if the foreigner was in the possession of a residence permit

was unconstitutional.

     On 27 September 1994 the Constitutional Court refused to deal

with the case for lack of prospects of success and remitted the case

to the Administrative Court.

     On 11 January 1995 the applicant supplemented his complaint and

submitted, in particular, that the procedure under the Employment of

Foreigners Act interfered with his rights under Article 6 of the

Convention as the case was not heard by a tribunal.

     On 24 February 1995 the Administrative Court dismissed the

applicant's complaint.  It found that the Regional Employment Office

had correctly dismissed the request as under Section 4 para. 3 (7) of

the Employment of Foreigners Act a work permit could not be issued if

the person at issue had no residence permit.  As to the applicant's

arguments relating to Article 6 of the Convention it noted that the

Constitutional Court in its case-law had found that this provision was

not applicable to proceedings for the issuing of a work permit.

B.   Relevant domestic law

a.   The Employment of Foreigners Act

     Under the Austrian Employment of Foreigners Act the employment

of a foreigner requires a work permit issued by the Labour Office to

the employer (Section 3 paras. 1 and 2).  For such a permit to be

issued the employer has to submit the proposed employment of a specific

employee to the authority (Section 19) and has to meet conditions

specified in Section 4 para. 3 (e.g. medical examination, suitable

accommodation, consultation of the works council, no previous breaches

of the Employment of Foreigners Act by the employer or the employee,

residence permit of the employee).  Moreover, according to Section 4

para. 1 a work permit may only be granted if the situation and

development of the labour market so allows and provided important

public or economic interests are not infringed.

     If a foreigner has continuously worked for more than a year, he

may request the issuing of a personal work permit (Arbeitserlaubnis)

which is normally valid for one region only and may be restricted to

certain kinds of employment (Section 14). After having worked for at

least five years in Austria, or if the foreigner has family links with

an Austrian national, he or she may be issued an "exemption

certificate" (Befreiungsschein) under Section 15, which relieves the

foreigner or a potential employer from the obligation to apply for a

work permit and he or she therefore can move freely on the labour

market.  Furthermore certain groups of foreigners, like refugees and

foreigners who receive unemployment benefits, have a privileged access

to the labour market (Section 4b).

     In order to protect the domestic labour market the Minister for

Labour and Social Affairs may, if need be, fix maximum quotas for the

employment of foreigners (Sections 12 and 13).  If maximum quotas are

fixed the general assessment under Section 4 para. 1, i.e. whether the

situation and development of the labour market allows for the granting

of a particular work permit, is not to be carried out and the

representative bodies of employers and employees need not be heard

(Section 4 para. 5).

     In principle, once the maximum quota has been exhausted no

further work permits may be issued.  Section 4 para. 6 provides however

that in exceptional circumstances a work permit may nevertheless be

issued.

     Section 4 para. 6 reads as follows:

     "Über bestehende Kontingente ... hinaus sowie nach Überschreitung

der Landeshöchstzahlen ... dürfen Beschäftigungsbewilligungen nur

erteilt werden, wenn die Voraussetzungen der Abs. 1 und 3 vorliegen und

1.   bei Kontingentüberziehung und bei Überschreitung der

Landeshöchstzahl der Regionalbeirat einhellig die Erteilung der

Beschäftigungsbewilligung  befürwortet, oder

2.   die Beschäftigung des Ausländers aus besonders wichtigen Gründen,

insbesondere

     a)    als Schlüsselkraft zur Erhaltung von Arbeitsplätzen

           inländischer Arbeitnehmer, oder

     b)    in Betrieben, die in strukturell gefährdeten Gebieten neu

           gegründet wurden, oder

     c)    als dringender Ersatz für die Besetzung eines durch

           Ausscheiden eines Ausländers frei gewordenen

           Arbeitsplatzes, oder

     d)    im Bereich der Gesundheits- oder Wohlfahrtspflege erfolgen

           soll, oder

3.   öffentliche oder gesamtwirtschaftliche Interessen die

Beschäftigung des Ausländers erfordern, oder

4.   die Voraussetzungen des § 18 Abs. 3 in Verbindung mit Abs. 4

gegeben sind."

     "When the regional maximum quotas have been exceeded work permits

may only be issued if the conditions under paras. 1 and 3 are met and

1.   if the Mediation Committee [according to an amendment of 1994 the

     body is now called Regional Advisory Committee] has unanimously

     supported the granting of the work permit, or

2.   if the employment shall take place for particularly important

     reasons, especially

     (a)   in a key position for the preservation of jobs of domestic

           employees, or

     (b)   in enterprises which have been newly established in

           structurally endangered regions, or

     (c)   as an urgent substitute for a job which has become vacant

           due to the leaving of a foreigner, or

     (d)   in the domain of health care or welfare, or

3.   if public or economic interests require the employment of the

     foreigner, or

4.   if the conditions of Section 18 para. 3 taken together with

     para. 4 are met [i.e. temporary employment for the installation

     of production sites by a foreign company exceeding three

     months]."

     According to Section 23 the Mediation Committee (Regional

Advisory Committee) is composed of two members nominated by the Chamber

of Commerce (Kammer der gewerblichen Wirtschaft) and two members

nominated by the Chamber of Workers and Employees (Kammer für Arbeiter

und Angestellte).

b.   The Constitutional Court's case-law

     In its decision of 12 October 1990 (VfSlg. [Collection of

Decisions of the Constitutional Court] 12506) the Constitutional Court

reviewed the constitutionality, inter alia, of Section 4 para. 6 (a)

of the Employment of Foreigners Act which provides for the hearing of

the Mediation Committee before a work permit is granted or refused by

the Employment Office.  The Constitutional Court found that this

provision was not unconstitutional.  It considered that under this

provision the Mediation Committee had to be heard in proceedings for

the granting of a work permit and that it could only issue

recommendations which had to be given unanimously.  The recommendations

of the Mediation Committee were not binding on the employment

authorities, although the latter would normally be inclined to follow

a positive recommendation.  The specific function of the Mediation

Committee in proceedings for the granting of a work permit when the

maximum quota has been exceeded had to be examined the in the context

of the whole framework of the Employment of Foreigners Act.  It was to

assist the authorities by expressing its view on whether the situation

on the labour market apparently allowed for the granting of the work

permit.  If this was not apparent and this was shown by the Mediation

Committee's refusal to support the granting of a particular work

permit, it was again the exclusive task of the employment authority to

find whether the exception grounds under Article 4 para. 6 were met.

Since also the fixing of maximum quotas had to be made in consultation

with the representative bodies of employers and employees it was only

logical to give these representative bodies the possibility to be heard

also in individual cases where the maximum quota had been exceeded.

     A further decision of 2 July 1993 (VfSlg. 13505) concerned the

constitutional review of a provision providing for administrative

sanctions (prohibition to employ foreigners in the future in case an

employer had repeatedly unlawfully employed foreigners).  In that case

the Constitutional Court found that the proceedings for the granting

of a work permit did not directly determine civil rights within the

meaning of Article 6 para. 1 of the Convention.  Such proceedings only

had an indirect effect on the exercise of a civil right, i.e. the right

to conclude employment contracts.  They did not concern the "core area"

(Kernbereich) of determination of civil rights, but only fell into the

"outer circle" (Randbereich) of determination of "civil rights" for

which the review by the Administrative Court was sufficient to ensure

compliance with Article 6 para. 1 of the Convention.

COMPLAINTS

     The applicants complain under Article 6 of the Convention that

they did not have a fair hearing in the proceedings for the granting

of work permits. They submit that the granting of a work permit is

decisive for the validity of the employment contracts and that such

proceedings therefore determine civil rights within the meaning of

Article 6 para. 1 of the Convention.  There had been a violation of

this provision since the refusal of a work permit was based, inter

alia, on the discretionary decisions of the Mediation Committee which

were not reasoned and not open to judicial review.  Thus, the

discretionary power of the Mediation Committee interfered with their

rights to a decision by a tribunal within the meaning of Article 6 of

the Convention.

     The first to fourth applicants complain further that no oral

hearing before the Administrative Court has taken place.  In their view

the Administrative Court, according to its previous case-law on the

assessment of evidence in administrative proceedings should have

decided in their favour so that they had not found it necessary to

request an oral hearing.  However, the Administrative Court changed its

case-law unexpectedly and accepted that the Regional Employment Office

had produced sufficient evidence concerning the matter that the maximum

quota had been exceeded.  The Administrative Court therefore should

have ordered a public hearing on its own motion.

     As to the exhaustion of domestic remedies under Article 26 of the

Convention, the first, second and fourth applicants submit that they

did not file a complaint with the Constitutional Court in the course

of the second set of proceedings, because already in the first set of

proceedings the Constitutional Court had refused to deal with the cases

for lack of prospects of success. The third applicant submits that in

view of the first and third applicants' unsuccessful complaints he did

not file any complaint with the Constitutional Court.

THE LAW

1.   The applicants complain under Article 6 (Art. 6) of the

Convention that they did not have a fair hearing in the proceedings for

the granting of a work permit.  They submit that the negative decision

of the Mediation Committee, which had neither been reasoned nor open

to judicial review, had led to the refusal of their complaints.  The

first to fourth applicants complain further that no oral hearing before

the Administrative Court has taken place.

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

relevant, reads as follows:

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

     everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal established by law."

2.   The Commission must first examine whether all applicants have

exhausted all domestic remedies according to the generally recognised

rules of international law as required by Article 26 (Art. 26) of the

Convention.  In this respect the Commission observes that the first,

second and fourth applicants did not file a complaint with the

Constitutional Court in the course of the second set of proceedings and

that the third applicant did not file any complaint with the

Constitutional Court.

     The Commission recalls however, that an applicant cannot be

required to pursue an appeal which in similar cases has already proved

ineffective (No. 10126/82, Dec. 17.10.85, D.R. 44, p. 73).

     The Commission observes that the Constitutional Court, on

28 September 1993, refused to deal with the first, second and third

applicants' complaints for lack of prospect of success and that these

complaints concerned essentially the same issues as those in the second

set of proceedings of these applicants and in the proceedings brought

by the third applicant.

     In these circumstances the Commission finds that the first to

fourth applicants could not reasonably be expected to file (a further)

complaint with the Constitutional Court and that the applicants

therefore have complied with the requirement of exhaustion of domestic

remedies under Article 26 para. 1 (Art. 26-1) of the Convention.

3.   The Commission must next examine whether Article 6 para. 1

(Art. 6-1) of the Convention applies to the proceedings for a work

permit, that is, whether the decisions given by the domestic

authorities in such proceedings involve a determination of the

applicants' civil rights or obligations.

     The Commission recalls that Article 6 para. 1 (Art. 6-1) applies

only to disputes over "rights" which can be said, at least on arguable

grounds, to be recognised under domestic law.  Article 6 (Art. 6) does

not in itself guarantee any particular content for "rights and

obligations" in the substantive law of the Contracting States (cf. Eur.

Court HR, Lithgow

and Others v. the United Kingdom judgment of 8 July 1986, Series A

no. 102, p. 70, para. 192).  Moreover, Article 6 para. 1 (Art. 6-1)

only applies if the "right" is "civil" in character (Eur. Court HR,

Benthem v. the Netherlands judgment of 23 October 1985, Series A no.

97, p. 14, para. 32).  The "dispute" must be genuine and serious; it

may relate not only to the existence of a right but also to its scope

and the manner of its exercise.  The outcome of the proceedings must

be directly decisive for the right in question (Eur. Court HR, Masson

and Van Zon v. the Netherlands judgment of 28 September 1995, Series

A no. 327-A, p. 17, para. 44).

     Under the Employment of Foreigners Act the validity of an

employment contract concluded between an employer and a foreigner is

in principle dependent on the granting of a work permit.  The outcome

of the proceedings for the granting of a work permit might therefore

be considered as directly decisive for the right to conclude employment

contracts and hence for the exercise of a civil right.

     However, the Commission need not determine whether or not the

proceedings at issue involved the determination of the applicants'

civil rights and obligations because, even assuming that this is the

case, the application is in any event manifestly ill-founded for the

following reasons.

4.   As regards compliance with Article 6 para. 1 (Art. 6-1) of the

Convention the applicants submit that their rights to a decision by a

tribunal within the meaning of this provision has been violated since

the refusal of a work permit was based, inter alia, on the

discretionary decisions of the Mediation Committee which were not

reasoned and not open to judicial review.

     The Commission recalls that in the Obermeier case the European

Court of Human Rights has found that when the legislature has withdrawn

from the courts the power to rule on a preliminary question and has

conferred it on the administrative authorities, the conditions laid

down in Article 6 para. 1 (Art. 6-1) of the Convention are only met if

the decision of the administrative authorities binding the courts were

delivered in conformity with the requirements of that provision.   This

is not the case if there is no review of the administrative decision

by a judicial body that has full jurisdiction (Eur. Court HR, Obermeier

v. Austria judgment of 28 June 1990, Series A no. 179, pp. 22-23,

paras. 69-70).

     The Commission recalls further that the European Court of Human

Rights found that the Austrian Administrative Court fulfils the

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

matters which are not exclusively within the discretion of

administrative authorities and where the Administrative Court considers

the submissions on their merits, point by point, without ever having

to decline jurisdiction in replying to them or ascertaining various

facts (Eur. Court HR, Zumtobel v. Austria judgment of 21 September

1993, Series A no. 268-A, pp. 12-13, paras. 31-32).  Furthermore,

Article 6 para. 1 (Art. 6-1) does not require that the body with the

guarantees of Article 6 (Art. 6) decides itself every single issue, but

that it reviews the decisions of the lower authorities.  In assessing

the sufficiency of such a review, it is necessary to have regard to

matters such as the subject-matter of the decision appealed against,

the manner in which that decision was arrived at, and the content of

the dispute, including the desired and actual grounds of appeal (Eur.

Court HR, Bryan v. the United Kingdom judgment of 22 November 1995,

Series A no. 335-A, pp. 17-18, paras. 44-47).     In refusing the first

to fourth applicants' request for a work permit the employment

authorities referred, inter alia, to the Mediation Committee's refusal

to support their request, while in the case of the fifth applicant the

refusal was based on the lack of a residence permit of the person to

be employed.  The Commission finds that these two types of case must

be examined separately.

a.   As regards the first to fourth applicants' complaint relating to

the involvement of the Mediation Committee the Commission observes that

the Constitutional Court in its decision of 12 October 1990 (see

"Relevant domestic law") examined the competence of the Mediation

Committee in detail.  It found that the Mediation Committee only

exercises an advisory function and that its recommendations are not

binding.  A recommendation by the Mediation Committee supporting a

request for a work permit might have a positive influence on the

granting of a work permit, but the refusal of a recommendation does not

automatically lead to the refusal of a work permit.  Rather, in such

a case the employment authorities must examine whether the criteria for

the granting of a work permit have nevertheless been met.

     In the present case the Mediation Committee had refused to give

a recommendation and the employment authorities considered whether

exceptional grounds, as listed in Section 4 para. 6 of the Employment

of Foreigners Act, would justify the granting of a work permit.  The

employment authorities found that this was not the case and in the

proceedings before the Administrative Court the applicants did not

challenge this finding.  They only argued that the maximum quota had

not been reached.  These submissions were carefully considered by the

Administrative Court which considered them as being unfounded.  The

Court did not decline jurisdiction in replying to any of the points

raised by the applicants.

b.   As regards the refusal of a work permit to the fifth applicant

the Commission observes that this decision was based on the ground that

the person to be employed did not have a residence permit as required

by Section 4 para. 3 (7) of the Employment of Foreigners Act.   The

fifth applicant did not challenge this finding but considered that he

was nevertheless entitled to a work permit.

     Since a residence permit is explicitly mentioned in the relevant

law as a precondition for the granting of a work permit, the Commission

has doubts whether in these circumstances there was a genuine dispute

on the existence or scope of a civil right within the meaning of

Article 6 para. 1 (Art. 6-1), as required by the Convention organ's

case-law (see Eur. Court HR, Masson and Van Zon judgment, op. cit., p.

17, para. 44).  In any event, the Commission cannot find that on this

issue the review by the Administrative Court was too limited in order

to satisfy the requirements of Article 6 para. 1 (Art. 6-1).

     Accordingly, there is no appearance of a violation of the

applicants' right to a fair hearing as guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention in this respect.

     It follows that this part of the application is manifestly ill-

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

Convention.

5.   Insofar the first to fourth applicants complain that the

Administrative Court decided their complaint without having held an

oral hearing, the Commission recalls that it is the practice of the

Austrian Administrative Court not to hear the parties unless one of

them expressly requests it to do so.  Therefore the European Court of

Human Rights constantly finds that whenever a complainant failed to

make such a request, he or she must be deemed to have waived

unequivocally his or her right to a hearing (Eur. Court HR, Zumtobel

v. Austria judgment of 21 September 1993, Series A no. 268, p. 14,

para. 34; Fischer v. Austria judgment of 26 April 1995, Series A

no. 312, p. 20, para. 44; mutatis mutandis Pauger v. Austria judgment

of 28 May 1997, para. 60, to be published in Reports 1997).

     This rule also applies in the present case as none of the

applicants has made a request for an oral hearing.

     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, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First ChamberTHE LAW