Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25170/94

by Herwig LIEBSCHER, Caroline HÜBL

and Christoph LIEBSCHER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 1 September 1994

by Herwig LIEBSCHER, Caroline HÃœBL and Christoph LIEBSCHER against

Austria and registered on 16 September 1994 under file No. 25170/94;

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

All three applicants are lawyers (Rechtsanwälte) practising in

Salzburg. The first and second applicant are represented by the third

applicant in the proceedings before the Commission.

The facts of the case, as they have been submitted by the

applicants, may be summarised as follows.

A. Particular circumstances of the case

On 13 November 1992 the applicants requested the Executive

Committee of the Salzburg Lawyers' Chamber (Ausschuß der Salzburger

Rechtsanwaltskammer) to give a declaratory decision (Feststellungs-

bescheid) according to which they were allowed to exercise their

profession as lawyers in the form of a private company (Gesellschaft

mit beschränkter Haftung). The applicants acknowledged that under

Section 21c para. 2 of the Practising Lawyers Act

(Rechtsanwaltsordnung) they could be prevented from founding a private

company, as it provided that lawyers could only be members of a

partnership as fully liable partners. However in their view, this

provision was unconstitutional as it infringed their freedom to

exercise a profession (Erwerbsausübungsfreiheit). They had a legal

interest in a declaratory decision because otherwise they ran the risk

of being punished for exercising their profession in the form of a

economic association prohibited by the Professional Lawyers Act.

On 1 December 1992 the Executive Committee of the Lawyers'

Chamber dismissed the request. It found that the wording of Section

21c (2) of the Practising Lawyers Act was clear and unambiguous and did

not allow the exercise of the profession of a lawyer in the form of a

private company. Thus, the requested decision could not be given.

On 29 January 1993 the applicants filed a complaint with the

Constitutional Court (Verfassungsgerichtshof). They submitted that

Section 21c of the Practising Lawyers Act violated their freedom to

exercise a profession and the principle of equality (Gleichheitssatz).

On 1 March 1994 the Constitutional Court declined to deal with

the applicants' complaint for lack of prospect of success. It also

found that the matter was not excluded from the competence of the

Administrative Court (Verwaltungsgerichtshof).

B. Relevant domestic law

Austrian law provides for essentially four types of profit making

associations. Stock corporations (Aktiengesellschaften) and private

companies (Gesellschaften mit beschränkter Haftung) are companies

limited by shares (Kapitalgesellschaften). They can be set up for any

economic activity and the liability of the owners is limited to the

amount and value of the shares. The Commercial Code (Handels-

gesetzbuch) provides for two further types of economic associations,

the commercial partnership (Offene Handelsgesellschaft) and the limited

partnership (Kommanditgesellschaft). They can only be set up for

commercial activities within the meaning of the Commercial Code, which

e.g. excludes agriculture and the liberal professions. Either all

(commercial partnership) or a part of its members (limited partnership)

are fully and personally liable for all debts of the partnership. The

Partnership Act of 1990 (Erwerbsgesellschaftengesetz) now allows the

establishment of commercial and limited partnerships for economic

activities not covered by the Commercial Code.

Section 1a of the Practising Lawyers Act (Rechtsanwaltsordnung)

provides that lawyers may exercise their profession in associations,

in particular registered partnerships (Erwerbsgesellschaften). Section

21c para. 2 of the Act provides that lawyers may be members of a

partnership only as fully liable partners. Lawyers who temporarily do

not exercise their profession and relatives of lawyers may be members

of a partnership only as limited partners (Kommanditist) or as dormant

partners (stiller Gesellschafter).

The Accountants Act (Wirtschaftstreuhänder-Berufsordnung)

provides that the profession of an accountant may be exercised by a

company limited by shares.

COMPLAINTS

1. The applicants complain under Article 11 of the Convention that

the impossibility to associate in the form of a private company for the

purpose of exercising their profession violated their freedom of

association.

2. They further complain that they were discriminated against

compared with accountants who could found companies limited by shares

for exercising their profession and rely on Article 14 of the

Convention.

3. They also complain that they had no effective remedy within the

meaning of Article 13 of the Convention in order to complain about the

above violations.

4. Lastly they complain about a violation of Article 6 para. 1 of

the Convention in that their request for a declaratory decision was not

determined by a tribunal within the meaning of Article 6 para. 1 and

that no public hearing had been held. Furthermore, the Constitutional

Court did not sufficiently motivate its decision.

THE LAW

1. The applicants complain that the impossibility to associate in

the form of a private company for the purpose of exercising their

profession violated their freedom of association. They invoke Article

11 (Art. 11) of the Convention which, inter alia, provides that

"everyone has the right ... to freedom of association with others ...".

However, the Commission recalls that Article 11 paragraph 1

(Art. 11-1) of the Convention does not secure any particular treatment

of associations, or their members, by the State (see Eur. Court H.R.,

Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no.

20, p. 15, para. 39; Union of Atheists v. France, Comm. Report

6.7.1994, para. 68).

In the present case the Commission finds that the applicants have

the possibility to associate for the purpose of exercising their

profession, in particular they can form a partnership under the

Partnership Act. Thus the choice of a specific form of profit making

associations is not in itself essential to the real exercise of the

applicants' freedom of association (see Union of Atheists v. France,

loc. cit.).

In these circumstances the Commission finds that there is no

appearance of a violation of the applicants' freedom of association as

guaranteed by Article 11 (Art. 11) of the Convention.

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.

2. The applicants further complain that they were discriminated

against compared with accountants who could found companies limited by

shares for exercising their profession and rely on Article 14 (Art. 14)

of the Convention, which reads as follows:

"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 recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and the Protocols. It

has no independent existence since it has effect solely in relation to

"the enjoyment of the rights and freedoms" safeguarded by those

provisions. Although the application of Article 14 (Art. 14) does not

necessarily presuppose a breach of those provisions - and to this

extent it is autonomous -, there can be no room for its application

unless the facts at issue fall within the ambit of one or more of the

latter (see Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment

of 28 May 1985, Series A no. 94, p. 35, para. 71).

The applicants do not invoke any substantive provision of the

Convention. However, the commission has examined the present complaint

under Article 14 (Art. 14) of the Convention read in conjunction with

Article 11 (Art. 11).

In this respect the Commission recalls that Article 14 (Art. 14)

safeguards individuals, placed under analogous situations, from

discrimination (see Eur. Court H.R., van der Mussele judgment of 23

November 1983, Series A no. 70, p. 22, para. 46). The Commission

recalls further that in the quoted judgment the Court has found that

no such analogous situation existed as regards the bar and other

professions, like veterinary surgeons, pharmacists, dentists and the

judicial and parajudicial profession as each of them was characterized

by a corpus of rights and obligations of which it would be artificial

to isolate one specific aspect (loc. cit.; No. 18168/91, Dec. 1.12.93,

unpublished).

In the present case, the Commission likewise considers that the

applicants have failed to show that they were in an analogous situation

as other liberal professions, in particular chartered public

accountants, as the possibility to associate in a specific type of

profit making association is one single feature of a corpus of rights

and obligations governing the exercise of liberal professions. The

Commission finds that in these circumstances the difference in

treatment the applicants complain of does not constitute discrimination

prohibited by Article 14 (Art. 14) of the Convention.

It follows that also this part of the application is manifestly

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

Convention.

3. The applicants also complain that they had no effective remedy

within the meaning of Article 13 (Art. 13) of the Convention in order

to complain about the above violations.

Article 13 (Art. 13) of the Convention, as far as relevant reads

as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority ..."

The Commission recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February

1990, Series A no. 172, p. 14, para. 31).

The Commission, having regard to the above findings, considers

that the applicant's submissions do not give rise to a prima facie

issue under Article 11 and Article 14 (Art. 11, 14) of the Convention,

and thus cannot be considered to be an arguable claim. Consequently,

Article 13 (Art. 13) of the Convention does not apply in respect of the

applicants' complaint under Article 11 and Article 14 (Art. 11, 14) of

the Convention.

It follows that this also part of the application is manifestly

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

Convention.

4. Lastly the applicants complain under Article 6 para. 1 (Art. 6-1)

of the Convention about the proceedings on their request for a

declaratory decision in several respects.

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

relevant, reads a follows:

"1. 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."

The Commission recalls that Article 6 (Art. 6) of the Convention

only applies to disputes over "rights and obligations" 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 (see Ear. Court H.R., James and others judgment of

21 February 1986, Series A no. 98, p. 46, para. 81, and Lithgow and

others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).

The dispute which gives a right to a determination by a court must be

"genuine and of a serious nature" (see Eur. Court H.R., Benthem

judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The

dispute may relate not only to the actual existence of a right but also

to its scope or the manner in which it may be exercised, and it may

concern both questions of fact and questions of law (see Ear. Court

H.R., van Marle and Others judgment of 26 June 1986, Series A no. 101,

p.11, para. 32; Karni v. Sweden, Comm. Report 15.12.88, D.R. 62 pp. 90,

para. 86).

The Commission notes that the applicants applied to the Executive

Committee for a declaratory decision that they were allowed to exercise

their profession in the form of a private company. They acknowledged

that Section 21c para. 2 of the Practising Lawyers Act allowed lawyers

only to exercise their profession in the form of a partnership.

However they considered the lack of a more general provision allowing

the exercise of the profession of a lawyer also in companies limited

by shares as unconstitutional. The applicants' request was refused by

the Executive Committee which referred to the clear and unambiguous

wording of Section 21c para. 2 of the Practising Lawyers Act. Their

complaint to the Constitutional Court was not admitted for lack of

prospect of success.

The Commission finds that in the present case there was no

dispute on facts, as the applicants essentially requested a legal

ruling from the Executive Committee. Furthermore, there was no dispute

regarding the scope or manner of a "right" or "obligation". The

applicants merely challenged the law in force. The Commission finds

that the applicants could not on arguable grounds claim a right to

exercise their profession in a private company. The dispute thus did

not concern a "right" within the meaning of Article 6 para. 1

(Art. 6-1) and the applicants therefore cannot rely on that provision

in this instance.

It follows that this part of the application must accordingly be

rejected as incompatible ratione materiae with the provisions of the

Convention in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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LIEBSCHER AND HÜBL v. AUSTRIA

LIEBSCHER AND HÜBL v. AUSTRIA

LEXI