Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21426/93

by Anton HÄMMERLE

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

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 16 November 1992

by Anton HÄMMERLE against Austria and registered on 25 February 1993

under file No. 21426/93;

Having regard to:

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

the Commission;

- the Commission's decision of 12 October 1994 to declare the

application partly inadmissible and to communicate the remainder

to the respondent Government for observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

10 January 1995 and the observations in reply submitted by the

applicant on 21 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen. He lives in Mäder in

Vorarlberg and is represented before the Commission by Mr. W. L. Weh,

a lawyer practising in Bregenz. The facts of the application, as

submitted by the parties, may be summarised as follows.

The applicant owned two egg production units, one in Ötz in the

Tyrol with a capacity of 16,000 laying hens, and the other in Mäder,

Vorarlberg, with a capacity of 27,000 laying hens.

On 12 August 1986 the applicant made an application to the

Federal Ministry for Agriculture and Forestry for "an additional quota

of 16,000 laying hens in Mäder" and for permission for a "site transfer

of these hens". In his request he explained how he wished to cease

production at Ötz because it was situated some 100 kilometres from

Mäder, he was unable to run both sites himself and because the tenant

who had a lease of the Ötz site had terminated the lease because of the

success of a frozen food business and a restaurant. He pointed out

that he would continue to deliver eggs from Mäder to Ötz.

On 3 March 1988 the Ministry, after calling on the reports

required by law and giving the applicant the opportunity to comment,

dismissed the applicant's requests by reference to Section 13 of the

Livestock Act 1983 (Viehwirtschaftsgesetz). Section 13 of the

Livestock Act (so far as relevant) provided that consent for the

keeping of over 10,000 laying hens was only to be granted if farm

production was not endangered and if conditions in the relevant markets

appeared stable.

The applicant's constitutional complaint of 27 April 1988 was

dismissed by the Constitutional Court (Verfassungsgerichtshof) on

20 June 1989. The Constitutional Court had no doubt that the aims

pursued by the Livestock Act - protection of domestic livestock

markets, stabilisation of prices for meat animals and animal products,

and the maintenance of the quality of supplies - were legitimate

concerns of the legislator. The Livestock Act, in accord with the

Agriculture Act 1976, aimed at maintaining a viable community of

family farms which could ensure the supply of basic foodstuffs. The

Constitutional Court did not disagree with the legislator's assumption

that large scale animal production in the hands of a few businesses

resulted in the loss of a large number of farms. The Constitutional

Court also considered that the legislator had not interfered

disproportionately with the constitutionally guaranteed right to

commercial freedom, because it provided for large numbers of animals

to be kept if certain conditions (no danger to farm production and

stable markets) applied. Section 13 was therefore not in conflict with

the right to commercial freedom.

In connection with the right to property, the Constitutional

Court found a sufficient "public" or "general" interest to justify any

restrictions. In connection with Article 6 of the Convention, the

Constitutional Court considered that the review given by the

Administrative Court (Verwaltungsgerichtshof) was adequate, at any rate

when what was at issue, as here, was not disputes as to civil rights

themselves, but merely disputes the effect of which could affect such

rights. The Constitutional Court transferred the case to the

Administrative Court on 4 August 1989 and the applicant completed his

administrative complaint on 19 October 1989. The Ministry submitted

observations in reply on 9 January 1990.

On 29 April 1992 the Administrative Court quashed the decision

of the Ministry of 4 March 1988 for unlawfulness. It found that the

Ministry had been wrong to consider questions of a transfer of the Ötz

business to Mäder, because the business in Ötz was a separate entity

and, as such, the permission which had been granted for the keeping of

16,000 laying hens there was only able to be operated from that site.

Accordingly, it was wrong to consider the question of a transfer in

connection with Section 13 of the Livestock Act because that provision

could not apply to a transfer. The case was remitted to the Ministry

for a new decision, without consideration of the applicant's further

points.

On 16 December 1992 the Ministry took a second decision in the

case. It rejected the applicant's requests in relation to transfer

because the Ministry had no jurisdiction, and it dismissed the request

for a new quota of 16,000 additional laying hens in Mäder.

COMPLAINTS

The applicant alleges violation of Article 6 para. 1 of the

Convention in connection with the length of the proceedings and -

insofar as they dealt with the question of the refusal to permit him

to transfer his quota from Ötz to Mäder - their fairness.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 November 1992 and registered

on 25 February 1993.

On 12 October 1994 the Commission decided to declare the

application partly inadmissible and to communicate the remainder to the

respondent Government for observations on its admissibility and merits.

The Government's written observations were submitted on

10 January 1995. The applicant replied on 21 March 1995.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in connection with the length of the proceedings. Article

6 (Art. 6) provides, so far as relevant, as follows.

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

..., everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Government submit that the applicant has not exhausted

domestic remedies in that he could have applied to the Administrative

Court by way of a challenge to alleged failure on the part of the

Minister to take a decision in time (Säumnisbeschwerde), both in

respect of the initial decision of the Minister of 4 March 1988 and

also in respect of the second decision of 16 December 1992. They

consider that the proceedings did not determine "civil rights" because

the key issue is whether a decision by an authority (as the relevant

example) interfered with property rights, which is not the case here.

They argue that the proceedings were delayed before the Minister by the

applicant's repeated objections, and they note that the Minister is

required to obtain comments from outside bodies. They consider that

the period spent before the courts of public law was not excessive,

having regard to the importance and scope of the tasks of those courts.

The applicant considers that a Säumnisbeschwerde could not

possibly have accelerated the proceedings. He complains about the fact

that the Minister is required to obtain outside reports (which delays

the proceedings), and notes the inconsistency in the time taken for

proceedings which deal with the transfer of live hens and second-hand

machinery which has a limited life.

The Commission notes that the Government consider that the

proceedings did not determine any rights which were civil, but it is

not required to determine this question - nor the question whether the

applicant has exhausted domestic remedies - as the complaint is in any

event inadmissible for the following reasons.

Article 6 (Art. 6) of the Convention relates to proceedings which

determine disputes concerning rights within the meaning of Article 6

(Art. 6), and this includes disputes over rights which can be said, at

least on arguable grounds, to be recognised under domestic law (see,

for example, Eur. Court H.R., Éditions Périscope judgment of 26 March

1992, Series A no. 234-B, p. 64, para. 35). Article 6 (Art. 6) cannot,

however, apply to a period before there is a "dispute" within the

meaning of the case-law to Article 6 (Art. 6) (see, for example, the

approach of the Court in Eur. Court H.R., König judgment of

28 June 1978, Series A no. 27, p. 29, para. 88, and Eur. Court H.R.,

Schouten and Meldrum judgment of 9 December 1994, Series A no. 304,

para. 62, where the Court took as the starting point the date on which

the respective applicants lodged an objection to a State organ and made

requests for confirmation).

In the present case, the applicant applied to the Minister for

Agriculture and Forestry for an additional quota of 16,000 hens in

Mäder and for permission for a "site transfer" of hens from Ötz to

Mäder. At that stage, there cannot have been a "dispute" between the

applicant and the Minister because the Minister had done nothing with

which the applicant could disagree.

The Minister's decision of 4 March 1988 was an administrative act

which was capable of forming the subject matter of a dispute, and that

dispute was put to the Constitutional Court on 27 April 1988, when the

applicant made his constitutional complaint. The period to be

considered by the Commission for the purposes of assessing whether the

proceedings were determined within a "reasonable time" therefore begins

on 27 April 1988.

The proceedings ended on 23 December 1992, when the applicant's

representative received the Minister's decision of 16 December 1992.

The period to be considered by the Commission is therefore a

little under four years and eight months.

In that period, the Constitutional Court dismissed the

applicant's constitutional complaint on 20 June 1989 and transferred

the case to the Administrative Court on 4 August 1989. The applicant

then completed his administrative complaint on 19 October 1989, and the

Ministry submitted observations in reply on 9 January 1990. The

Administrative Court then quashed the Minister's decision of 4 March

1988 on 29 April 1992. A second decision was taken on 16 December

1992. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the case-law of

the Convention institutions (the complexity of the case, the

applicant's conduct and that of the competent authorities), and in the

light of the circumstances of the case, which in this instance calls

for an overall assessment (cf. Eur. Court H.R., Cesarini judgment of

12 October 1992, Series A no. 245-B, p. 26, para. 17).

The only time in the present case in which there was apparently

a complete standstill in the proceedings was the period of some two

years and three months before the Administrative Court, between the

Minister's comments on the applicant's administrative complaint of

9 January 1990 and the decision of 29 April 1992. That period, for

which the Government are responsible, appears rather long taken in

isolation, but having regard to the overall length of the proceedings

before the two courts of public law and again before the Minister, and

to the absence of any special aspect which would call for a

particularly speedy determination of the case, the Commission considers

that the delays which occurred do not appear substantial enough for the

total length of the proceedings to be regarded as excessive.

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 applicant also alleges that the proceedings by which he was

refused permission to transfer his chickens from Ötz to Mäder were

unfair. He claims in particular that the Minister rejected the

applicant's knowledge of the poultry market in favour of the official

expert, and that the Administrative Court, by agreeing with the

Minister in this respect, compounded the error. He also contends that

the Administrative Court failed to deal with the problem of the effect

on a producer of a law which prohibited transfer of a business from one

site to another. The applicant again refers to Article 6 (Art. 6) of

the Convention.

In respect of the applicant's first complaint under the present

head, that the proceedings before the Administrative Court were unfair

because the applicant was not accepted as having the same

qualifications to comment on the poultry market as the official expert,

the Commission finds that the complaint is not relevant to the

proceedings as they relate to the transfer of the quota, because the

inability to transfer the quota was a question of law and not a matter

connected to the credibility or qualifications of the expert and the

applicant respectively.

As to the fairness of the proceedings in relation to effect of

a prohibition on transfer of quotas, the Commission recalls that in its

partial decision of 12 October 1994, it declared inadmissible the

applicant's complaints under Article 1 of Protocol No. 1 (P1-1)

concerning the failure of Austrian law to permit the transfer of his

quota. The question of the effect on producers of a prohibition on

quota transfer is not a matter which could be at issue before the

Administrative Court, which could determine questions of whether the

Livestock Act had been properly applied but not questions of the

compatibility of the that law with constitutional law, including the

Convention. The failure of the Administrative Court to consider the

effect of a prohibition of quota transfer on producers cannot therefore

raise issues as to the fairness of the proceedings.

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 REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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HÄMMERLE v. AUSTRIA

HÄMMERLE v. AUSTRIA

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