AS TO THE ADMISSIBILITY OF

                      Application No. 21426/93

                      by Anton HAMMERLE

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           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 Hammerle against Austria and registered on 25 February 1993

under file No. 21426/93;

      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 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 applicant, 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 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.

      The Ministry, by reference to Section 13 of the Livestock Act

1983 (Viehwirtschaftsgesetz) dismissed the applicant's requests on

4 March 1988.  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 Ministry,

which had consulted various authorities and given the applicant the

opportunity to comment on the submissions, found that prices had fallen

in previous years, whilst production had increased, and consumption was

stagnant or decreasing.  It considered that this amounted to unstable

market conditions, and added that the concentration of egg production

which had been seen in recent years would be exacerbated if the

applicant's request were granted.  This could only make farm production

more difficult.  In these circumstances, the Ministry concluded, the

mandatory provisions of Section 13 prevented the requests from being

granted.

      The applicant made a constitutional complaint which the

Constitutional Court (Verfassungsgerichtshof) dismissed 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 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

10,000 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 and of Article 1 of Protocol No. 1 to the Convention.

      In connection with Article 6 of the Convention, he considers that

every businessman has the right to transfer business assets, and where

that right is limited, any proceedings related thereto must determine

civil rights.  He considers that he had a right to transfer his

chickens, and that he fulfilled the conditions for such a transfer.

He considers that the Administrative Court does not comply with the

requirements of Article 6 of the Convention because it is a mere court

of review, and is not able to decide questions of fact.  In connection

with the Zumtobel judgment (Eur. Court H.R., judgment of

23 October 1993, Series A no. 273), he considers that the

Administrative Court failed to consider his submissions point by point,

as required by the Court in that case.  He also alleges that the

proceedings exceeded the "reasonable time" requirement of that

provision.

      In connection with Article 1 of Protocol No. 1 to the Convention,

the applicant accepts the principle of quotas for production as such,

but considers that a refusal to permit him to "move" one of his quotas

to the place of business of the other quota exceeds the margin of

appreciation accorded to states under the provision.

      By a letter of 20 June 1994, the applicant informed the

Commission that he had not challenged the Ministry's second decision,

of 16 December 1992, before the Administrative and/or Constitutional

Courts, and he expressly withdrew his complaints concerning the refusal

of a further quota.

THE LAW

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

Convention, which 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."

      To the extent that the applicant complains of the length of the

proceedings and other related procedural aspects, the Commission

considers that it cannot, on the basis of the file, determine the

admissibility of this complaint and that it is therefore necessary, in

accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give

notice of this part of the application to the respondent Government.

2.    To the extent that the applicant alleges a violation of Article

6 (Art. 6) of the Convention in connection with the actual decision

given by the Administrative Court, the Commission notes that that

decision quashed the decision of the Ministry and remitted the case to

the Ministry for a further decision.  It therefore found that it was

not necessary to deal with the applicant's further complaints.

      The Commission further notes that the applicant did not pursue

any remedies against the Ministry's subsequent decision of

16 December 1992.

      However, the Commission finds that it is not required to

determine these complaints under Article 6 (Art. 6) of the Convention

as the applicant has failed to exhaust the remedies available to him

under Austrian law, as is required by Article 26 (Art. 26) of the

Convention.  The applicant's challenge to the Ministry's decision was

successful before the Administrative Court, and the case was sent back

for a further decision.  Had there been any complaints of a procedural

nature concerning the new decision, the applicant could have made a

fresh complaint to the Administrative Court.  Moreover, an examination

of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to the

generally recognised rules of international law, from exhausting the

domestic remedies at his disposal.  In particular, the Administrative

Court's refusal to deal with the applicant's remaining complaints after

it had decided to quash the Ministry's decision does not affect the

position: had there been any relevant, outstanding matters which the

applicant felt remained unanswered, he could have put them in a second

administrative complaint.

      It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies in this respect under Article

26 (Art. 26) of the Convention, and that this part of the application

must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

3.    The applicant also alleges a violation of Article 1 of Protocol

No. 1 (P1-1) to the Convention in respect of the refusal to permit him

to transfer his quota of 16,000 laying hens from Ötz to Mäder.

      Article 1 of Protocol No. 1 (P1-1) to the Convention provides as

follows:

      "Every natural or legal person is entitled to the peaceful

      enjoyment of his possessions.  No one shall be deprived of his

      possessions except in the public interest and subject to the

      conditions provided for by law and by the general principles of

      international law.

      The preceding provisions shall not, however, in any way impair

      the right of a State to enforce such laws as it deems necessary

      to control the use of property in accordance with the general

      interest or to secure the payment of taxes or other contributions

      or penalties."

      In connection with this complaint the Commission accepts that the

applicant has exhausted the domestic remedies at his disposal as the

Administrative Court stated plainly that Austrian law did not provide

for the possibility of transferring the quota.  The Ministry, in taking

its second decision, was bound by the findings of the Administrative

Court in this matter, and could not therefore have come to any other

conclusion in this respect.

      The applicant's complaint under Article 1 of Protocol No. 1

(P1-1) is expressly limited to his inability under Austrian law to

transfer his quota from Ötz to Mäder.

      The Commission notes that the applicant owned two sites, each of

which had a separate quota.  The Constitutional Court in its decision

of 20 June 1989 discussed the justification for the legislative

provisions of the Livestock Act in some depth, coming to the conclusion

that they met a legitimate need and were proportionate.  The

Administrative Court, in its decision of 29 April 1992, confirmed that

it was not possible to transfer a quota, and quashed the Ministry's

decision because it was based in part on the misconception that

transfer was possible.

      Article 1 of Protocol No. 1 (P1-1) is only applicable where

"possessions" are at issue.  It is not clear in the present case

whether the quota the applicant held was a possession because - as the

Administrative Court found - it was a permission which attached to the

land and could not be transferred.  However, even assuming it to be a

possession, the Commission finds the complaint inadmissible for the

following reasons:

      The Commission notes that the applicant's quota at Ötz was not

revoked or limited by the State, but was one of the prerequisites to

carrying on business in Ötz.  The applicant decided that it was not in

his interest to run both production units, and wanted to merge them.

He was not prevented from selling the land and assets in Ötz, and

indeed could have sold the unit as an egg production unit if he could

have found a willing purchaser, as the quota would have passed with the

business.  The position is thus quite different from the case of the

holder of a licence whose possessions are adversely affected by the

withdrawal of such a licence (as, for example, in Eur. Court H.R., Tre

Traktörer AB judgment of 7 July 1989, Series A no. 159, p. 21, para.

53).

      In these circumstances, the Commission finds that the

"interference" with the applicant's possessions was, at most, a control

of the use of property, in the sense that he was prevented from

transferring his egg production unit from Ötz to Mäder.  The Commission

must examine this interference under the second paragraph of Article 1

of Protocol No. 1 (P1-1) to the Convention.

      The Constitutional Court considered the aims of the Livestock Act

in its decision of 20 June 1989.  It found the aims of 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 - to be legitimate concerns of the legislator.  In

the context of a system which aims to regulate the size of production

units, the Commission finds nothing arbitrary in legislation which

permits units in excess of a particular size and grants quotas for

those units only, without envisaging quota transfers. The Commission

finds that the purpose of the interference is compatible with the

requirements of the "general interest" set out in Article 1 of Protocol

No. 1 (P1-1).

      The Commission next notes that the applicant was not prevented,

initially, from holding two quotas, and was not prevented subsequently

from applying for an extension of his quota at Mäder.  It also notes

that the quota he held was not personal to him, in the sense that he

would have been able to sell the Ötz unit with its quota if he had

found a willing buyer.  Accordingly, given that the applicant is in

substance claiming a right to transfer a quota from one site to

another, and that Article 1 of Protocol No. 1 (P1-1) protects existing

possessions rather than extending them, the Commission finds that the

interference in the present case was proportionate to the aim pursued.

      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.

      For these reasons, the Commission unanimously

      DECIDES TO ADJOURN its examination of the complaints under

      Article 6 of the Convention concerning the proceedings in the

      present case, in particular their length;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)                       (A. WEITZEL)