AS TO THE ADMISSIBILITY OF

                      Application No. 19441/92

                      by HILTI & JEHLE OHG

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 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

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

           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 10 January 1992

by HILTI & JEHLE against Austria and registered on 27 January 1992

under file No. 19441/92;

      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 company runs a construction enterprise.  It was

founded in 1876 and has its head office in Feldkirch, Austria.  The

company's two sole partners, Messrs. Hilti and Jehle, are citizens of

Liechtenstein.  Mr. Jehle was, however, born in Feldkirch where he is

currently living.  The company is represented by Mr. W. L. Weh, a

lawyer practising in Bregenz.

                                  I.

      It follows from the applicant company's statements and the

documents submitted that on 27 April 1989 the Real Property Transaction

Commission (Grundverkehrs-Landeskommission) denied the applicant

company's request to approve the acquisition by sales contract of a

plot of land situated in the Vorarlberg region and registered under

No. 2039/106 of the Altenstadt real estate register (Grundbuch).  An

appeal (Berufung) was rejected on 11 January 1991 by the Real Property

Transaction Senate (Grundverkehrssenat).  In its decision the Board

stated that under Section 5 para. 2 of the Real Property Transaction

Act (Grundverkehrsgesetz - GVG) the acquisition of real estate by a

foreigner had to be approved if it did not affect the interests of

agriculture, forestry or state policy (staatspolitische Interessen) and

if the acquisition served a cultural, economic or social interest

(kulturelles, volkswirtschaftliches oder soziales Interesse).

      The Board considered this provision to be applicable because the

company's sole partners are foreign citizens.  It pointed out that

neither cultural nor social interests had been involved and considered

that economic interests were not given as the applicant company's

purpose in exploiting the land as a gravel pit was not feasible.

According to an expert opinion of the Regional Government

(Landesregierung) a garbage dump already existed on the site in

question and there was no reason to remove this dump.  The existence

of the garbage dump however rendered the extraction of gravel

impossible.  It was furthermore unlikely that the necessary

authorisation for a gravel pit would be obtained from the water and

nature conservation authorities.

      The applicant company then lodged a constitutional complaint

invoking the right to protection of property and claiming that it had

to be considered as an Austrian company.  The complaint was rejected

by the Constitutional Court (Verfassungsgerichtshof) on 10 June 1991

(notified on 11 July 1991).

                                  II.

      On 10 July 1990 another request to approve the acquisition of a

plot of land in the same area and registered under no. 2039/102 was

likewise rejected and an appeal dismissed by the Real Property

Transaction Senate on 29 November 1991 for the reasons already stated

in the earlier decision of 11 January 1991.

      The applicant company lodged another constitutional complaint,

this time also alleging a violation of Article 6 of the Convention.

      The complaint was rejected by the Constitutional Court on

13 November 1992.

      The applicant company's argument that the Real Property

Transaction Senate was not an impartial tribunal within the meaning of

Article 6 of the Convention was considered to be unfounded in the light

of the Constitutional Court's constant jurisprudence.  The Court

pointed out that in particular the applicant's counsel was aware of

this jurisprudence as he had represented the applicant company in a

similar matter which had been decided by the Court on 10 June 1991.

It added that in the present case there were no circumstances to doubt

the impartiality of the Board's members.  Neither the fact that the

chairman was formerly a politician and a high official in real estate

matters nor the fact that another Board member was a civil servant did,

in itself, put their impartiality into question.

      Insofar as the applicant company had complained that it had not

been given adequate opportunity to question the official expert

opinion, it is pointed out that the company had been aware of it since

December 1990, while the oral hearing before the Board had taken place

on 21 November 1991.

      Insofar as the company objected to having been considered as

"foreign", the Court again referred to its prior judgment of

10 June 1991 and stated in addition that the legislative regulation

according to which companies registered in Austria but largely owned

by foreigners were to be considered as "foreign" was objectively

justified because it served the purpose of stopping foreigners from

circumventing the authorisation requirement by founding a company to

buy real estate on their behalf.

COMPLAINTS

1.    The applicant company first alleges a violation of Article 6 of

the Convention.  It considers that the members of the Real Property

Transaction Senate are not impartial and independent as they are

representatives of various interest groups.  The presiding judge, so

it is alleged, was prior to being appointed to this office, for 25

years not only a member of the Regional Government but in that capacity

was mainly entrusted with real estate matters.  It is also pointed out

in this context that the former presiding judge in the meantime became

a member of the Regional Government where he is also charged as a

member of the executive with real estate matters.

      In these circumstances the independence and impartiality appears,

at least from the viewpoint of the applicant company, to be doubtful

and the present matter had to be distinguished from Application

No. 18991/91, Kohler v. Austria, which was rejected by the Commission

on  13 October 1993.

      Furthermore, the Regional Agrarian Chamber (Landwirtschafts-

kammer) has nominated its President to be a member of the Real Property

Transaction Senate.  The applicant company argues that the President

can not be considered as an impartial and independent judge, rather it

would appear that he would favour the interests of the Agrarian Chamber

which are in principle identical to those of the agricultural

authorities which denied approval of the land acquisition.

      Insofar as the Constitutional Court rejected the complaints under

Article 6 by referring to its constant jurisprudence, the applicant

company submits that the circumstances of the present case are

distinguishable from prior cases, given that the two allegedly biased

members of the Board were appointed in July 1990, therefore the

Constitutional Court should have dealt with in substance the present

complaints and not just reject them by referring to prior

jurisprudence.

      Furthermore, the applicant company considers that the rapporteur

of the Real Property Transaction Senate is likewise not impartial and

independent, being a member of the Regional Government where he has to

deal with administrative and penal administrative matters.  It is

pointed out in this context that the legislator decided on 8 July 1993

to abolish the Real Property Transaction Board.

2.    Finally, the applicant company alleges a violation of Article 1

of Protocol No. 1 also read in conjunction with Article 14 of the

Convention.  In this respect it is alleged that the denial of the

authorisation to buy a plot of land is a disproportionate measure as

it does not strike a fair balance between public and private interests.

It is submitted that domestic law does not even allow striking such a

balance as it refers  only to public interests which should be taken

into account.  In this context it is also alleged that an Austrian

company was treated favourably in that it was allowed to buy a

neighbouring plot.  There are no justified reasons to deny the

authorisation to the applicant company which allegedly existed in

Austria for the past 115 years.

THE LAW

1.    As regards the complaint under Article 6 para. 1 (Art. 6-1) of

the Convention related to the composition of the Real Property

Transaction Senate which in the applicant's opinion violates the

principle of impartiality and independence the Commission recalls at

the outset that the organisation of the authorities responsible for the

control of land acquisition in Austria does not, in principle, raise

any problems regarding the judicial character or the independence of

these authorities (see, inter alia, Eur. Court of H.R., Ringeisen

judgment of 16 July 1971, Series A no. 13, p. 39, para. 95; Sramek

judgment of 22 October 1984, Series A no. 84, pp. 17-20, paras. 36-42).

      As regards the question whether the members of the Senate in the

applicant company's case satisfied the requirements of impartiality,

both subjectively and objectively (see Eur. Court H.R., Langborger

judgment of 22 June 1989, Series A no. 155, p. 16, para. 32), the

Commission observes the following :

      The mere fact that the President of the Senate had previously

been a member of the Regional Government for 25 years cannot bear out

a challenge of bias: the subjective impartiality of a judge is presumed

until the contrary is proven (Eur. Court H.R., Hauschildt judgment of

24 May 1989, Series A no. 154, p. 21, para. 47).  Furthermore, this

fact in itself is not sufficient to warrant legitimate doubts as to his

impartiality.

      As regards the Senate member who was at the same time president

of the Regional Agricultural Chamber, the Commission finds no evidence

to support that this Senate member was biased.  Moreover, there is no

reason to question his objective impartiality.  The European Court of

Human Rights found no element of bias in respect of another comparable

body, the Regional Real Property Transactions Commission

(Landesgrundverkehrsdommission) of Upper Austria, on account of the

fact that one of its members had been nominated by the local chamber

of agriculture (Eur. Court H.R., Ringeisen judgment, loc. cit., p. 40,

para. 97).  The fact that, in the present case, it was the president

of the chamber who had been appointed does not, in the opinion of the

Commission, warrant a different conclusion.  This fact is not enough

to create any legitimate doubts that the balance of interests inherent

in the composition of the Senate was upset in the applicant company's

case (cf. Eur. Court H.R., Langborger judgment, loc. cit., p. 16, para.

35).  In this context the Commission notes in particular that the

protection of the interests of the local farmers was explicitly

recognised by the legislation in question as a legitimate interest

under the law (cf. De Moor v. Belgium, Comm. Report 8.1.93, paras. 58-

59, to be published).

      As regards the Rapporteur on the Senate, the Commission recalls

that the presence of civil servants on the comparable Upper Austrian

Regional Commission was found to be compatible with the Convention (see

Eur. Court H.R., Ringeisen judgment, loc. cit., pp. 39-40, paras. 95-

97) and that the Regional Government itself was not a party to the

present proceedings (cf. Eur. Court H.R., Sramek judgment, loc. cit.,

pp. 19-20, paras. 41-42).  In the light hereof, the Commission does not

consider that this complaint raises any issue as to either the

objective or subjective impartiality or independence of the Senate.

      The Commission, accordingly, finds no indication of any violation

of the applicant company's right to an impartial tribunal as guaranteed

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

      It follows that the complaint under Article 6 para. 1 (Art. 6-1)

has to be rejected as being manifestly ill-founded within the meaning

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

2.    Insofar as the applicant company alleges a violation of its right

to the peaceful enjoyment of possessions as guaranteed by Article 1 of

Protocol No. 1 (P1-1) it can be left undecided whether or not the sales

contract effected a transfer of the real property it concerned.  In any

event it created a claim to the transfer of the property which in

itself also enjoys protection under Article 1 of Protocol No. 1

(P1-1).

      However, the use of property may be subject to regulations under

the conditions set out in Article 1 para. 2 of the Protocol (P1-1-2).

      It has not been disputed that the measure complained of is based

on domestic law.

      The law in question serves the purpose of safeguarding

agriculture, forestry and state policy and must therefore be considered

to be in the general public interest.

      Contrary to the applicant company's submissions the law in

question also allows the competent authorities to consider the private

interests in the acquisition of land as it refers to cultural, economic

or social interests which may well coincide with the interests of the

individual buyer.

      In the present case the refusal was found to be lawful by the

Constitutional Court and there is nothing to show that the domestic

decisions complained of arbitrarily disregard any vital interests of

the complainant company such as to upset the fair balance which has to

be struck between the demands of the public interest of the community

and the requirements of protection of the individual's fundamental

rights (c.f. Eur. Court  H.R., Sporrong and  Lönnroth judgment of

23 September 1982, Series A no. 52, p. 26 para. 59).

      The Commission accordingly finds no indication of a violation of

Article 1 of Protocol No. 1 (P1-1).  It follows therefore that the

complaint must also be rejected as being manifestly ill-founded within

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

3.    Furthermore, insofar as in another case the acquisition of land

was allegedly approved by the authorities it has not been shown that

the companies in the two cases were in an analogous situation.

      In any event, the applicant has failed to substantiate that he

has been discriminated on any of the grounds listed in Article 14

(Art. 14) of the Convention.  There is consequently no appearance of

a violation of Article 1 of Protocol No. 1 read in conjunction with

Article 14 (P1-1+14)of the Convention and that this part of the

application is therefore likewise manifestly ill-founded.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber        President of the First Chamber

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