Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19790/92

by LÖWA Warenhandel GesmbH

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 28 February 1992

by LÖWA Warenhandel GesmbH against Austria and registered on

1 April 1992 under file No. 19790/92;

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 facts, as submitted by the applicant, may be summarised as

follows.

The applicant, a limited company registered in Vienna, is running

supermarkets. Before the Commission, the applicant company is

represented by Mr. J. Brandstätter, a lawyer practising in Vienna.

On 7 March 1977, upon request of the applicant company, the

Vienna City Council (Magistrat) modified the conditions of the

industrial plant permission (Betriebsanlagengenehmigung) of one of the

applicant's branch shops. Due to the underground location of this

supermarket and the insufficient lighting conditions in the shop, all

employees were entitled to a supplementary resting time of 4 hours a

week.

On 24 April 1989 the applicant company requested the Vienna City

Council to modify the above condition of the industrial plant

permission in that all supplementary resting times be suppressed. In

this respect, the applicant company submitted that the maximum working

time according to the law and the collective agreement

(Kollektivvertrag) meanwhile had been reduced from 40 to 38.5 hours a

week.

On 6 December 1989 the City Council rejected the applicant's

request as being the same as already decided upon in 1977.

On 23 February 1990 the Works Council (Angestelltenbetriebsrat)

of the supermarket brought a class-action with the Vienna Labour Court

(Arbeits- und Sozialgericht). It claimed that the applicant company

had disregarded the provision of the industrial plant permission of

7 March 1977 ordering supplementary resting time to be granted to its

employees. The applicant company's employees thus had worked longer

than they had to, without however receiving a higher salary. The Works

Council therefore claimed compensation for supplementary resting time

the applicant company had refused to its employees between 1 March 1987

and 31 January 1990.

On 30 March 1990 the Vienna Regional Governor (Landeshauptmann),

partly upheld the applicant's appeal against the City Council's

decision of 6 December 1989. The Regional Governor found that the

weekly working time had meanwhile been reduced to 38.5 hours and

reduced the supplementary resting time accordingly. The applicant

company appealed against this decision.

On 7 August 1990 the Labour Court ordered the applicant company

to pay its employees a compensation for the denied resting time. It

noted that no appeal had been lodged against the City Council's

decision of 1977, which, therefore, had become final. The Labour Court

found that the working time of the applicant company's employees was

thus determined by the City Council's decision of 1977 and not by the

general provisions of labour law or by collective agreements. Since

the modifications of the industrial plant permission requested on

24 April 1989 had not yet been finally decided upon and, moreover,

would only have an effect for the future, the City Council's decision

of 1977 was still legally valid and binding on the courts.

On 15 February 1991 the Vienna Court of Appeal (Oberlandes-

gericht) dismissed the applicant company's appeal. The Court of Appeal

confirmed the findings of the Labour Court.

On 10 July 1991 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's further appeal (Revision). The Supreme Court

confirmed the Court of Appeal's decision and held further that it was

not necessary to suspend the labour court proceedings pending the

outcome of the industrial plant proceedings on the applicant's request

of 24 April 1989, as the decision to be reached in the latter

proceedings would have no retroactive effect, and, thus, would be of

no relevance for the labour law proceedings which only concerned

disputes over the past.

On 19 January 1993 the Federal Minister for Economic Affairs

(Bundesminister für wirtschaftliche Angelegenheiten) upheld the

applicant company's appeal against the Regional Governor's decision of

30 March 1990 and quashed all conditions in the applicant's industrial

plant permission imposing supplementary resting times for employees.

COMPLAINTS

The applicant company complains under Article 6 of the

Convention that the Austrian Courts were bound by decisions of the

administrative authorities, thereby refusing it access to a court which

had full jurisdiction on all questions of law and fact. It further

complains under Article 1 of Protocol No. 1 about being forced by

unlawful court decisions to bear higher labour costs.

THE LAW

1. The applicant company complains under Article 6 (Art. 6) of the

Convention that the Courts were bound by decisions of the

administrative authorities, thereby refusing it access to a court which

had full jurisdiction on all questions of law and fact.

The Commission recalls that in disputes concerning civil rights

the conditions laid down in Article 6 para. 1 (Art. 6-1) of the

Convention, as regards the right of access to a court, are only met if

the decisions of the administrative authorities binding the courts were

delivered in conformity with the requirements of that provision (see,

Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A no. 179,

pp. 22, para. 70)

However, the Commission notes that the Supreme Court in its

judgment of 10 July 1991 found that the outcome of the proceedings

relating to the modification of the industrial plant permission, for

the lack of any retroactive effect, could not have been relevant in a

dispute between the applicant and its employees concerning a period

before the entering into force of the modification.

The Commission further notes that, at the material time, the

working time of the employees was therefore still determined by the

industrial plant permission of 7 March 1977 which had been issued on

the applicant company's own request.

The Commission cannot find that the opinion expressed by the

Austrian Courts that the existing administrative decision prevented

them from examining the validity of the industrial plant permission

constituted an arbitrary limitation of the applicant company's right

of access to court, nor that this finding impaired the applicant

company's opportunity to argue its case in any other way. Accordingly,

there is no appearance of a violation of Article 6 para. 1 (Art. 6-1)

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 applicant further complains under Article 1 of Protocol No. 1

(P1-1) about having been forced by unlawful court decisions to bear

higher labour costs.

The Commission recalls that the mere fact that an individual was

the unsuccessful party to private litigation concerning his civil

rights and obligations does not appear to be sufficient to engage state

responsibility for an alleged violation of Article 1 of Protocol No.

1 (P1-1) (No. 11949/86, Dec. 1.12.86, D.R. 51 p. 195, at p. 211).

It follows that in this case the outcome of the proceedings in

which the applicant company was involved, which resulted in the Labour

Court's order that the applicant company should pay its employees a

compensation for the denied resting time, did not give rise to a

violation of the rights protected by Article 1 of Protocol No. 1

(P1-1).

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.

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)

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LÖWA WARENHANDEL GESMBH v. AUSTRIA

LÖWA WARENHANDEL GESMBH v. AUSTRIA

LEXI