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AS TO THE ADMISSIBILITY OF

Application No. 21022/92

by Ferdinand BERGER

against Austria

and

Application No. 21023/92

by Richard HÜTTALER

against Austria

The European Commission of Human Rights sitting in private

on 7 April 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

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 4 September

1992 by Ferdinand BERGER and Richard HÃœTTALER against Austria and

registered on 2 December 1992 under files No. 21022/92 and

21023/92 respectively;

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 applicants are Austrian citizens, residing in

Attnang/Puch-heim and Schwanenstadt, respectively. In the

proceedings before the Commission, they are represented by Mr.

H. Blum, a lawyer practising in Linz.

The relevant facts, as submitted by the applicants, may be

summarised as follows.

A. Particular circumstances of the case

Both applicants had acquired plots on the shore of a lake

in Schörfling/Attersee when it was still subject to an area

zoning plan (Flächenwidmungsplan), following a decree

(Verordnung) dating from 1971. According to that plan, their

plots were building land (Bauland).

On 25 July 1986 a new area zoning plan, issued by the

Schörfling Town Council (Gemeinderat), entered into force.

Henceforth the applicants' plots of land were designated as part

of a green belt (Grünzug).

On 24 September 1990 the Constitutional Court rejected the

applicants' complaints under Article 139 of the Constitution

(Bundes-Verfassungsgesetz) challenging the constitutionality of

this new plan. The Constitutional Court, referring to its

constant jurisprudence, held that a decree could only be

challenged if it was decisive for a decision of an administrative

authority.

On 22 March 1991 the Mayor of Schörfling, referring to S.

4 para. 1 of the Upper Austrian Building Act (Bauordnung)

dismissed the applicants' requests for a preliminary opinion on

whether their plots were suitable for building purposes

(Bauplatzbewilligung) on the ground that they formed part of a

green belt.

On 13 June 1991 the Schörfling Town Council confirmed the

Mayor's decisions. The Council noted inter alia that the

lawfulness of the zoning plan had been, in review proceedings

prior to its publication, controlled by the Office of the Upper

Austrian Provincial Government (Amt der Öberösterreichischen

Landesregierung), and that it had approved the plan.

On 11 July and 16 July 1991, respectively, the Office of the

Upper Austrian Provincial Government dismissed the applicants'

further appeals (Vorstellungen) against the above decisions. The

Office, referring to the case-law of the Austrian Administrative

Court (Verwaltungsgerichtshof), noted that building permits

could, under particular circumstances, also be granted for plots

in a green belt, and that the designation as green belt did not

amount to a general building prohibition. The challenged

decisions were thus irrespective of the validity of the zoning

plan. Nevertheless, the decisions in question did not interfere

with the applicants' rights on the ground that the applicants'

plots of land were within the area of 500 meters around a lake

where, under the relevant provisions of the Upper Austrian

Protection of Environment Act (Natur- und

Landschaftsschutzgesetz), any erection of buildings was in

principle prohibited. The applicants had not previously applied

for an exemption under these provisions.

On 25 February 1992 the Constitutional Court, in two

separate decisions, declined to entertain the applicants'

complaints about the respective decisions of the Office of the

Provincial Government, as they offered no prospect of success.

The Constitutional Court noted that the applicants only

challenged the constitutionality of the Schörfling area zoning

plan. However, this plan had not been decisive for the decisions

of the Office of the Provincial Government which were based on

other provisions. There was thus no indication of a violation of

the applicants' rights. The decisions were served on 5 March

1992.B. Relevant domestic law

In upper Austria area zoning planning is governed by the

Upper Austrian Land Planning Act (Raumordnungsgesetz). In

Austrian law, area zoning plans and any amendments thereto are

regarded as decrees (Verordnungen), and in the proceedings in

which they are issued the persons affected are not parties.

The lawfulness of decrees can be challenged before the

Constitutional Court under Article 139 of the Federal

Constitution. However, case-law has established that area zoning

plans cannot directly be challenged in proceedings under

Article 139 by the individuals affected if it is possible to

institute administrative proceedings. This is the case, in

particular, where the area zoning plan is the basis for the

granting or withholding of building permits. The persons affected

are expected to assert their rights in administrative proceedings

concerning the building permit, in which they can allege that the

underlying area zoning plan has no legal basis or is contrary to

the applicable legislation. Ultimately, this question can be

brought before the Constitutional Court by a constitutional

complaint under Article 144 of the Federal Constitution or by a

request made by the Administrative Court under Article 89 para.

2 and Article 139 of the Constitution.

A property owner's right to erect buildings on his property

is governed by the Upper Austrian Building Act (Bauordnung).

Under S. 4, a property owner can request a preliminary opinion

whether his property is in principle suitable for building

purposes (Bauplatzbewilligung). The authority has to confirm such

suitability if the building complies with the legal provisions

and the area zoning plan or a building plan and if it can be

reconciled with the principles of an appropriate and orderly

building development.

The competence under S. 4 of the Building Act is exercised

by the municipalities, acting as building authorities. Under the

relevant provisions of the Upper Austrian Municipal Act

(Gemeindeordnung), the refusal of a positive opinion under S. 4

by the Mayor can be appealed against with the Municipal Office.

A further appeal can be lodged with the Office of the Provincial

Government. The matter can subsequently be brought before the

Administrative Court under Article 130 of the Constitution,

according to which the Administrative Court reviews the

lawfulness of decisions rendered by administrative authorities.

COMPLAINTS

1. The applicants complain under Article 6 of the Convention

about the Constitutional Court's decisions of 24 September 1990

and of 25 February 1992. They submit that the Constitutional

Court, declining to entertain their complaints, denied them

access to court in a dispute concerning their civil rights and

obligations.

2. The applicants complain under Article 1 of Protocol No. 1

to the Convention about the area zoning plan of 1986, designating

their plots of land as part of a green belt, which considerably

lowered the value of the plots. According to the applicants, the

amended area zoning plan was based on incorrect factual

considerations.

THE LAW

1. The Commission, having regard to the similarities of both

applications, considers it appropriate to order their joinder

under Rule 35 of its Rules of Procedure

2. The applicants complain that they were denied access to

court in a dispute concerning their civil rights and obligations,

as guaranteed by Article 6 (Art. 6) of the Convention.

Article 6 para. 1 (Art. 6-1), so far as relevant, provides

that "in the determination of his civil rights and obligations

... everyone is entitled to a ... hearing by [a] ... tribunal

..."

The applicability of Article 6 para. 1 (Art. 6-1) depends

upon whether there was a dispute over a "right" which can be

said, at least on arguable grounds, to be recognised under

domestic law, and, if so, whether this "right" was of a "civil"

character within the meaning of Article 6 para. 1 (Art. 6-1). In

particular, the "dispute must be genuine and serious, it may

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

its scope and the manner of its exercise and, finally, the result

of the proceedings concerning the dispute at issue must be

directly decisive for such a right (see, Eur. Court H.R., Allan

Jacobsson judgment of 25 October 1989, Series A no. 163, p. 20,

paras. 66-67).

In the present case, the Commission notes that in 1990 the

Constitutional Court rejected the applicants' complaint about the

alleged unlawfulness of the area zoning plan as amended in 1986

on the ground that the applicants had another legal possibility

to have the lawfulness of this decree reviewed by the

administrative authorities. In the ensuing proceedings concerning

the applicants' applications for building permits, the Office of

the Provincial Government found that the area zoning plan

designating their plots as part of a green belt did not amount

to a general prohibition to building projects, and that, in the

circumstances of their cases, building permits could not be

granted for other reasons, namely the lack of a request for

exemption from the prohibition on building close to lakes under

the relevant provisions of the Nature and Environment Protection

Act. In the second set of proceedings, the Constitutional Court

considered that the area zoning plan in question had not been

decisive for the decisions of the Office of the Provincial

Government which were based on other provisions, and that there

was thus no indication of a violation of the applicants' rights.

The Commission considers that the applicants' right to build

on their respective properties in accordance with the applicable

laws and regulations was "civil" within the meaning of Article

6 para. 1

(Art. 6-1) (Eur. Court H.R., Allan Jacobsson judgment, loc. cit,

pp. 20-21, para. 73). Moreover, there was a "genuine and serious"

dispute between them and the Austrian authorities regarding the

suitability of their plots of land for building purposes, whereby

the question of the lawfulness of the local area zoning plan as

amended in 1986 was only one of the aspects. The outcome of the

dispute must therefore be regarded as therefore directly decisive

for that right.

As regards the question whether the applicants enjoyed the

"right to a court", as guaranteed to them under Article 6 para.

1 (Art. 6-1) (cf. Allan Jacobsson judgment, loc. cit., p. 21,

para. 75), the Commission recalls that the right of access to a

court, which is one aspect of this right, is not absolute but may

be subject to limitations since the right by its very nature

calls for regulation by the State. Nonetheless, the limitations

applied must not restrict or reduce the access left to the

individual in such a way or to such an extent that the very

essence of the right is impaired (Eur. Court H.R., Philis

judgment of 27 August 1991, Series A no. 209, pp. 20-21, para.

59; Eur. Court H.R., De Geouffre de la Pradelle judgment of 16

December 1992, Series A no. 253, p. 41, para. 28).

The Commission, having regard to the Constitutional Court's

decision of 24 September 1990, considers that the case-law of the

Constitutional Court under Article 139 of the Constitution, as

applied in the present case, not to review the lawfulness of a

decree such as an area zoning plan in abstracto if there was a

possibility to institute administrative proceedings where these

questions could be raised and, after their completion only be

brought again before it, does not appear to be an arbitrary

limitation of access to the Constitutional Court. In the ensuing

proceedings regarding the applicants' requests for a preliminary

opinion as to the suitability of their property for building

purposes, the area zoning plan in question was not found to be

decisive for any envisaged building on the ground that legal

provisions on nature and environmental protection were not

complied with. The applicants failed to apply for an exemption

under the relevant provisions, as referred to by the Office of

the Provincial Government, and subsequently to pursue the

proceedings in order to bring their cases before the

Administrative Court and the Constitutional Court, which could

have then fully reviewed the lawfulness of the decisions

including the area zoning plan as amended in 1986.

In these circumstances, the Commission finds that the very

essence of the applicants' "right to a court" was not impaired.

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.

3. The applicants complain under Article 1 of Protocol No. 1

(P1-1) to the Convention about the area zoning plan of 1986,

designating their plots of land as part of a green belt.

The Commission observes that the applicants failed to apply

for an exemption under the relevant provisions of the Upper

Austrian Protection of Environment Act, as referred to by the

Office of the Provincial Government, and subsequently to pursue

the proceedings concerning an opinion as to the suitability of

their plots for building. However, the Commission, even assuming

compliance with Article 26 (Art. 26) of the Convention, finds

that the impugned measure constituted an interference with the

applicants' right to property which was justified under Article 1

para. 2 of Protocol No. 1

(P1-1-2).

The Commission considers in particular that the challenged

amendment of the area zoning plan, though it may have reduced the

value of the applicant's plots of land, did not amount to a

deprivation of property, but must be considered as a control of

the use of property.

Furthermore, considering that the power to review compliance

with domestic law is limited (Eur. Court H.R., Allan Jacobsson

judgment, loc. cit., p. 17, para. 57; Fredin judgment of 18

February 1991, Series A no. 192, p. 16, para. 50), the Commission

finds that the applicants' submissions do not suffice to conclude

that the area zoning plan in question was contrary to Austrian

law, in particular the Upper Austrian Building Act. In this

respect, the Commission recalls its above finding that the

applicants had a possibility to bring the question of their right

to build upon their respective properties before the Austrian

courts.

The Commission further finds that the purpose of the

amendment of the impugned area zoning plan, creating a green belt

in the close neighbourhood of a lake, namely the protection of

the environment, is a legitimate aim under paragraph 2 of Article

1 (Art. 1-2).

The interference must finally achieve a fair balance between

the demands of the general interests of the community and the

requirements of the protection of the individual's fundamental

rights, whereby the State enjoys a wide margin of appreciation

with regard both to choosing the means of enforcement and to

ascertaining whether the consequences of enforcement are

justified in the general interest for the purpose of achieving

the object of the law in question (Eur. Court H.R., Fredin

judgment, loc. cit., p. 17 para. 51).

In the present case, the amended area zoning plan designated

the applicants' plots of land from a building area to part of a

green belt. Though, according to the Austrian case-law, this did

not amount to a general prohibition on building, the applicants

claim that they suffered financial losses regarding the value of

their plots. However, the situation of their property was in any

way such as to subject any building to particular limitations

under the Nature and Environment Protection Act. The Commission

finds that, in these circumstances, the Austrian authorities did

not transgress the margin of appreciation left to them, and that

the designation of the applicants' property in the challenged

area zoning plan from building land to part of a green belt was

not disproportionate.

There is, therefore, no appearance of a violation of the

applicants' rights under Article 1 of Protocol No. 1 (P1-1).

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

1. DECIDES TO JOIN THE APPLICATIONS

2. DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

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

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BERGER AND HÜTTALER v. AUSTRIA

BERGER AND HÜTTALER v. AUSTRIA

LEXI