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AS TO THE ADMISSIBILITY OF

Application No. 14699/89

by Georg and Helmut MEUSBURGER

against Austria

The European Commission of Human Rights sitting in private on

6 April 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 17 January 1989

by Georg and Helmut MEUSBURGER against Austria and registered on

27 February 1989 under file No. 14699/89;

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 brothers, born in 1936 and 1938 respectively.

They are Austrian citizens, living in Dornbirn and Schwarzach

respectively. Both are represented by Dr. W. L. Weh, a lawyer

practising in Bregenz.

On 20 September 1984 the applicants offered the highest bid

(Meistgebot) for the forced sale (Zwangsversteigerung) of farmland

situated in Hörbranz.

Under the applicable Real Property Transaction Act

(Grundverkehrsgesetz) the transfer of agricultural property requires

approval by a Real Property Transactions Commission

(Grundverkehrskommission).

On 29 January 1985 the competent Commission refused approval of

the applicant's bid. An appeal against this refusal was rejected by

the Provincial Agrarian Senate (Grundverkehrssenat) on 9 August 1985.

The applicants then lodged a constitutional complaint alleging

a violation of their right to a fair trial (Article 6 of the

Convention). On 1 December 1986 the Constitutional Court

(Verfassungsgerichtshof) quashed the Senate's decision on the grounds

that with regard to one of the members of this body there were

legitimate reasons to fear a lack of impartiality given that the person

in question was a civil servant of the Agricultural Authorities. In

addition he had previously been involved in the matter as an expert.

The case was referred back to the Senate for a new decision.

On 22 May 1987 the Senate, recomposed, again rejected the

applicant's appeal.

The applicants again lodged a constitutional complaint alleging

violations of constitutional law and of the right to the peaceful

enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1.

On 10 June 1988 the complaint was rejected by the Constitutional

Court. Insofar as the right to peaceful enjoyment of possession was

invoked the Court referred to the reasons given for the refusal to

approve the property transaction, namely that the applicants, being

owners and managers of a machine production firm, only intended to run

the farm as a hobby during their leisure time. This would not

correspond to the purposes and aims of the Real Property Transaction

Act which are the preservation of an effective farming community and

of economically sound agricultural enterprises. These considerations

did in the opinion of the Constitutional Court not disclose any

arbitrariness.

COMPLAINTS

The applicants criticise the Provincial Agrarian Senate; the way

it was set up, allegedly without public control, the way it is partly

composed of members who are not independent of the executive and the

way it conducts the proceedings. In this respect it is submitted that

they were refused the inspection of files relating to similar cases and

that their request to hear the mayor of Hörbranz was rejected. They

invoke Article 6 of the Convention.

Further they invoke Article 1 of Protocol No. 1. They submit

that Section 5 para. 1 of the Real Property Transaction Act/ excludes

any kind of consideration for the striking of a balance between the

demands of the general interest of the community and the interests of

the prospective buyer. They submit that they were born and brought up

on a farm and intended to use the farm in question for horse-breeding.

In these circumstances they consider that the denial of the necessary

approval imposed on them an excessive burden.

Finally they submit that the Real Property Transaction Act

discriminates against non-farmers.

THE LAW

1. The applicant has complained of the proceedings before the

Regional Agrarian Senate.

It is true that Article 6 (Art. 6) of the Convention secures to

everyone the right to a fair hearing before an impartial tribunal

established by law.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter...within

a period of six months from the date on which the final decision was

taken".

In the present case the first decision of the Constitutional

Court has to be considered as the final decision regarding the subject

of this particular complaint as the applicants alleged at the time a

violation of Article 6 (Art. 6) of the Convention while, with their

second constitutional complaint they invoked the right to peaceful

enjoyment of possessions.

The decision in question was given on 1 December 1986. It did

not however start the six months time-limit as the Constitutional Court

sent the case back to the Provincial Agrarian Senate for a new

decision. Had this institution then decided in the applicants' favour

they could no longer have been considered to be victims of the alleged

violations of Article 6 (Art. 6) of the Convention. Therefore the

decision of the Provincial Agrarian Senate, which rejected the

applicants' appeal a second time on 22 May 1987, has, in the particular

circumstances of the case, to be considered as the starting point for

the six months time-limit in respect of the applicants' complaints

under Article 6 (Art. 6) of the Convention which they did in fact not

pursue with their second constitutional appeal. It follows that the

six months time-limit was not respected because the application was

submitted to the Commission on 17 January 1989. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

the six months period.

This part of the application consequently has been introduced out

of time and must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

2. As regards the applicants' remaining complaints under Article 1

of Protocol No. 1 (P1-1) to the Convention, read in conjunction with

Article 14 (Art. 14) of the Convention the Commission considers that

the requirement of administrative consent to the acquisition of real

property as stipulated in the Real Property Transactions Act

constitutes a "control of the use of property" within the meaning of

the second paragraph of Article 1 of Protocol No. 1 (P1-1). It clearly

is "in accordance with the general interest" that the legislation aims

at preserving viable agricultural enterprises in the hands of the rural

population depending on agriculture for their livelihood. In view of

this legitimate aim it was also justified to refuse the applicants

permission to acquire the farm in question, having regard to the fact

that they intended to run it as hobby farmers and thus under conditions

not in conformity with legislative aims. The Commission concludes that

the restriction complained of was covered by the second paragraph of

Article 1 of Protocol No. 1 (P1-1).

Furthermore, there is no appearance of discrimination of the

applicants contrary to Article 14 (Art. 14) of the Convention as

regards the enjoyment of their property rights. It does not appear

from the file that the applicants were treated differently from other

persons merely on the grounds that they were business men. Members of

other professions, except farmers, would likewise have been refused

permission to acquire the farm under such conditions. The differential

treatment of farmers, however, is based on reasonable and objective

criteria and thus cannot be regarded as discriminatory (cf. No.

12337/86 Dec. 6.3.89, unpublished).

The applicants' above complaints are therefore 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) (J.A. FROWEIN)

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MEUSBURGER v. AUSTRIA

MEUSBURGER v. AUSTRIA

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