Search
document

Document text Analytics

M. v. AUSTRIA

Doc ref: 19924/92 • ECHR ID: 001-1374

Document date: September 2, 1992

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

M. v. AUSTRIA

Doc ref: 19924/92 • ECHR ID: 001-1374

Document date: September 2, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 19924/92

by F.M.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1992, the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, 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 7 January 1992 by

F.M. against Austria and registered on 30 April 1992 under file No.

19924/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

19934/92 - 2 -

THE FACTS

The applicant is an Austrian citizen born in 1938 and living in

Pöndorf. He is represented by Mr. J. Hofer, a lawyer practising in

Wels.

It follows from the applicant's statements and the documents

submitted that on 12 June 1991 the applicant was convicted by the

District Court (Bezirksgericht) in Wels of a violation of Section 63

(2) No. 1 of the Austrian Food Act (Lebensmittelsgesetz) in that as a

butcher he offered sausages for sale to the public deliberately

indicating an excessive preservation period.

The applicant was sentenced and was imposed a fine of 40 day

rates amounting to 400 AS each. The execution of 20 day rates was

suspended on probation for a period of 3 years.

According to the findings of the District Court a control was

carried out in one of the applicant's retail shops on 23 August 1990

and two packages of sausages in a plastic bag were seized which

contained the packing date 16 August 1990 and a preservation date of

26 August 1990. An examination of the contents showed that the

sausages were no longer edible.

In the court's opinion the applicant had knowingly indicated a

wrong preservation date of 10 days while the maximum preservation

period was 8 days. This was known to the applicant who had already on

two previous occasions been fined for similar offences committed

unintentionally.

The court stated that the wrong declaration violated Section 1

lit. f of the Food Act which provided for the indication of a period

of preservation in connection with the sale of certain food. According

to Section 63 (2) No. 1 of the Food Act a wrong indication is

punishable only if it runs counter to the indications in the Austrian

Food Regulations (Lebensmittelbuch). While no indications were

contained in the chapter "Meat and Meat Products", chapter A 3

containing the General Principles of Appreciation, Third Edition,

stated in para. 40 that the obligatory description of food was wrong

if it contained any wrong indication on circumstances which the

consumer considered to be of importance. The period of preservation

of food was an important factor for the consumer. Guidelines as to

periods of preservation were to be found in a decree of the Federal

Minister for Health and Environmental Protection dated 10 July 1981.

Finally the court observed that the applicant knew that the

preservation period indicated by him was too long.

The applicant's appeal was rejected by the Regional Court

(Kreisgericht) in Wels on 4 September 1991.

Insofar as the applicant had complained that Section 63 (2) No. 1

of the Food Act did not relate to the general part of the Austrian food

regulations and therefore not to Chapter A 3, para. 40, the appellate

court pointed out that the applicability of the chapter in question had

already been confirmed by the Supreme Court (Oberster Gerichtshof) in

a decision of 19 February 1987.

In addition the appellate court referred to Chapter B 14

subchapter D, para. 5 lit. h of the Food Regulations according to which

meat and meat products are wrongly characterized if, inter alia,

indications as to quality (Beschaffenheit) are not met by the food.

The indication on the period of preservation was, in the opinion of the

court, related to the consumer's quality expectations and consequently

the guideline in question had been violated.

- 3 - 19924/92

In addition the appellate court referred to subchapter D para.

1 of Chapter B 14 according to which the general chapters applied

mutatis mutandis.

The appellate court concluded that the applicant's appeal was

unfounded.

COMPLAINTS

The applicant maintains that the food regulations do not contain

concrete provisions as to the period of preservation for the kind of

sausages seized in his retail shop. He therefore considers that his

conviction violates Article 7 of the Convention.

THE LAW

The applicant invokes a violation of Article 7 (Art. 7) of the

Convention which provides that "no one shall be held guilty of any

criminal offence on account of any act or omission which did not

constitute a criminal offence under national law . . . at the time when

it was committed".

It follows however from the decisions submitted that the

applicant's conviction was based on Section 63 of the Austrian Food Act

in connection with provisions in the Austrian Food Regulations.

The Commission notes that according to the findings of the

Regional Court of Wels it had already been made clear in a decision of

the Austrian Supreme Court of 19 February 1987 that the regulations and

guidelines relied on by the Austrian courts in the applicant's case

were applicable in matters of the kind in question. In addition the

Commission notes that the applicant had been convicted for

unintentional violations of these provisions on two previous occasions.

Finally the Commission notes that according to the findings of

the Regional Court it also followed from other provisions in the Food

Regulations that under applicable Austrian law the vendor of food had

to make correct indications as to the period during which the food

remained edible.

The Commission cannot find that the Austrian courts'

interpretation of the Austrian law was in any way arbitrary and

unexpected.

It follows that there is no appearance of a violation of Article

7 (Art. 7) of the Convention and the application consequently has to

be rejected as being 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. de SALVIA) (J.A. FROWEIN)

LEXI

Lexploria AI Legal Assistant