Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16318/90

by Reinhard Peter & Co. KG and

Franz Martin ZUMTOBEL

against Austria

The European Commission of Human Rights sitting in private

on 15 October 1991, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. J. RAYMOND, Deputy Secretary to the Commission,

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

1990 by Reinhard Peter & Co. KG and Franz Martin ZUMTOBEL against

Austria and registered on 19 March 1990 under file No. 16318/90;

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 of the case, as submitted by the applicants, may be

summarised as follows.

Particular circumstances of the case

The first applicant is a company of limited partnership

(Kommanditgesellschaft) under Austrian law. The second applicant, an

Austrian citizen residing at Dornbirn, is its manager.

On 14 August 1984 the Klagenfurt Local Council (Gemeinderat)

decided to grant a special designation for shopping areas to the

second applicant's land. However, this designation did not enter into

force as it was not approved by the Carinthian Provincial Government

(Landesregierung).

On 9 April 1986 the Mayor of Klagenfurt refused the second

applicant's request for a permit to build a supermarket

(Grossverbrauchermarkt). In his decision the Mayor stated in

particular that the building permit was requested for an area that was

not designated as an area for shopping centres (Fläche für

Einkaufszentren).

The second applicant appealed against the decision, claiming

that the decision was unlawful as its legal basis, the Community

Planning Act (Gemeindeplanungsgesetz), was unconstitutional.

On 1 September 1986 the first applicant informed the authority

that it had entered into the rights of the second applicant and that

it was now requesting the building permit.

On 28 November 1986 the Klagenfurt City Council (Stadtsenat)

dismissed the appeal on the ground that it was not competent to

consider if the Community Planning Act was unconstitutional.

On 15 May 1987 the Carinthian Provincial Government

(Landesregierung) dismissed the first applicant's further appeal on

the ground that the authorities had been bound by the law.

The first applicant lodged a complaint with the Constitutional

Court (Verfassungsgerichtshof). It submitted that the decision

violated its right of property and its rights under Articles 6 and 13

of the Convention to a decision by a tribunal and an effective remedy.

It further contended that paras. 4 and 5 of Section 5 of the Community

Planning Act were unconstitutional, as the provincial legislature was

not competent to enact it.

On 1 October 1988 the Constitutional Court dismissed the

complaint on the grounds that Article 6 of the Convention was not

applicable to the proceedings in question and that the provincial

legislature had been competent to enact Section 5 paras. 4 and 5 of

the Carinthian Community Planning Act.

The Constitutional Court found no other indication of a

violation of the first applicant's constitutional rights and referred

the case to the Administrative Court (Verwaltungsgerichtshof).

On 10 March 1989, in a supplement to its complaint, the first

applicant contended that the authority had not decided on the

amendment of the area zoning plan and that the area zoning plan was

unlawful. It furthermore alleged a violation of Articles 6 and 13 of

the Convention and of Article 1 of Protocol No. 1.

On 4 July 1989 the Administrative Court dismissed the

complaint. In the Court's opinion it was undisputed that the first

applicant's project was a shopping centre for which there was no

special designation as the decision of the Klagenfurt Local Council

had not been approved by the Provincial Government. Therefore the

refusal of the building permit for non-conformity with the area zoning

plan was lawful. The decision was served on the first applicant on

31 August 1989.

&SRelevant domestic law and practice&-

I. Building permits

According to Section 9 para. 1 of the Carinthian Building

Regulations (Bauordnung) a preliminary examination (Vorprüfung) of

the request for a a building permit has to take place.

Section 9 para. 2 states:

[Translation]

"In the preliminary examination the authority has to

establish whether:

a) ...

b) the area zoning plan,

...

preclude(s) the project."

Section 11 para. 1 states:

"If one of the reasons in Section 9 para. 2 precludes the

project, the authority has to refuse the request."

[German]

"[9] (2) Bei der Vorprüfung hat die Behörde festzustellen, ob

dem Vorhaben

a) ...

b) der Flächenwidmungsplan,

...

entgegenstehen.

[11] (1) Steht dem Vorhaben einer der Gründe des § 9

Abs. 2 entgegen, hat die Behörde den Antrag abzuweisen."

II. Land planning legislation

Land planning in Austria is divided into regional and local land

planning (überörtliche und örtliche Raumordnung). In the present case

land planning was governed by Carinthian law.

Section 2 para. 2 of the Carinthian Regional Planning Act

(Raumordnungsgesetz) lays down the aims of regional land planning.

The local land planning is carried out by the communities.

The latter issue area zoning plans (Flächenwidmungspläne) which have

to be approved by the Provincial Government.

Section 5 of the Community Planning Act provides for special

designation of land. Its paras. 4 and 5 read as follows:

[Translation]

"(4) Areas for shopping centres require special

designation.

(5) Shopping centres are sales rooms of retail and

wholesale trade, such as supermarkets, cash-and-carry

markets etc., in which goods of different categories of

articles including articles of everyday use, are offered and

in which the economically connected sales area exceeds

600 m²."

[German]

"(4) Flächen für Einkaufszentren müssen als Sonderwidmung

festgelegt werden.

(5) Einkaufszentren sind Verkaufslokale des Einzelhandels

und des Großhandels, wie Verbrauchermärkte, Abholgroßmärkte

u.ä., in denen Güter mehrerer Warengruppen einschließlich

von Waren des täglichen Bedarfes, angeboten werden und bei

denen die wirtschaftlich zusammenhängende Verkaufsfläche

600 m² übersteigt."

Proceedings for special designation of land are divided into

two parts. First the local council of a community decides on a

special designation. There is, however, no individual right that the

local council grant a special designation to a particular plot of

land.

The decision of the local council must then be approved by the

supervisory authority, the Provincial Government of Carinthia. The

individual land owner, having no right to have the local council's

decision approved, is not a party to the proceedings.

Area zoning plans are Ordinances (Verordnungen). These

ordinances can be challenged before the Constitutional Court

(Verfassungsgerichtshof) for unlawfulness according to Article 139 of

the Austrian Federal Constitution. Area zoning plans which have not

been approved cannot be challenged as they did not enter into force.

It is also impossible to complain about the fact that the Provincial

Government has not approved a particular area zoning plan.

III. The jurisdiction of the Constitutional Court

The Austrian Constitutional Court pronounced itself on the

applicability and scope of Article 6 para. 1 of the Convention to

building proceedings originating from Austrian administrative

authorities in its decision of 14 October 1987 (B 267/86, VfSlg

11500/1987). It held that the refusal of a building permit was not a

decision on a "civil right". The Court stated the following:

[Translation]

"The refusal of a building permit is rather an interference

by the State in the public interest - it is indeed the very

archetype of such an interference -, and the upholding of

public interests including the necessary balancing of public

and private interests is the essential function of

administration. The fact that the subject of the

interference is generally property and hence a private

property right, does not change its public law character."

[German]

"Vielmehr ist die Versagung einer Baubewilligung ein

hoheitlicher Eingriff im öffentlichen Interesse - ja

geradezu der Prototyp eines solchen Eingriffs -, und die

Wahrnehmung der öffentlichen Interessen einschließlich der

nötigen Abwägung gegenüber privaten Interessen die

wesentliche Aufgabe der Verwaltung. Daß der Gegenstand des

Eingriffs regelmäßig das Eigentum und damit ein privates

Vermögensrecht ist, ändert an seinem öffentlich-rechtlichen

Charakter nichts."

The Court distinguished between decisions concerning the core

of civil law (i.e. disputes among private persons) and decisions on

disputes which only concern civil rights in their effects (namely the

relationship between the private person and the public). In order to

avoid a complete change of the Austrian State structure, the Court

considered that the requirements of a tribunal within the meaning of

Article 6 para. 1 of the Convention should depend on whether the

dispute concerned the one or the other category. With regard to

decisions concerning civil rights only in their effects the Court

found that it sufficed under Article 6 para. 1 if a tribunal exercised

a mere subsequent control of the decision. The Court continued:

[Translation]

"Such a subsequent control would in any event suffice if,

regardless of its nature as a merely subsequent control

which does not provide for the reopening of proceedings, the

court effectively (and not merely theoretically and in the

abstract) has the possibility to convince itself of the

correctness of the solution in regard to the facts and

the law applied and its judgment on the matter is capable of

being enforced. Such a control falls to the Austrian

Administrative Court in the light of an understanding of the

Administrative Court Act which is oriented towards the

Constitution."

[German]

"Eine solche nachprüfende Kontrolle müsste jedenfalls dann

genügen, wenn sie ungeachtet ihres bloss nachprüfenden,

nicht auf einer Neudurchführung des Verfahrens beruhenden

Charakters dem Gericht - nicht bloss theoretisch und

abstrakt, sondern im Ergebnis auch wirksam - Gelegenheit

gibt, sich von der Richtigkeit der Lösung sowohl der Tat -

wie der Rechtsfrage zu überzeugen und sein Urteil über die

Sache auch durchzusetzen, wie dies bei einem an der

Verfassung orientierten Verständnis des

Verwaltungsgerichtshofgesetzes dem österreichischen VwGH

aufgetragen ist."

IV. Proceedings before the Administrative Court

According to Article 130 para. 1 of the Federal Constitution

the Administrative Court reviews allegations of unlawfulness of an

administrative decision. Article 130 para. 2 excludes the review of

the exercise of discretionary powers within the scope of the law. The

Administrative Court is also competent to deal with complaints that

the administrative authority has violated its duty to take a decision

(Article 132).

Section 41 of the Administrative Court Act provides, insofar

as relevant:

[Translation]

"(1) Insofar as the Administrative Court does not find

unlawfulness on account of a lack of jurisdiction of the

authority against which the appeal is directed or on account

of a violation of procedural provisions (Section 42 para. 2

[2] and [3]) ..., the Court must examine the contested

decision on the basis of the facts as accepted by the

authority against which the appeal is directed within the

framework of the alleged complaint ... If it is of the

opinion that reasons would be relevant for the decision on

the unlawfulness of the contested decision ... which were

so far not known to a party, it must hear the parties

thereupon and, if necessary, adjourn the proceedings.

(2) In the cases of Article 132 of the Federal Constitution

the Court must determine the facts, taking into account

Section 36 para. 9."

[German]

"(1) Der Verwaltungsgerichtshof hat, soweit er nicht

Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde

oder wegen Verletzung von Verfahrensvorschriften gegeben

findet (§ 42 Abs. 2 Z 2 und 3) ... den angefochtenen

Bescheid auf Grund des von der belangten Behörde

angenommenen Sachverhaltes im Rahmen der geltend gemachten

Beschwerdepunkte ... zu überprüfen. Ist er der Ansicht,

dass für die Entscheidung über die Rechtswidrigkeit des

Bescheides in einem der Beschwerdepunkte ... Gründe

massgebend sein könnten, die einer Partei bisher nicht

bekanntgegeben wurden, so hat er die Parteien darüber zu

hören und wenn nötig, eine Vertagung zu verfügen.

(2) In den Fällen des Art. 132 B-VG hat der

Gerichtshof den Sachverhalt unter Bedachtnahme auf § 36 Abs.

9 festzustellen."

As regards the decisions of the Administrative Court, Section

42 para. 2 of the Administrative Court Act provides, insofar

as relevant:

[Translation]

"(2) The contested decision must be quashed

1. on account of the unlawfulness of its content,

2. on account of unlawfulness due to the lack of

jurisdiction of the authority against which the

appeal is directed,

3. on account of unlawfulness due to a violation of

procedural provisions because

a) the authority against which the appeal is

directed has determined the facts on an

important point contrary to the

case-file, or

b) the facts need to be supplemented on an

important point, or

c) procedural provisions have been disregarded

which, if taken into consideration by the

authority against which the appeal is

directed, would have led to a different

decision of the authority."

[German]

"(2) Der angefochtene Bescheid ist aufzuheben

1. wegen Rechtswidrigkeit seines Inhaltes,

2. wegen Rechtswidrigkeit infolge Unzuständigkeit

der belangten Behörde,

3. wegen Rechtswidrigkeit infolge Verletzung von

Verfahrensvorschriften, und zwar weil

a) der Sachverhalt von der belangten Behörde

in einem wesentlichen Punkt aktenwidrig

angenommen wurde oder

b) der Sachverhalt in einem wesentlichen

Punkt einer Ergänzung bedarf oder

c) Verfahrensvorschriften ausser acht gelassen

wurden, bei deren Einhaltung die belangte

Behörde zu einem anderen Bescheid hätte

kommen können."

The proceedings before the Administrative Court consist of an

exchange of written observations between the parties (Section

36) and an oral hearing of their legal arguments (Sections 39 and

40). The parties have a right to request a hearing (Section 39,

para. 1 [1]).

The decision of the Administrative Court is either to dismiss

the complaint or to quash the decision complained of (Section 42 para.

1). If the complaint is allowed the authorities are obliged to

establish immediately with the legal means available to them the legal

situation which corresponds to the view of the Administrative Court

in the particular case (Section 63).

COMPLAINTS

The applicants complain under Article 6 para. 1 of the

Convention that in the building proceedings they did not benefit from

a procedure in conformity with this provision before an independent

and impartial tribunal having full jurisdiction on questions of law

and fact. In particular they complain about the fact that no tribunal

decided on the designation of their land.

With reference to Article 1 of Protocol No. 1 to the

Convention the applicants complain that Section 5 of the Carinthian

Community Planning Act constituted an unjustified restriction of the

use of property.

THE LAW

1. The applicants complain that in the proceedings in which they

were involved they did not have access to an independent and impartial

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

provision states, insofar as it is relevant:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. ..."

a) The applicants complain in particular that they did not have

access to an independent and impartial tribunal in the designation

proceedings.

The applicants submit that the proceedings at issue concerned

their right to build a shopping centre and subsequently their right to

practise gainful activities in the shopping centre. In their view

their civil rights have been determined in the building proceedings.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention applies only to disputes over "rights and obligations"

which can be said, at least on arguable grounds, to be recognised

under domestic law. Article 6 (Art. 6) does not in itself guarantee any

particular content for "rights and obligations" in the substantive law

of the Contracting States (cf. Eur. Court H.R., Lithgow and others

judgment of 8 July 1986, Series A No. 102, p. 70, para. 192).

The Commission further recalls that the Court found that

there was a dispute over a "right" if an unlawful prolongation of the

building prohibition by an area plan is alleged (Eur. Court H.R.,

Allan Jacobsson judgment of 25 October 1989, Series A No. 163, pp. 19 -

20, para. 67 et seq.), if an unlawful amendment of a building plan is

alleged (Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990,

Series A No. 180, p. 12 et seq., para. 30 et seq.), or if the

applicant claims a right to an exemption from the building plan (Eur.

Court H.R., Skärby judgment of 28 June 1990, Series A No. 180, p. 36 et

seq., para. 27 et seq.). The Commission recalls that these judgments

dealt with building proceedings in which the applicants could claim an

individual right which was affected by a building or area plan.

The Commission notes that in the present case the applicants

do not have an individual right to the designation and its approval by

the Provincial Government. According to Austrian law the approval of

an area zoning plan forms part of the supervisory activity of the

Provincial Government.

The Commission therefore concludes that the question whether a

development programme should have been issued did not involve a

"determination of (the applicants') civil rights and obligations"

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

It follows that, insofar as the applicants complain that in

the proceedings concerning the issue of a development programme they

did not have access to an independent and impartial tribunal, the

application is incompatible ratione materiae with the Convention

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

b) The applicants also direct their complaints under Article 6

para. 1 (Art. 6-1) of the Convention against the proceedings concerning the

building permit.

The Commission does not find it necessary to decide whether

there was a serious dispute over a right within the meaning of Article

6 (Art. 6) of the Convention. It notes that the applicants applied for a

permit to build on their land and that the applicants had a right in

general to build on their land according to the regional legislation.

Assuming that the applicants could claim a "right" to build on

their land, this "right" would be of a "civil" nature for the purposes

of Article 6 para. 1 (Art. 6-1) (see e.g. the above-mentioned Allan

Jacobsson judgment, p. 20, para. 73).

The Commission therefore accepts that Article 6 para. 1

(Art. 6-1) of the Convention is applicable to the building proceedings

at issue.

With regard to the proceedings concerning the building permit

the applicants complain under Article 6 para. 1 (Art. 6-1) that they

did not have access to an independent and impartial tribunal.

The Commission considers that the proceedings before the

Mayor, the City Council and the Provincial Government do not satisfy

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

However, these requirements would be satisfied if subsequently the

applicants' civil rights had been determined by a tribunal within the

meaning of Article 6 para. 1 (Art. 6-1). Such a determination would

require that the court could undertake a comprehensive examination of

all relevant questions of law and fact (see Ettl and others v.

Austria, Comm. Report 3.7.1985, para. 78 with further references).

In the present case the Commission need not examine in the

abstract whether the Administrative Court meets the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes in

particular that in the proceedings before the Administrative Court the

establishment and the assessment of the facts were not in dispute

between the parties. Rather the only question raised by the first

applicant within the jurisdiction of the Administrative Court was

whether or not the request for building a shopping centre complied

with the requirements of the area zoning plan. This was, however,

solely a question of the application of the law. It is not contested

by the applicants that the Administrative Court was competent to

undertake this examination.

As a result, the Commission considers that the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention have been complied

with. 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 applicants also allege a violation of Article 1 of

Protocol No. 1 (P1-1) in that Section 5 of the Carinthian Community Planning

Act constituted an unjustified restriction of their use of property.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one shall be

deprived of his possessions except in the public interest

and subject to the conditions provided for by law and by the

general principles of international law.

The preceding provisions shall not, however, in any

way impair the right of a State to enforce such laws as it

deems necessary to control the use of property in accordance

with the general interest or to secure the payment of taxes

or other contributions or penalties."

In fact, Section 5 of the above-mentioned law made the right

to build a shopping centre on a particular plot of land subject to a

special designation which had to be approved by the Provincial

Government.

The Commission considers, assuming that this restriction was

an interference with the applicants' right to peaceful enjoyment of

their possessions, that it was justified under the second paragraph

of Article 1 of Protocol No. 1 (P1-1) (see, mutatis mutandis, the

above-mentioned Allan Jacobsson judgment, p. 16, para. 54).

The Commission notes that the restriction was lawful.

Moreover, the purpose of the provisions - to facilitate land planning

- is in accordance with the general interest as envisaged in Article 1

para. 2 of Protocol No. 1 (P1-1-2).

As to the proportionality the Commission finds that it cannot

be considered disproportionate to the requirements of the legitimate

aim of land planning if the Provincial Government is given competence

to decide if there should be a shopping centre in a particular

community.

As a result this part of the application is also 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.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J.A. FROWEIN)

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REINHARD PETER & CO. KG AND ZUMTOBEL v. AUSTRIA

REINHARD PETER & CO. KG AND ZUMTOBEL v. AUSTRIA

LEXI