Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18702/91

by "Familia" F.M. ZUMTOBEL Gesellschaft mbH & Co.

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 13 August 1991

by "Familia" F.M. ZUMTOBEL Gesellschaft mbH & Co. and Franz Martin

ZUMTOBEL against Austria and registered on 21 August 1991 under file

No. 18702/91;

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 commercial enterprise under Austrian

law. The second applicant, an Austrian citizen residing at Dornbirn,

is the manager of the first applicant.

On 20 December 1984 the Mayor of Wörgl granted the first

applicant a permit to build a supermarket, to be divided into two

separated shops. However, the two shopping areas were joined into one

big shop during the construction of the building.

I.

On 12 August 1986 the Mayor of Wörgl dismissed the belated

request for a building permit for the changed project. The Mayor found

in particular that the building now was a shopping centre and that the

building permit was requested for an area that was not designated as

a special area for shopping centres (Sonderfläche für Einkaufszentren).

The first applicant appealed against the decision, claiming

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

Planning Act, was unconstitutional.

On 2 December 1986 the Wörgl Town Council (Stadtrat) dismissed

the appeal on the ground that the authority in question had been bound

by the law in force at the time of the decision.

On 27 January 1987 the Tyrolean Provincial Government

(Landesregierung) dismissed a further appeal as the project was

contrary to the area zoning plan.

The first applicant lodged a complaint with the Constitutional

Court (Verfassungsgerichtshof). It submitted that the decision

violated its right of property and that its legal basis (Section 16b

of the Tyrolean Regional Planning Act) was inter alia contrary to the

distribution of legislative powers (Articles 10 - 15 of the Federal

Constitution). The second applicant further contended that the

decision contradicted Article 6 of the Convention, the principle of

equality and the independence of local authorities (Gemeindeautonomie).

On 14 March 1988 the Constitutional Court refused to deal with

the complaint for lack of prospect to succeed and referred the case to

the Administrative Court (Verwaltungsgerichtshof).

On 13 December 1990 the Administrative Court dismissed the

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

that a shopping centre had in fact been constructed, for which there

was no special designation. Therefore the authorities had to refuse

the building request as it was contrary to the area zoning plan. This

decision was served on the first applicant on 18 February 1991.

II.

On 15 June 1986 the Mayor of Wörgl refused the permit to use

the shopping centre (Benützungsbewilligung), on the ground that the

building was not in accordance with the building permit and the

Tyrolean Land Planning Act.

The first applicant appealed against this decision, claiming

that the decision was unlawful as the provisions of the Tyrolean

Regional Planing Act referred to in the decision were unconstitutional.

On 24 September 1986 the Wörgl Town Council dismissed the

appeal on the grounds that the construction of a shopping centre was

contrary to the area zoning plan and that the authorities were bound

by the laws.

On 5 November 1986 the Provincial Government quashed the

decision as the building permit proceedings were still pending and

referred the case back to the Town Council which, on 3 December 1986,

referred the case to the Mayor.

On 19 January 1987 the Mayor again refused the permit to use

the shopping centre on the same grounds as in his first decision.

On 13 April 1987 and on 22 July 1987 the first applicant's

appeals were dismissed by the Wörgl Town Council and the Tyrolean

Provincial Government, respectively.

On 14 March 1988 the Constitutional Court refused to deal with

the first applicant's further complaint for lack of prospect to succeed

and referred the case to the Administrative Court.

On 18 August 1988 in a supplement to its complaint to the

Administrative Court, the first applicant submitted that a use permit

could have been granted even in the absence of a building permit.

On 13 December 1988 the Administrative Court dismissed the

complaint finding that a new building permit was necessary before a use

permit could be granted for the same reasons as those given in its

decision concerning the building permit of the same day (see above I).

This decision was also served on the first applicant on 18 February

1991. III.

On 29 April 1987 the Mayor of Wörgl ordered the first applicant

to pull down its shopping centre by 31 December 1987 as the building

permit had been finally refused.

On 9 September 1987 the Wörgl Town Council dismissed the first

applicant's appeal as there was no building permit for the supermarket.

On 21 June 1988 the Tyrolean Provincial Government dismissed

a further appeal on the ground that the first applicant had built a

shopping centre for which it did not have a building permit.

On 28 November 1988 the Constitutional Court refused to deal

with the first applicant's complaint against the Provincial

Government's decision and referred the case to the Administrative

Court.

On 6 December 1990 the Administrative Court dismissed the

complaint on the ground that the shopping centre was a building for

which the building permit had been refused. Therefore, the order to

pull the building down was lawful. This decision was served on the

first applicant on 18 February 1991.

Relevant domestic law and practice

I. Building legislation

According to Section 31 of the Tyrolean Building Regulations

(Bauordnung) in the former version the authority has to decide on a

building request by a written decision. Paragraph 3 of Section 31

states:

[Translation]

"A building request is to be refused without an oral hearing, if

already the request or the documents reveal that the project is

contrary to the area zoning plan, the building development plan

or to local building provisions (Section 20 of the Tyrolean

Regional Planning Act) or if a building prohibition under Section

29 of the Tyrolean Regional Planning Act precludes the project."

[German]

"Ein Bauansuchen ist ohne Durchführung einer mündlichen

Verhandlung abzuweisen, wenn sich bereits aus dem Ansuchen bzw.

den Unterlagen ergibt, daß das Bauvorhaben dem

Flächenwidmungsplan, dem Bebauungsplan oder örtlichen

Bauvorschriften (§ 20 des Tiroler Raumordnungsgesetzes)

widerspricht oder wenn dem Bauvorhaben eine Bausperre nach § 29

des Tiroler Raumordnungsgesetzes entgegensteht."

According to Section 43 para. 1 of the Building Regulations the

applicant for a building permit has to give notice of the completion of

a building subject to a permit. At the same time he has to request a

permit to use the building (Benützungsbewilligung).

Para. 2 of Section 43, as far as relevant, states:

[Translation]

" ... If the realisation of a project deviates from the building

permit and if this change constitutes a modification of the

project for which no building permit would be necessary in the

case of existing buildings the modification may be approved and

the permit to use be granted. In all other cases of a deviation

from the building permit the applicant has to request a further

building permit for the modification of the project. ... If the

building permit is refused, the permit to use has to be refused.

... If the permit to use is refused, the authority has to proceed

according to Section 44 para. 3."

[German]

" ... Weicht die Ausführung des Bauvorhabens von der

Baubewilligung ab und stellt diese Abweichung eine Änderung des

Bauvorhabens dar, zu deren Vornahme bei bestehenden baulichen

Anlagen keine Baubewilligung erforderlich wäre, so kann diese

Änderung genehmigt und die Benützungsbewilligung erteilt werden.

In allen anderen Fällen einer Abweichung von der Baubewilligung

hat der Bauwerber nachträglich um die Erteilung der

Baubewilligung für die Änderung des Bauvorhabens anzusuchen. ...

Wird die Benützungsbewilligung versagt, so hat die Behörde nach

§ 44 Abs. 3 vorzugehen."

Section 44 para. 3 of the Building Regulations, as far as

relevant, reads as follows:

[Translation]

"The authority has to order the demolition of a building within

a reasonable time,

a) if there is no permit for the building, although it would be

required, and if the owner has not requested a further building

permit within a month after the warning of a demolition order had

been served or if the permit to use the building has been

refused."

[German]

"Die Behörde hat den Abbruch einer baulichen Anlage innerhalb

einer angemessenen Frist anzuordnen,

a) wenn für die bauliche Anlage eine Bewilligung nicht besteht,

obwohl sie bewilligungspflichtig wäre, und der Eigentümer nicht

innerhalb eines Monats ab der Zustellung der Androhung des

Abbruchauftrages nachträglich um die Erteilung der Baubewilligung

angesucht hat oder wenn für diese bauliche Anlage die

Baubewilligung versagt worden ist."

II. Land planning legislation

Land planning in Austria is divided into regional and local land

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

the building permit at issue was governed by Tyrolean law.

In order to achieve the goals of the regional land planning laid

down in Section 1 of the Tyrolean Regional Planning Act the Provincial

Government (Landesregierung) has to issue development programmes

(Entwicklungsprogramme) (Section 4).

The local land planning is carried out by the communities which

issue area zoning plans (Flächenwidmungspläne) that designate the land

as building land (Bauland), undeveloped land (Freiland) or main traffic

areas (Hauptverkehrsflächen).

Even if a plot of land is designated as building land certain

buildings may only be built there if there is express provision in a

development programme. Section 16b of the Regional Planning Act

provides for "special areas for shopping centres" (Sonderflächen für

Einkaufszentren). This provision, as far as relevant, reads as follows:

"(1) Shopping centres within the meaning of this Act are

buildings with sale-rooms of a total effective area of more than

400 m², in communities with more than 10,000 inhabitants

according to the last census of a total effective area of more

than 800 m², in which especially articles of everyday use, at any

rate food, are offered. ...

(2) The building permit for the construction of a shopping centre

may only be granted if this building will be erected on land

which is designated as a special area for shopping centres and

if the total effective sale-room area planned in this building

does not exceed the maximum prescribed by the area zoning plan.

...

(3) Special areas for shopping centres may only be designated in

a building area and only in so far as a development programme

provides that a use of land corresponding to this designation is

admissible in a particular community. ..."

[German]

"(1) Im Sinne dieses Gesetzes sind Einkaufszentren Gebäude mit

Verkaufsräumen von insgesamt mehr als 400 m² Nutzfläche, in

Gemeinden, die nach dem Ergebnis der jeweils letzten Volkszählung

mehr als 10.000 Einwohner haben, von insgesamt mehr als 800 m²

Nutzfläche, in denen insbesondere auch Waren des täglichen

Bedarfes, jedenfalls Lebensmittel, angeboten werden. ...

(2) Die Baubewilligung für die Errichtung eines Einkaufszentrums

darf nur erteilt werden, wenn dieses Gebäude auf einer

Grundfläche, die als Sonderfläche für Einkaufszentren gewidmet

ist, errichtet wird und die Nutzfläche der in diesem Gebäude

vorgesehenen Verkaufsräume insgesamt das im Flächenwidmungsplan

festgesetzte Höchstausmaß nicht übersteigt. ...

(3) Sonderflächen für Einkaufszentren dürfen nur im Bauland und

nur insoweit gewidmet werden, als in einem Entwicklungsprogramm

bestimmt ist, daß eine dieser Widmung entsprechende Verwendung

von Grundflächen in der betreffenden Gemeinde zulässig ist. ..."

Both the development programme and the area zoning plan are

Ordinances (Verordnungen). These ordinances can be challenged before

the Constitutional Court (Verfassungsgerichtshof) for unlawfulness

according to Article 139 of the Austrian Federal Constitution. In

general, however, one cannot complain about the fact that an authority

has not issued an ordinance.

In the present case the Provincial Government did not issue a

development programme for the community in question. The owners of

affected land are neither parties in the planning proceedings nor can

they request an exemption from the designation provided for in the

plans.

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

issued a development programme for the community in which the

applicants' land is situated.

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

the applicants complain that Section 16b of the Tyrolean Regional

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 which would have issued

a development programme.

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 enforce the adoption of a development

programme by the Provincial Government which allowed the designation of

land as a "special area for shopping centres" in a particular community.

According to Austrian law the adoption of a development programme only

concerns the competence of that community to designate land for

particular purposes.

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 use permit and the demolition order.

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, applied for a permit to use the

building and finally were ordered to demolish their building and that

the applicants had a right in general to build on their land.

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

their land and to use their building, 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 Town 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, and there was no need therefore for a judicial

determination thereof. In particular it was not in dispute that the

effected construction deviated from the building permit. Rather the

decisive and disputed 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 16b of the Tyrolean Regional 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 16b of the above-mentioned law made the

designation of a land as an area for shopping centres subject to the

issue of a development programme.

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

in which community there should be a shopping centre.

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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"FAMILIA" F.M. ZUMTOBEL GESELLSCHAFT MBH & CO. AND FRANZ MARTIN ZUMTOBEL v. AUSTRIA

"FAMILIA" F.M. ZUMTOBEL GESELLSCHAFT MBH & CO. AND FRANZ MARTIN ZUMTOBEL v. AUSTRIA

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