Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13385/87

by Erhard and Martha PÖSCHL

against Austria

The European Commission of Human Rights sitting in private

on 14 December 1989, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H. C. KRÜGER, 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 7 October 1987

by Erhard and Martha Pöschl against Austria and registered on

13 November 1987 under file No. 13385/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, a married couple, are Austrian citizens born

in 1933 and 1935 respectively who reside in Klagenfurt. They are

represented by Rechtsanwalt Dr. Heinz Walther of Klagenfurt.

The applicants complain that under new legal regulations they

are required to pay interest for a credit which was originally granted

without an obligation to pay interest.

The credit in question, of more than 15 million AS, had

originally been granted in 1963 to the applicants' legal predecessor

by the Public Fund for Reconstruction of Dwelling Houses (Wohnhaus-

wiederaufbaufonds). The Fund was established by legislation of 1948

(Wohnhauswiederaufbaugesetz, BGBl. No. 130) and reorganised in 1974

(Stadterneuerungsgesetz, BGBl. No. 287).

By an Act of 1984 (Wohnhaussanierungsgesetz, BGBl. No. 438)

Section 33 of the 1974 Act was amended to the effect that the Federal

Minister competent to administer the Fund could by Decree (Verordnung)

prescribe the levying of interest up to 6% for outstanding credits.

The Minister made use of this authorisation and issued a Decree

(Stadterneuerungs-Verordnung BGBl. No. 528/1984) which provided in

Section 2 that as from 1 January 1986 the interest should be 1% per

semester for the first two repayments and 1,5% per semester

thereafter.

In norm control proceedings instituted in connection with a

case in which the applicants were not involved, the Constitutional

Court (Verfassungsgerichtshof) found the 1984 legislation (Section 33

of the 1974 Act as amended in 1984 and Section 2 of the Decree)

unconstitutional on the ground that there was no sufficient legal

determination of the Minister's discretion ("formalgesetzliche

Delegation"). The relevant decisions of the Constitutional Court

(G 86/86 of 3 October 1986 and V 41/85 of 9 October 1986) fixed 30

September 1987 as the time limit within which new legislation should be

enacted.

A new law (Rückzahlungsbegünstigungs- und Wohnrechtsände-

rungsgesetz) was enacted on 3 July 1987 (BGBl. No. 340). It

contained regulations similar to those of the 1984 Decree which were

accorded constitutional rank (Verfassungsbestimmung) thus making them

unassailable before the Constitutional Court.

Before the entry into force of this new law the 1984

legislation, although found to be unconstitutional, continued to apply

to all cases except the one which had led to the Constitutional

Court's above decisions (cf. Article 140 paras. 5 and 7 of the Federal

Constitution). The applicants therefore were required to pay interest

as prescribed in the 1984 Decree, which they did under protest,

reserving their rights in view of the present Convention proceedings.

Because of the constitutional situation, no new norm control

proceedings could be instituted before the Constitutional Court either

by a civil court seized with the applicants' case or by the applicants

themselves. In the latter respect the applicants refer to a

Constitutional Court decision (G 230/85, V 59/85 of 3 March 1986)

which declared an individual norm control application inadmissible.

They were thus prevented from raising even constitutional issues other

than those considered by the Constitutional Court in its above

decisions, including issues under the Convention.

The applicants finally state that they did not make use of

the privileged conditions for the repayment of the credit under an Act

of 1971 (Rückzahlungsbegünstigungsgesetz BGBl. No. 336) because they

trusted that the credit conditions could not be changed.

COMPLAINTS

The applicants consider that their right to a credit without

an obligation to pay interest was a "civil right" within the meaning of

Article 6 para. 1 of the Convention. They complain of a violation of

this provision, read in conjunction with Article 13 of the Convention,

because they did not have any judicial or other effective remedy to

challenge the unilateral change of the credit conditions brought about

by the ministerial Decree of 1984.

The applicants further allege a violation of Article 1 of

Protocol No. 1 to the Convention, claiming that the legal imposition

of an obligation to pay interest amounted to an interference with

their right to the peaceful enjoyment of their possessions.

The applicants also allege that they have been discriminated

against in the enjoyment of their property rights, contrary to the

requirements of Article 14 of the Convention, in that the obligation

to pay interest affected various groups of persons differently,

without any reasonable justification, depending on the date when the

credit had been granted and how much had been repaid: in particular

the applicants were treated differently from those persons who had

profited from privileged conditions of repayment under the 1971 Act

and who, to this extent, were exonerated from the obligation to pay

interest.

As regards compliance with the six months time-limit, the

applicants finally submit that the situation complained of has become

final only on the date of the adoption of the 1987 Act.

THE LAW

1. The applicants complain of a violation of Article 6 para. 1

(Art. 6-1) of the Convention because they did not have a judicial

remedy to challenge the modification of the credit conditions which in

their view affected their "civil rights" within the meaning of this

provision.

The Commission notes, however, that the credit in question was

granted to the applicants by a public fund established under legislation

enacted to promote the reconstruction of dwelling houses in the public

interest. Both the original particularly favourable credit conditions

and their subsequent amendment by the introduction of an obligation to

pay interest were not the result of contractual negotiations between

the parties concerned, but of the legislation itself which in this way

regulated the use of public funds for subsidising reconstruction work.

In these circumstances the Commission does not consider it as decisive

that at least for certain purposes Austrian law assimilates the legal

relationship between the parties concerned to a contract of civil

law. In the Commission's opinion the modification of the credit

conditions by an act of legislation did not "determine" the

applicants' "civil rights" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. Even assuming that the applicants'

"civil rights" were affected, Article 6 para. 1 (Art. 6-1) of the

Convention in any event does not include a right to have legislation

reviewed by a court.

The applicants' complaint under this provision must

accordingly be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention as being incompatible with the provisions of the

Convention, ratione materiae.

2. The applicants complain that the imposition of an obligation

to pay interest for the credit granted to them amounted to an

interference with their right to the peaceful enjoyment of their

possessions under Article 1 of Protocol No. 1 (P1-1) to the Convention.

However, the Commission considers that the right to a credit

of the kind in question cannot as such be regarded as a "property

right" within the meaning of this provision. Nevertheless, as its

use is tied to certain real property and represents an important

economic value, it is possible that modifications of the credit

conditions may affect property rights. In the Commission's view such

modifications must be considered under the second paragraph of

Article 1 (Art. 1-2) which recognises the right of the State "to

enforce such laws as it deems necessary to control the use of

property in the general interest".

Insofar as the applicants complain that the legislation

applied had been found to be unconstitutional, it must be observed

that in the Austrian legal system the said unconstitutionality did

not make the temporary further application of this legislation

unlawful. The measure complained of must therefore be regarded as

"lawful" for the purposes of the Convention. The Commission further

considers that the introduction of an obligation to pay interest also

pursued a legitimate aim of general interest, as it was subsequently

confirmed by constitutional legislation, and that it was not

disproportionate.

The applicants' above complaint must therefore be rejected as

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

(Art. 27-2) of the Convention.

3. The applicants complain of discrimination contrary to Article 14

of the Convention, read in conjunction with Article 1 of Protocol No. 1.

(Art. 14+P1-1) However, the Commission finds no indication that by the

general introduction of an obligation to pay interest on all

outstanding credits any arbitrary distinctions or distinctions based

on criteria of personal status incompatible with Article 14 (Art. 14) of the

Convention were made. This complaint, too, must therefore be rejected

as being manifestly ill-founded.

4. The applicants finally complain under Article 13 (Art. 13) of the

Convention that they had no effective domestic remedy to challenge the

introduction of an obligation to pay interest. The Commission recalls

that this obligation was introduced by legislation and that the

Commission has consistently held that Article 13 (Art. 13) of the

Convention does not require a remedy against legislation as such (cf.

Young, James and Webster case, Comm. Report 14.12.79, para. 177).

This last part of the application is therefore also manifestly

ill-founded.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

PÖSCHL v. AUSTRIA

PÖSCHL v. AUSTRIA

LEXI