AS TO THE ADMISSIBILITY OF

                      Application No. 12337/86

                      by Helmut RANTNER

                      against Austria

        The European Commission of Human Rights sitting in private

on 6 March 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             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 30 June 1986 by

Helmut RANTNER against Austria and registered on 5 August 1986 under

file No. 12337/86;

        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&S

        The facts of the case as submitted by the applicant may be

summarised as follows:

        The applicant, a practising lawyer, is an Austrian citizen

born in 1938 who resides at Absam, Tyrol.  Another application

(No. 12028/86) concerning matters not related to the present case is

still pending before the Commission.  The present case concerns

various proceedings relating to a farm at Terfens which the applicant

acquired in 1976 and which he subsequently ran along with his

professional activities as a lawyer, although he did not permanently

live on the farm nor perform all the work himself.

        After the acquisition of the farm from a friend, with whom

he had previously started to run a Haflinger stud on the farm, the

applicant first applied to the agricultural authorities for

administrative approval of the sales contract under the Provincial

Agricultural Settlement Act (landwirtschaftliches Siedlungsgesetz,

Provincial Law Gazette No. 49/1969).  The applicant's friend, who was

a farmer, had previously obtained such approval for his acquisition of

the same property.  However, in the applicant's case it was refused in

all instances, essentially on the grounds that he was not a farmer,

did not intend to live and work permanently on the farm with his

family, and that the taking-over of a farm by a lawyer in such

circumstances did not lead to a structural improvement of agriculture

as envisaged by the above Act.  The applicant's complaints against the

agricultural authorities' decisions were rejected by the Constitutional

Court (Verfassungsgerichtshof) on 9 June 1983 and by the Administrative

Court (Verwaltungsgerichtshof) on 25 October 1983.

        Subsequently, the applicant applied for administrative

approval of the sales contract under the Provincial Real Property

Transactions Act (Tiroler Grundverkehrsgesetz, Provincial Law Gazette

No. 69/1983).  However, this application too was rejected in all

instances.  The local Real Property Transactions Authority (Grund-

verkehrsbehörde) for Terfens established at the District Authority

(Bezirkshauptmannschaft) of Schwaz ruled on 28 February 1984 that

consent had to be refused because the acquisition of the farm by the

applicant did not serve the public interest in the preservation of an

effective farming community and of economically sound agricultural

enterprises.  He was not, neither did he intend to become, a full-time

farmer.  Running the farm along with his main professional activity as

a practising lawyer, he would enjoy better economic conditions than a

full-time farmer because he did not have to make his livelihood from

the farm and could invest other income, thus creating an unfair

competitive relationship with other farmers.  Moreover, the applicant

had leased out part of the agricultural land and this was an

additional reason to withhold consent to the acquisition of the farm.

        The applicant's appeal against this decision was rejected by

the Provincial Real Property Transactions Authority (Landesgrund-

verkehrsbehörde) on 1 March 1985.  The applicant's claim that he

should be recognised as a farmer as he worked the farm himself,

although on a part-time basis, was not accepted.  The Authority

considered that only a person who worked almost daily on the farm

could be regarded as exploiting it himself (Eigenbewirtschaftung).

The applicant was present on the farm only from Friday to Sunday,

and this was not sufficient to satisfy the legal requirements.

        The applicant then complained to the Constitutional Court,

invoking his constitutional rights to the inviolability of property,

to freedom of acquisition of land, to equality before the law, to free

choice of profession, and to proceedings before an independent and

impartial tribunal.  However, the Constitutional Court rejected these

complaints on 5 March 1986.

        The Constitutional Court recognised that the measure

interfered with the applicant's property rights, but noted that it

was based on legal provisions which did not give rise to doubts as

to their constitutionality.  Therefore the constitutional right of

property could only be violated if the law had been applied in an

unreasonable manner (denkunmögliche Gesetzesanwendung).  However, this

was not the case as it could reasonably be argued that a lawyer who

personally worked on the farm three days of the week only did not

exploit it himself.  There was further no violation of the principle

of equality before the law because the decision had not been

arbitrary.  The right to free acquisition of property was not

infringed by restrictions of the type in question, in any event the

acquisition of the farm by the applicant had not been refused in order

to privilege a farmer.  The right to the free choice of a profession

had not at all been interfered with.

        Finally, as regards the right to proceedings before an

independent and impartial tribunal (Article 6 of the Convention), the

Constitutional Court referred to proceedings which it had opened

following the Sramek judgment of the European Court of Human Rights

(judgment of 22 October 1984, Series A no. 84) in order to review the

constitutionality of the relevant provisions of the Provincial Real

Property Transactions Act of the Tyrol.  In its decision of 17 October 1985

(G 157/85) it had found that the violation of Article 6 para. 1

established by the European Court of Human Rights in the Sramek case

was not based on the legislation itself, but on organisational

arrangements by which a person had been appointed as Rapporteur of the

Provincial Real Property Transactions Authority who was in a

relationship of functional and hierarchical subordination to the

Province's Real Property Transactions Officer (Landesgrundverkehrsreferent).

In the present case, however, the Real Property Transactions Officer had

not been involved in the proceedings, and therefore there could be no

question of a breach of Article 6 of the Convention.

        In July 1985 the applicant applied to the municipal council

(Gemeinderat) of Terfens for the redesignation of part of the land

belonging to the farm.  This land had hitherto been designated as

agricultural land and the applicant requested that, in connection with

the development of certain adjoining land, its designation should be

changed into constructible land (Bauland).  However, the redesignation

was refused by a decision of the municipal council on 1 October 1985

of which the applicant was informed on 3 October 1985.  He then lodged

a complaint with the Constitutional Court, claiming that the

municipal council's decision was to be regarded as a decree

(Verordnung) which accordingly could be challenged under Article 139

of the Federal Constitution.  However, on 7 June 1986 the

Constitutional Court declined jurisdiction, holding that the municipal

council's decision was not a decree, but merely information that

proceedings for issuing a redesignation decree would not be instituted.

        In the meantime the applicant had made important investments

on the farm, in particular with a view to extending the Haflinger stud

and adding a riding school.  As it did not make a profit during the

first years the applicant, in his tax declarations for the years

1975 - 1981, deducted the considerable losses (total of more than

6.7 million AS) from his income.  However, by a series of decisions

issued on 20 August 1982, the tax and revenue office (Finanzamt)

refused the recognition of the relevant deductions from the income

and turnover tax on the ground that the applicant's agricultural

activities were to be regarded as hobby-farming (Voluptuarbetrieb).

        The applicant appealed to the Regional Directorate of

Finance (Finanzlandesdirektion für Tirol) claiming that the losses

were only of a temporary nature and that profits could be expected in

the future.  However, the Directorate rejected the appeal on

10 December 1985, stating that the nature of the agricultural

enterprise had changed (Änderung des Betriebsgegenstandes) following

the exclusion of the applicant from the Haflinger stud association in

1981.  Therefore it was justified, from the point of view of income

taxation, to consider the periods before and after the change

separately.  The period after the change was not at issue, but as

regards the previous period the farm could not be considered as an

enterprise capable of making profits and therefore the losses were not

deductible from the applicant's other income.

        As regards the turnover tax, the Directorate observed that a

hobby farm was not to be considered as an "enterprise" within the

meaning of the relevant legislation, and therefore it quashed the

relevant decisions of the tax and revenue office.

        The applicant then appealed to the Administrative Court which,

however, rejected his complaints by a decision of 3 June 1986.  It

confirmed the view that the farm, as originally organised, could not

have made a profit in the foreseeable future even if the applicant had

not been excluded from the Haflinger stud association.  It was therefore

justified to consider the applicant's agricultural activities during

the relevant period as hobby-farming and refuse tax deductions on this

ground.

&_COMPLAINTS&S

1.      The applicant first complains that the proceedings under the

Real Property Transactions Act violated his right to the determination

of his civil rights and obligations by an "independent and impartial

tribunal" under Article 6 para. 1 of the Convention.  The Real

Property Transactions Authority included among its members several

civil servants from the Office of the Provincial Government who,

outside their functions in this Authority, were subject to

instructions and did not enjoy the guarantee of irremovability.  In

particular, they were not sufficiently independent of the Province's

Real Property Transactions Officer.  Although none of the members of

the Authority is in a relationship of direct hierarchical subordination

to this Officer any more, the new organisation has not, in the

applicant's view, substantially changed the situation from that

considered in the Sramek case.  The applicant furthermore complains

that one of the members of the Constitutional Court was also a civil

servant of the Provincial Government of the Tyrol, and that therefore

this Court was also not organised in conformity with the requirements

of Article 6 para. 1.

        The applicant further alleges that the above proceedings

unjustifiedly interfered with his right to the peaceful enjoyment of

his possessions and his right to the free choice of profession.  He

also claims that the relevant decisions infringed the principle of

equality.  He considers it unjustified that because of his status as a

practising lawyer he was refused permission to acquire a farm although

he was actually willing to do the farm work on a part-time basis.

2.      The applicant also alleges a violation of Article 6 of the

Convention in the proceedings concerning the redesignation of a

certain part of his land.  He claims that these proceedings affected

his civil rights and that the refusal of a judicial review by the

Constitutional Court was contrary to the Convention.

3.      The applicant finally complains of the tax proceedings.  He

claims that the Regional Directorate of Finance cannot be regarded

as an independent and impartial tribunal, and that the decision to

refuse the deduction of losses, on the ground that his activity was

hobby-farming, violated the principle of equality and his right to

freedom of profession, in particular as the unlawfulness of his

exclusion from the Haflinger stud association was not sufficiently

taken into account by the Administrative Court.

THE LAW

1.      The applicant first complains of the proceedings before the

Real Property Transactions Authority of the Tyrol which he claims is

not an "independent and impartial tribunal" within the meaning of Article 6

para. 1 (Art. 6-1), first sentence, of the Convention.  Insofar as relevant,

this provision reads as follows:

"     In the determination of his civil rights and

obligations ... everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal

established by law."

        For the reasons stated in the Sramek judgment of 22 October

1984 (Eur.  Court H.R., Series A no. 84, paras. 34-35) the proceedings

complained of come within the scope of this provision.  However, in

the above judgment the Court considered the Real Property Transactions

Authority to be in line with Article 6 para. 1 (Art. 6-1) of the Convention,

except for the position of the Rapporteur who, at that time, in his

functions outside the Authority, was in a relationship of hierarchical

and functional subordination to the Province's Real Property

Transactions Officer (ibid., paras. 37-42).  This relationship of

hierarchical and functional subordination of one of the members of

the Authority to an agent of the Provincial Government competent

to represent the latter as a party in real property transaction

proceedings no longer existed at the time when the Authority decided

the applicant's case.  Moreover, unlike in the Sramek case, the

Province's Real Property Transactions Officer did not participate

in the proceedings (in this respect, cf. the findings of the

Constitutional Court in its decision of 5 March 1986).  Further,

according to the Ettl and Others judgment of 23 August 1987 (Eur.

Court H.R., Series A no. 117, p. 18, paras. 38-41), the participation

of civil servants in a collegiate body of the type in question does

not impair their "independence and impartiality" if, in the exercise

of their functions, they are free from instructions, although they may

be subject to instructions as regards other activities.  In these

circumstances the Commission does not find any appearance in the

present case of the Real Property Transactions Authority not being

organised in conformity with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.  The applicant's complaint in this respect is

therefore manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.      The applicant further alleges that the Constitutional Court,

when dealing with his complaint against the Real Property Transactions

Authority's decision, was not organised in conformity with Article 6

para. 1 (Art. 6-1) because one of its members was a civil servant of the

Provincial Government.  However, even assuming that the Constitutional

Court's procedure when examining the applicant's constitutional

complaints involved a determination of his civil rights and

obligations, and that Article 6 para. 1 (Art. 6-1) therefore applied to this

procedure, it must be noted that in the exercise of his functions in

the Constitutional Court the member in question was not subject to

instructions from the Provincial Government.  Moreover, it has not

been alleged that there was any organisational link between the other

activities of this member of the Constitutional Court and the Real

Property Transactions Authorities of the Tyrol.  In these

circumstances, there is no appearance of a violation of Article 6 para. 1

(Art. 6-1) in this respect either, and the applicant's above complaint is also

manifestly ill-founded.

3.      As regards the applicant's remaining complaints concerning

the real property transactions procedure, the Commission observes that

the freedom of profession which the applicant invokes in this respect

is not guaranteed in the Convention.  The Commission has examined his

complaints under Article 1 of Protocol No. 1 (P1-1) to the Convention, read

in conjunction with Article 14 (Art. 14) of the Convention.  These provisions

read as follows:

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

"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."

Article 14 (Art. 14) of the Convention:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

        The Commission considers that the requirement of

administrative consent to the acquisition of real property as

stipulated in the Tyrol 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 applicant

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

that he intended to run it on a part-time basis and under conditions

with which other farmers could not compete.  In this context the

Commission notes the important investments which the applicant made

from financial resources which were open to him as a practising lawyer

and which apparently could not be refinanced from the yield of the

farm itself.  It was for this reason that he tried to claim tax

reductions in respect of his lawyer's income.  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

applicant contrary to Article 14 (Art. 14) of the Convention.  As regards the

enjoyment of his property rights, the applicant was not treated

differently from other persons merely on the ground that he was a

practising lawyer.  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.

        The applicant's above complaints are therefore again

manifestly ill-founded.

4.      Insofar as the applicant complains of the procedure whereby

redesignation of certain land was refused to him, he apparently wishes

to rely on Article 6 para. 1 (Art. 6-1) of the Convention.  However, this

provision is not applicable to the proceedings in question as these

did not concern the applicant's civil rights and obligations.  The

applicant clearly had no civil right to a redesignation of his

agricultural land as a building plot (cf. mutatis mutandis No. 11844/85,

X v.  Sweden, Dec. 29.2.88, not yet published).  This part of the

application is accordingly incompatible with the provisions of the

Convention ratione materiae and must be rejected under Article 27

para. 2 (Art. 27-2) of the Convention.

5.      As regards the tax proceedings, the applicant again seems to invoke

Article 6 para. 1 (Art. 6-1) of the Convention.  However, in this respect, too,

Article 6 (Art. 6) is not applicable.  The Commission here refers to its

constant case-law (cf. e.g.  No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246; No.

9908/82, Dec. 4.5.83, D.R. 32 p. 266).  This part of the application is also

incompatible with the provisions of the Convention ratione materiae and must be

rejected under Article 27 para. 2 (Art. 27-2).

6.      As regards, finally, the result of the tax proceedings, which the

applicant seems to challenge under Article 1 of Protocol No. 1 (P1-1) in

conjunction with Article 14 (Art. 14) of the Convention, the Commission notes

that he has not lodged a complaint with the Constitutional Court and thus has

not exhausted the domestic remedies in conformity with the requirements of

Article 26 of the Convention.  This last part of the application must

accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)