Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11835/85

by 1) M. S.

and 2) P. P.

against Austria

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 11 July 1985 by 1) M.S.

and 2) P.P. against Austria and registered on 14 October 1985 under file N°

11835/85;

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 applicants, two Austrian medical doctors, are living and practising

in Lofer. M.S. was born in 1941 and P.P. in 1945. They are both represented

by Mr. W. Berger, a lawyer practising in Salzburg.

It follows from their statements and the documents they have

submitted that both had been granted the authorisation (Dr. Schlederer

in 1973 and Dr. Pechlaner in 1979) to run a medicine cabinet (ärztliche

Hausapotheke) in connection with their medical practice.

On 10 June 1983 the competent local authorities (Landeshauptmann)

granted the pharmacist, Mr. H, a licence to open a pharmacy in Lofer.

The applicants' request to be heard in the licence proceedings were

rejected by the local authorities on 16 March 1984. An appeal was

rejected on 17 September 1984 by the Minister of Health. A further

appeal to the Administrative Court (Verwaltungsgerichtshof) was

pending when the application was lodged.

On 15 June 1984 the applicants' authorisation to run a medicine

cabinet was withdrawn on the ground that a public pharmacy had been

opened in the same locality. Their appeals were rejected on 27 and 28

August 1984 by the competent authorities (Landeshauptmann). The

applicants complained of these decisions to the Constitutional Court

(Verfassungsgerichtshof) alleging a violation of Article 6 of the

Convention.

On 10 October 1984 the Constitutional Court rejected the

constitutional complaints as offering no prospects of success. The

Court informed the applicants of the possibility to submit their cases

to the Administrative Court.

The applicants in fact also appealed to this Court which,

however, rejected their appeals on 22 November 1984. These decisions

were served on their lawyer on 16 January 1985.

The Administrative Court found that Section 29 of the

Pharmacy Act (ApG) cogently provided for the withdrawal of the

authorisation for a medicine cabinet when a public pharmacy was opened

on the basis of a valid licence. The Court rejected the applicants'

argument that it also had to examine whether the granting of the

licence for the public pharmacy was lawful. The Court considered that

this question was of no relevance in the applicants' proceedings.

The applicants submit that, according to an amendment of the

Pharmacy Act, which was, however, not yet in force at the relevant

time and therefore was not applicable in their case, the opening of a

public pharmacy no longer leads to the automatic withdrawal of the

authorisation of a medicine cabinet run in the same locality.

&_COMPLAINTS&S

The applicants submit that the withdrawal of their

authorisation to run a medicine cabinet deprives them of more than

40% of their net income possibilities and therefore seriously affects

their economic situation. They consider that the proceedings in which

they complained of the withdrawal of their authorisations concerned

the determination of a civil right within the sense of Article 6

para. 1 of the Convention. They consider that an effective legal

protection as envisaged by this provision would have been given only

if they had had the possibility of contesting the lawfulness of the

granting of a licence for the public pharmacy. They allege a

violation of Article 6 para. 1 of the Convention and/or Article 1 of

Protocol No. 1.

&_THE LAW&S

The applicants have complained that, in rejecting their appeal

against the withdrawal of their authorisations to run a medicine

cabinet, the Austrian Administrative Court wrongly refused to examine

whether the granting of the licence for a public pharmacy, the cause

of the withdrawal of their authorisations, had been lawful.

With regard to the judicial decision of which the applicants

complain, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that in this case the applicants allege a violation of

Article 6 para. 1 (Art. 6-1) of the Convention on the ground that the Austrian

Administrative Court denied them the right to question the lawfulness of the

licence granted a pharmacist to run a public pharmacy. However, Article 6

para. 1 (Art. 6-1) extends only to "contestations" (disputes) over civil

"rights and obligations" which can be said to be recognised under domestic law

(Eur. Court H.R., R. judgment of 8 July 1987, Series A No. 121, para. 78). In

the present case the Austrian Court found that the right claimed by the

applicants did not exist under Austrian law. To the extent that the applicants

claim a right to continue to run a medecine cabinet and assuming that this

right can be considered as a civil right within the meaning of Article 6 para.

1 (Art. 6-1) the Commission notes that the applicants had access to a court

which heard and determined their claim that their authorisations were

wrongfully withdrawn. It has not been alleged in this case that the

proceedings before the Administrative Court as such failed to satisfy the

requirements of Article 6 para. 1 (Art. 6-1). Furthermore, the Commission

refers to its case-law, according to which it does not violate any Convention

rights, in particular Article 1 of Protocol No. 1 (P1-1), if a licence granted

on certain conditions is withdrawn because such conditions are no longer

fulfilled (No. 10438/83, Dec. 3.10.84 to be publ. in D.R.41).

It follows that the application is manifestly ill-founded

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

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. AND P. v. AUSTRIA

S. AND P. v. AUSTRIA

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