AS TO THE ADMISSIBILITY OF

Application No. 11402/85

by Gerhard ZÃœCHNER

against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private on

2 March 1987, the following members being present:

                    MM. C.A. NØRGAARD, President

                        J.A. FROWEIN

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        H. VANDENBERGHE

                   Mr.  F. MARTINEZ

                   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 16 November 1984

by Gerhard ZÃœCHNER against the Federal Republic of Germany and registered

on 22 February 1985 under file No. 11402/85;

        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

        The applicant is a German citizen, born in 1928 and living in

Rosenheim.

        His application concerns three distinct subject matters.

1.      In 1979 the applicant brought an action against a bank

claiming restitution of 15 DM which the bank had allegedly wrongly

charged as fees for the transfer on the applicant's account of

10,000 DM to Italy.  The applicant submitted that the charging of the

fee in question violated Article 67 of the E.E.C. Treaty.  The

District Court (Amtsgericht) of Rosenheim submitted the issue to the

European Court of Justice for a preliminary ruling in accordance with

Article 177 of the E.E.C. Treaty and eventually dismissed the

applicant's action.  The applicant was ordered to pay the costs of the

proceedings.  The applicant's appeal (Berufung) was dismissed by the

Regional Court (Landgericht) of Traunstein as being inadmissible.

        The costs, as fixed by the District Court, included fees and

travel expenses amounting to 2,463.24 DM incurred by the adverse

party in connection with the participation of counsel and an adviser

in the hearing before the European Court of Justice.

        The applicant's appeal (sofortige Beschwerde) against the

order fixing the costs was rejected by the Traunstein Regional Court

on 9 January 1984.  This court confirmed the District Court's opinion

that the travel expenses were justified.  Even if a lawyer in

Luxembourg had been charged by the defendant party to attend the

hearing before the European Court of Justice it would have been

necessary to instruct this lawyer.  Such instruction could even have

necessitated two visits of defendant's counsel to Luxembourg and would

thus have caused even higher costs.  Furthermore, so the Regional

Court reasoned, the costs were not disproportionate to the value of

the claim at issue (i.e. 15 DM) because the issue was, in view of the

numerous international money transfers effected by the defending bank,

of such importance that the defending bank had a justified interest in

defending the case in an extensive and adequate manner.

        The applicant lodged a constitutional complaint

(Verfassungsbeschwerde) arguing that under the German Code of Civil

Procedure (Zivilprozessordnung) only the costs incurred in the

proceedings before the competent German court had to be borne by the

losing party.  He also pointed out that the risk of having to bear

costs which were disproportionate in relation to the value of the

claim at issue would practically oblige a claimant to withdraw his

action in case the matter was submitted to the European Court of

Justice.

        The applicant's constitutional complaint was rejected on

6 July 1984 by a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) as offering no prospects of success.

It is stated in the decision that the Regional Court's finding that

the costs in question had been necessary within the meaning of

Section 91 of the Code of Civil Procedure did not disclose any

violation of constitutional law.

2.      In 1981 the applicant brought an action before the Munich

Social Court (Sozialgericht) against the Federal Insurance Office for

Employees (Bundesversicherungsanstalt für Angestellte) claiming an

invalidity pension (Erwerbsunfähigkeitsrente) as from 1 October 1972

until 1 February 1978 and reimbursement of costs for medical treatment

necessitated by a traffic accident on 4 May 1972 leaving the applicant

with paraplegia.

        While the Munich Social Court partly granted the action and

ordered the defendant to pay invalidity pension as requested, the

action was, as a whole, dismissed by the Bavarian Social Court of

Appeal (Landessozialgericht) on 8 March 1984.  This court found that

the applicant had no claim to an invalidity pension as he exercised

his profession as an independent trade agent until March 1982.

Furthermore he had no claim to a disability pension (Berufsunfähig-

keitsrente) for the period previous to 1 February 1978 because he had,

in a letter of 20 December 1972, withdrawn his request for a pension.

The appellate court considered, unlike the Social Court, that the

defendant had not violated its obligation to inform the applicant in

an adequate manner about his rights in connection with his traffic

accident.  A claim for reimbursement of the costs caused by the

applicant's medical treatment was rejected on the ground that the

Bremen Trade Insurance Agency (Handelskrankenkasse) had paid the

benefits due under the law (gesetzliche Leistungen).

        On 12 December 1984 the Federal Social Court (Bundessozial-

gericht) refused to grant leave to appeal.  This decision was served

on the applicant's counsel on 5 January 1985.

        The applicant submits that counsel, a retired social court

judge 73 years old, had fallen ill shortly before and as counsel did

not employ a secretary the time limit for lodging a constitutional

complaint expired before the applicant himself was informed about the

decision of 5 January 1985.

3.      On 18 August 1986 the Rosenheim District Court dismissed the

applicant's claim for about 4,000 DM against an insurance company

concerning reimbursement of certain lawyer's fees.  The Court found

that the fees in question were not covered by the contract.  Moreover

the Court considered that there was no reason to request a preliminary

ruling of the European Court of Justice as the applicant had failed to

show that his case raised an issue under European Community law.

        The applicant's constitutional complaint was rejected by the

Federal Constitutional Court on 6 November 1986 as offering no

prospects of success.  The Court found that even assuming that the

arbitrary omission of a court to request a preliminary ruling of the

European Court of Justice amounted to a denial of the lawful judge

(gesetzlicher Richter) there was no such violation of the applicant's

constitutional rights in the present case in that the District Court

was not obliged to request a preliminary ruling.  The rule that under

German law (Versicherungsaufsichtsgesetz) insurance companies were

only admitted to take up business under certain conditions as regards

the protection of consumers did not violate the freedom of European

insurance companies to take up business in the Federal Republic of

Germany.  Moreover there was no indication of a restraint on the free

competition between foreign and national companies.

COMPLAINTS

1.      As to the first part of the application, the applicant

complains that he was ordered to pay the costs as fixed by the

Rosenheim District Court although the German procedural law does not

contain any express provision relating to costs of proceedings before

the European Court of Justice.  He points out that a national court

can take the decision to submit a matter to the European Court of

Justice in accordance with Article 177 of the E.E.C. Treaty

independently of the will of the parties.  The costs of the

proceedings before that Court should not, therefore, be imposed on

the losing party because otherwise the financial risk involved with a

legal action would become so great that it would practically bar

access to the courts.  He invokes Articles 6 and 14 of the Convention.

2.      As to the second part of the application, the applicant

complains that his action was wrongly dismissed and that he was denied

access to and a fair hearing before the Federal Social Court.  He

considers that the social courts disregarded the relevant facts and

violated the relevant law.  Furthermore he submits that his action was

dismissed on the sole ground that, as a consequence of this accident,

he received an important amount of money from a private insurance he

had taken out.  He alleges a violation of Article 6, alone and in

conjunction with Article 14 of the Convention.

3.      As to the third part of the application, the applicant

complains under Article 6 para. 1 of the Convention that the District

Court did not request a preliminary ruling of the European Court of

Justice.

THE LAW

1.      The applicant has first complained that in connnection with

civil proceedings before a German court he was wrongly ordered to pay

the costs incurred by the defending party in consequence of the fact

that the German court submitted the case to the European Court of

Justice for a preliminary ruling.  The applicant considers that costs

which, as in his case, by far exceed the value of the claim at issue,

have the effect of barring access to the courts and therefore violate Article 6

(Art. 6) of the Convention, also read in conjunction with Article 14 (Art. 14).

        In its examination of this complaint the Commission has first had

regard to Article 1 para. 2 of Protocol No. 1 (P1-1-2) to the Convention,

which recognises the right of a State "to enforce such laws as it deems

necessary .... to secure the payment of .... contributions". Costs in a

judicial procedure are contributions within the meaning of this provision (No.

7909/74, Dec. 12.10.78 D.R. 15, p. 160).  In this particular case they were

imposed under Section 91 of the Code on Civil Procedure which provides, inter

alia, that the losing party has to reimburse those costs of the adverse party

which are necessarily incurred.  According to the decisions complained of this

provision also covers costs incurred in proceedings under Article 177 of the

E.E.C. Treaty and this corresponds to similar regulations in the law of other

High Contracting Parties.  The Commission finds that Section 91, as applied,

can reasonably be considered as "necessary" within the meaning of Article 1

para. 2 of Protocol No. 1 (P1-1-2) and therefore as covered by Article 1

despite the possible discrepancy between the amount of costs and the value of

the claim raised by the applicant.

        The Commission here observes that the value of the applicant's

claim was so low that he had to expect that it would be substantially

exceeded by the total of the costs incurred in the proceedings in

which, uncontestably, an issue of general importance for the defendant

had to be determined.  In particular, when the matter was brought

before the European Court of Justice, the applicant had to choose

between either the risk of high costs, in case his action was

dismissed, or the withdrawal of his claim of 15 DM.  The costs finally

claimed by the defendant were examined in detail by the German courts

and were granted only in so far as they were found to have been both

necessary and justified.

        The Commission concludes that there is no appearance of a

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

        It also finds no indication of a violation of Article 6 (Art. 6),

either alone or read in conjunction with Article 14 (Art. 14) of the

Convention. Article 6 (Art. 6) embodies the right of access to a court for the

determination of civil rights and obligations, and high procedural costs may in

certain circumstances constitute a denial of access (Eur. Court H.R., Airey

judgment of 9 October 1979, Series A No. 32).  In the present case, however,

the applicant could apparently afford the institution of proceedings before the

District Court and their continuation when the case was submitted to the

European Court of Justice.

        It follows that there is no appearance of a violation of the

rights invoked by the applicant and this part of the application must

therefore be rejected as being manifestly ill-founded within the

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

2.      The applicant has further complained that his social court

action was wrongly dismissed and that he was denied leave to appeal to

the Federal Social Court.

        It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures

to everyone the right to a fair hearing and this right may, in certain

circumstances, also be invoked with regard to proceedings relating to social

security rights.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted, according

to the generally recognised rules of international law.

        In the present case the applicant failed to raise his

complaint before the Federal Constitutional Court and has, therefore,

not exhausted the remedies available to him under German law.

Moreover, an examination of the case does not disclose the existence

of any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

        The fact that the applicant's counsel fell ill and therefore

failed to inform the applicant of the beginning of the time limit for

lodging a constitutional complaint cannot absolve the applicant from

the obligation to comply with the domestic time-limit.  The applicant

knew that his counsel was a retired judge who apparently did not

entertain a regular law office.  He was therefore himself obliged to

see to it that his case was conducted in an adequate manner.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3.      The applicant finally complains under Article 6 para. 1 (Art. 6-1) of

the Convention that the District Court did not request a preliminary ruling of

the European Court of Justice in the proceedings concerning his claim for

reimbursement of lawyer's fees.

        It is true that Article 6 para. 1 (Art. 6-1) of the Convention

guarantees a fair hearing by a "tribunal established by law".  However, even

assuming that this clause might be interpreted as including a requirement that

domestic rules concerning the jurisdiction of particular courts for particular

matters be observed, there is no indication of a violation of such a right in

the present case.  The District Court and the Federal Constitutional Court,

after careful examination of the relevant legal provisions of European

Community law, found that the applicant's claim did not raise any issue

requiring a preliminary ruling of the European Court of Justice.  The

Commission therefore concludes that there is no appearance of a violation of

the applicant's right to the determination of his civil rights by a tribunal

established by law.

        It follows that this part of his application must be rejected

as being 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.

Deputy Secretary to the Commission          President of the Commission

         (J. RAYMOND)                             (C.A. NØRGAARD)