FIRST SECTION

DECISION

Application no . 17402/08 LANSCHÃœTZER GMBH against Austria

The European Court of Human Rights (First Section), sitting on 18 March 2014 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Elisabeth Steiner, Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Paulo Pinto de Albuquerque, Linos -Alexandre Sicilianos and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 10 April 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, Lanschützer GmbH, is a limited liability company based in Graz. It is represented before the Court by Mrs C. Lanschützer , a lawyer practising in Graz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Federal Ministry for European and International Affairs.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. On an unspecified date the applicant company applied, at that time under its previous name, Edelweis Rundfunk GmbH , for a broadcasting licence in Vienna. However, the licence was awarded to another company, the S.R. Company. The applicant company appealed.

4. On 18 June 2007 the Federal Communications Panel ( Bundeskommu ­ nikationssenat – “the FCP”) dismissed the applicant company ’ s appeal.

5. Afterwards, on 9 August 2007, the applicant company lodged a complaint with the Constitutional Court and requested that suspensive effect be granted to their complaint. It was signed by two of its business managers.

6. On 10 August 2007 the applicant company sent a letter to the S.R. Company - transmitting a copy of its complaint against the FCP ’ s decision of 18 June 2007 - proposing to withdraw the complaint if it received payment on its business bank account of 150,000 euros (EUR), an amount which should partially cover the losses sustained by the applicant company because they had not been awarded the licence . The applicant company pointed out that its complaint to the Constitutional Court had not been signed by a lawyer and would be returned in order for that procedural defect to be remedied. Thus, before the complaint was resubmitted by a lawyer the S.R. Company would have the opportunity to obtain the applicant company ’ s withdrawal from the proceedings by paying the above-mentioned amount.

7. On 13 August 2007 the S.R. Company ’ s lawyer informed the Constitutional Court of the applicant company ’ s letter and enclosed a copy of that letter.

8. By a letter of 23 August 2007 the Constitutional Court ordered the applicant company to remedy the procedural defects of its complaint. It noted that the complaint did not bear the signature of a lawyer, which was contrary to the statutory requirement, and observed that the applicant company, as could be seen from its letter to the S.R. Company, had been perfectly aware of that requirement. The Constitutional Court ordered the applicant company to remedy that defect by resubmitting its complaint through a lawyer within one week and, within the same time-limit, to clarify its letter of 10 August 2007, a copy of which was attached.

9. On 29 August 2007 the applicant company replied to the Constitutional Court ’ s order of 23 August 2007. It submitted that its letter of 10 August 2007 to the S.R. Company had merely been intended to find a viable solution for all parties. In its view, the S.R. Company ’ s application for a broadcasting licence had had fundamental defects which would have led to the licence being revoked and would have caused an untenable financial risk for the S.R. Company. The amount requested had been justified because, for the applicant company, the time spent waiting for the decision of the Constitutional Court would have resulted in a standstill and loss of opportunities.

10. On 30 August 2007 the applicant company ’ s lawyer and member of the Styria Bar, Mr F.P.-P., submitted the same, unsigned, complaint again. Attached to the complaint there was a letter signed by the latter, saying that he represented the applicant company.

11. On 3 October 2007 the Constitutional Court rejected the applicant company ’ s complaint as inadmissible for formal reasons. It noted that Mr F.P.-P. had resubmitted the original complaint with a covering letter bearing his signature, along with the statement that he represented the applicant company, but the complaint itself did not bear his official stamp and signature. The Constitutional Court concluded that the applicant company had failed to comply with its order.

B. Relevant domestic law

1. The Federal Constitution

12. Article 144 of the Federal Constitution Act ( Bundes-Verfassungs ­ gesetz ) reads as follows:

“(1) The Constitutional Court decides on rulings by administrative authorities including independent administrative panels, in so far as the complainant alleges an infringement by the ruling of a constitutionally guaranteed right or the infringement of personal rights caused by an illegal ordinance, an illegal pronouncement on the republication of a law (state treaty), an unconstitutional law, or an unlawful treaty. The complaint can only be lodged after all other legal remedies have been exhausted.

(2) The Constitutional Court can decide to decline to deal with a complaint before an oral hearing if it has no reasonable prospect of success or if the decision cannot be expected to clarify a constitutional problem. It must not decline to deal with a complaint if, under Article 133, the case at hand falls outside the jurisdiction of the Administrative Court.

(3) If the Constitutional Court finds that a right within the meaning of sub-section 1 above has not been infringed by the challenged ruling, and if, under Article 133, the case at hand does not ,fall outside the jurisdiction of the Administrative Court, the Court shall, on the request of the applicant, transfer the complaint to the Administrative Court for a decision as to whether the applicant has suffered an infringement of any other right as a result of the ruling of the administrative authority. This also applies by analogy in the case of decisions in accordance with sub-section 2 above.”

13. In the report of the Constitutional Committee ( Verfassungsaus ­ schussbericht ) of the National Council ( Nationalrat ) on the draft amendment of the Federal Constitutional Act 1983 it is stated that if the Constitutional Court decides to decline to deal with a complaint it is dispensed from examining the admissibility of that complaint (AB 766 BlgNR XV. GP, p. 2). In such a case the Constitutional Court is therefore relieved from examining whether all formal criteria, such as time-limits and representation by a lawyer have been complied with. This is also the Constitutional Court ’ s case-law (see, for example, B 1306/88 27 September 1988; B 880/89, 9 June 1992; B 1850/08, 2 December 2008).

2. The Constitutional Court Act

14. Section 17 of the Constitutional Court Act, in so far as relevant, reads as follows:

“(2) ... complaints must be submitted by an authorised lawyer ...”

15. Section 18 of the Constitutional Court Act reads as follows:

“Submissions which do not comply with the requirements of section 15 and section 17, or other requirements of form laid down in the present Act, shall be returned by the rapporteur to the complainant for the procedural defects to be remedied within a certain period of time, if it can be expected that the defects are likely to be remedied.”

16. Section 19 of the Constitutional Court Act, in so far as relevant, reads as follows:

“(1) ... the judgments of the Constitutional Court are given after a public oral hearing to which the complainant, the opposing party and any third parties are summoned.

(2) The judgments are pronounced and delivered on behalf of the Republic.

(3) Upon an application by the rapporteur, the following decision may be taken in a non-public session, without any further proceedings and without conducting a hearing:

1. The refusal to deal with a complaint, under Article 144(2) and Article 144a( 2) of the Constitutional Court Act.

2. The rejection of a submission:

a) for a clear lack of jurisdiction of the Constitutional Court;

b) for failure to meet a statutory deadline;

c) for a non-remedied deficiency in the formal requirements;

d) in the case of final and enforceable matters, and

e) in the absence of a right to sue or be sued.

3. The discontinuation of proceedings when an application is withdrawn or deprived of its cause of action (section 86 - Klaglosstellung ).”

17. According to the case-law of the Constitutional Court, the requirement of section 17(2) of the Constitutional Court Act that a complaint must be submitted by an authorised lawyer means that a lawyer representing a complainant must submit his or her own complaint signed by him or her (see, inter alia , Collection of Decisions of the Constitutional Court ( VfSLG ) 17759/2006).

COMPLAINTS

18. The applicant company complained under Article 6 § 1 and 6 § 3 (c) of the Convention that the rejection of its complaint by the Constitutional Court was arbitrary and violated its right of access to court.

19. The applicant company also complained under Article 6 about a further breach of its right of access to court, namely that the Constitutional Court ’ s decision to reject its complaint as inadmissible also blocked its access to the Administrative Court because, following such a decision, it could not ask for transfer of the case to the Administrative Court.

THE LAW

A. Complaint under Article 6 as regards access to the Constitutional Court

20. The applicant company complained under Article 6 § 1 and 6 § 3 (c) of the Convention about the proceedings before the Constitutional Court, which, in its view, amounted to a denial of access to court.

21. The Court notes that the present case does not relate to the determination of a criminal charge. Thus, it considers that the complaint has to be examined exclusively under Article 6 § 1 of the Convention, which, in its relevant part, 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..."

22. As regards the applicability of Article 6 § 1 of the Convention to the proceedings at issue, the Government argued that proceedings for a broadcasting licence fell into the domain of public law and, under the relevant provisions, an applicant for a broadcasting licence had no subjective right to be granted such a licence or any kind of expectation ( Anwart ­ schaft ). Since the applicant company did not have a right to a broadcasting licence under domestic law, Article 6 § 1, in its “civil” limb, was not applicable. Moreover, Article 6 § 1 only applied to “a dispute of a genuine and serious nature”. In view of the conduct of the applicant company in the proceedings before the Constitutional Court, in lodging an intentionally defective complaint with the Constitutional Court in order to use the time set for remedying procedural defects for questionable settlement negotiations with S.R. , that condition was not fulfilled.

23. The Government further submitted that proper exhaustion of all available domestic remedies meant that the applicant company should also have lodged a complaint with the Administrative Court against the decision of the Federal Communications Panel at the same time as it had lodged a complaint with the Constitutional Court. Since it had not done so, it failed to exhaust domestic remedies.

24. As to the substance of the complaint the Government argued that mandatory representation by a lawyer in the proceedings before the Constitutional Court constituted a limitation of the right of access to court which was proportionate and in accordance wi th Article 6 which served the purpose of ensuring the quality and efficiency of the proceedings and was thus a legitimate goal that justified an interference with Article 6 of the Convention. It was the Constitutional Court ’ s constant case-law that the submissions had to be made by a lawyer in order to facilitate the processing of complaints in accordance with the rules of court and with the other requirements under constitutional law. It was the applicant company ’ s own fault if the complaint was rejected as inadmissible by the Constitutional Court. As could be seen from its conduct in the proceedings before the Constitutional Court, the applicant company was familiar with the requirement of lodging a complaint through a lawyer and its lawyer ought to have been familiar with the Constitutional Court ’ s constant case-law on this requirement.

25. As regards the applicability of Article 6 § 1 of the Convention to the proceedings at issue, the applicant company argued that it had had the intention of broadcasting a terrestrial radio service in the area of Vienna. There was no doubt that such an economic activity should be considered a “civil right” and other than filing a complaint with the Constitutional Court there was no remedy to exhaust.

26. The applicant company further submitted that the obligation to lodge a complaint with the Constitutional Court through a lawyer was not reasonable and was, in itself, a breach of Article 6 § 1 of the Convention. Moreover, the relevant rules only provided that a complaint had to be submitted by a lawyer and did not provide for mandatory representation by a lawyer throughout the entire proceedings, nor that the lawyer had to formulate the submissions himself. The applicant company ’ s lawyer had therefore acted correctly when he attached the copy of the applicant company ’ s complaint to his letter and since the applicant company ’ s complaint did not contain any mistake or defect, there was no need to correct it.

27. The applicant company also submitted that the Constitutional Court had not applied that formal criterion in a coherent manner. In previous proceedings its lawyer had remedied the same procedural defect in the very same way and the Constitutional Court had not rejected the complaint as inadmissible for non-compliance with a formality but declined to deal with the complaint for other reasons. Thus, the rejection of its complaint had been arbitrary and had violated its right of access to court.

28. The Court does not consider it necessary in the circumstances of the present case to examine the issues of applicability and exhaustion as the application is in any event inadmissible for the following reasons.

29. The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, the Article embodies the right to a court, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Golder v. the United Kingdom , 21 Febr uary 1975, Series A no. 18 A, § 36; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, § 65; and Société Anonyme Sotiris and Nikos Koutras Attee v. Greece , no. 39442/98, § 14, ECHR 2000 ‑ XII).

30. In that connection, the Court reiterates that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person ’ s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Levages Prestations Services v. France , 23 October 1996, Reports of Judgments and Decisions 1996-V, § 40; Brualla Gómez de la Torre v. Spain , 19 December 1997,§ 33, Reports 1997). Furthermore, the Convention organs have repeatedly recognised the right of the High Contracting States to make access to courts dependent on compliance by the parties with formal rules relating in particular to the form of their submissions to a court and to time-limits (see Anastasakis v. Greece , no. 41959/08 , § 23, 6 December 2011 with further references).

31. In the present case the applicant company lodged a complaint with the Constitutional Court. That complaint was signed by two of its business managers. On 23 August 2007 the Constitutional Court informed the applicant company that the complaint had not been submitted through a lawyer which was contrary to the statutory requirement and observed that the applicant company, as could be seen from a letter to the S.R. Company, had been perfectly aware of that requirement. It ordered the applicant company to remedy that defect by resubmitting its complaint through a lawyer. On 30 August 2007 the applicant company ’ s lawyer, Mr F.P.-P., submitted the same, unsigned, complaint again and attached a letter signed by him, saying that he represented the applicant company. Thereafter, o n 3 October 2007, the Constitutional Court rejected the applicant company ’ s complaint as inadmissible for formal reasons since the original complaint had remained unchanged by the lawyer and did not bear his signature. The Constitutional Court concluded that the applicant company had failed to comply with its order.

32. The Court considers that the obligation to be assisted by a lawyer when instituting proceedings before one of the highest courts of a country by filing an important procedural document such as the complaint at issue serves the legitimate aim of ensuring the proper administration of justice and does not, as such, constitute a disproportionate limitation of the applicant ’ s right of access to court. As regards the terms of that requirement as applied by the Constitutional Court, t he Court reiterates that it is in the first place for the national authorities, and notably the courts, to interpret domestic law, and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. This applies in particular to the interpretation by the courts of rules of a procedural nature such as time-limits governing the filing of documents or the lodging of appeals (see, among other authorities, Tejedor García v. Spain, 16 December 1997, § 31, Reports 1997 ‑ VIII ). The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Freitag v. Germany, no. 71440/01, § 36, 19 July 2007, with further references).

34. As regards the foreseeability of the Constitutional Court ’ s decision, the Court observes that, under section 17 of the Constitutional Court Act, complaints must be submitted by an authorised lawyer and, according to the case-law of the Constitutional Court, this meant that the complaint had to be submitted by the lawyer himself or herself and bear his or her signature. That case-law was published in the Constitutional Court ’ s official collection of decisions. From the applicant company ’ s conduct, and in particular its letter to the S.R. Company of 10 August 2007, it is apparent that this requirement was familiar to the applicant company.

35. As regards the proportionality of the sanction - the Court notes that the Constitutional Court did not immediately reject the applicant company ’ s complaint on the ground that it had not been submitted by a lawyer. Rather, under section 18 of the Constitutional Court Act, it issued an order to remedy the procedural defects and asked the applicant company to resubmit the complaint through a lawyer. The Constitutional Court also noted that the applicant company, as could be seen from its letter to the S.R. Company, had been familiar with this procedural requirement and its consequences. The Court therefore finds that the Constitutional Court made the applicant company aware of the procedural defect and gave it the possibility of remedying it (see Vacher v. France , 17 December 1996, § 30, Reports 1996 ‑ VI).

36. As regards the applicant company ’ s argument that the Constitutional Court had not applied that formal criterion in a coherent manner as in previous proceedings its lawyer had remedied the same procedural defect in the very same way the Court notes, that under Article 144(2) of the Federal Constitution Act, the Constitutional Court may decline to deal with a complaint if it has no reasonable prospect of success or if the decision cannot be expected to clarify a constitutional problem. In such a case the Constitutional Court doe s not need to examine whether all the formal requirements had been fulfilled but may leave them open. This was the clear intention of the legislature and is also the Constitutional Court ’ s case-law.

37. In these circumstances the Court cannot find that there is any indication that the applicant company was unduly hindered in its right of access to the Constitutional Court. Accordingly, there is no appearance of a violation of Article 6 § 1 of the Convention.

38. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other alleged violation of the Convention

39. The applicant company also complained under Article 6 about a further breach of its right of access to court, namely that the Constitutional Court ’ s decision to reject its complaint as inadmissible also blocked its access to the Administrative Court because, following such a decision, it could not ask for transfer of the case to the Administrative Court.

40. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

41. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President