FIRST SECTION

DECISION

Application no. 15854/02 by DORNBIRNER SEILBAHN GMBH against Austria

The European Court of Human Rights (First Section), sitting on 6 May 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs F. Tulkens, Mr E. Levits, Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 18 March 2002,

Having regard to the decision to apply the procedure under Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the friendly settlement declarations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant company, Dornbirner Seilbahn GmbH, is a limited liability company with its seat in Dornbirn (Austria). It is represented before the Court by Mr E. Bechthold, a lawyer practising in Dornbirn. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

In the course of civil proceedings brought by the applicant company, on 15 June 2001 the Dornbirn District Court ( Bezirksgericht ) ordered the defendant to pay the amount of ATS 12,906.8 (approximately EUR 938) for legal costs to the applicant company.

On 13 July 2001 the defendant requested leave to appeal out of time ( Wiedereinsetzung in den vorigen Stand ) and at the same time lodged his appeal against the cost order of 15 June 2001. The defendant's request and appeal were not submitted to the applicant company pursuant to the applicable procedural law.

On 23 July 2007 the Dornbirn District Court allowed the request for leave to appeal out of time.

On 19 September 2001 the Feldkirch Regional Court ( Landesgericht ) allowed the defendant's appeal. It found that the applicant company had to pay the defendant's legal cost of ATS 4,934.16 (approximately EUR 358). Further it found that the applicant company had to pay the costs of the appeal proceedings of ATS 2,751.36 (approximately EUR 199).

COMPLAINT

The applicant company complained under Article 6 of the Convention that in civil proceedings the Feldkirch Regional Court, upon an appeal lodged by the opposing parties against the costs orders, amended the order without informing the applicant company of that appeal or giving it the possibility to react thereto.

THE LAW

On 22 March 2004 the Court received the following declaration from the Government:

“I declare that the Austrian Government offer to pay the amount of EUR 2,296.50 to Dornbirner Seilbahn GmbH in respect of the above application an ex gratia basis for the withdrawal of its application pending before the Court. This sum (EUR 2,296.50) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 19 March 2004 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay the applicant company the amount of EUR 2,296.50 on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 2,296.50) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the offer and withdraw the application waiving any further claims against Austria in respect of the application. I declare that this constitutes a final settlement of the case.”

The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;

(b) the matter has been resolved;..

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court takes note of the friendly settlement reached between the parties and considers that the applicant no longer intends to pursue his application and that the matter has been resolved. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the application to the case of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis Registrar President