FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43454/98 by Lambert BAKKER against Austria

The European Court of Human Rights (First Section) , sitting on 13 June 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello ,

Mr P. Lorenzen ,

Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , S ection Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 21 August 1998 and registered on 14 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is a Dutch national , born in 1957 and living in Bregenz /Austria. He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz.

A. The circumstances of the case

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

The applicant is a physiotherapist who completed his professional training in Belgium and received his diploma in 1986. From 1987 to 1993 he worked as a physiotherapist in Austria during which time he was employed by an association working in that field.

On 19 February 1992 the Vorarlberg Regional Governor ( Landeshauptmann ) recognised his diploma with suspensive effect until he accomplished two additional exams. On 11 January 1995 the Regional Governor completed the decree of recognition upon the applicant’s submission of the required certificates.

On 4 April 1995 the applicant filed a request with the Vorarlberg Regional Governor for permit to work as a self-employed physiotherapist. He further submitted an employment certificate dated 4 January 1994, which had been issued by the association he had worked for.

On 26 July 1995 the Regional Governor refused to grant the applicant’s request. It found that the applicant did not comply with the requirements set out in section 7 § 3 of the Act on Medico-Technical Services ( Bundesgesetz über die Regelung der gehobenen medizinisch-technischen Dienste , MTD- Gesetz ). According to this provision the right to work as a self-employed physiotherapist may only be granted after three years of authorised professional practice within the last ten years.

On 31 January 1996 the Ministry for Health and Consumers’ Protection ( Ministerium für Gesundheit und Konsumentenschutz ) partly granted the applicant’s appeal. It found that the Regional Governor should have based its decision on section 68 § 6 of the Nursing Act ( Krankenpflegegesetz ) according to which the right to work as a self-employed physiotherapist may already be granted after two years of authorised professional practice within the last ten years. It held that, as regards the content, the Regional Government had decided correctly, however, it had based its decision on the wrong legal provision.

On 11 April 1996 the applicant filed a complaint with the Administrative Court. He requested an oral hearing and asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty.

On 23 August 1996 the applicant filed another request with the Regional Governor in order to be granted the right to work as a self-employed physiotherapist.

On 28 November 1996 the Regional Governor also rejected this request. He held that the applicant was authorised to work as physiotherapist in Austria since 11 January 1995 following recognition of his foreign diploma. His employment at the association was before that time and cannot be considered as “authorised” professional practice within the meaning of section 68 § 6 of the Nursing Act.

On 28 February 1997 the Ministry for Health and Consumers’ Protection rejected the applicant’s appeal on formal grounds, applying the principle of res iudicata .

On 22 May 1997 the applicant filed a complaint with the Constitutional Court, requested an oral hearing and asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty.

On 10 June 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It found that the applicant’s case did not raise serious questions of constitutional law or of the application of Community law and the matter was not excluded from the competence of the Administrative Court.

On 22 June 1997 the applicant filed a complaint with the Administrative Court against the Ministry’s decision of 28 February 1997, in which he requested an oral hearing. He further asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty on the question whether the refusal to exercise his profession as a self-employed physiotherapist in Austria was in accordance with Community law.

On 4 December 1997 the Feldkirch Regional Court, in the course of official liability proceedings instituted by the applicant, also requested the Administrative Court to decide upon the lawfulness of the decision by the Ministry for Health and Consumers’ Protection of 31 January 1996.

On 20 January 1998 the Administrative Court, in a joint decision, dismissed the applicant’s complaints of 11 April 1996 and 22 June 1997 and the request by the Regional Court without holding an oral hearing, relying on section 39 § 2 (6) of the Administrative Court Act. It confirmed the decisions by the Ministry for Health and Consumers’ Protection as being lawful. It further held that there was no issue that would require a preliminary ruling by the European Court of Justice, since the applicant’s requests did not concern the interpretation of a specific provision of Community law but rather challenged the implementation of national law exercised by Austrian authorities. The decision was served on the applicant’s counsel on 23 February 1998.

On 4 June 1998 the Feldkirch Regional Court, dismissed the applicant’s claim relating to official liability proceedings. It found that there was no legal basis in national or Community law, which could support the applicant’s claim.

B. Relevant domestic law

1. Hearings before the Administrative Court

Section 39 § 1 of the Administrative Court Act ( Verwaltungsgerichtshof-gesetz ) provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6), provides however:

"Notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing when ...

6. It is apparent to the Court from the written pleadings of the parties to the proceedings before the Administrative Court and from the files relating to the prior proceedings that an oral hearing is not likely to contribute to clarifying the case, and if this is not against Article 6 § 1 of the European Convention on Human Rights."

2. Hearings before the Constitutional Court

Article 144 § 2 of the Federal Constitution reads as follows:

"The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was denied a public hearing before the Constitutional Court and the Administrative Court. He also complains that these courts refused to seek a preliminary ruling from the European Court of Justice.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the lack of a public hearing before a tribunal in the proceedings on his request for a permit to exercise the profession of a self-employed physiotherapist. Article 6 § 1, as far as material, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government accept that Article 6 § 1 of the Convention applies to the proceedings at issue. As regards compliance with Article 6, the Government, invoking the case of Fredin (no. 2) v. Sweden ( judgment of 23 February 1994, Series A no. 283-1, § 22), argue that the special features of the proceedings constituted “exceptional circumstances” which justified the courts’ decisions not to hold a hearing. As regards the proceedings before the Administrative Court, the Government submit that that court had only to deal with questions of law which made a hearing unnecessary. Moreover, in the proceedings instituted by the Feldkirch Regional Court, the applicant had not requested a hearing. As regards the Constitutional Court, the Government submit that also that court had not been obliged to hold a hearing since the complaint only concerned a formal res iudicata decision by the lower authority, which did not raise a serious question of constitutional law.

The applicant contests the Government’s view. He maintains that the proceedings contained no special features which could have exempt the courts from holding a hearing. Moreover, what was at stake in the proceedings were complex questions of fact and law, in particular, of compliance with European Community law, which should have been dealt with in an oral hearing.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complains under Article 6 § 1 of the Convention that the Constitutional Court and the Administrative Court refused to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty in the proceedings at issue.

The Court recalls that the Convention does not guarantee any right to have a case referred to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EC Treaty. Nevertheless, refusal of a request for such a referral may infringe the fairness of proceedings if it appears to be arbitrary (cf. no. 15669/89, Dec. 28.6.93, D.R. 75, p. 39; no. 230631/92, Dec. 12.5.93, D.R. 74, p. 275).

The Court finds that there is no such arbitrariness in the present case. While the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success and, therefore, did not explicitly deal with the applicant’s request for a preliminary ruling, the Administrative Court explained at some length why, in its view, the applicant’s case did not raise any preliminary question of EC law. There is, thus, no appearance of a violation of Article 6 of the Convention in this respect.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously

Declares admissible , without prejudging the merits, the applicant’s complaint relating to the lack of a public hearing before the Administrative Court and the Constitutional Court;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President