FIFTH SECTION

DECISION

Application no . 34229/12 German WEISS against Germany

The European Court of Human Rights (Fifth Section), sitting on 27 August 2013 as a Committee composed of:

Ganna Yudkivska , President, Angelika Nußberger , André Potocki , judges , and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 4 June 2012,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr German Weiß , is a German national, who was born in 1935 and lives in Augsburg. He was rep resented before the Court by Mr T. Gruber, a lawyer practising in Munich.

A. The circumstances of the case

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

The applicant is a medical practitioner who had been licensed by the Public Health Insurance Fund ( Kassenärztliche Vereinigung ) to practice as a specialist in internal medicine. From 1968, the applicant operated a medical practice which primarily specialised in laboratory diagnostics and nuclear medicine. Until 1985, the Public Health Insurance Fund fully remunerated the applicant ’ s laboratory services.

As from 1986, the Public Health Insurance Fund changed its remuneration system and defined specific upper limits for the remuneration of different groups of medical practitioners. The applicant, relying on an exception clause contained in the rules on remuneration, unsuccessfully requested that his medical practice be classified as a laboratory practice – which would have benefitted from a higher upper limit. However, the Public Health Insurance Fund refused the request and classified the applicant ’ s practice as a practice in internal medicine. In 1986 the applicant lodged a request for interim relief which was rejected by the social courts. As from the end of 1986, the Public Health Insurance Fund remunerated the services performed in the applicant ’ s practice applying the upper limits defined for internal medicine practices, which resulted in a considerably reduced income.

On 1 October 1988 the Augsburg District Court opened insolvency proceedings over the applicant ’ s medical practice.

On 4 July 2001 the Bavarian Constitutional Court, in proceedings instituted by a different medical practitioner, issued a decision in which it declared parts of the remuneration system issued by the Public Health Insurance Fund as in force from 1989 to 1995 unconstitutional.

On 3 December 2004 the applicant lodged a motion against the Public Health Insurance Fund before the Munich District Court claiming 3 million euros (EUR) as compensation for the los s of his medical practice. On 8 December 2004 he claimed a further sum of approximately EUR 2.1 million. He argued that the Public Health Insurance Fund, by changing the remuneration system and by refusing to classify his practice as a laboratory practice, had caused the insolvency of his medical practice. The applicant further submitted that his legal action had been prompted by the decision given by the Bavarian Constitutional Court on 4 July 2001 which had caused a change in the case-law in his favour .

On 18 March 2009 the Munich District Court rejected the applicant ’ s claim. That court considered that the alleged claim for State liability was time-barred. The District Court considered that all relevant facts were known to the applicant by the time of the opening of insolvency proceedings in 1988. The only new factor submitted by the applicant was the decision issued by the Bavarian Constitutional Court in 2001. However, mere legal uncertainty on the unlawfulness of the public authority ’ s action did not prevent the limitation period from running, as such questions had frequently to be settled in liability proceedings. Furthermore, the decision given by the Bavarian Constitutional Court did not concern the remuneration system relevant in the instant case, but another version, which did not provide for an exception clause. The three years ’ limitation period for liability claims thus started with the opening of the insolvency proceedings in 1988 and had thus expired by the time the claim was lodged in December 2004.

With regard to the claim based on expropriation ( enteignungsgleicher Eingriff ), the Regional Court, relying on an expert opinion, considered that it had not been established that the insolvency of the applicant ’ s medical practice had been caused by the change of the remuneration system.

On 8 July 2010 the Munich Court of Appeal rejected the applicant ’ s appeal. With regard to the applicant ’ s expropriation claim, the Munich Court of Appeal considered that the changed remuneration system did not directly interfere with the licence of the applicant ’ s medical practice, as the applicant remained entitled to perform laboratory services. Furthermore, on the basis of the evidence taken, it had not been established that the impugned measures had a “throttling effect” which would have imposed a disproportionate burden on the applicant.

On 22 September 2011 the Federal Court of Justice refused to grant the applicant leave to appeal. The Federal Court of Justice confirmed that the State liability claim lodged by the applicant was time-barred. The Federal Court of Justice further confirmed that there had been no interference with the licence of the applicant ’ s practice. The limitation imposed on the remuneration did not fall within the scope of the right to protection of property under the Basic Law, but of the right to occupational freedom under Article 12 of the Basic Law.

If it were true that the defendant had failed duly to take into account the medical practice ’ s specialisation , this would have been relevant in the examination of a State liability claim. However, there was no reason to extend the protection under expropriation law to an interference with the right to acquire property guaranteed under Article 12 of the Basic Law.

On 14 December 2011 the Federal Constitutional Court refused to entertain the applicant ’ s constitutional complaint for being inadmissible.

B. Relevant domestic law and practice

The relevant provisions of the German Basic Law provide:

Article 14

[Property – Inheritance – Expropriation]

“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.”

Article 12

[Occupational freedom]

“(1) All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.

(2) ,( 3) ... ”

Under the long-standing, well-established case-law of the Federal Court of Justice, the right to property under Article 14 of the Basic Law encompasses the right to an established and operational business enterprise ( eingerichteter und ausgeübter Gewerbetrieb ), but not the right to future earnings, which falls within the scope of Article 12. In case a public authority unlawfully interfered with a right protected under Article 14, the proprietor had a compensation claim against the State ( Anspruch aus enteignungsgleichem Eingriff ). At the relevant time, such claims became time-barred after 30 years (section 195 of the Civil Code as in force until 31 December 2001).

Article 34 of the Basic Law in conjunction with section 839 of the Civil Code provides that a State liability claim arises if a person, in the exercise of a public office entrusted to him, intentionally or negligently breaches the official duty incumbent upon him in relation to a third party. Under section 852 of the Civil Code as in force until 31 December 2001, liability claims became time-barred three years after the injured person had knowledge of the damage and of the identity of the perpetrator.

COMPLAINT

The applicant complained under Article 1 of Protocol No. 1 to the Convention taken on its own and in conjunction with Article 14 of the Convention that the domestic authorities applied the upper limits for internal medicine practices to his medical practice, even though he primarily offered laboratory service.

THE LAW

The applicant complained about the domestic authorities ’ refusal to remunerate the services provided by his medical practice under the remuneration system for laboratory practices. He alleged, in particular, that the resulting loss in remuneration led to his medical practice ’ s insolvency.

The applicant relied on Article 1 of Protocol No. 1 to the Convention taken on its own and in conjunction with Article 14 of the Convention, providing:

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes, at the outset, that the domestic courts unanimously considered that the applicant ’ s action for State-liability had become time-barred by the time he lodged his motion in 2004. Accordingly, the question arises whether the applicant has duly exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention before lodging his complaint before the Court.

The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia , Civet v. France [GC], no. 29340/95, § 141, ECHR 1999 ‑ VI ). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally also requires that complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , 19 March 1991, §34, Series A no. 200 and Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010).

The Court further notes that the only remedies which an applicant is required to use are those that relate to the breaches alleged and which are likely to be effective and sufficient. Moreo ver, under the established case ‑ law, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, among other authorities, KozacıoÄŸlu v. Turkey [GC] , no. 2334/03, § 40, 19 February 2009 and Micallef v. Malta [GC], no. 17056/06, §58, ECHR 2009 ).

Turning to the circumstances of the instant case, the Court notes that in December 2004, the applicant lodged a motion aimed at obtaining redress for the loss of his medical practice in 1988. He based his claim on two legal grounds. Firstly, he relied on the provisions on State liability; secondly, he claimed compensation under expropriation law. The domestic courts considered that the motion based on State liability was time-barred and that the prerequisites for a claim under expropriation law were not met in the applicant ’ s case. The Federal Court of Justice further specified that the allegations that the defendant had failed duly to take into account the medical practice ’ s specialisation would have been relevant in the examination of a State liability claim, however, that same court considered that these allegations were not relevant in the context of the expropriation claim.

The Court observes that even though the claim based on expropriation law had the same objective as the claim based on State liability, it did not have the same prerequisites. Under the case-law of the Federal Court of Justice, the prerequisites for an expropriation claim had not been met in the instant case. It follows that the expropriation claim cannot be considered as an effective and sufficient means to redress the alleged violation of the applicant ’ s Convention rights. On the other hand, having regard to the reasoning given by the Federal Court of Justice in the applicant ’ s case, it cannot be assumed that the State liability claim – provided that it had been lodged before being time-barred – would have lacked prospect of success. Accordingly, in order to exhaust domestic remedies, the applicant would have had to lodge his State liability claim within the statutory time-limit.

The Court further observes that the applicant has not submitted any relevant reasons which prevented him from lodging his State liability claim before it became time-barred. The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, inter alia , Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, §156, ECHR 2003 ‑ VI and S. v. Germany , no. 3300/10 , § 112, 28 June 2012 ). Accordingly, the mere fact that the outcome of a State liability claim might have been uncertain in the absence of legal precedents did not dispense the applicant from making use of it.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The applicant also complained under Article 6 of the Convention that the domestic courts had failed to take into account relevant submissions and that they had failed to hear further expert opinion. He further complained about having been deprived of an effective remedy within the meaning of Article 13 of the Convention. 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 they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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.

Stephen Phillips Ganna Yudkivska Deputy Registrar President