JOINT DISSENTING OPINION OF JUDGES CREMONA , BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, BERNHARDT AND SPIELMANN

To our regret, we find ourselves in disagreement with the majority of our brother judges as to their finding of non-violation of Article 1 of Protocol No. 1 (P1-1) in respect of applications nos. 10522/83 (Mellacher) and 11011/84 ( Mölk and Schmid ).

We agree that in these cases there were interferences with the applicants ’ property rights which in the circumstances fall to be considered under control of use of property within the scope of the second paragraph of the said Article. As stated by the majority on the basis of established jurisprudence (paragraph 42 of the judgment), this paragraph must be construed in the light of the general principle of the peaceful enjoyment of property laid down in the first sentence of the first paragraph.

Contrary to the majority opinion, we are of the view, however, that in these two cases the interferences in question do not satisfy the proportionality requirement in that, with regard to them, there was a failure to respect the requisite fair balance (which, as has been said before by the Court, is inherent in the whole structure of the Convention) between the demands of the general interest and the interest of the individual or individuals concerned (see, inter alia, the Agosi judgment of 24 October 1986, Series A no. 108, p. 18, § 52).

We agree with the Commission that an interference with the use of property requires a special justification where, as in these cases, it concerns contracts already freely and lawfully entered into. In the same vein, it seems reasonable that the proportionality test becomes somewhat stricter in such cases.

We turn now to the specific cases, as we do not call into question the Austrian rent-control legislation as such but its impact on the concrete cases under examination.

As regards application no. 10522/83 (Mellacher), the monthly rent for the class D apartment in question situated in the city of Graz was reduced from ATS 1,870 to ATS 330, i.e. to 17.6 per cent of the original amount which was freely and at the time lawfully negotiated and which, as accepted by the majority (paragraph 56), corresponded to the prevailing market conditions. The applicants do not seem to be far wrong when they say that the reduced rent now corresponds to the price of a simple meal for two persons in a cheap restaurant.

The situation is compounded by the fact that the applicants are now also severely restricted in their right to give notice, and indeed even if they were not, it would not pay them to do so because the rent would then be further reduced to a mere ATS 220, i.e. 11.7 per cent of the freely and lawfully agreed original rent. The rent reduction moreover takes no account of the fact that the property in question is in a large city, since under the new law the level of rent applies indiscriminately to both large cities and rural areas, despite understandable regional market differences.

The same considerations apply to application no. 11011/84 ( Mölk and Schmid ) where the monthly rent for the class D apartment in question situated in the centre of Innsbruck was reduced from ATS 2,800 (see Commission ’ s Report, paragraph 222) to ATS 561, i.e. 20 per cent of the original freely and lawfully agreed rent and potentially, in the case of an eventual new tenancy, to about ATS 365, i.e. 13.3 per cent of the original rent.

As stated by the Commission, it has not been shown that in these cases the reduced rent was sufficient to cover the applicants ’ necessary maintenance costs, nor that an average tenant could afford no more than the reduced rent.

Taking due account of the State ’ s margin of appreciation, we do not consider that the proportionality requirement is satisfied in these cases. The applicants bore an individual and excessive burden which was not legitimate in the circumstances, with an upsetting of the requisite fair balance which is to be struck between the demands of the general interest of the community and the requirements of the protection of the individual applicants ’ fundamental rights.

Like the unanimous Commission, we therefore find a violation in both these cases.

With regard to application no. 11070/84 (Weiss-Tessbach and the successors in title of Brenner-Felsach), like the Commission, we are inclined, on the facts of the case, to distinguish it from the other two cases and thus find no violation in respect of it.

[*]  Note by the registry: The case is numbered 13/1988/157/211-213.    The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 169 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.