SEPARATE OPINION OF JUDGE WIARDA

(Translation)

I share the opinion set out in the ju dgment, with the sole exception of the reasons concerning the application of Article 6 para. 1 (art. 6-1) of the Convention to the proceedings before the Frankfurt Administrative Court relating to the withdrawal of the authorisations to run a clinic and to practise medicine.

According to the reasoning in the j udgment, the rights at issue in these actions were the right to continue to run a private clinic and the right to continue to practise medicine; these two rights are classified as rights of a private nature and thus as civil rights within the meaning of the Convention.

I agree with the view that, whatever sc ope the concept of civil rights and obligations within the meaning of the Convention may have, it in any event includes rights and obligations of a private nature in the traditional sense; however, I do not consider that the right to run a clinic and the right to practise medicine can be classified as rights of a private nature within the traditional meaning of that concept.

In my opinion, the classification of a subjective right depends on the classification of the rules of the objective law in which that subjective right has its source.

In German (objective) law, the (sub jective) right to run a private clinic and the (subjective) right to practise medicine depend solely on obtaining and conserving the authorisations required by law for this purpose; however, the conditions which must be fulfilled to obtain and conserve such authorisations are found in (objective) public (administrative) law, not in (objective) private law.  For this reason, I believe that these rights should be classified not as civil but as public rights.

This does not mean that I cannot agree with the Court's conclusion.

According to the Ringeisen judgme nt, the question whether a case ("contestation") is to be considered as a case relating to "civil rights and obligations" depends neither on the character of the legislation which governs how the matter is to be determined nor on the character of the authority invested with jurisdiction, but on the character of the rights and obligations for which the result of the proceedings is decisive.

In the present case, the result o f the proceedings instituted by Dr. König before the Frankfurt Administrative Court was decisive for the conservation or the restoration of his status as owner and manager of a private clinic and as a medical practitioner, and for the conservation or the restoration of the complex of rights and obligations attaching to such status.

This complex of rights and obli gations was mixed in character. Public law played a part ( Gewerbeordnung , Bundesärzteordnung ), but, in my view, the area governed by private law predominated.  Dr. König owned his clinic and his practice and was exercising his rights of property in the use which he made of them.  The clinic, the practice and his patients represented an element of "goodwill" which likewise was in the nature of a private right similar, in some respects, to the right of property.  From the legal po int of view, the running of the clinic and the exercise of his profession were carried on through the conclusion of contracts.

The withdrawal of the authorisations needed by Dr. König to continue running his clinic and exercising his profession amounted to an interference that in many respects deprived this complex of rights and obligations - for the greater part g overned by private law - of the value which they represented.

It was the justification for the withdrawals that was at stake in the proceedings before the Frankfurt Administrative Court which underlie the present case.

For this reason, I believe, that i t is legitimate to classify the cases ("contestations") in issue as cases involving "civil rights and obligations" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.