CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 11402/85 by Gerhard ZÜCHNER against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 March 1987, the following members being present:                         MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         H. VANDENBERGHE                    Mr.   F. MARTINEZ                      Mr.   J. RAYMOND, Deputy Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 16 November 1984 by Gerhard ZÜCHNER against the Federal Republic of Germany and registered on 22 February 1985 under file No. 11402/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a German citizen, born in 1928 and living in Rosenheim.           His application concerns three distinct subject matters.   1.       In 1979 the applicant brought an action against a bank claiming restitution of 15 DM which the bank had allegedly wrongly charged as fees for the transfer on the applicant's account of 10,000 DM to Italy.   The applicant submitted that the charging of the fee in question violated Article 67 of the E.E.C. Treaty.   The District Court (Amtsgericht) of Rosenheim submitted the issue to the European Court of Justice for a preliminary ruling in accordance with Article 177 of the E.E.C. Treaty and eventually dismissed the applicant's action.   The applicant was ordered to pay the costs of the proceedings.   The applicant's appeal (Berufung) was dismissed by the Regional Court (Landgericht) of Traunstein as being inadmissible.           The costs, as fixed by the District Court, included fees and travel expenses amounting to 2,463.24 DM incurred by the adverse party in connection with the participation of counsel and an adviser in the hearing before the European Court of Justice.           The applicant's appeal (sofortige Beschwerde) against the order fixing the costs was rejected by the Traunstein Regional Court on 9 January 1984.   This court confirmed the District Court's opinion that the travel expenses were justified.   Even if a lawyer in Luxembourg had been charged by the defendant party to attend the hearing before the European Court of Justice it would have been necessary to instruct this lawyer.   Such instruction could even have necessitated two visits of defendant's counsel to Luxembourg and would thus have caused even higher costs.   Furthermore, so the Regional Court reasoned, the costs were not disproportionate to the value of the claim at issue (i.e. 15 DM) because the issue was, in view of the numerous international money transfers effected by the defending bank, of such importance that the defending bank had a justified interest in defending the case in an extensive and adequate manner.           The applicant lodged a constitutional complaint (Verfassungsbeschwerde) arguing that under the German Code of Civil Procedure (Zivilprozessordnung) only the costs incurred in the proceedings before the competent German court had to be borne by the losing party.   He also pointed out that the risk of having to bear costs which were disproportionate in relation to the value of the claim at issue would practically oblige a claimant to withdraw his action in case the matter was submitted to the European Court of Justice.           The applicant's constitutional complaint was rejected on 6 July 1984 by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) as offering no prospects of success. It is stated in the decision that the Regional Court's finding that the costs in question had been necessary within the meaning of Section 91 of the Code of Civil Procedure did not disclose any violation of constitutional law.   2.       In 1981 the applicant brought an action before the Munich Social Court (Sozialgericht) against the Federal Insurance Office for Employees (Bundesversicherungsanstalt für Angestellte) claiming an invalidity pension (Erwerbsunfähigkeitsrente) as from 1 October 1972 until 1 February 1978 and reimbursement of costs for medical treatment necessitated by a traffic accident on 4 May 1972 leaving the applicant with paraplegia.           While the Munich Social Court partly granted the action and ordered the defendant to pay invalidity pension as requested, the action was, as a whole, dismissed by the Bavarian Social Court of Appeal (Landessozialgericht) on 8 March 1984.   This court found that the applicant had no claim to an invalidity pension as he exercised his profession as an independent trade agent until March 1982. Furthermore he had no claim to a disability pension (Berufsunfähig- keitsrente) for the period previous to 1 February 1978 because he had, in a letter of 20 December 1972, withdrawn his request for a pension. The appellate court considered, unlike the Social Court, that the defendant had not violated its obligation to inform the applicant in an adequate manner about his rights in connection with his traffic accident.   A claim for reimbursement of the costs caused by the applicant's medical treatment was rejected on the ground that the Bremen Trade Insurance Agency (Handelskrankenkasse) had paid the benefits due under the law (gesetzliche Leistungen).           On 12 December 1984 the Federal Social Court (Bundessozial- gericht) refused to grant leave to appeal.   This decision was served on the applicant's counsel on 5 January 1985.           The applicant submits that counsel, a retired social court judge 73 years old, had fallen ill shortly before and as counsel did not employ a secretary the time limit for lodging a constitutional complaint expired before the applicant himself was informed about the decision of 5 January 1985.   3.       On 18 August 1986 the Rosenheim District Court dismissed the applicant's claim for about 4,000 DM against an insurance company concerning reimbursement of certain lawyer's fees.   The Court found that the fees in question were not covered by the contract.   Moreover the Court considered that there was no reason to request a preliminary ruling of the European Court of Justice as the applicant had failed to show that his case raised an issue under European Community law.           The applicant's constitutional complaint was rejected by the Federal Constitutional Court on 6 November 1986 as offering no prospects of success.   The Court found that even assuming that the arbitrary omission of a court to request a preliminary ruling of the European Court of Justice amounted to a denial of the lawful judge (gesetzlicher Richter) there was no such violation of the applicant's constitutional rights in the present case in that the District Court was not obliged to request a preliminary ruling.   The rule that under German law (Versicherungsaufsichtsgesetz) insurance companies were only admitted to take up business under certain conditions as regards the protection of consumers did not violate the freedom of European insurance companies to take up business in the Federal Republic of Germany.   Moreover there was no indication of a restraint on the free competition between foreign and national companies.   COMPLAINTS   1.       As to the first part of the application, the applicant complains that he was ordered to pay the costs as fixed by the Rosenheim District Court although the German procedural law does not contain any express provision relating to costs of proceedings before the European Court of Justice.   He points out that a national court can take the decision to submit a matter to the European Court of Justice in accordance with Article 177 of the E.E.C. Treaty independently of the will of the parties.   The costs of the proceedings before that Court should not, therefore, be imposed on the losing party because otherwise the financial risk involved with a legal action would become so great that it would practically bar access to the courts.   He invokes Articles 6 and 14 of the Convention.   2.       As to the second part of the application, the applicant complains that his action was wrongly dismissed and that he was denied access to and a fair hearing before the Federal Social Court.   He considers that the social courts disregarded the relevant facts and violated the relevant law.   Furthermore he submits that his action was dismissed on the sole ground that, as a consequence of this accident, he received an important amount of money from a private insurance he had taken out.   He alleges a violation of Article 6, alone and in conjunction with Article 14 of the Convention.   3.       As to the third part of the application, the applicant complains under Article 6 para. 1 of the Convention that the District Court did not request a preliminary ruling of the European Court of Justice.     THE LAW   1.       The applicant has first complained that in connnection with civil proceedings before a German court he was wrongly ordered to pay the costs incurred by the defending party in consequence of the fact that the German court submitted the case to the European Court of Justice for a preliminary ruling.   The applicant considers that costs which, as in his case, by far exceed the value of the claim at issue, have the effect of barring access to the courts and therefore violate Article 6 (Art. 6) of the Convention, also read in conjunction with Article 14 (Art. 14).           In its examination of this complaint the Commission has first had regard to Article 1 para. 2 of Protocol No. 1 (P1-1-2) to the Convention, which recognises the right of a State "to enforce such laws as it deems necessary .... to secure the payment of .... contributions". Costs in a judicial procedure are contributions within the meaning of this provision (No. 7909/74, Dec. 12.10.78 D.R. 15, p. 160).   In this particular case they were imposed under Section 91 of the Code on Civil Procedure which provides, inter alia, that the losing party has to reimburse those costs of the adverse party which are necessarily incurred.   According to the decisions complained of this provision also covers costs incurred in proceedings under Article 177 of the E.E.C. Treaty and this corresponds to similar regulations in the law of other High Contracting Parties.   The Commission finds that Section 91, as applied, can reasonably be considered as "necessary" within the meaning of Article 1 para. 2 of Protocol No. 1 (P1-1-2) and therefore as covered by Article 1 despite the possible discrepancy between the amount of costs and the value of the claim raised by the applicant.           The Commission here observes that the value of the applicant's claim was so low that he had to expect that it would be substantially exceeded by the total of the costs incurred in the proceedings in which, uncontestably, an issue of general importance for the defendant had to be determined.   In particular, when the matter was brought before the European Court of Justice, the applicant had to choose between either the risk of high costs, in case his action was dismissed, or the withdrawal of his claim of 15 DM.   The costs finally claimed by the defendant were examined in detail by the German courts and were granted only in so far as they were found to have been both necessary and justified.           The Commission concludes that there is no appearance of a violation of Article 1 of Protocol No. 1 (P1-1).           It also finds no indication of a violation of Article 6 (Art. 6), either alone or read in conjunction with Article 14 (Art. 14) of the Convention. Article 6 (Art. 6) embodies the right of access to a court for the determination of civil rights and obligations, and high procedural costs may in certain circumstances constitute a denial of access (Eur. Court H.R., Airey judgment of 9 October 1979, Series A No. 32).   In the present case, however, the applicant could apparently afford the institution of proceedings before the District Court and their continuation when the case was submitted to the European Court of Justice.           It follows that there is no appearance of a violation of the rights invoked by the applicant and this part of the application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has further complained that his social court action was wrongly dismissed and that he was denied leave to appeal to the Federal Social Court.           It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone the right to a fair hearing and this right may, in certain circumstances, also be invoked with regard to proceedings relating to social security rights.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.           In the present case the applicant failed to raise his complaint before the Federal Constitutional Court and has, therefore, not exhausted the remedies available to him under German law. Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           The fact that the applicant's counsel fell ill and therefore failed to inform the applicant of the beginning of the time limit for lodging a constitutional complaint cannot absolve the applicant from the obligation to comply with the domestic time-limit.   The applicant knew that his counsel was a retired judge who apparently did not entertain a regular law office.   He was therefore himself obliged to see to it that his case was conducted in an adequate manner.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicant finally complains under Article 6 para. 1 (Art. 6-1) of the Convention that the District Court did not request a preliminary ruling of the European Court of Justice in the proceedings concerning his claim for reimbursement of lawyer's fees.           It is true that Article 6 para. 1 (Art. 6-1) of the Convention guarantees a fair hearing by a "tribunal established by law".   However, even assuming that this clause might be interpreted as including a requirement that domestic rules concerning the jurisdiction of particular courts for particular matters be observed, there is no indication of a violation of such a right in the present case.   The District Court and the Federal Constitutional Court, after careful examination of the relevant legal provisions of European Community law, found that the applicant's claim did not raise any issue requiring a preliminary ruling of the European Court of Justice.   The Commission therefore concludes that there is no appearance of a violation of the applicant's right to the determination of his civil rights by a tribunal established by law.           It follows that this part of his application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Deputy Secretary to the Commission           President of the Commission                  (J. RAYMOND)                              (C.A. NØRGAARD)