CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 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. 11835/85                       by 1) M. S.                       and 2) P. P.                       against Austria             The European Commission of Human Rights sitting in private on 5 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   M.A. TRIANTAFYLLIDES                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER 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 11 July 1985 by 1) M.S. and 2) P.P. against Austria and registered on 14 October 1985 under file N° 11835/85;           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&S           The applicants, two Austrian medical doctors, are living and practising in Lofer.   M.S. was born in 1941 and P.P. in 1945.   They are both represented by Mr.   W. Berger, a lawyer practising in Salzburg.           It follows from their statements and the documents they have submitted that both had been granted the authorisation (Dr.   Schlederer in 1973 and Dr.   Pechlaner in 1979) to run a medicine cabinet (ärztliche Hausapotheke) in connection with their medical practice.           On 10 June 1983 the competent local authorities (Landeshauptmann) granted the pharmacist, Mr.   H, a licence to open a pharmacy in Lofer. The applicants' request to be heard in the licence proceedings were rejected by the local authorities on 16 March 1984.   An appeal was rejected on 17 September 1984 by the Minister of Health.   A further appeal to the Administrative Court (Verwaltungsgerichtshof) was pending when the application was lodged.           On 15 June 1984 the applicants' authorisation to run a medicine cabinet was withdrawn on the ground that a public pharmacy had been opened in the same locality.   Their appeals were rejected on 27 and 28 August 1984 by the competent authorities (Landeshauptmann).   The applicants complained of these decisions to the Constitutional Court (Verfassungsgerichtshof) alleging a violation of Article 6 of the Convention.           On 10 October 1984 the Constitutional Court rejected the constitutional complaints as offering no prospects of success.   The Court informed the applicants of the possibility to submit their cases to the Administrative Court.           The applicants in fact also appealed to this Court which, however, rejected their appeals on 22 November 1984.   These decisions were served on their lawyer on 16 January 1985.           The Administrative Court found that Section 29 of the Pharmacy Act (ApG) cogently provided for the withdrawal of the authorisation for a medicine cabinet when a public pharmacy was opened on the basis of a valid licence.   The Court rejected the applicants' argument that it also had to examine whether the granting of the licence for the public pharmacy was lawful.   The Court considered that this question was of no relevance in the applicants' proceedings.           The applicants submit that, according to an amendment of the Pharmacy Act, which was, however, not yet in force at the relevant time and therefore was not applicable in their case, the opening of a public pharmacy no longer leads to the automatic withdrawal of the authorisation of a medicine cabinet run in the same locality.   &_COMPLAINTS&S           The applicants submit that the withdrawal of their authorisation to run a medicine cabinet deprives them of more than 40% of their net income possibilities and therefore seriously affects their economic situation.   They consider that the proceedings in which they complained of the withdrawal of their authorisations concerned the determination of a civil right within the sense of Article 6 para. 1 of the Convention.   They consider that an effective legal protection as envisaged by this provision would have been given only if they had had the possibility of contesting the lawfulness of the granting of a licence for the public pharmacy.   They allege a violation of Article 6 para. 1 of the Convention and/or Article 1 of Protocol No. 1.   &_THE LAW&S           The applicants have complained that, in rejecting their appeal against the withdrawal of their authorisations to run a medicine cabinet, the Austrian Administrative Court wrongly refused to examine whether the granting of the licence for a public pharmacy, the cause of the withdrawal of their authorisations, had been lawful.           With regard to the judicial decision of which the applicants complain, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;   No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that in this case the applicants allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention on the ground that the Austrian Administrative Court denied them the right to question the lawfulness of the licence granted a pharmacist to run a public pharmacy.   However, Article 6 para. 1 (Art. 6-1) extends only to "contestations" (disputes) over civil "rights and obligations" which can be said to be recognised under domestic law (Eur.   Court H.R., R. judgment of 8 July 1987, Series A No. 121, para. 78).   In the present case the Austrian Court found that the right claimed by the applicants did not exist under Austrian law.   To the extent that the applicants claim a right to continue to run a medecine cabinet and assuming that this right can be considered as a civil right within the meaning of Article 6 para. 1 (Art. 6-1) the Commission notes that the applicants had access to a court which heard and determined their claim that their authorisations were wrongfully withdrawn.   It has not been alleged in this case that the proceedings before the Administrative Court as such failed to satisfy the requirements of Article 6 para. 1 (Art. 6-1).   Furthermore, the Commission refers to its case-law, according to which it does not violate any Convention rights, in particular Article 1 of Protocol No. 1 (P1-1), if a licence granted on certain conditions is withdrawn because such conditions are no longer fulfilled (No. 10438/83, Dec. 3.10.84 to be publ. in D.R.41).           It follows that the application is 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.&S     Secretary to the Commission                 President of the Commission              (H.C. KRÜGER)                               (C.A. NØRGAARD)