CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mars 1989

.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. 12337/86                       by Helmut RANTNER                       against Austria             The European Commission of Human Rights sitting in private on 6 March 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 30 June 1986 by Helmut RANTNER against Austria and registered on 5 August 1986 under file No. 12337/86;           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 facts of the case as submitted by the applicant may be summarised as follows:           The applicant, a practising lawyer, is an Austrian citizen born in 1938 who resides at Absam, Tyrol.   Another application (No. 12028/86) concerning matters not related to the present case is still pending before the Commission.   The present case concerns various proceedings relating to a farm at Terfens which the applicant acquired in 1976 and which he subsequently ran along with his professional activities as a lawyer, although he did not permanently live on the farm nor perform all the work himself.           After the acquisition of the farm from a friend, with whom he had previously started to run a Haflinger stud on the farm, the applicant first applied to the agricultural authorities for administrative approval of the sales contract under the Provincial Agricultural Settlement Act (landwirtschaftliches Siedlungsgesetz, Provincial Law Gazette No. 49/1969).   The applicant's friend, who was a farmer, had previously obtained such approval for his acquisition of the same property.   However, in the applicant's case it was refused in all instances, essentially on the grounds that he was not a farmer, did not intend to live and work permanently on the farm with his family, and that the taking-over of a farm by a lawyer in such circumstances did not lead to a structural improvement of agriculture as envisaged by the above Act.   The applicant's complaints against the agricultural authorities' decisions were rejected by the Constitutional Court (Verfassungsgerichtshof) on 9 June 1983 and by the Administrative Court (Verwaltungsgerichtshof) on 25 October 1983.           Subsequently, the applicant applied for administrative approval of the sales contract under the Provincial Real Property Transactions Act (Tiroler Grundverkehrsgesetz, Provincial Law Gazette No. 69/1983).   However, this application too was rejected in all instances.   The local Real Property Transactions Authority (Grund- verkehrsbehörde) for Terfens established at the District Authority (Bezirkshauptmannschaft) of Schwaz ruled on 28 February 1984 that consent had to be refused because the acquisition of the farm by the applicant did not serve the public interest in the preservation of an effective farming community and of economically sound agricultural enterprises.   He was not, neither did he intend to become, a full-time farmer.   Running the farm along with his main professional activity as a practising lawyer, he would enjoy better economic conditions than a full-time farmer because he did not have to make his livelihood from the farm and could invest other income, thus creating an unfair competitive relationship with other farmers.   Moreover, the applicant had leased out part of the agricultural land and this was an additional reason to withhold consent to the acquisition of the farm.           The applicant's appeal against this decision was rejected by the Provincial Real Property Transactions Authority (Landesgrund- verkehrsbehörde) on 1 March 1985.   The applicant's claim that he should be recognised as a farmer as he worked the farm himself, although on a part-time basis, was not accepted.   The Authority considered that only a person who worked almost daily on the farm could be regarded as exploiting it himself (Eigenbewirtschaftung). The applicant was present on the farm only from Friday to Sunday, and this was not sufficient to satisfy the legal requirements.         The applicant then complained to the Constitutional Court, invoking his constitutional rights to the inviolability of property, to freedom of acquisition of land, to equality before the law, to free choice of profession, and to proceedings before an independent and impartial tribunal.   However, the Constitutional Court rejected these complaints on 5 March 1986.           The Constitutional Court recognised that the measure interfered with the applicant's property rights, but noted that it was based on legal provisions which did not give rise to doubts as to their constitutionality.   Therefore the constitutional right of property could only be violated if the law had been applied in an unreasonable manner (denkunmögliche Gesetzesanwendung).   However, this was not the case as it could reasonably be argued that a lawyer who personally worked on the farm three days of the week only did not exploit it himself.   There was further no violation of the principle of equality before the law because the decision had not been arbitrary.   The right to free acquisition of property was not infringed by restrictions of the type in question, in any event the acquisition of the farm by the applicant had not been refused in order to privilege a farmer.   The right to the free choice of a profession had not at all been interfered with.           Finally, as regards the right to proceedings before an independent and impartial tribunal (Article 6 of the Convention), the Constitutional Court referred to proceedings which it had opened following the Sramek judgment of the European Court of Human Rights (judgment of 22 October 1984, Series A no. 84) in order to review the constitutionality of the relevant provisions of the Provincial Real Property Transactions Act of the Tyrol.   In its decision of 17 October 1985 (G 157/85) it had found that the violation of Article 6 para. 1 established by the European Court of Human Rights in the Sramek case was not based on the legislation itself, but on organisational arrangements by which a person had been appointed as Rapporteur of the Provincial Real Property Transactions Authority who was in a relationship of functional and hierarchical subordination to the Province's Real Property Transactions Officer (Landesgrundverkehrsreferent). In the present case, however, the Real Property Transactions Officer had not been involved in the proceedings, and therefore there could be no question of a breach of Article 6 of the Convention.           In July 1985 the applicant applied to the municipal council (Gemeinderat) of Terfens for the redesignation of part of the land belonging to the farm.   This land had hitherto been designated as agricultural land and the applicant requested that, in connection with the development of certain adjoining land, its designation should be changed into constructible land (Bauland).   However, the redesignation was refused by a decision of the municipal council on 1 October 1985 of which the applicant was informed on 3 October 1985.   He then lodged a complaint with the Constitutional Court, claiming that the municipal council's decision was to be regarded as a decree (Verordnung) which accordingly could be challenged under Article 139 of the Federal Constitution.   However, on 7 June 1986 the Constitutional Court declined jurisdiction, holding that the municipal council's decision was not a decree, but merely information that proceedings for issuing a redesignation decree would not be instituted.         In the meantime the applicant had made important investments on the farm, in particular with a view to extending the Haflinger stud and adding a riding school.   As it did not make a profit during the first years the applicant, in his tax declarations for the years 1975 - 1981, deducted the considerable losses (total of more than 6.7 million AS) from his income.   However, by a series of decisions issued on 20 August 1982, the tax and revenue office (Finanzamt) refused the recognition of the relevant deductions from the income and turnover tax on the ground that the applicant's agricultural activities were to be regarded as hobby-farming (Voluptuarbetrieb).           The applicant appealed to the Regional Directorate of Finance (Finanzlandesdirektion für Tirol) claiming that the losses were only of a temporary nature and that profits could be expected in the future.   However, the Directorate rejected the appeal on 10 December 1985, stating that the nature of the agricultural enterprise had changed (Änderung des Betriebsgegenstandes) following the exclusion of the applicant from the Haflinger stud association in 1981.   Therefore it was justified, from the point of view of income taxation, to consider the periods before and after the change separately.   The period after the change was not at issue, but as regards the previous period the farm could not be considered as an enterprise capable of making profits and therefore the losses were not deductible from the applicant's other income.           As regards the turnover tax, the Directorate observed that a hobby farm was not to be considered as an "enterprise" within the meaning of the relevant legislation, and therefore it quashed the relevant decisions of the tax and revenue office.           The applicant then appealed to the Administrative Court which, however, rejected his complaints by a decision of 3 June 1986.   It confirmed the view that the farm, as originally organised, could not have made a profit in the foreseeable future even if the applicant had not been excluded from the Haflinger stud association.   It was therefore justified to consider the applicant's agricultural activities during the relevant period as hobby-farming and refuse tax deductions on this ground.     &_COMPLAINTS&S   1.       The applicant first complains that the proceedings under the Real Property Transactions Act violated his right to the determination of his civil rights and obligations by an "independent and impartial tribunal" under Article 6 para. 1 of the Convention.   The Real Property Transactions Authority included among its members several civil servants from the Office of the Provincial Government who, outside their functions in this Authority, were subject to instructions and did not enjoy the guarantee of irremovability.   In particular, they were not sufficiently independent of the Province's Real Property Transactions Officer.   Although none of the members of the Authority is in a relationship of direct hierarchical subordination to this Officer any more, the new organisation has not, in the applicant's view, substantially changed the situation from that considered in the Sramek case.   The applicant furthermore complains that one of the members of the Constitutional Court was also a civil servant of the Provincial Government of the Tyrol, and that therefore this Court was also not organised in conformity with the requirements of Article 6 para. 1.           The applicant further alleges that the above proceedings unjustifiedly interfered with his right to the peaceful enjoyment of his possessions and his right to the free choice of profession.   He also claims that the relevant decisions infringed the principle of equality.   He considers it unjustified that because of his status as a practising lawyer he was refused permission to acquire a farm although he was actually willing to do the farm work on a part-time basis.   2.       The applicant also alleges a violation of Article 6 of the Convention in the proceedings concerning the redesignation of a certain part of his land.   He claims that these proceedings affected his civil rights and that the refusal of a judicial review by the Constitutional Court was contrary to the Convention.   3.       The applicant finally complains of the tax proceedings.   He claims that the Regional Directorate of Finance cannot be regarded as an independent and impartial tribunal, and that the decision to refuse the deduction of losses, on the ground that his activity was hobby-farming, violated the principle of equality and his right to freedom of profession, in particular as the unlawfulness of his exclusion from the Haflinger stud association was not sufficiently taken into account by the Administrative Court.     THE LAW   1.       The applicant first complains of the proceedings before the Real Property Transactions Authority of the Tyrol which he claims is not an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (Art. 6-1), first sentence, of the Convention.   Insofar as relevant, this provision reads as follows:   "      In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."           For the reasons stated in the Sramek judgment of 22 October 1984 (Eur.   Court H.R., Series A no. 84, paras. 34-35) the proceedings complained of come within the scope of this provision.   However, in the above judgment the Court considered the Real Property Transactions Authority to be in line with Article 6 para. 1 (Art. 6-1) of the Convention, except for the position of the Rapporteur who, at that time, in his functions outside the Authority, was in a relationship of hierarchical and functional subordination to the Province's Real Property Transactions Officer (ibid., paras. 37-42).   This relationship of hierarchical and functional subordination of one of the members of the Authority to an agent of the Provincial Government competent to represent the latter as a party in real property transaction proceedings no longer existed at the time when the Authority decided the applicant's case.   Moreover, unlike in the Sramek case, the Province's Real Property Transactions Officer did not participate in the proceedings (in this respect, cf. the findings of the Constitutional Court in its decision of 5 March 1986).   Further, according to the Ettl and Others judgment of 23 August 1987 (Eur. Court H.R., Series A no. 117, p. 18, paras. 38-41), the participation of civil servants in a collegiate body of the type in question does not impair their "independence and impartiality" if, in the exercise of their functions, they are free from instructions, although they may be subject to instructions as regards other activities.   In these circumstances the Commission does not find any appearance in the present case of the Real Property Transactions Authority not being organised in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   The applicant's complaint in this respect is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further alleges that the Constitutional Court, when dealing with his complaint against the Real Property Transactions Authority's decision, was not organised in conformity with Article 6 para. 1 (Art. 6-1) because one of its members was a civil servant of the Provincial Government.   However, even assuming that the Constitutional Court's procedure when examining the applicant's constitutional complaints involved a determination of his civil rights and obligations, and that Article 6 para. 1 (Art. 6-1) therefore applied to this procedure, it must be noted that in the exercise of his functions in the Constitutional Court the member in question was not subject to instructions from the Provincial Government.   Moreover, it has not been alleged that there was any organisational link between the other activities of this member of the Constitutional Court and the Real Property Transactions Authorities of the Tyrol.   In these circumstances, there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) in this respect either, and the applicant's above complaint is also manifestly ill-founded.   3.       As regards the applicant's remaining complaints concerning the real property transactions procedure, the Commission observes that the freedom of profession which the applicant invokes in this respect is not guaranteed in the Convention.   The Commission has examined his complaints under Article 1 of Protocol No. 1 (P1-1) to the Convention, read in conjunction with Article 14 (Art. 14) of the Convention.   These provisions read as follows:   Article 1 of Protocol No. 1 (P1-1):   "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 (Art. 14) of the Convention:   "The enjoyment of the rights and freedoms set forth in this 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 Commission considers that the requirement of administrative consent to the acquisition of real property as stipulated in the Tyrol Real Property Transactions Act constitutes a "control of the use of property" within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1).   It clearly is "in accordance with the general interest" that the legislation aims at preserving viable agricultural enterprises in the hands of the rural population depending on agriculture for their livelihood.   In view of this legitimate aim it was also justified to refuse the applicant permission to acquire the farm in question, having regard to the fact that he intended to run it on a part-time basis and under conditions with which other farmers could not compete.   In this context the Commission notes the important investments which the applicant made from financial resources which were open to him as a practising lawyer and which apparently could not be refinanced from the yield of the farm itself.   It was for this reason that he tried to claim tax reductions in respect of his lawyer's income.   The Commission concludes that the restriction complained of was covered by the second paragraph of Article 1 of Protocol No. 1 (P1-1).           Furthermore, there is no appearance of discrimination of the applicant contrary to Article 14 (Art. 14) of the Convention.   As regards the enjoyment of his property rights, the applicant was not treated differently from other persons merely on the ground that he was a practising lawyer.   Members of other professions, except farmers, would likewise have been refused permission to acquire the farm under such conditions.   The differential treatment of farmers, however, is based on reasonable and objective criteria and thus cannot be regarded as discriminatory.           The applicant's above complaints are therefore again manifestly ill-founded.   4.       Insofar as the applicant complains of the procedure whereby redesignation of certain land was refused to him, he apparently wishes to rely on Article 6 para. 1 (Art. 6-1) of the Convention.   However, this provision is not applicable to the proceedings in question as these did not concern the applicant's civil rights and obligations.   The applicant clearly had no civil right to a redesignation of his agricultural land as a building plot (cf. mutatis mutandis No. 11844/85, X v.   Sweden, Dec. 29.2.88, not yet published).   This part of the application is accordingly incompatible with the provisions of the Convention ratione materiae and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   5.       As regards the tax proceedings, the applicant again seems to invoke Article 6 para. 1 (Art. 6-1) of the Convention.   However, in this respect, too, Article 6 (Art. 6) is not applicable.   The Commission here refers to its constant case-law (cf. e.g.   No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246; No. 9908/82, Dec. 4.5.83, D.R. 32 p. 266).   This part of the application is also incompatible with the provisions of the Convention ratione materiae and must be rejected under Article 27 para. 2 (Art. 27-2).   6.       As regards, finally, the result of the tax proceedings, which the applicant seems to challenge under Article 1 of Protocol No. 1 (P1-1) in conjunction with Article 14 (Art. 14) of the Convention, the Commission notes that he has not lodged a complaint with the Constitutional Court and thus has not exhausted the domestic remedies in conformity with the requirements of Article 26 of the Convention.   This last part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)