CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 mai 1991

.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. 13062/87                       by 1) GIESINGER UND KOPF GmbH & Co.   KG                          2) Alfons GIESINGER                       against Austria           The European Commission of Human Rights sitting in private on 29 May 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 1 June 1987 by Giesinger und Kopf GmbH & Co.   KG and Alfons Giesinger against Austria and registered on 15 July 1987 under file No. 13062/87;           Having regard to:   -        the Commission's decision of 4 September 1989 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits;   -        the observations submitted by the respondent Government on 15 December 1989 and the observations in reply submitted by the applicants on 21 February 1991;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The facts of the case as agreed by the parties may be summarised as follows:           The first applicant is a company established at Weiler, Vorarlberg.   The second applicant, an Austrian citizen born in 1934 who resides at Weiler, is its managing partner with unlimited liability.           The applicants are represented by Mr.   René Laurer, a lawyer practising in Vienna.           The applicant company is engaged in the production and retailing of packaging materials, including regenerated cellulose film for wrapping food.   This material is traditionally produced with certain additives (including monoethylene and diethylene glycol) as moistening, softening and lubrifying agents.           By an Ordinance (Verordnung) of 6 December 1985 (Federal Law Gazette No. 541/1985) the Austrian Federal Minister for Health and Environment Protection (Bundesminister für Gesundheit und Umweltschutz) laid down new standards concerning the content of these substances in packaging material for food.   As from 15 January 1986 it was forbidden to put into circulation packaging material for food or food packed in material containing more than 0,05% of monoethylene or diethylene glycol.           At this time the applicant company had a stock of regenerated cellulose film which represented a market value of some three million AS.   As a consequence of the new regulation this stock became practically worthless, the applicants being unable to sell it, in particular as part of the cellulose film had already been prepared (cut and printed) for former Austrian buyers.           On 8 April 1986 the applicants lodged a constitutional complaint under Article 139 of the Federal Constitution against the above Ordinance, claiming that they were directly affected by it and that it was unlawful as the forbidden substances were not dangerous to health.   The applicants further claimed that the Ordinance violated the constitutional principle of equality before the law.           By a decision of 9 October 1986, which was served upon the applicants on 3 December 1986, the Constitutional Court (Verfassungs- gerichtshof) rejected the applicants' complaint.   It accepted that the applicants were directly affected by the Ordinance insofar as it forbade the putting into circulation of certain packaging materials. However, the Ordinance was based on Section 29 of the Food Act (Lebensmittelgesetz) 1975, a legal provision which did not give rise to any doubts as to its constitutionality.   This provision authorised the Ministry, after hearing the competent Advisory Committee of the Food Code (Kodexkommission), to prohibit or limit the use of certain substances if this was necessary in the interest of consumer health protection, having regard to the state of science and technology.   The Minister had issued the Ordinance on the basis of a report of the Ministry's experts (sachverständige Äusserung fachkundiger Beamter) according to which diethylene glycol in regenerated cellulose film could migrate into the packed food in quantities endangering health, in particular in the case of children repeatedly consuming products packed in such a manner.   The Advisory Committee of the Food Code had not objected to this analysis.   An analysis by a Swiss laboratory submitted by the applicants did not invalidate the detailed expert opinion of the Ministry's experts and therefore the Minister could rightly assume that the substances in question endangered health.   A transitional provision of the Ordinance, which allowed the use of packaging material put into circulation before the entry into force of the Ordinance, if it was shown that in the particular case health was not endangered, could not be invoked by the applicants as an argument that there was generally no danger to health.           The Constitutional Court's decision was taken in non-public proceedings under Section 19 para. 4 of the Constitutional Court Act (Verfassungsgerichtshofsgesetz).   The applicants were at no time provided with a copy of the report of the Ministry's experts.     COMPLAINTS           The applicants allege a violation of Article 6 para. 1 of the Convention in that the Constitutional Court, called upon to determine their civil rights and obligations, did not grant them a "fair" and "public" hearing.   They submit that it was unfair that the report of the Ministry's experts was not brought to their knowledge and that the relative weight of this expert opinion and of the private expert opinion submitted by them was not discussed on the basis of the opinion of "neutral" experts.   The Constitutional Court's failure to hold a public hearing was not covered by the Austrian reservation concerning Article 6, which only applied to proceedings before the ordinary courts.   Even if the reservation should extend to the Constitutional Court's proceedings, the legal provision which enabled the Constitutional Court to forgo a public hearing (Section 19 para. 4 of the Constitutional Court Act) was enacted in 1984 and thus after the reservation had been made.   The reservation therefore could not cover this legal provision.           The applicants further allege a violation of Article 1 of Protocol No. 1 to the Convention in that by the Ordinance their stock of regenerated cellulose film was de facto expropriated without sufficient justification.   In this respect they claim, in particular, that there was no genuine public interest in forbidding the use of the packaging material in question, the prohibition being based exclusively on the opinion of the Ministry's experts, who were subject to instructions, and whose opinion was contradicted by expert opinions from neutral (Swiss and British) sources confirming that there was no acute danger to health.   The absence of such a danger was also implied in the transitional provision of the Ordinance concerning packaging material already in circulation.   Compensation for the applicants' damage of three million AS was excluded by Section 65 of the Food Act.     PROCEEDINGS           The application was introduced on 1 June 1987 and registered on 15 July 1987.           On 4 September 1989 the Commission decided to give notice of the application to the respondent Government and to invite them, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version), to submit observations in writing on the admissibility and merits of the application before 17 November 1989.   This time-limit was subsequently extended, at the Government's request, until 15 December 1989.           The Government submitted their observations on that date and the applicants replied on 21 February 1990.     THE LAW   1.       The applicants complain that before the Constitutional Court they were not granted a fair and public hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.   This provision reads as follows:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.   Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."           The applicants claim that the dispute before the Constitutional Court concerned the justification of a deprivation or restriction of their property and thus involved a direct determination of their "civil rights".   The Government contest this. They submit that the proceedings instituted by the applicants before the Constitutional Court were norm control proceedings (Normkontroll- verfahren) in which the only questions to be determined were whether the impugned ordinance had a sufficient legal basis in the Food Act and whether it respected the principle of equality.   The inviolability of property had not been invoked by the applicants, and therefore there could be no question of a determination of the applicants' "civil rights" in this respect.           The Commission observes that the proceedings in question were "norm control proceedings", i.e., proceedings in which the Constitutional Court had to examine the lawfulness of the ordinance under the Food Act and under the Constitution independently of the particular case of the applicants.   This case was only of importance for the applicants' procedural right to institute the proceedings in question.   They had this right because they were directly affected by the ordinance without the intervention of a judicial or administrative decision.   However, in the examination of the merits of their application the Constitutional Court was in no way required to deal with the specific effects of the Ordinance on the applicants. Moreover, it could not even indirectly deal with the effects of the ordinance on the applicants' property rights as they failed to invoke the constitutional principle of inviolability of property, which they uncontestably could have done also in the context of norm control proceedings.   The fact that the applicants referred to the value of their stock of packaging material and urged an early decision in view of its rapid deterioration cannot in the Commission's opinion replace a formal invocation of the constitutional guarantee of property.           The Commission therefore finds that the Constitutional Court's proceedings in the present case did not come within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   The applicants' complaints concerning the conduct of these proceedings must accordingly be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being incompatible with the provisions of the Convention ratione materiae.   2.       The Commission has examined whether an issue could nevertheless arise under Article 6 para. 1 (Art. 6-1) of the Convention in that the applicants were deprived of a judicial procedure in conformity with this provision in which they could raise the specific questions of the case which were excluded from the Constitutional Court's examination in the norm control proceedings. The applicants in fact seem to complain that the latter proceedings were the only remedy available to them, and that for this reason they were unable to claim compensation for the damage which resulted for them from the enactment of the ordinance.   A claim to compensation normally constitutes a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           However, the Commission is not required to pursue this aspect of the case any further as the applicants did not exhaust the domestic remedies in this respect as required by Article 26 (Art. 26) of the Convention. In fact they could have tried either to institute proceedings before the civil courts (e.g. under the Official Liability Act) or, if they considered that the legislation did not provide them with sufficient access to the courts in this respect, having regard in particular to the exclusion of a compensation claim under Section 65 of the Food Act, they could have complained of this to the Constitutional Court invoking Article 6 (Art. 6) of the Convention which is directly applicable in Austria in the rank of constitutional law.   This part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicants finally complain that the 1985 Ordinance, by which the use of certain chemicals in packaging material for food was prohibited, violated Article 1 of Protocol No. 1 (P1-1) to the Convention, which reads:   "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."           The Government submit that any interference with the applicants' property rights could only result from the Ordinance itself, but not from the Constitutional Court's decision.   They further submit that the applicants have not exhausted the domestic remedies in conformity with the requirements of Article 26 (Art. 26) of the Convention since in the proceedings before the Constitutional Court they failed to invoke their constitutional right to the inviolability of property.           The applicants claim that by upholding the Ordinance the Constitutional Court also interfered with their property rights.   They further claim that in substance they raised the issue of property rights in the Constitutional Court's proceedings by referring to the value of the packaging material in their possession and urging an early decision in view of its rapid deterioration.   They finally invoke the Commission's case-law according to which they were not required to invoke explicitly Article 1 of Protocol No. 1 (P1-1) to the Convention.           The Commission accepts that it is sufficient for the purposes of Article 26 (Art. 26) of the Convention if an applicant has put before the competent domestic authority the substance of the complaints raised in the Convention proceedings.   However, for the reasons set out above the Commission cannot accept that the applicants in the present case in fact seized the Constitutional Court with the question of their property rights.           It follows that the applicants have failed to exhaust the domestic remedies in respect of their complaint under Article 1 (Art. 1) of the Protocol, which must accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission by a majority             DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)