CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 octobre 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. 16318/90                       by Reinhard Peter & Co.   KG and                          Franz Martin ZUMTOBEL                       against Austria             The European Commission of Human Rights sitting in private on 15 October 1991, the following members being present:                MM.   J.A. FROWEIN, Acting President                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                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 28 February 1990 by Reinhard Peter & Co.   KG and Franz Martin ZUMTOBEL against Austria and registered on 19 March 1990 under file No. 16318/90;           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 submitted by the applicants, may be summarised as follows.     Particular circumstances of the case           The first applicant is a company of limited partnership (Kommanditgesellschaft) under Austrian law.   The second applicant, an Austrian citizen residing at Dornbirn, is its manager.           On 14 August 1984 the Klagenfurt Local Council (Gemeinderat) decided to grant a special designation for shopping areas to the second applicant's land.   However, this designation did not enter into force as it was not approved by the Carinthian Provincial Government (Landesregierung).           On 9 April 1986 the Mayor of Klagenfurt refused the second applicant's request for a permit to build a supermarket (Grossverbrauchermarkt).   In his decision the Mayor stated in particular that the building permit was requested for an area that was not designated as an area for shopping centres (Fläche für Einkaufszentren).           The second applicant appealed against the decision, claiming that the decision was unlawful as its legal basis, the Community Planning Act (Gemeindeplanungsgesetz), was unconstitutional.           On 1 September 1986 the first applicant informed the authority that it had entered into the rights of the second applicant and that it was now requesting the building permit.           On 28 November 1986 the Klagenfurt City Council (Stadtsenat) dismissed the appeal on the ground that it was not competent to consider if the Community Planning Act was unconstitutional.           On 15 May 1987 the Carinthian Provincial Government (Landesregierung) dismissed the first applicant's further appeal on the ground that the authorities had been bound by the law.           The first applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).   It submitted that the decision violated its right of property and its rights under Articles 6 and 13 of the Convention to a decision by a tribunal and an effective remedy. It further contended that paras. 4 and 5 of Section 5 of the Community Planning Act were unconstitutional, as the provincial legislature was not competent to enact it.           On 1 October 1988 the Constitutional Court dismissed the complaint on the grounds that Article 6 of the Convention was not applicable to the proceedings in question and that the provincial legislature had been competent to enact Section 5 paras. 4 and 5 of the Carinthian Community Planning Act.           The Constitutional Court found no other indication of a violation of the first applicant's constitutional rights and referred the case to the Administrative Court (Verwaltungsgerichtshof).           On 10 March 1989, in a supplement to its complaint, the first applicant contended that the authority had not decided on the amendment of the area zoning plan and that the area zoning plan was unlawful.   It furthermore alleged a violation of Articles 6 and 13 of the Convention and of Article 1 of Protocol No. 1.           On 4 July 1989 the Administrative Court dismissed the complaint.   In the Court's opinion it was undisputed that the first applicant's project was a shopping centre for which there was no special designation as the decision of the Klagenfurt Local Council had not been approved by the Provincial Government.   Therefore the refusal of the building permit for non-conformity with the area zoning plan was lawful.   The decision was served on the first applicant on 31 August 1989.     &SRelevant domestic law and practice&-     I.       Building permits           According to Section 9 para. 1 of the Carinthian Building Regulations (Bauordnung) a preliminary examination (Vorprüfung) of the request for a a building permit has to take place.           Section 9 para. 2 states:   [Translation]   "In the preliminary examination the authority has to establish whether:   a) ...   b) the area zoning plan,    ...   preclude(s) the project."           Section 11 para. 1 states:   "If one of the reasons in Section 9 para. 2 precludes the project, the authority has to refuse the request."   [German]   "[9] (2) Bei der Vorprüfung hat die Behörde festzustellen, ob dem Vorhaben   a) ...   b) der Flächenwidmungsplan,    ...   entgegenstehen.     [11] (1) Steht dem Vorhaben einer der Gründe des § 9 Abs. 2 entgegen, hat die Behörde den Antrag abzuweisen."     II.      Land planning legislation           Land planning in Austria is divided into regional and local land planning (überörtliche und örtliche Raumordnung).   In the present case land planning was governed by Carinthian law.           Section 2 para. 2 of the Carinthian Regional Planning Act (Raumordnungsgesetz) lays down the aims of regional land planning.           The local land planning is carried out by the communities. The latter issue area zoning plans (Flächenwidmungspläne) which have to be approved by the Provincial Government.           Section 5 of the Community Planning Act provides for special designation of land.   Its paras. 4 and 5 read as follows:   [Translation]   "(4) Areas for shopping centres require special designation.   (5)   Shopping centres are sales rooms of retail and wholesale trade, such as supermarkets, cash-and-carry markets etc., in which goods of different categories of articles including articles of everyday use, are offered and in which the economically connected sales area exceeds 600 m²."   [German] "(4) Flächen für Einkaufszentren müssen als Sonderwidmung festgelegt werden.   (5)   Einkaufszentren sind Verkaufslokale des Einzelhandels und des Großhandels, wie Verbrauchermärkte, Abholgroßmärkte u.ä., in denen Güter mehrerer Warengruppen einschließlich von Waren des täglichen Bedarfes, angeboten werden und bei denen die wirtschaftlich zusammenhängende Verkaufsfläche 600 m² übersteigt."           Proceedings for special designation of land are divided into two parts.   First the local council of a community decides on a special designation.   There is, however, no individual right that the local council grant a special designation to a particular plot of land.           The decision of the local council must then be approved by the supervisory authority, the Provincial Government of Carinthia.   The individual land owner, having no right to have the local council's decision approved, is not a party to the proceedings.           Area zoning plans are Ordinances (Verordnungen).   These ordinances can be challenged before the Constitutional Court (Verfassungsgerichtshof) for unlawfulness according to Article 139 of the Austrian Federal Constitution.   Area zoning plans which have not been approved cannot be challenged as they did not enter into force. It is also impossible to complain about the fact that the Provincial Government has not approved a particular area zoning plan.     III.     The jurisdiction of the Constitutional Court           The Austrian Constitutional Court pronounced itself on the applicability and scope of Article 6 para. 1 of the Convention to building proceedings originating from Austrian administrative authorities in its decision of 14 October 1987 (B 267/86, VfSlg 11500/1987).   It held that the refusal of a building permit was not a decision on a "civil right".   The Court stated the following:   [Translation]   "The refusal of a building permit is rather an interference by the State in the public interest - it is indeed the very archetype of such an interference -, and the upholding of public interests including the necessary balancing of public and private interests is the essential function of administration.   The fact that the subject of the interference is generally property and hence a private property right, does not change its public law character."   [German]   "Vielmehr ist die Versagung einer Baubewilligung ein hoheitlicher Eingriff im öffentlichen Interesse - ja geradezu der Prototyp eines solchen Eingriffs -, und die Wahrnehmung der öffentlichen Interessen einschließlich der nötigen Abwägung gegenüber privaten Interessen die wesentliche Aufgabe der Verwaltung.   Daß der Gegenstand des Eingriffs regelmäßig das Eigentum und damit ein privates Vermögensrecht ist, ändert an seinem öffentlich-rechtlichen Charakter nichts."           The Court distinguished between decisions concerning the core of civil law (i.e. disputes among private persons) and decisions on disputes which only concern civil rights in their effects (namely the relationship between the private person and the public).   In order to avoid a complete change of the Austrian State structure, the Court considered that the requirements of a tribunal within the meaning of Article 6 para. 1 of the Convention should depend on whether the dispute concerned the one or the other category.   With regard to decisions concerning civil rights only in their effects the Court found that it sufficed under Article 6 para. 1 if a tribunal exercised a mere subsequent control of the decision.   The Court continued:   [Translation]   "Such a subsequent control would in any event suffice if, regardless of its nature as a merely subsequent control which does not provide for the reopening of proceedings, the court effectively (and not merely theoretically and in the abstract) has the possibility to convince itself of the correctness of the solution in regard to the facts and the law applied and its judgment on the matter is capable of being enforced.   Such a control falls to the Austrian Administrative Court in the light of an understanding of the Administrative Court Act which is oriented towards the Constitution."   [German]   "Eine solche nachprüfende Kontrolle müsste jedenfalls dann genügen, wenn sie ungeachtet ihres bloss nachprüfenden, nicht auf einer Neudurchführung des Verfahrens beruhenden Charakters dem Gericht - nicht bloss theoretisch und abstrakt, sondern im Ergebnis auch wirksam - Gelegenheit gibt, sich von der Richtigkeit der Lösung sowohl der Tat - wie der Rechtsfrage zu überzeugen und sein Urteil über die Sache auch durchzusetzen, wie dies bei einem an der Verfassung orientierten Verständnis des Verwaltungsgerichtshofgesetzes dem österreichischen VwGH aufgetragen ist."     IV.      Proceedings before the Administrative Court           According to Article 130 para. 1 of the Federal Constitution the Administrative Court reviews allegations of unlawfulness of an administrative decision.   Article 130 para. 2 excludes the review of the exercise of discretionary powers within the scope of the law.   The Administrative Court is also competent to deal with complaints that the administrative authority has violated its duty to take a decision (Article 132).           Section 41 of the Administrative Court Act provides, insofar as relevant:   [Translation]   "(1)   Insofar as the Administrative Court does not find unlawfulness on account of a lack of jurisdiction of the authority against which the appeal is directed or on account of a violation of procedural provisions (Section 42 para. 2 [2] and [3]) ..., the Court must examine the contested decision on the basis of the facts as accepted by the authority against which   the appeal is directed within the framework of the alleged complaint ...   If it is of the opinion that reasons would be relevant for the decision on   the unlawfulness of the contested decision ... which were so far not known to a party, it must hear the parties thereupon and, if necessary, adjourn the proceedings.   (2) In the cases of Article 132 of the Federal Constitution the Court must determine the facts, taking into account Section 36 para. 9."   [German]   "(1)   Der Verwaltungsgerichtshof hat, soweit er nicht Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42 Abs. 2 Z 2 und 3) ... den angefochtenen Bescheid auf Grund des von der belangten Behörde angenommenen Sachverhaltes im Rahmen der geltend gemachten Beschwerdepunkte ... zu überprüfen.   Ist er der Ansicht, dass für die Entscheidung über die Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte   ...   Gründe massgebend sein könnten, die einer Partei bisher nicht bekanntgegeben wurden, so hat er die Parteien darüber zu hören und wenn nötig, eine Vertagung zu verfügen.   (2)   In den Fällen des Art. 132 B-VG hat der Gerichtshof den Sachverhalt unter Bedachtnahme auf § 36 Abs. 9 festzustellen."           As regards the decisions of the Administrative Court, Section 42 para. 2 of the Administrative Court Act provides, insofar as relevant:   [Translation]   "(2) The contested decision must be quashed 1.    on account of the unlawfulness of its content, 2.    on account of unlawfulness due to the lack of      jurisdiction of the authority against which the      appeal is directed, 3.    on account of unlawfulness due to a violation of      procedural provisions because      a)   the authority against which the appeal is          directed has determined the facts on an          important point contrary to the          case-file, or      b)   the facts need to be supplemented on an          important point, or      c)   procedural provisions have been disregarded          which, if taken into consideration by the          authority against which the appeal is          directed, would have led to a different          decision of the authority."   [German]   "(2) Der angefochtene Bescheid ist aufzuheben 1.    wegen Rechtswidrigkeit seines Inhaltes, 2.    wegen Rechtswidrigkeit infolge Unzuständigkeit      der belangten Behörde, 3.    wegen Rechtswidrigkeit infolge Verletzung von      Verfahrensvorschriften, und zwar weil      a) der Sachverhalt von der belangten Behörde         in einem wesentlichen Punkt aktenwidrig         angenommen wurde oder      b) der Sachverhalt in einem wesentlichen         Punkt einer Ergänzung bedarf oder      c) Verfahrensvorschriften ausser acht gelassen         wurden, bei deren Einhaltung die belangte         Behörde zu einem anderen Bescheid hätte         kommen können."           The proceedings before the Administrative Court consist of an exchange of written observations between the parties (Section 36) and an oral hearing of their legal arguments (Sections 39 and 40).   The parties have a right to request a hearing (Section 39, para. 1 [1]).           The decision of the Administrative Court is either to dismiss the complaint or to quash the decision complained of (Section 42 para. 1).   If the complaint is allowed the authorities are obliged to establish immediately with the legal means available to them the legal situation which corresponds to the view of the Administrative Court in the particular case (Section 63).     COMPLAINTS           The applicants complain under Article 6 para. 1 of the Convention that in the building proceedings they did not benefit from a procedure in conformity with this provision before an independent and impartial tribunal having full jurisdiction on questions of law and fact.   In particular they complain about the fact that no tribunal decided on the designation of their land.           With reference to Article 1 of Protocol No. 1 to the Convention the applicants complain that Section 5 of the Carinthian Community Planning Act constituted an unjustified restriction of the use of property.     THE LAW   1.       The applicants complain that in the proceedings in which they were involved they did not have access to an independent and impartial tribunal as guaranteed by Article 6 (Art. 6) of the Convention.   This provision states, insofar as it is relevant:   "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. ..."   a)       The applicants complain in particular that they did not have access to an independent and impartial tribunal in the designation proceedings.           The applicants submit that the proceedings at issue concerned their right to build a shopping centre and subsequently their right to practise gainful activities in the shopping centre.   In their view their civil rights have been determined in the building proceedings.           The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention applies only to disputes over "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law.   Article 6 (Art. 6) does not in itself guarantee any particular content for "rights and obligations" in the substantive law of the Contracting States (cf.   Eur.   Court H.R., Lithgow and others judgment of 8 July 1986, Series A No. 102, p. 70, para. 192).           The Commission further recalls that the Court found that there was a dispute over a "right" if an unlawful prolongation of the building prohibition by an area plan is alleged (Eur.   Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A No. 163, pp. 19 - 20, para. 67 et seq.), if an unlawful amendment of a building plan is alleged (Eur.   Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A No. 180, p. 12 et seq., para. 30 et seq.), or if the applicant claims a right to an exemption from the building plan (Eur. Court H.R., Skärby judgment of 28 June 1990, Series A No. 180, p. 36 et seq., para. 27 et seq.).   The Commission recalls that these judgments dealt with building proceedings in which the applicants could claim an individual right which was affected by a building or area plan.           The Commission notes that in the present case the applicants do not have an individual right to the designation and its approval by the Provincial Government.   According to Austrian law the approval of an area zoning plan forms part of the supervisory activity of the Provincial Government.           The Commission therefore concludes that the question whether a development programme should have been issued did not involve a "determination of (the applicants') civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that, insofar as the applicants complain that in the proceedings concerning the issue of a development programme they did not have access to an independent and impartial tribunal, the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)       The applicants also direct their complaints under Article 6 para. 1 (Art. 6-1) of the Convention against the proceedings concerning the building permit.           The Commission does not find it necessary to decide whether there was a serious dispute over a right within the meaning of Article 6 (Art. 6) of the Convention.   It notes that the applicants applied for a permit to build on their land and that the applicants had a right in general to build on their land according to the regional legislation.           Assuming that the applicants could claim a "right" to build on their land, this "right" would be of a "civil" nature for the purposes of Article 6 para. 1 (Art. 6-1) (see e.g. the above-mentioned Allan Jacobsson judgment, p. 20, para. 73).           The Commission therefore accepts that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the building proceedings at issue.           With regard to the proceedings concerning the building permit the applicants complain under Article 6 para. 1 (Art. 6-1) that they did not have access to an independent and impartial tribunal.           The Commission considers that the proceedings before the Mayor, the City Council and the Provincial Government do not satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention. However, these requirements would be satisfied if subsequently the applicants' civil rights had been determined by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1).   Such a determination would require that the court could undertake a comprehensive examination of all relevant questions of law and fact (see Ettl and others v. Austria, Comm.   Report 3.7.1985, para. 78 with further references).           In the present case the Commission need not examine in the abstract whether the Administrative Court meets the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission notes in particular that in the proceedings before the Administrative Court the establishment and the assessment of the facts were not in dispute between the parties.   Rather the only question raised by the first applicant within the jurisdiction of the Administrative Court was whether or not the request for building a shopping centre complied with the requirements of the area zoning plan.   This was, however, solely a question of the application of the law.   It is not contested by the applicants that the Administrative Court was competent to undertake this examination.           As a result, the Commission considers that the requirements of Article 6 para. 1 (Art. 6-1) of the Convention have been complied with.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants also allege a violation of Article 1 of Protocol No. 1 (P1-1) in that Section 5 of the Carinthian Community Planning Act constituted an unjustified restriction of their use of property.           Article 1 of Protocol No. 1 (P1-1) reads as follows:           "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."           In fact, Section 5 of the above-mentioned law made the right to build a shopping centre on a particular plot of land subject to a special designation which had to be approved by the Provincial Government.           The Commission considers, assuming that this restriction was an interference with the applicants' right to peaceful enjoyment of their possessions, that it was justified under the second paragraph of Article 1 of Protocol No. 1 (P1-1) (see, mutatis mutandis, the above-mentioned   Allan Jacobsson judgment, p. 16, para. 54).           The Commission notes that the restriction was lawful. Moreover, the purpose of the provisions - to facilitate land planning - is in accordance with the general interest as envisaged in Article 1 para. 2 of Protocol No. 1 (P1-1-2).           As to the proportionality the Commission finds that it cannot be considered disproportionate to the requirements of the legitimate aim of land planning if the Provincial Government is given competence to decide if there should be a shopping centre in a particular community.           As a result this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, unanimously,             DECLARES THE APPLICATION INADMISSIBLE.     Deputy Secretary to the Commission         Acting President of the Commission                 (J. RAYMOND)                               (J.A. FROWEIN)