CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.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. 19441/92                       by HILTI & JEHLE OHG                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 January 1992 by HILTI & JEHLE against Austria and registered on 27 January 1992 under file No. 19441/92;         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 applicant company runs a construction enterprise.   It was founded in 1876 and has its head office in Feldkirch, Austria.   The company's two sole partners, Messrs. Hilti and Jehle, are citizens of Liechtenstein.   Mr. Jehle was, however, born in Feldkirch where he is currently living.   The company is represented by Mr. W. L. Weh, a lawyer practising in Bregenz.                                     I.         It follows from the applicant company's statements and the documents submitted that on 27 April 1989 the Real Property Transaction Commission (Grundverkehrs-Landeskommission) denied the applicant company's request to approve the acquisition by sales contract of a plot of land situated in the Vorarlberg region and registered under No. 2039/106 of the Altenstadt real estate register (Grundbuch).   An appeal (Berufung) was rejected on 11 January 1991 by the Real Property Transaction Senate (Grundverkehrssenat).   In its decision the Board stated that under Section 5 para. 2 of the Real Property Transaction Act (Grundverkehrsgesetz - GVG) the acquisition of real estate by a foreigner had to be approved if it did not affect the interests of agriculture, forestry or state policy (staatspolitische Interessen) and if the acquisition served a cultural, economic or social interest (kulturelles, volkswirtschaftliches oder soziales Interesse).         The Board considered this provision to be applicable because the company's sole partners are foreign citizens.   It pointed out that neither cultural nor social interests had been involved and considered that economic interests were not given as the applicant company's purpose in exploiting the land as a gravel pit was not feasible. According to an expert opinion of the Regional Government (Landesregierung) a garbage dump already existed on the site in question and there was no reason to remove this dump.   The existence of the garbage dump however rendered the extraction of gravel impossible.   It was furthermore unlikely that the necessary authorisation for a gravel pit would be obtained from the water and nature conservation authorities.         The applicant company then lodged a constitutional complaint invoking the right to protection of property and claiming that it had to be considered as an Austrian company.   The complaint was rejected by the Constitutional Court (Verfassungsgerichtshof) on 10 June 1991 (notified on 11 July 1991).                                     II.         On 10 July 1990 another request to approve the acquisition of a plot of land in the same area and registered under no. 2039/102 was likewise rejected and an appeal dismissed by the Real Property Transaction Senate on 29 November 1991 for the reasons already stated in the earlier decision of 11 January 1991.         The applicant company lodged another constitutional complaint, this time also alleging a violation of Article 6 of the Convention.         The complaint was rejected by the Constitutional Court on 13 November 1992.         The applicant company's argument that the Real Property Transaction Senate was not an impartial tribunal within the meaning of Article 6 of the Convention was considered to be unfounded in the light of the Constitutional Court's constant jurisprudence.   The Court pointed out that in particular the applicant's counsel was aware of this jurisprudence as he had represented the applicant company in a similar matter which had been decided by the Court on 10 June 1991. It added that in the present case there were no circumstances to doubt the impartiality of the Board's members.   Neither the fact that the chairman was formerly a politician and a high official in real estate matters nor the fact that another Board member was a civil servant did, in itself, put their impartiality into question.         Insofar as the applicant company had complained that it had not been given adequate opportunity to question the official expert opinion, it is pointed out that the company had been aware of it since December 1990, while the oral hearing before the Board had taken place on 21 November 1991.         Insofar as the company objected to having been considered as "foreign", the Court again referred to its prior judgment of 10 June 1991 and stated in addition that the legislative regulation according to which companies registered in Austria but largely owned by foreigners were to be considered as "foreign" was objectively justified because it served the purpose of stopping foreigners from circumventing the authorisation requirement by founding a company to buy real estate on their behalf.   COMPLAINTS   1.     The applicant company first alleges a violation of Article 6 of the Convention.   It considers that the members of the Real Property Transaction Senate are not impartial and independent as they are representatives of various interest groups.   The presiding judge, so it is alleged, was prior to being appointed to this office, for 25 years not only a member of the Regional Government but in that capacity was mainly entrusted with real estate matters.   It is also pointed out in this context that the former presiding judge in the meantime became a member of the Regional Government where he is also charged as a member of the executive with real estate matters.         In these circumstances the independence and impartiality appears, at least from the viewpoint of the applicant company, to be doubtful and the present matter had to be distinguished from Application No. 18991/91, Kohler v. Austria, which was rejected by the Commission on   13 October 1993.         Furthermore, the Regional Agrarian Chamber (Landwirtschafts- kammer) has nominated its President to be a member of the Real Property Transaction Senate.   The applicant company argues that the President can not be considered as an impartial and independent judge, rather it would appear that he would favour the interests of the Agrarian Chamber which are in principle identical to those of the agricultural authorities which denied approval of the land acquisition.         Insofar as the Constitutional Court rejected the complaints under Article 6 by referring to its constant jurisprudence, the applicant company submits that the circumstances of the present case are distinguishable from prior cases, given that the two allegedly biased members of the Board were appointed in July 1990, therefore the Constitutional Court should have dealt with in substance the present complaints and not just reject them by referring to prior jurisprudence.         Furthermore, the applicant company considers that the rapporteur of the Real Property Transaction Senate is likewise not impartial and independent, being a member of the Regional Government where he has to deal with administrative and penal administrative matters.   It is pointed out in this context that the legislator decided on 8 July 1993 to abolish the Real Property Transaction Board.   2.     Finally, the applicant company alleges a violation of Article 1 of Protocol No. 1 also read in conjunction with Article 14 of the Convention.   In this respect it is alleged that the denial of the authorisation to buy a plot of land is a disproportionate measure as it does not strike a fair balance between public and private interests. It is submitted that domestic law does not even allow striking such a balance as it refers   only to public interests which should be taken into account.   In this context it is also alleged that an Austrian company was treated favourably in that it was allowed to buy a neighbouring plot.   There are no justified reasons to deny the authorisation to the applicant company which allegedly existed in Austria for the past 115 years.     THE LAW   1.     As regards the complaint under Article 6 para. 1 (Art. 6-1) of the Convention related to the composition of the Real Property Transaction Senate which in the applicant's opinion violates the principle of impartiality and independence the Commission recalls at the outset that the organisation of the authorities responsible for the control of land acquisition in Austria does not, in principle, raise any problems regarding the judicial character or the independence of these authorities (see, inter alia, Eur. Court of H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 95; Sramek judgment of 22 October 1984, Series A no. 84, pp. 17-20, paras. 36-42).         As regards the question whether the members of the Senate in the applicant company's case satisfied the requirements of impartiality, both subjectively and objectively (see Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32), the Commission observes the following :         The mere fact that the President of the Senate had previously been a member of the Regional Government for 25 years cannot bear out a challenge of bias: the subjective impartiality of a judge is presumed until the contrary is proven (Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 47).   Furthermore, this fact in itself is not sufficient to warrant legitimate doubts as to his impartiality.         As regards the Senate member who was at the same time president of the Regional Agricultural Chamber, the Commission finds no evidence to support that this Senate member was biased.   Moreover, there is no reason to question his objective impartiality.   The European Court of Human Rights found no element of bias in respect of another comparable body, the Regional Real Property Transactions Commission (Landesgrundverkehrsdommission) of Upper Austria, on account of the fact that one of its members had been nominated by the local chamber of agriculture (Eur. Court H.R., Ringeisen judgment, loc. cit., p. 40, para. 97).   The fact that, in the present case, it was the president of the chamber who had been appointed does not, in the opinion of the Commission, warrant a different conclusion.   This fact is not enough to create any legitimate doubts that the balance of interests inherent in the composition of the Senate was upset in the applicant company's case (cf. Eur. Court H.R., Langborger judgment, loc. cit., p. 16, para. 35).   In this context the Commission notes in particular that the protection of the interests of the local farmers was explicitly recognised by the legislation in question as a legitimate interest under the law (cf. De Moor v. Belgium, Comm. Report 8.1.93, paras. 58- 59, to be published).         As regards the Rapporteur on the Senate, the Commission recalls that the presence of civil servants on the comparable Upper Austrian Regional Commission was found to be compatible with the Convention (see Eur. Court H.R., Ringeisen judgment, loc. cit., pp. 39-40, paras. 95- 97) and that the Regional Government itself was not a party to the present proceedings (cf. Eur. Court H.R., Sramek judgment, loc. cit., pp. 19-20, paras. 41-42).   In the light hereof, the Commission does not consider that this complaint raises any issue as to either the objective or subjective impartiality or independence of the Senate.         The Commission, accordingly, finds no indication of any violation of the applicant company's right to an impartial tribunal as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that the complaint under Article 6 para. 1 (Art. 6-1) has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Insofar as the applicant company alleges a violation of its right to the peaceful enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) it can be left undecided whether or not the sales contract effected a transfer of the real property it concerned.   In any event it created a claim to the transfer of the property which in itself also enjoys protection under Article 1 of Protocol No. 1 (P1-1).         However, the use of property may be subject to regulations under the conditions set out in Article 1 para. 2 of the Protocol (P1-1-2).         It has not been disputed that the measure complained of is based on domestic law.         The law in question serves the purpose of safeguarding agriculture, forestry and state policy and must therefore be considered to be in the general public interest.         Contrary to the applicant company's submissions the law in question also allows the competent authorities to consider the private interests in the acquisition of land as it refers to cultural, economic or social interests which may well coincide with the interests of the individual buyer.         In the present case the refusal was found to be lawful by the Constitutional Court and there is nothing to show that the domestic decisions complained of arbitrarily disregard any vital interests of the complainant company such as to upset the fair balance which has to be struck between the demands of the public interest of the community and the requirements of protection of the individual's fundamental rights (c.f. Eur. Court   H.R., Sporrong and   Lönnroth judgment of 23 September 1982, Series A no. 52, p. 26 para. 59).         The Commission accordingly finds no indication of a violation of Article 1 of Protocol No. 1 (P1-1).   It follows therefore that the complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Furthermore, insofar as in another case the acquisition of land was allegedly approved by the authorities it has not been shown that the companies in the two cases were in an analogous situation.         In any event, the applicant has failed to substantiate that he has been discriminated on any of the grounds listed in Article 14 (Art. 14) of the Convention.   There is consequently no appearance of a violation of Article 1 of Protocol No. 1 read in conjunction with Article 14 (P1-1+14)of the Convention and that this part of the application is therefore likewise manifestly ill-founded.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)