CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 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. 21426/93                       by Anton HAMMERLE                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 12 October 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                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 16 November 1992 by Anton Hammerle against Austria and registered on 25 February 1993 under file No. 21426/93;         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 is an Austrian citizen.   He lives in Mäder in Vorarlberg and is represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.   The facts of the application, as submitted by the applicant, may be summarised as follows.         The applicant owned two egg production units, one in Ötz in the Tyrol with a capacity of 16,000 laying hens, and the other in Mäder, Vorarlberg, with a capacity of 27,000 laying hens.         On 12 August 1986 the applicant made an application to the Federal Ministry for Agriculture and Forestry for "an additional quota of 16,000 laying hens in Mäder" and for permission for a "site transfer of these hens".   In his request he explained how he wished to cease production at Ötz because it was situated some 100 kilometres from Mäder, he was unable to run both sites himself and because the tenant who had had a lease of the Ötz site had terminated the lease because of the success of a frozen food business and a restaurant.   He pointed out that he would continue to deliver eggs from Mäder to Ötz.         The Ministry, by reference to Section 13 of the Livestock Act 1983 (Viehwirtschaftsgesetz) dismissed the applicant's requests on 4 March 1988.   Section 13 of the Livestock Act (so far as relevant) provided that consent for the keeping of over 10,000 laying hens was only to be granted if farm production was not endangered and if conditions in the relevant markets appeared stable.   The Ministry, which had consulted various authorities and given the applicant the opportunity to comment on the submissions, found that prices had fallen in previous years, whilst production had increased, and consumption was stagnant or decreasing.   It considered that this amounted to unstable market conditions, and added that the concentration of egg production which had been seen in recent years would be exacerbated if the applicant's request were granted.   This could only make farm production more difficult.   In these circumstances, the Ministry concluded, the mandatory provisions of Section 13 prevented the requests from being granted.         The applicant made a constitutional complaint which the Constitutional Court (Verfassungsgerichtshof) dismissed on 20 June 1989.   The Constitutional Court had no doubt that the aims pursued by the Livestock Act - protection of domestic livestock markets, stabilisation of prices for meat animals and animal products, and the maintenance of the quality of supplies - were legitimate concerns of the legislator.   The Livestock Act, in accord with the Agriculture Act 1976, aimed at maintaining a viable community of family farms which could ensure the supply of basic foodstuffs.   The Constitutional Court did not disagree with the legislator's assumption that large scale animal production in the hands of a few businesses resulted in the loss of a large number of farms.   The Constitutional Court also considered that the legislator had not interfered disproportionately with the constitutionally guaranteed right to commercial freedom, because it provided for large numbers of animals to be kept if certain conditions (no danger to farm production and stable markets) applied.   Section 13 was therefore not in conflict with the right to commercial freedom.         In connection with the right to property, the Constitutional Court found a sufficient "public" or "general" interest to justify any restrictions. In connection with Article 6 of the Convention, the Constitutional Court considered that the review given by the Administrative Court (Verwaltungsgerichtshof) was adequate, at any rate when what was at issue, as here, was not disputes as to civil rights themselves, but merely disputes the effect of which could affect such rights.   The Constitutional Court transferred the case to the Administrative Court.         On 29 April 1992 the Administrative Court quashed the decision of the Ministry of 4 March 1988 for unlawfulness.   It found that the Ministry had been wrong to consider questions of a transfer of the Ötz business to Mäder, because the business in Ötz was a separate entity and, as such, the permission which had been granted for the keeping of 10,000 laying hens there was only able to be operated from that site. Accordingly, it was wrong to consider the question of a transfer in connection with Section 13 of the Livestock Act because that provision could not apply to a transfer.   The case was remitted to the Ministry for a new decision, without consideration of the applicant's further points.         On 16 December 1992 the Ministry took a second decision in the case.   It rejected the applicant's requests in relation to transfer because the Ministry had no jurisdiction, and it dismissed the request for a new quota of 16,000 additional laying hens in Mäder.   COMPLAINTS         The applicant alleges violation of Article 6 para. 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.         In connection with Article 6 of the Convention, he considers that every businessman has the right to transfer business assets, and where that right is limited, any proceedings related thereto must determine civil rights.   He considers that he had a right to transfer his chickens, and that he fulfilled the conditions for such a transfer. He considers that the Administrative Court does not comply with the requirements of Article 6 of the Convention because it is a mere court of review, and is not able to decide questions of fact.   In connection with the Zumtobel judgment (Eur. Court H.R., judgment of 23 October 1993, Series A no. 273), he considers that the Administrative Court failed to consider his submissions point by point, as required by the Court in that case.   He also alleges that the proceedings exceeded the "reasonable time" requirement of that provision.         In connection with Article 1 of Protocol No. 1 to the Convention, the applicant accepts the principle of quotas for production as such, but considers that a refusal to permit him to "move" one of his quotas to the place of business of the other quota exceeds the margin of appreciation accorded to states under the provision.         By a letter of 20 June 1994, the applicant informed the Commission that he had not challenged the Ministry's second decision, of 16 December 1992, before the Administrative and/or Constitutional Courts, and he expressly withdrew his complaints concerning the refusal of a further quota.   THE LAW   1.     The applicant alleges a violation of Article 6 (Art. 6) of the Convention, which provides, so far as relevant, as follows:         "1.   In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law."         To the extent that the applicant complains of the length of the proceedings and other related procedural aspects, the Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   2.     To the extent that the applicant alleges a violation of Article 6 (Art. 6) of the Convention in connection with the actual decision given by the Administrative Court, the Commission notes that that decision quashed the decision of the Ministry and remitted the case to the Ministry for a further decision.   It therefore found that it was not necessary to deal with the applicant's further complaints.         The Commission further notes that the applicant did not pursue any remedies against the Ministry's subsequent decision of 16 December 1992.         However, the Commission finds that it is not required to determine these complaints under Article 6 (Art. 6) of the Convention as the applicant has failed to exhaust the remedies available to him under Austrian law, as is required by Article 26 (Art. 26) of the Convention.   The applicant's challenge to the Ministry's decision was successful before the Administrative Court, and the case was sent back for a further decision.   Had there been any complaints of a procedural nature concerning the new decision, the applicant could have made a fresh complaint to the Administrative Court.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.   In particular, the Administrative Court's refusal to deal with the applicant's remaining complaints after it had decided to quash the Ministry's decision does not affect the position: had there been any relevant, outstanding matters which the applicant felt remained unanswered, he could have put them in a second administrative complaint.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies in this respect under Article 26 (Art. 26) of the Convention, and that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant also alleges a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention in respect of the refusal to permit him to transfer his quota of 16,000 laying hens from Ötz to Mäder.         Article 1 of Protocol No. 1 (P1-1) to the Convention provides 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 connection with this complaint the Commission accepts that the applicant has exhausted the domestic remedies at his disposal as the Administrative Court stated plainly that Austrian law did not provide for the possibility of transferring the quota.   The Ministry, in taking its second decision, was bound by the findings of the Administrative Court in this matter, and could not therefore have come to any other conclusion in this respect.         The applicant's complaint under Article 1 of Protocol No. 1 (P1-1) is expressly limited to his inability under Austrian law to transfer his quota from Ötz to Mäder.         The Commission notes that the applicant owned two sites, each of which had a separate quota.   The Constitutional Court in its decision of 20 June 1989 discussed the justification for the legislative provisions of the Livestock Act in some depth, coming to the conclusion that they met a legitimate need and were proportionate.   The Administrative Court, in its decision of 29 April 1992, confirmed that it was not possible to transfer a quota, and quashed the Ministry's decision because it was based in part on the misconception that transfer was possible.         Article 1 of Protocol No. 1 (P1-1) is only applicable where "possessions" are at issue.   It is not clear in the present case whether the quota the applicant held was a possession because - as the Administrative Court found - it was a permission which attached to the land and could not be transferred.   However, even assuming it to be a possession, the Commission finds the complaint inadmissible for the following reasons:         The Commission notes that the applicant's quota at Ötz was not revoked or limited by the State, but was one of the prerequisites to carrying on business in Ötz.   The applicant decided that it was not in his interest to run both production units, and wanted to merge them. He was not prevented from selling the land and assets in Ötz, and indeed could have sold the unit as an egg production unit if he could have found a willing purchaser, as the quota would have passed with the business.   The position is thus quite different from the case of the holder of a licence whose possessions are adversely affected by the withdrawal of such a licence (as, for example, in Eur. Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 159, p. 21, para. 53).         In these circumstances, the Commission finds that the "interference" with the applicant's possessions was, at most, a control of the use of property, in the sense that he was prevented from transferring his egg production unit from Ötz to Mäder.   The Commission must examine this interference under the second paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention.         The Constitutional Court considered the aims of the Livestock Act in its decision of 20 June 1989.   It found the aims of the Livestock Act - protection of domestic livestock markets, stabilisation of prices for meat animals and animal products, and the maintenance of the quality of supplies - to be legitimate concerns of the legislator.   In the context of a system which aims to regulate the size of production units, the Commission finds nothing arbitrary in legislation which permits units in excess of a particular size and grants quotas for those units only, without envisaging quota transfers. The Commission finds that the purpose of the interference is compatible with the requirements of the "general interest" set out in Article 1 of Protocol No. 1 (P1-1).         The Commission next notes that the applicant was not prevented, initially, from holding two quotas, and was not prevented subsequently from applying for an extension of his quota at Mäder.   It also notes that the quota he held was not personal to him, in the sense that he would have been able to sell the Ötz unit with its quota if he had found a willing buyer.   Accordingly, given that the applicant is in substance claiming a right to transfer a quota from one site to another, and that Article 1 of Protocol No. 1 (P1-1) protects existing possessions rather than extending them, the Commission finds that the interference in the present case was proportionate to the aim pursued.         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.         For these reasons, the Commission unanimously         DECIDES TO ADJOURN its examination of the complaints under       Article 6 of the Convention concerning the proceedings in the       present case, in particular their length;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)