CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 avril 1996

.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. 25170/94                       by Herwig LIEBSCHER, Caroline HÜBL                       and Christoph LIEBSCHER                       against   Austria        The European Commission of Human Rights (First Chamber) sitting in private on 12 April 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 1 September 1994 by Herwig LIEBSCHER, Caroline HÜBL and Christoph LIEBSCHER against Austria and registered on 16 September 1994 under file No. 25170/94;        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        All three applicants are lawyers (Rechtsanwälte) practising in Salzburg.   The first and second applicant are represented by the third applicant in the proceedings before the Commission.        The facts of the case, as they have been submitted by the applicants, may be summarised as follows.   A.    Particular circumstances of the case        On 13 November 1992 the applicants requested the Executive Committee of the Salzburg Lawyers' Chamber (Ausschuß der Salzburger Rechtsanwaltskammer) to give a declaratory decision (Feststellungs- bescheid) according to which they were allowed to exercise their profession as lawyers in the form of a private company (Gesellschaft mit beschränkter Haftung).   The applicants acknowledged that under Section 21c para. 2 of the Practising Lawyers Act (Rechtsanwaltsordnung) they could be prevented from founding a private company, as it provided that lawyers could only be members of a partnership as fully liable partners.   However in their view, this provision was unconstitutional as it infringed their freedom to exercise a profession (Erwerbsausübungsfreiheit).   They had a legal interest in a declaratory decision because otherwise they ran the risk of being punished for exercising their profession in the form of a economic association prohibited by the Professional Lawyers Act.        On 1 December 1992 the Executive Committee of the Lawyers' Chamber dismissed the request.   It found that the wording of Section 21c (2) of the Practising Lawyers Act was clear and unambiguous and did not allow the exercise of the profession of a lawyer in the form of a private company.   Thus, the requested decision could not be given.        On 29 January 1993 the applicants filed a complaint with the Constitutional Court (Verfassungsgerichtshof).   They submitted that Section 21c of the Practising Lawyers Act violated their freedom to exercise a profession and the principle of equality (Gleichheitssatz).        On 1 March 1994 the Constitutional Court declined to deal with the applicants' complaint for lack of prospect of success.   It also found that the matter was not excluded from the competence of the Administrative Court (Verwaltungsgerichtshof).   B.    Relevant domestic law        Austrian law provides for essentially four types of profit making associations.   Stock corporations (Aktiengesellschaften) and private companies (Gesellschaften mit beschränkter Haftung) are companies limited by shares (Kapitalgesellschaften).   They can be set up for any economic activity and the liability of the owners is limited to the amount and value of the shares.   The Commercial Code (Handels- gesetzbuch) provides for two further types of economic associations, the commercial partnership (Offene Handelsgesellschaft) and the limited partnership (Kommanditgesellschaft).   They can only be set up for commercial activities within the meaning of the Commercial Code, which e.g. excludes agriculture and the liberal professions.   Either all (commercial partnership) or a part of its members (limited partnership) are fully and personally liable for all debts of the partnership.   The Partnership Act of 1990 (Erwerbsgesellschaftengesetz) now allows the establishment of commercial and limited partnerships for economic activities not covered by the Commercial Code.        Section 1a of the Practising Lawyers Act (Rechtsanwaltsordnung) provides that lawyers may exercise their profession in associations, in particular registered partnerships (Erwerbsgesellschaften).   Section 21c para. 2 of the Act provides that lawyers may be members of a partnership only as fully liable partners. Lawyers who temporarily do not exercise their profession and relatives of lawyers may be members of a partnership only as limited partners (Kommanditist) or as   dormant partners (stiller Gesellschafter).        The Accountants Act (Wirtschaftstreuhänder-Berufsordnung) provides that the profession of an accountant may be exercised by a company limited by shares.   COMPLAINTS   1.    The applicants complain under Article 11 of the Convention that the impossibility to associate in the form of a private company for the purpose of exercising their profession violated their freedom of association.   2.    They further complain that they were discriminated against compared with accountants who could found companies limited by shares for exercising their profession and rely on Article 14 of the Convention.   3.    They also complain that they had no effective remedy within the meaning of Article 13 of the Convention in order to complain about the above violations.   4.    Lastly they complain about a violation of Article 6 para. 1 of the Convention in that their request for a declaratory decision was not determined by a tribunal within the meaning of Article 6 para. 1 and that no public hearing had been held.   Furthermore, the Constitutional Court did not sufficiently motivate its decision.   THE LAW   1.    The applicants complain that the impossibility to associate in the form of a private company for the purpose of exercising their profession violated their freedom of association.   They invoke Article 11 (Art. 11) of the Convention which, inter alia, provides that "everyone has the right ... to freedom of association with others ...".        However, the Commission recalls that Article 11 paragraph 1 (Art. 11-1) of the Convention does not secure any particular treatment of associations, or their members, by the State (see Eur. Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no. 20, p. 15, para. 39; Union of Atheists v. France, Comm. Report 6.7.1994, para. 68).      In the present case the Commission finds that the applicants have the possibility to associate for the purpose of exercising their profession, in particular they can form a partnership under the Partnership Act.   Thus the choice of a specific form of profit making associations is not in itself essential to the real exercise of the applicants' freedom of association (see Union of Atheists v. France, loc. cit.).        In these circumstances the Commission finds that there is no appearance of a violation of the applicants' freedom of association as guaranteed by Article 11 (Art. 11) of the Convention.        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 further complain that they were discriminated against compared with accountants who could found companies limited by shares for exercising their profession and rely on Article 14 (Art. 14) of the Convention, which reads as follows:        "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 recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and the Protocols.   It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions.   Although the application of Article 14 (Art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, para. 71).        The applicants do not invoke any substantive provision of the Convention.   However, the commission has examined the present complaint under Article 14 (Art. 14) of the Convention read in conjunction with Article 11 (Art. 11).        In this respect the Commission recalls that Article 14 (Art. 14) safeguards individuals, placed under analogous situations, from discrimination (see Eur. Court H.R., van der Mussele judgment of 23 November 1983, Series A no. 70, p. 22, para. 46).   The Commission recalls further that in the quoted judgment the Court has found that no such analogous situation existed as regards the bar and other professions, like veterinary surgeons, pharmacists, dentists and the judicial and parajudicial profession as each of them was characterized by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect (loc. cit.; No. 18168/91, Dec. 1.12.93, unpublished).        In the present case, the Commission likewise considers that the applicants have failed to show that they were in an analogous situation as other liberal professions, in particular chartered public accountants, as the possibility to associate in a specific type of profit making association is one single feature of a corpus of rights and obligations governing the exercise of liberal professions.   The Commission finds that in these circumstances the difference in treatment the applicants complain of does not constitute discrimination prohibited by Article 14 (Art. 14) of the Convention.        It follows that also this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicants also complain that they had no effective remedy within the meaning of Article 13 (Art. 13) of the Convention in order to complain about the above violations.        Article 13 (Art. 13) of the Convention, as far as relevant reads as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority ..."        The Commission recalls that Article 13 (Art. 13) of the Convention requires a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).        The Commission, having regard to the above findings, considers that the applicant's submissions do not give rise to a prima facie issue under Article 11 and Article 14 (Art. 11, 14) of the Convention, and thus cannot be considered to be an arguable claim.   Consequently, Article 13 (Art. 13) of the Convention does not apply in respect of the applicants' complaint under Article 11 and Article 14 (Art. 11, 14) of the Convention.        It follows that this also part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    Lastly the applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention about the proceedings on their request for a declaratory decision in several respects.        Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads a follows:        "1.    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."        The Commission recalls that Article 6 (Art. 6) of the Convention only applies 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 (see Ear. Court H.R., James and others judgment of 21 February 1986, Series A no. 98, p. 46, para. 81, and Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). The dispute which gives a right to a determination by a court must be "genuine and of a serious nature" (see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).   The dispute may relate not only to the actual existence of a right but also to its scope or the manner in which it may be exercised, and it may concern both questions of fact and questions of law (see Ear. Court H.R., van Marle and Others judgment of 26 June 1986, Series A no. 101, p.11, para. 32; Karni v. Sweden, Comm. Report 15.12.88, D.R. 62 pp. 90, para. 86).   The Commission notes that the applicants applied to the Executive Committee for a declaratory decision that they were allowed to exercise their profession in the form of a private company.   They acknowledged that Section 21c para. 2 of the Practising Lawyers Act allowed lawyers only to exercise their profession in the form of a partnership. However they considered the lack of a more general provision allowing the exercise of the profession of a lawyer also in companies limited by shares as unconstitutional.   The applicants' request was refused by the Executive Committee which referred to the clear and unambiguous wording of Section 21c para. 2 of the Practising Lawyers Act.   Their complaint to the Constitutional Court was not admitted for lack of prospect of success.        The Commission finds that in the present case there was no dispute on facts, as the applicants essentially requested a legal ruling from the Executive Committee.   Furthermore, there was no dispute regarding the scope or manner of a "right" or "obligation".   The applicants merely challenged the law in force.   The Commission finds that the applicants could not on arguable grounds claim a right to exercise their profession in a private company.   The dispute thus did not concern a "right" within the meaning of Article 6 para. 1 (Art. 6-1) and the applicants therefore cannot rely on that provision in this instance.        It follows that this part of the application must accordingly be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)