CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 26297/95                       by G. S.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. J. LIDDY, President            MM.   M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs. M. HION            Mr.   R. NICOLINI              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 9 December 1994 by G. S. against Austria and registered on 25 January 1995 under file No. 26297/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      26 July 1996 and the observations in reply submitted by the      applicant on 18 September 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1949, is an Austrian national and resident in Obernberg-am-Inn.   He is a pharmacist by profession.   Before the Commission he is represented by Mr. M. Pochendorfer, a lawyer practising in Ried/Innkreis.   A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 21 September 1988 the applicant applied with the Provincial Governor (Landeshauptmann) for Upper Austria for the grant of a licence to run a pharmacy in Ried-im-Innkreis.        On 23 May 1990 the Provincial Governor for Upper Austria dismissed the applicant's application.   The Governor, having regard to observations filed by sixteen neighbouring municipalities and by the Upper Austrian Board of Pharmacists (Apothekerkammer), noted that two pharmacies existed already in the town concerned and a third licence had meanwhile been granted to another pharmacist, Ms. W.   Taking into account the population, no further licence could be granted.   The applicant lodged an appeal with the Federal Ministry for Health, Sports and Consumer Protection (Bundesministerium für Gesundheit, Sport und Konsumentenschutz) on 22 June 1990.        On 17 July 1990 the Provincial Governor dismissed the applicant's request to participate as a party in the proceedings regarding the licence which had been granted to another pharmacist.   His appeal with the Federal Ministry for Health, Sports and Consumer Protection was to no avail.        On 12 June 1991 the Federal Ministry for Health, Sports and Consumer Protection dismissed the applicant's appeal against the decision of 23 May 1990.        On 30 July 1991 the applicant filed an appeal with the Austrian Administrative Court (Verwaltungsgerichtshof). By letter of 5 December 1995 the applicant informed the Administrative Court that, following an agreement with the pharmacist W., he withdrew his appeal. On 11 December 1995 the Administrative Court terminated the proceedings.   B.    Relevant domestic law        The relevant law is to be found in the Pharmacy Act (Apothekengesetz) of 1907, RGBl. Nr. 5/1907 (Reichsgesetzblatt, Official Gazette of the Austrian Empire), as last amended in 1993, BGBl. Nr. 96/1993 (Bundesgesetzblatt, Federal Official Gazette).        As regards the running of pharmacies, the legislator considered that, on the one hand, pharmacies render medical services in the public interest and, on the other hand, they are commercial enterprises.   In order to avoid speculation in an open market, the legislator opted for a licensing system, based on need.        Pursuant to S. 10 of the Pharmacy Act, a licence to open a new pharmacy is granted upon request if:      "1.    a medical practitioner is permanently exercising his            profession in the municipality where the new pharmacy is to            be set up;        2.     there is a need for a new pharmacy."        There is in particular no need for a new pharmacy if        "1.    the number of persons to be supplied by the pharmacy to be            set up is less than 5,500, or        2.     the distance between the new pharmacy to be set up and the            nearest existing pharmacy is less than 500 meters, or        3.     the number of persons who continue to be supplied by one of            the pharmacies existing in the vicinity will decrease as a            result of the new pharmacy and drop below 5,500."        The owner of a pharmacy and the manager in charge are obliged to run the pharmacy without interruption (S. 13).        Under S. 19 para. 1 (1), a licence to run a pharmacy may be revoked if the pharmacy has not become operational within one year after receipt of the licence.        Article 6 of the Austrian Basic Law (Staatsgrundgesetz) provides that all citizens have liberty of movement and the freedom to choose their place of residence, that they are entitled to acquire real estate of any kind and freely dispose of it, and that, in accordance with the relevant legislation, they can exercise any profession (Erwerbszweig).   COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings relating to his request for a licence to run a pharmacy.   He submits that he entered into the above agreement with W. inter alia on account of the length of the proceedings.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 9 December 1994 and registered on 25 January 1995.        On 12 April 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 26 July 1996.   The applicant replied on 18 September 1996.   THE LAW        The applicant complains about the length of the proceedings relating to his request for a licence to run a pharmacy.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention.        This provision, as far as relevant, provides:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a ... hearing within a reasonable time      by [a] ... tribunal ...".        According to the applicant, the proceedings at issue concerned his civil rights within the meaning of Article 6 para. 1 (Art. 6-1). He submits that the grant of such a licence has a direct influence on a pharmacist's possibilities to exercise his or her profession and that the licence is in itself a property right.   Moreover, in his view the length of the proceedings in his case, in particular the length of the proceedings before the Austrian Administrative Court, is in breach of the "reasonable time" requirement laid down in Article 6 para. 1 (Art. 6-1) of the Convention.        The Government refute these allegations.   They submit in particular that Article 6 para. 1 (Art. 6-1) does not apply to the proceedings in question which related to issues within the domain of public law.   In this respect the Government refer to a judgment of the Austrian Administrative Court (No. 11937/1988) according to which "revoking a licence to exercise a gainful profession (like running a pharmacy) as well as granting a licence are State measures which in the Austrian legal tradition are rooted in public law and do not belong to the sphere of civil justice because they do not govern legal relationships between citizens.   Although such measures are of essential economic significance for those concerned in that they may have a considerable impact on their assets, the measures concerned do not determine disputes that have arisen from 'civil rights' as such." The Government also consider that proceedings concerning the grant of such a licence are complex in that various inquiries are necessary. The Government maintain that, having regard to the conduct of the proceedings by the domestic authorities and in particular to the quantity and importance of the tasks attributed to the Austrian Administrative Court, the overall length did not exceed a reasonable time.         The Commission has taken cognizance of both parties' submissions. After a preliminary examination thereof the Commission has reached the conclusion that the case raises serious issues as to the interpretation and application of Article 6 (Art. 6) of the Convention and that these issues can only be determined after a full examination of their merits. It follows that the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        For these reasons, unanimously, the Commission        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber