CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 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. 31181/96                       by Hans-Günther SCHMID                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs   J. LIDDY, President            MM    M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 M. VILA AMIGÓ            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 13 November 1995 by Hans-Günther SCHMID against Germany and registered on 25 April 1996 under file No. 31181/96;        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, born in 1940, is a German national and resident at Leonberg.   He is a lawyer by profession.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In December 1990 the applicant bought from Ms. E., living in Stuttgart, a real estate at Leonberg-Warmbronn.   He moved to the house on 1 July 1991 and applied to the Warmbronn local authorities for registration of his main residence at Warmbronn.        On 6 September 1991 the Leonberg Municipality issued a notice against the applicant ordering him to cease the use of the weekend house in question for permanent residence purposes and to give up the house as his principal domicile before 31 December 1991.   The Municipality found that the real estate owned by the applicant was situated in the former area "Altenhalde/Neubruch" which had been reserved for weekend houses.   A building permit had been granted for the house in question in 1959, limited to use as weekend house. Accordingly the house may only be occupied for limited periods, such as the weekends or for holiday purposes.   Any change of use of the estate would have required a permission pursuant to the relevant provisions of the regional building regulations, which could not however be granted as the change of use envisaged by the applicant contravened public interests.   As the area in question was classified as an area for weekend houses, residential premises would not be compatible with the landscape and the function of this area as a public recreation area.   Moreover, there was a risk of urban sprawl, because further requests for use of weekend houses in that area as residential premises would have to be granted on grounds of equity.        On 16 December 1991 the Stuttgart Regional Government (Regierungspräsidium) dismissed the applicant's administrative appeal (Widerspruch).        On 24 August 1993 the Stuttgart Administrative Court dismissed the applicant's action challenging the lawfulness of the above decisions.   The Court found that the construction in question had been permitted for use as weekend house.   In this respect, the Court also noted that the contract between the applicant and Ms. E. referred to the premises as a weekend house.   The use of a weekend house for permanent residential purposes was subject to planning permission which had not and could not be granted for the house in question, pursuant to the relevant provisions of the Federal Building Act (Baugesetzbuch). In particular, in the Regional Zoning Plan (Flächennutzungsplan), the area was zoned for weekend houses.   Moreover, the applicant's permanent residence and his envisaged professional activities there would adversely affect the landscape and recreational use of the area concerned.   It was therefore legitimate that the competent authorities took the measures necessary to prevent any further sprawling expansion of the urban area.   As regards the applicant's argument that other houses in that area were used as residential premises, the Court recalled that, even assuming that the competent authorities tolerated a few unlawful buildings, the refusal of permission in a further, similar case did not amount to an error in the exercise of the authorities' discretion (Ermessensfehlgebrauch) as there was no right to a repetition of unlawful administrative measures.   The Court examined in detail the other cases relied upon by the applicant and considered that they were either not comparable to the applicant's case or that the authorities had started proceedings against the owner of the estates.        On 9 February 1995 the Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal (Berufung).   The Court of Appeal confirmed that the applicant's use of the estate for permanent residential and professional purposes was unlawful and could not be permitted under the relevant legal provisions of the Building Act.   In this respect, the Court of Appeal shared the lower instances concern about an uncontrolled urban development. Moreover, given that there were altogether 129 weekend houses in the area, the two permitted residential premises and the few weekend houses which purportedly, according to the applicant, were unlawfully used for residential purposes, could not serve as justification for the applicant's use of his weekend house as a permanent principal domicile.        On 20 June 1995 the Federal Administrative Court (Bundesverwaltungsgericht) dismissed the applicant's request for leave to appeal on points of law (Beschwerde gegen die Nichtzulassung der Revision).        On 11 August 1995 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).     COMPLAINTS        The applicant complains about the restrictions on his occupancy of his house imposed by the Leonberg Municipality, as confirmed by the German Courts.   He invokes Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.     THE LAW   1.    The applicant complains about the German decisions ordering him to cease using his estate for permanent residential purposes.   He considers that these decisions amount to a violation of his right to respect for his home, as guaranteed by Article 8 (Art. 8) of the Convention.        This provision, as far as relevant, provides as follows:        "1.    Everyone has the right to respect for ... his home ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        In the present case, the applicant moved to the estate in order to establish there his permanent principal domicile.   The Commission finds that the house in question, though the applicant had lived there only about two months at the time when the Municipality issued the order in question against him, must be considered as his "home".   The procedure pursued by the Municipality to prohibit the applicant from using the house for other than weekend purposes therefore constitutes an interference with the applicant's right to respect for his home.        Such interference is in breach of Article 8 (Art. 8), unless it is "in accordance with the law" and "necessary in a democratic society" for one or more of the reasons listed in paragraph 2 of Article 8 (Art. 8-2).        As regards the question whether the prohibition order was lawful, the Commission notes that the building permission granted in 1959 extended to a weekend house.   At no time had his predecessors or the applicant himself obtained a permission to use the estate for permanent residential and professional purposes.   This use was accordingly unauthorised.   The Municipality, in issuing the prohibition order against him, was acting in implementation of the relevant planning and building legislation.   The applicant's appeals to the German Administrative Courts remained unsuccessful and his constitutional complaint with the Federal Constitutional Court was to no avail.   In these circumstances, the Commission finds that the prohibition order was "in accordance with the law".        The Commission also finds that the interference pursued a legitimate aim, namely, the protection of the rights of others through the operation of planning controls which is recognised as necessary in a democratic society throughout the member States of the Council of Europe.   In this respect, the Commission recalls that the existence and operation of planning controls which delimit areas where domestic development may be extended, is a legitimate measure to protect the amenity value of rural areas and thereby to protect the rights of others (No. 11185/84, Dec. 11.3.85, D.R. 42, p. 275).        It remains to be examined whether the interference was "necessary in a democratic society" for this legitimate aim.        The Commission recalls that the Contracting States have a certain margin of appreciation in assessing the need for an interference, but it goes hand in hand with European supervision.   The exceptions provided for in paragraph 2 of Article 8 (Art. 8-2) are to be interpreted narrowly, and the need for them in a given case must be convincingly established (cf. Eur. Court HR, Funke, Crémieux and Miailhe v. France judgments of 25 February 1993, Series A no. 256-A, p. 24, para. 55, no. 256-B, p. 62, para. 38, and no. 256-C, p. 89, para. 36, respectively).        In the present case, the applicant bought the house in question, which was, as stated in the contract of sale, a weekend house only. In addition, the applicant, a lawyer, could have inquired with the competent local authorities into the lawful use of the estate in question.   Moreover, there is nothing to show that the local authorities, as confirmed by the courts, had been   motivated by other than proper planning considerations when considering that the applicant could not be permitted to use the estate for permanent residential purposes.   In examining his case, the administrative authorities and the courts had due regard to the arguments advanced by the applicant, in particular his reference to the existence of two residential premises and to the fact that some other weekend houses were purportedly used for permanent residential purposes.        In light of these circumstances and in particular the fact that the use of the land for permanent residential purposes was illegal from the beginning, the Commission finds that the measures taken can reasonably be considered as "necessary in a democratic society".        The Commission therefore finds that the interference in question is justified under paragraph 2 of Article 8 (Art. 8-2) of the Convention.   Consequently, there is no appearance of a breach of the applicant's right to respect for his home.        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 applicant further complains under Article 1 of Protocol No. 1 (P1-1) about the above decisions ordering him to cease using his estate for permanent residential purposes.        Article 1 of Protocol No. 1 (P1-1) 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."        The Commission finds that the decisions complained of amount to a control of use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1).   The Commission considers that this control of use of the land is necessary in accordance with the general interest of safeguarding rural areas from unsuitable development.   The Commission refers in this respect to its reasons given above in the context of Article 8 (Art. 8) of the Convention, the requirements of which are more stringent than those of Article 1 of Protocol No. 1 (P1-1).        The Commission finds that an examination under Article 1 of Protocol No. 1 (P1-1) of this aspect of the applicant's complaints does not disclose any appearance of a violation of this provision.        It follows this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant has also complained that he was discriminated against in that other proprietors were permitted to use their weekend houses for permanent residential purposes.   He did not invoke any provision of the Convention in this respect.        The Commission has examined this complaint under Article 14 (Art. 14) of the Convention which provides:        "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) is designed to ensure that individuals, placed in similar situations, are not discriminated against in the enjoyment of the rights and freedoms set forth in other provisions of the Convention.   A measure which, although in itself in conformity with the requirements of the Article of the Convention or the Protocols enshrining a given right or freedom, is of a discriminatory nature incompatible with Article 14 (Art. 14) therefore violates those two Articles taken in conjunction.   It is as though Article 14 (Art. 14) formed an integral part of each of the provisions laying down rights and freedoms (cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 15-16, para. 32).   Accordingly, and since Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) are relevant to the present case, it is necessary also to take into account Article 14 (Art. 14+8, 14+P1-1) in conjunction with these two provisions.        In the circumstances of the present case, the Commission, having regard to the detailed reasoning given by the Stuttgart Administrative Court and the Baden-Württemberg Administrative Court of Appeal, finds that the applicant has failed to show that the situation in the cases of some other house owners was comparable to his own.        The Commission therefore finds no indication of discrimination contrary to Article 14 (Art. 14) of the Convention.        It follows that, in this respect, 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.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber