AS TO THE ADMISSIBILITY OF
Application No. 30633/96
by DALLMANN, HÜGEL, LAURER & VIEHBÖCK OEG
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. 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
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 7 March 1996 by
DALLMANN, HÜGEL, LAURER & VIEHBÖCK OEG against Austria and registered
on 26 March 1996 under file No. 30633/96;
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 company ("the company") is a registered company
under the Law on Registered Companies of 25 May 1990 (Bundesgesetz vom
25 April 1990 über eingetragene Erwerbsgesellschaften, BGBl. 1990/257).
It has its registered office in Mödling, and is represented before the
Commission by Professor H.F. Hügel, who practices as a lawyer in
Mödling.
On 3 February 1993, the company applied to the respective Bar
Associations for inclusion in the list of law firms
(Rechtsanwaltsgesellchaften) in both Lower Austria and Vienna. In each
case, the company declared that it had offices (Kanzleisitze) in Vienna
and Mödling.
The application to the Lower Austrian Bar Association was refused
on 18 February 1993. The Bar Association rejected the application to
the extent that it concerned the Vienna offices, on the ground that the
Vienna Bar Association was responsible for offices in Vienna.
The application was dismissed so far as it related to the Mödling
offices on the ground that the Section 21c (7) of the Lawyers Act
(Rechtsanwaltsordnung) provided that "The firm may have only one
office". Moreover, Rule 25 of the Guidelines for the Exercise of the
Profession of Lawyer (Richtlinien für die Ausübung des
Rechtsanwaltsberufes) provided that only lawyers with the same offices
may practice together.
The Bar Association added that the company's application ran
counter to the aims of the above provisions: two sets of offices was
incompatible with the federal organisation of Bar Associations, the
economic structuring of lawyers' practices, and the "essence of a free
profession". Further, marriages between giants ("Elefantenhochzeiten")
and legal clinics were undesirable.
The company's appeal to the Supreme Appeals and Disciplinary
Board (Oberste Berufungs- und Disziplinarkommission) was dismissed on
21 July 1993. The Board confirmed the Bar Association's decision of
18 February 1993.
The company made a constitutional complaint to the Constitutional
Court (Verfassungsgerichtshof).
On 27 September 1994 the Constitutional Court found that Rule 25
of the Guidelines was not authorised by any provision of the Lawyers
Act, and quashed the decision of 21 July 1993 on the ground that an
unlawful rule had been applied.
In its new decision of 21 November 1994, the Supreme Appeals and
Disciplinary Board again dismissed the company's appeal, this time
without relying on the Guidelines, but solely on the provisions which
stated that a law firm may only have one office.
The company made a further constitutional complaint. It argued
that there had been violation of its constitutional right to the free
exercise of its trade (Erwerbsausübungsfreiheit) in that there were no
public interests which could justify the interference with the right
of lawyers to practice, simply because they had two offices. It also
alleged a violation of its right to equality before the law, as
foreignlawyers were permitted, by the European Communities Treaties,
to establish in Austria, and they were therefore better treated than
domestic law firms.
The Constitutional Court, finding no violation of the company's
rights, dismissed the complaint on 30 June 1995 (received on
15 September 1995). It recalled that it had accepted, in an earlier
decision, that the prohibition of branch offices was objectively
justified. The legislator had obviously considered that the exercise
of the profession of lawyer depended on the direct personal
relationship between the lawyer and his client, and the confidence
which ensues therefrom. As the prohibition on multiple offices and
branch offices was accepted, the legislator could not be expected to
treat law firms better than individual lawyers by permitting them to
have more than one office.
As to the arguments based on European Community law, the
Constitutional Court noted that the decision of 21 November 1994 had
been served on 23 December 1994, and that Austria joined the European
Union only on 1 January 1995. Accordingly, only the legal position
before 1 January 1995 could be taken into consideration. The
provisions of the European Economic Area (EEA) could not assist the
company: there was no prohibition on Austrian lawyers having an office
in EEA countries, and the Austrian rules on establishment applied
equally to Austrian and non-Austrian lawyers.
The application for registration to the Vienna Bar Association
pursued the same path: the Bar Association refused to register the
company of 9 March 1993; the Supreme Appeals and Disciplinary Board
dismissed the company's appeal on 21 June 1993, and on 27 September
1994 the Constitutional Court quashed the Board's decision. The Board
took a second decision against the company on 21 November 1994, and the
Constitutional Court confirmed that decision on 28 November 1995.
COMPLAINTS
The applicant company alleges violations of Article 6 of the
Convention and of Article 1 of Article 1 of Protocol No. 1, taken
together with Article 14 of the Convention.
Under Article 6 of the Convention, the company claims that the
proceedings in which it was refused registration as a firm of lawyers
determined its civil rights and obligations, and that Article 6 para. 1
therefore applies. It further claims that the requirements of
Article 6 were not met in those proceedings in that one of the judges
in the Constitutional Court, Dr. Heller, did not offer the necessary
guarantees of impartiality: that Dr. Heller is a member of a law firm
in Vienna which has three offices outside Austria, in Bratislava,
Budapest and Prague. The company claims that Dr. Heller had an
interest in preventing the setting up of a law firm which had several
offices and which could compete with his firm, and that he also had an
interest in ensuring that there was a legal basis for firms which are
based in Austria and which had further offices abroad.
Under Article 1 of Protocol No. 1, taken together with Article 14
of the Convention, the company claims that its property rights are
affected by the refusal to let it carry on business through two offices
in that the refusal adversely affects the company's ability to acquire
and keep clients. It claims that to set up subsidiaries is a
normalattribute of a business, and that to limit the company's
activities to one place of business is to interfere in its right to
continue business.
The company also complains that the provisions of European Union
law, now in force in Austria, permit lawyers from other EU countries
to establish themselves in Austria, and, indeed to open more than one
office in Austria if they wish.
THE LAW
1. The company alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention. Article 6 para. 1 (Art. 6-1) 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."
The proceedings in the present case determined the question
whether the Lower Austrian Bar could and would permit the applicant
company to carry on business from offices in Vienna and Mödling,
notwithstanding the express provisions of domestic law that a firm may
only have one office. The domestic decisions found that there were no
constitutional objections to the provisions, and that it was therefore
not possible to permit the company's registration as a law firm.
The Commission is not required to determine whether Article 6
para. 1 (Art. 6-1) is applicable in the present case because, even
assuming that Article 6 (Art. 6) applies, this part of the application
is in any event manifestly ill-founded for the following reasons.
The company alleges a violation of Article 6 (Art. 6) on the
ground that one of the judges in the Constitutional Court on 30 June
1995 was Dr. Heller, who could not be regarded as impartial as he was
a partner in a multi-office partnership with offices in Bratislava,
Budapest and Prague, and therefore had - or at least appeared to have -
an interest in maintaining the existing system as it stood.
The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be
determined according to a subjective test, that is on the basis of the
personal conviction of a particular judge in a given case, and also
according to an objective test, that is ascertaining whether the judge
offered guarantees sufficient to exclude any legitimate doubt in this
respect (see, in the context of a criminal case, Eur. Court HR,
Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21,
para. 46).
The Commission would first note that there is no question in the
present case of the company having waived its right to challenge Dr.
Heller: the proceedings before the Constitutional Court were in
writing, and the company only knew of Dr. Heller's participation when
it received the judgment. As the Constitutional Court was the final
instance, there is also no question of a further challenge to
Dr. Heller's participation.
In applying the subjective test, the Commission does not find,
and the company does not (and cannot) allege, that Dr. Heller actually
exerted any undue influence on the outcome of the proceedings. The
question is rather whether the company is entitled to have legitimate
doubt as to the appearances in the case.
The Commission does not agree with the company that Dr. Heller's
involvement in a firm with offices in Bratislava, Budapest and Prague
leads to the conclusion that the Constitutional Court did not offer the
requisite guarantees of impartiality. The Commission notes, for
example, that Dr. Heller was only one of 13 judges on 30 June 1995.
Of more importance, however, is the fact that there is no reason why
a judge who is a member of a firm with several offices (abroad) should
necessarily be inclined to wish to limit other firms wishing to set up
several offices in the country. In the Commission's opinion, such a
judge is just as likely to be interested himself in expanding business
at home by setting up further offices within the country.
In conclusion, then, the Commission does not accept that the
Constitutional Court lacked impartiality on either the subjective or
the objective test.
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 company also alleges a violation of Article 1 of Protocol
No. 1 (P1-1) to the Convention, taken together with Article 14
(Art. 14) of the Convention. These provisions run, so far as relevant,
as follows.
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. ..."
"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 company claims, in essence, that it has a right to pursue its
business in the form it thinks fit, and that the limitation of law
firms to one office is anachronistic and unjustifiable in a modern
world.
The Commission agrees that, in days of multi-disciplinary
partnerships and multi-national law firms with numerous offices in each
of many countries, a limitation on law firms to just one office might
be considered to be out of step with modern developments in
professional business management. It is not the Commission's function,
however, to give guidance on whether the old or the new should be
encouraged. Rather, in the context of Article 1 of Protocol No. 1
(P1-1), it must first ascertain whether an applicant's possessions are
at all at issue.
The applicant company was created with a view to a merger of two
firms, one in Vienna and one in Mödling. It appears that the company
never in fact practised (as it was never registered), and the company
cannot therefore have had any clients, goodwill, or other assets.
Article 1 of Protocol No. 1 (P1-1) guarantees rights in respect of
existing possessions, rather than guaranteeing rights to
acquisition ofpossessions (see, for example - in a different context -
Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A
no. 31, p. 23, para. 50).
In the circumstances of the present case, the Commission does not
accept that the refusal to register the company under the Lawyers Act
affected the applicant company's "possessions" at all. There has
therefore been no interference with the right to peaceful enjoyment of
possession in the present case.
In connection with Article 14 (Art. 14) of the Convention, the
Commission recalls that where Article 1 of Protocol No. 1
(P1-1) is inapplicable, Article 14 (Art. 4) cannot be combined with it
(above-mentioned Marckx judgment, ibid.).
It follows that this part of the application is also incompatible
ratione materiae with the provisions of the Convention 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
Full & Egal Universal Law Academy