Fa. MEDIA INT. GES. F. WIRTSCHAFTSWERBUNG mbH v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 16049/90

                      by Fa. MEDIA INT. Ges. f. Wirtschaftswerbung mbH

                      against Austria

        The European Commission of Human Rights sitting in private

on 5 October 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 27 November 1989

by Fa. Media Int. Ges. f. Wirtschaftswerbung mbH against Austria and

registered on 25 January 1990 under file No. 16049/90;

        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 a business company having its seat in

Liechtenstein and apparently represented by Mr. P. Meier, living in

Zirl/Austria.  In the proceedings before the Commission the applicant

company is represented by Mr. J.P. Cammerlander, a lawyer in

Innsbruck.

        The applicant company complains that in civil proceedings its

right of appeal was limited and it did not have the possibility of

lodging an appeal on points of law (Revision) because the value of the

claim did not exceed 15,000 AS.

        It follows from the documents submitted that the applicant

company sued a business man for payment of 2,870 AS for an

advertisement published in 1986.  The defendant objected that the

advertisement had been published too late.  On 23 March 1989 the

Kufstein District Court (Bezirksgericht) granted the action stating

that the defendant's objection (Mängelrüge) had been raised too late.

        On appeal the Innsbruck Regional Court (Landesgericht) quashed

the first instance decision and dismissed the action without an oral

hearing by judgment of 26 May 1989.  This Court considered that the

applicant had not effected its contractual obligation in a defective

manner (Sachmangel) but out of time and therefore the contract

concluded between the parties was no longer binding.  Consequently the

defendant did not owe money to the applicant company regardless of

whether he had raised objections against the belated advertisement.

COMPLAINTS

        The applicant considers that the legislative regulation,

according to which an appeal on points of law is possible only in

legal disputes where the value of claim exceeds 15,000 AS (or

50,000 AS as from 31 December 1989 onwards), violates Article 1 of

Protocol No. 1 to the Convention.  He also considers that the

restriction in question discriminates against socially weaker groups

of the population.  Furthermore he complains of Section 501 of the

Code of Civil Procedure (ZPO) limiting the appeal in matters not

exceeding 15,000 AS to grounds of nullity and alleged violations of

the law while procedural errors and errors of fact cannot be invoked.

Also it is left to the appellate court's discretion whether an oral

hearing of the appeal be held.

        The applicant submits that a request based on Article 6 para.

1 of the Convention to hold an oral hearing on the appeal was not made

as it would have been useless.  He refers to a decision given on 12 May

1989 by the Regional Court in another matter.  In that case a party had

pleaded that Section 501 of the Code of Civil Procedure violated the

principle of equality before the law (Gleichheitssatz) and the right

to protection of property.  The Regional Court saw however no reason to

question the compatibility of Section 501 ZPO with constitutional

rights before the Constitutional Court.

THE LAW

1.   The applicant company mainly complains that in petty cases

there is no possibility of an appeal on points of law.

     However, a right to an appeal in civil proceedings cannot be

derived either from Article 6 (Art. 6) of the Convention which

guarantees the right to a fair trial or from Article 1 of Protocol

No. 1 (P1-1) which guarantees the right to the peaceful enjoyment of

possessions.  The Commission further refers to its own jurisprudence

according to which the Convention does not prevent the High

Contracting Parties from regulating the manner in which the public

shall have access to courts in order to ensure the proper

administration of justice (No. 6916/75, Dec. 8.10.76, D.R. 6 p. 107,

112).

        There is furthermore no appearance of discrimination against the

applicant company in the enjoyment of these rights as the limitations

in question are made dependent on objective grounds, namely the value

of the claim at stake in the proceedings, and not on any personal

criterion related to the parties in the proceedings.

        It follows that this part of the application must be rejected

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being

manifestly ill-founded.

2.      Insofar as the applicant complains that there was no oral

hearing of its appeal, it is true that Article 6 (Art. 6) of the Convention,

which, inter alia, guarantees the right to a public oral hearing, also

applies to appeal proceedings if and to the extent that an appeal lies

under the relevant provisions of the applicable domestic law.

        The Commission notes that the applicant company had the

possibility to invoke before the Regional Court its right to a public

oral hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the

Convention and that Sec. 501 of the Code of Civil Procedure leaves it

to the court's discretion whether an oral hearing of the appeal be

held.  According to the applicant company's statements appeal

proceedings concerning disputes of minor importance with a value of

claim not exceeding 15,000 AS usually take place in Austria without a

public hearing.  In these circumstances the applicant company could

have been expected to ask for such a hearing if it found it important

that one be held.  It did not do so and must therefore be considered

as having waived its right to a public hearing before the appellate

court (Eur. Court H.R., Håkansson and Sturesson judgment of 21

February 1990, Series A no. 171, para. 67).  Consequently and

regardless of what might have been the court's decision with regard to

a request for an oral hearing, the applicant company cannot be

considered as a victim in respect of the alleged violation of

Article 6 (Art. 6).

        It follows that this part of the application must also be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

        For these reasons, the Commission, by a majority

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission             President of the Commission

       (H. C. KRÜGER)                        (C. A. NØRGAARD)

 

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