AS TO THE ADMISSIBILITY OF
Application No. 18702/91
by "Familia" F.M. ZUMTOBEL Gesellschaft mbH & Co.
and Franz Martin ZUMTOBEL
against Austria
The European Commission of Human Rights sitting in private on
15 October 1991, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy 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 13 August 1991
by "Familia" F.M. ZUMTOBEL Gesellschaft mbH & Co. and Franz Martin
ZUMTOBEL against Austria and registered on 21 August 1991 under file
No. 18702/91;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
Particular circumstances of the case
The first applicant is a commercial enterprise under Austrian
law. The second applicant, an Austrian citizen residing at Dornbirn,
is the manager of the first applicant.
On 20 December 1984 the Mayor of Wörgl granted the first
applicant a permit to build a supermarket, to be divided into two
separated shops. However, the two shopping areas were joined into one
big shop during the construction of the building.
I.
On 12 August 1986 the Mayor of Wörgl dismissed the belated
request for a building permit for the changed project. The Mayor found
in particular that the building now was a shopping centre and that the
building permit was requested for an area that was not designated as
a special area for shopping centres (Sonderfläche für Einkaufszentren).
The first applicant appealed against the decision, claiming
that the decision was unlawful as its legal basis, the Regional
Planning Act, was unconstitutional.
On 2 December 1986 the Wörgl Town Council (Stadtrat) dismissed
the appeal on the ground that the authority in question had been bound
by the law in force at the time of the decision.
On 27 January 1987 the Tyrolean Provincial Government
(Landesregierung) dismissed a further appeal as the project was
contrary to the area zoning plan.
The first applicant lodged a complaint with the Constitutional
Court (Verfassungsgerichtshof). It submitted that the decision
violated its right of property and that its legal basis (Section 16b
of the Tyrolean Regional Planning Act) was inter alia contrary to the
distribution of legislative powers (Articles 10 - 15 of the Federal
Constitution). The second applicant further contended that the
decision contradicted Article 6 of the Convention, the principle of
equality and the independence of local authorities (Gemeindeautonomie).
On 14 March 1988 the Constitutional Court refused to deal with
the complaint for lack of prospect to succeed and referred the case to
the Administrative Court (Verwaltungsgerichtshof).
On 13 December 1990 the Administrative Court dismissed the
first applicant's complaint. In the Court's opinion it was undisputed
that a shopping centre had in fact been constructed, for which there
was no special designation. Therefore the authorities had to refuse
the building request as it was contrary to the area zoning plan. This
decision was served on the first applicant on 18 February 1991.
II.
On 15 June 1986 the Mayor of Wörgl refused the permit to use
the shopping centre (Benützungsbewilligung), on the ground that the
building was not in accordance with the building permit and the
Tyrolean Land Planning Act.
The first applicant appealed against this decision, claiming
that the decision was unlawful as the provisions of the Tyrolean
Regional Planing Act referred to in the decision were unconstitutional.
On 24 September 1986 the Wörgl Town Council dismissed the
appeal on the grounds that the construction of a shopping centre was
contrary to the area zoning plan and that the authorities were bound
by the laws.
On 5 November 1986 the Provincial Government quashed the
decision as the building permit proceedings were still pending and
referred the case back to the Town Council which, on 3 December 1986,
referred the case to the Mayor.
On 19 January 1987 the Mayor again refused the permit to use
the shopping centre on the same grounds as in his first decision.
On 13 April 1987 and on 22 July 1987 the first applicant's
appeals were dismissed by the Wörgl Town Council and the Tyrolean
Provincial Government, respectively.
On 14 March 1988 the Constitutional Court refused to deal with
the first applicant's further complaint for lack of prospect to succeed
and referred the case to the Administrative Court.
On 18 August 1988 in a supplement to its complaint to the
Administrative Court, the first applicant submitted that a use permit
could have been granted even in the absence of a building permit.
On 13 December 1988 the Administrative Court dismissed the
complaint finding that a new building permit was necessary before a use
permit could be granted for the same reasons as those given in its
decision concerning the building permit of the same day (see above I).
This decision was also served on the first applicant on 18 February
1991.
III.
On 29 April 1987 the Mayor of Wörgl ordered the first applicant
to pull down its shopping centre by 31 December 1987 as the building
permit had been finally refused.
On 9 September 1987 the Wörgl Town Council dismissed the first
applicant's appeal as there was no building permit for the supermarket.
On 21 June 1988 the Tyrolean Provincial Government dismissed
a further appeal on the ground that the first applicant had built a
shopping centre for which it did not have a building permit.
On 28 November 1988 the Constitutional Court refused to deal
with the first applicant's complaint against the Provincial
Government's decision and referred the case to the Administrative
Court.
On 6 December 1990 the Administrative Court dismissed the
complaint on the ground that the shopping centre was a building for
which the building permit had been refused. Therefore, the order to
pull the building down was lawful. This decision was served on the
first applicant on 18 February 1991.
Relevant domestic law and practice
I. Building legislation
According to Section 31 of the Tyrolean Building Regulations
(Bauordnung) in the former version the authority has to decide on a
building request by a written decision. Paragraph 3 of Section 31
states:
[Translation]
"A building request is to be refused without an oral hearing, if
already the request or the documents reveal that the project is
contrary to the area zoning plan, the building development plan
or to local building provisions (Section 20 of the Tyrolean
Regional Planning Act) or if a building prohibition under Section
29 of the Tyrolean Regional Planning Act precludes the project."
[German]
"Ein Bauansuchen ist ohne Durchführung einer mündlichen
Verhandlung abzuweisen, wenn sich bereits aus dem Ansuchen bzw.
den Unterlagen ergibt, daß das Bauvorhaben dem
Flächenwidmungsplan, dem Bebauungsplan oder örtlichen
Bauvorschriften (§ 20 des Tiroler Raumordnungsgesetzes)
widerspricht oder wenn dem Bauvorhaben eine Bausperre nach § 29
des Tiroler Raumordnungsgesetzes entgegensteht."
According to Section 43 para. 1 of the Building Regulations the
applicant for a building permit has to give notice of the completion of
a building subject to a permit. At the same time he has to request a
permit to use the building (Benützungsbewilligung).
Para. 2 of Section 43, as far as relevant, states:
[Translation]
" ... If the realisation of a project deviates from the building
permit and if this change constitutes a modification of the
project for which no building permit would be necessary in the
case of existing buildings the modification may be approved and
the permit to use be granted. In all other cases of a deviation
from the building permit the applicant has to request a further
building permit for the modification of the project. ... If the
building permit is refused, the permit to use has to be refused.
... If the permit to use is refused, the authority has to proceed
according to Section 44 para. 3."
[German]
" ... Weicht die Ausführung des Bauvorhabens von der
Baubewilligung ab und stellt diese Abweichung eine Änderung des
Bauvorhabens dar, zu deren Vornahme bei bestehenden baulichen
Anlagen keine Baubewilligung erforderlich wäre, so kann diese
Änderung genehmigt und die Benützungsbewilligung erteilt werden.
In allen anderen Fällen einer Abweichung von der Baubewilligung
hat der Bauwerber nachträglich um die Erteilung der
Baubewilligung für die Änderung des Bauvorhabens anzusuchen. ...
Wird die Benützungsbewilligung versagt, so hat die Behörde nach
§ 44 Abs. 3 vorzugehen."
Section 44 para. 3 of the Building Regulations, as far as
relevant, reads as follows:
[Translation]
"The authority has to order the demolition of a building within
a reasonable time,
a) if there is no permit for the building, although it would be
required, and if the owner has not requested a further building
permit within a month after the warning of a demolition order had
been served or if the permit to use the building has been
refused."
[German]
"Die Behörde hat den Abbruch einer baulichen Anlage innerhalb
einer angemessenen Frist anzuordnen,
a) wenn für die bauliche Anlage eine Bewilligung nicht besteht,
obwohl sie bewilligungspflichtig wäre, und der Eigentümer nicht
innerhalb eines Monats ab der Zustellung der Androhung des
Abbruchauftrages nachträglich um die Erteilung der Baubewilligung
angesucht hat oder wenn für diese bauliche Anlage die
Baubewilligung versagt worden ist."
II. Land planning legislation
Land planning in Austria is divided into regional and local land
planning (überörtliche und örtliche Raumordnung). In the present case
the building permit at issue was governed by Tyrolean law.
In order to achieve the goals of the regional land planning laid
down in Section 1 of the Tyrolean Regional Planning Act the Provincial
Government (Landesregierung) has to issue development programmes
(Entwicklungsprogramme) (Section 4).
The local land planning is carried out by the communities which
issue area zoning plans (Flächenwidmungspläne) that designate the land
as building land (Bauland), undeveloped land (Freiland) or main traffic
areas (Hauptverkehrsflächen).
Even if a plot of land is designated as building land certain
buildings may only be built there if there is express provision in a
development programme. Section 16b of the Regional Planning Act
provides for "special areas for shopping centres" (Sonderflächen für
Einkaufszentren). This provision, as far as relevant, reads as follows:
"(1) Shopping centres within the meaning of this Act are
buildings with sale-rooms of a total effective area of more than
400 m², in communities with more than 10,000 inhabitants
according to the last census of a total effective area of more
than 800 m², in which especially articles of everyday use, at any
rate food, are offered. ...
(2) The building permit for the construction of a shopping centre
may only be granted if this building will be erected on land
which is designated as a special area for shopping centres and
if the total effective sale-room area planned in this building
does not exceed the maximum prescribed by the area zoning plan.
...
(3) Special areas for shopping centres may only be designated in
a building area and only in so far as a development programme
provides that a use of land corresponding to this designation is
admissible in a particular community. ..."
[German]
"(1) Im Sinne dieses Gesetzes sind Einkaufszentren Gebäude mit
Verkaufsräumen von insgesamt mehr als 400 m² Nutzfläche, in
Gemeinden, die nach dem Ergebnis der jeweils letzten Volkszählung
mehr als 10.000 Einwohner haben, von insgesamt mehr als 800 m²
Nutzfläche, in denen insbesondere auch Waren des täglichen
Bedarfes, jedenfalls Lebensmittel, angeboten werden. ...
(2) Die Baubewilligung für die Errichtung eines Einkaufszentrums
darf nur erteilt werden, wenn dieses Gebäude auf einer
Grundfläche, die als Sonderfläche für Einkaufszentren gewidmet
ist, errichtet wird und die Nutzfläche der in diesem Gebäude
vorgesehenen Verkaufsräume insgesamt das im Flächenwidmungsplan
festgesetzte Höchstausmaß nicht übersteigt. ...
(3) Sonderflächen für Einkaufszentren dürfen nur im Bauland und
nur insoweit gewidmet werden, als in einem Entwicklungsprogramm
bestimmt ist, daß eine dieser Widmung entsprechende Verwendung
von Grundflächen in der betreffenden Gemeinde zulässig ist. ..."
Both the development programme and the area zoning plan are
Ordinances (Verordnungen). These ordinances can be challenged before
the Constitutional Court (Verfassungsgerichtshof) for unlawfulness
according to Article 139 of the Austrian Federal Constitution. In
general, however, one cannot complain about the fact that an authority
has not issued an ordinance.
In the present case the Provincial Government did not issue a
development programme for the community in question. The owners of
affected land are neither parties in the planning proceedings nor can
they request an exemption from the designation provided for in the
plans.
III. The jurisdiction of the Constitutional Court
The Austrian Constitutional Court pronounced itself on the
applicability and scope of Article 6 para. 1 of the Convention to
building proceedings originating from Austrian administrative
authorities in its decision of 14 October 1987 (B 267/86, VfSlg
11500/1987). It held that the refusal of a building permit was not a
decision on a "civil right". The Court stated the following:
[Translation]
"The refusal of a building permit is rather an interference by
the State in the public interest - it is indeed the very
archetype of such an interference -, and the upholding of public
interests including the necessary balancing of public and private
interests is the essential function of administration. The fact
that the subject of the interference is generally property and
hence a private property right, does not change its public law
character."
[German]
"Vielmehr ist die Versagung einer Baubewilligung ein hoheitlicher
Eingriff im öffentlichen Interesse - ja geradezu der Prototyp
eines solchen Eingriffs -, und die Wahrnehmung der öffentlichen
Interessen einschließlich der nötigen Abwägung gegenüber privaten
Interessen die wesentliche Aufgabe der Verwaltung. Daß der
Gegenstand des
Eingriffs regelmäßig das Eigentum und damit ein privates
Vermögensrecht ist, ändert an seinem öffentlich-rechtlichen
Charakter nichts."
The Court distinguished between decisions concerning the core of
civil law (i.e. disputes among private persons) and decisions on
disputes which only concern civil rights in their effects (namely the
relationship between the private person and the public). In order to
avoid a complete change of the Austrian State structure, the Court
considered that the requirements of a tribunal within the meaning of
Article 6 para. 1 of the Convention should depend on whether the dispute
concerned the one or the other category. With regard to decisions
concerning civil rights only in their effects the Court found that it
sufficed under Article 6 para. 1 if a tribunal exercised a mere
subsequent control of the decision. The Court continued:
[Translation]
"Such a subsequent control would in any event suffice if,
regardless of its nature as a merely subsequent control which
does not provide for the reopening of proceedings, the court
effectively (and not merely theoretically and in the abstract)
has the possibility to convince itself of the correctness of the
solution in regard to the facts and the law applied and its
judgment on the matter is capable of being enforced. Such a
control falls to the Austrian Administrative Court in the light
of an understanding of the Administrative Court Act which is
oriented towards the Constitution."
[German]
"Eine solche nachprüfende Kontrolle müsste jedenfalls dann
genügen, wenn sie ungeachtet ihres bloss nachprüfenden, nicht auf
einer Neudurchführung des Verfahrens beruhenden Charakters dem
Gericht - nicht bloss theoretisch und abstrakt, sondern im
Ergebnis auch wirksam - Gelegenheit gibt, sich von der
Richtigkeit der Lösung sowohl der Tat - wie der Rechtsfrage zu
überzeugen und sein Urteil über die Sache auch durchzusetzen, wie
dies bei einem an der Verfassung orientierten Verständnis des
Verwaltungsgerichtshofgesetzes dem österreichischen VwGH
aufgetragen ist."
IV. Proceedings before the Administrative Court
According to Article 130 para. 1 of the Federal Constitution the
Administrative Court reviews allegations of unlawfulness of an
administrative decision. Article 130 para. 2 excludes the review of the
exercise of discretionary powers within the scope of the law. The
Administrative Court is also competent to deal with complaints that the
administrative authority has violated its duty to take a decision
(Article 132).
Section 41 of the Administrative Court Act provides, insofar as
relevant:
[Translation]
"(1) Insofar as the Administrative Court does not find
unlawfulness on account of a lack of jurisdiction of the
authority against which the appeal is directed or on account of
a violation of procedural provisions (Section 42 para. 2 [2] and
[3]) ..., the Court must examine the contested decision on the
basis of the facts as accepted by the authority against which the
appeal is directed within the framework of the alleged complaint
... If it is of the opinion that reasons would be relevant for
the decision on the unlawfulness of the contested decision ...
which were so far not known to a party, it must hear the parties
thereupon and, if necessary, adjourn the proceedings.
(2) In the cases of Article 132 of the Federal Constitution the
Court must determine the facts, taking into account Section 36
para. 9."
[German]
"(1) Der Verwaltungsgerichtshof hat, soweit er nicht
Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder
wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42
Abs. 2 Z 2 und 3) ... den angefochtenen Bescheid auf Grund des
von der belangten Behörde angenommenen Sachverhaltes im Rahmen
der geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist
er der Ansicht, dass für die Entscheidung über die
Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte
... Gründe massgebend sein könnten, die einer Partei bisher nicht
bekanntgegeben wurden, so hat er die Parteien darüber zu hören
und wenn nötig, eine Vertagung zu verfügen.
(2) In den Fällen des Art. 132 B-VG hat der Gerichtshof den
Sachverhalt unter Bedachtnahme auf § 36 Abs. 9 festzustellen."
As regards the decisions of the Administrative Court, Section 42
para. 2 of the Administrative Court Act provides, insofar as relevant:
[Translation]
"(2) The contested decision must be quashed
1. on account of the unlawfulness of its content,
2. on account of unlawfulness due to the lack of
jurisdiction of the authority against which the
appeal is directed,
3. on account of unlawfulness due to a violation of
procedural provisions because
a) the authority against which the appeal is
directed has determined the facts on an
important point contrary to the
case-file, or
b) the facts need to be supplemented on an
important point, or
c) procedural provisions have been disregarded
which, if taken into consideration by the
authority against which the appeal is
directed, would have led to a different
decision of the authority."
[German]
"(2) Der angefochtene Bescheid ist aufzuheben
1. wegen Rechtswidrigkeit seines Inhaltes,
2. wegen Rechtswidrigkeit infolge Unzuständigkeit
der belangten Behörde,
3. wegen Rechtswidrigkeit infolge Verletzung von
Verfahrensvorschriften, und zwar weil
a) der Sachverhalt von der belangten Behörde
in einem wesentlichen Punkt aktenwidrig
angenommen wurde oder
b) der Sachverhalt in einem wesentlichen
Punkt einer Ergänzung bedarf oder
c) Verfahrensvorschriften ausser acht gelassen
wurden, bei deren Einhaltung die belangte
Behörde zu einem anderen Bescheid hätte
kommen können."
The proceedings before the Administrative Court consist of an
exchange of written observations between the parties (Section 36) and an
oral hearing of their legal arguments (Sections 39 and 40). The parties
have a right to request a hearing (Section 39, para. 1 [1]).
The decision of the Administrative Court is either to dismiss
the complaint or to quash the decision complained of (Section 42 para.
1). If the complaint is allowed the authorities are obliged to
establish immediately with the legal means available to them the legal
situation which corresponds to the view of the Administrative Court in
the particular case (Section 63).
COMPLAINTS
The applicants complain under Article 6 para. 1 of the
Convention that in the building proceedings they did not benefit from a
procedure in conformity with this provision before an independent and
impartial tribunal having full jurisdiction on questions of law and
fact. In particular they complain about the fact that no tribunal
issued a development programme for the community in which the
applicants' land is situated.
With reference to Article 1 of Protocol No. 1 to the Convention
the applicants complain that Section 16b of the Tyrolean Regional
Planning Act constituted an unjustified restriction of the use of
property.
THE LAW
1. The applicants complain that in the proceedings in which they
were involved they did not have access to an independent and impartial
tribunal as guaranteed by Article 6 (Art. 6) of the Convention. This
provision states, insofar as it is relevant:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. ..."
a) The applicants complain in particular that they did not have
access to an independent and impartial tribunal which would have issued
a development programme.
The applicants submit that the proceedings at issue concerned
their right to build a shopping centre and subsequently their right to
practise gainful activities in the shopping centre. In their view their
civil rights have been determined in the building proceedings.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention applies only 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 (cf. Eur. Court H.R., Lithgow and others
judgment of 8 July 1986, Series A No. 102, p. 70, para. 192).
The Commission further recalls that the Court found that there
was a dispute over a "right" if an unlawful prolongation of the building
prohibition by an area plan is alleged (Eur. Court H.R., Allan Jacobsson
judgment of 25 October 1989, Series A No. 163, pp. 19 - 20, para. 67 et
seq.), if an unlawful amendment of a building plan is alleged (Eur.
Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A No. 180,
p. 12 et seq., para. 30 et seq.), or if the applicant claims a right to
an exemption from the building plan (Eur. Court H.R., Skärby judgment of
28 June 1990, Series A No. 180, p. 36 et seq., para. 27 et seq.). The
Commission recalls that these judgments dealt with building proceedings
in which the applicants could claim an individual right which was
affected by a building or area plan.
The Commission notes that in the present case the applicants do
not have an individual right to enforce the adoption of a development
programme by the Provincial Government which allowed the designation of
land as a "special area for shopping centres" in a particular community.
According to Austrian law the adoption of a development programme only
concerns the competence of that community to designate land for
particular purposes.
The Commission therefore concludes that the question whether a
development programme should have been issued did not involve a
"determination of (the applicants') civil rights and obligations" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that, insofar as the applicants complain that in the
proceedings concerning the issue of a development programme they did not
have access to an independent and impartial tribunal, the application is
incompatible ratione materiae with the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
b) The applicants also direct their complaints under Article 6
para. 1 (Art. 6-1) of the Convention against the proceedings concerning
the building permit, the use permit and the demolition order.
The Commission does not find it necessary to decide whether
there was a serious dispute over a right within the meaning of Article
6 (Art. 6) of the Convention. It notes that the applicants applied for
a permit to build on their land, applied for a permit to use the
building and finally were ordered to demolish their building and that
the applicants had a right in general to build on their land.
Assuming that the applicants could claim a "right" to build on
their land and to use their building, this "right" would be of a "civil"
nature for the purposes of Article 6 para. 1 (Art. 6-1) (see e.g. the
above-mentioned Allan Jacobsson judgment, p. 20, para. 73).
The Commission therefore accepts that Article 6 para. 1
(Art. 6-1) of the Convention is applicable to the building proceedings
at issue.
With regard to the proceedings concerning the building permit
the applicants complain under Article 6 para. 1 (Art. 6-1) that they did
not have access to an independent and impartial tribunal.
The Commission considers that the proceedings before the Mayor,
the Town Council and the Provincial Government do not satisfy the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
However, these requirements would be satisfied if subsequently the
applicants' civil rights had been determined by a tribunal within the
meaning of Article 6 para. 1 (Art. 6-1). Such a determination would
require that the court could undertake a comprehensive examination of
all relevant questions of law and fact (see Ettl and others v. Austria,
Comm. Report 3.7.1985, para. 78 with further references).
In the present case the Commission need not examine in the
abstract whether the Administrative Court meets the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes in
particular that in the proceedings before the Administrative Court the
establishment and the assessment of the facts were not in dispute
between the parties, and there was no need therefore for a judicial
determination thereof. In particular it was not in dispute that the
effected construction deviated from the building permit. Rather the
decisive and disputed question raised by the first applicant within the
jurisdiction of the Administrative Court was whether or not the request
for building a shopping centre complied with the requirements of the
area zoning plan. This was, however, solely a question of the
application of the law. It is not contested by the applicants that the
Administrative Court was competent to undertake this examination.
As a result, the Commission considers that the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention have been complied with.
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 also allege a violation of Article 1 of Protocol
No. 1 (P1-1) in that Section 16b of the Tyrolean Regional Planning Act
constituted an unjustified restriction of their use of property.
Article 1 of Protocol No. 1 (P1-1) reads 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."
In fact, Section 16b of the above-mentioned law made the
designation of a land as an area for shopping centres subject to the
issue of a development programme.
The Commission considers, assuming that this restriction was an
interference with the applicants' right to peaceful enjoyment of their
possessions, that it was justified under the second paragraph of Article
1 of Protocol No. 1 (P1-1) (see, mutatis mutandis, the above-mentioned
Allan Jacobsson judgment, p. 16, para. 54).
The Commission notes that the restriction was lawful. Moreover,
the purpose of the provisions - to facilitate land planning - is in
accordance with the general interest as envisaged in Article 1 para. 2
of Protocol No. 1 (P1-1-2).
As to the proportionality the Commission finds that it cannot be
considered disproportionate to the requirements of the legitimate aim of
land planning if the Provincial Government is given competence to decide
in which community there should be a shopping centre.
As a result this part of 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.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)
Full & Egal Universal Law Academy