AS TO THE ADMISSIBILITY OF
Application No. 28866/95
by Josef and Manfred FEHR
Hans MÄHNER
Eduard KESSLER
BAHTIM Gaststätten GesmbH
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 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 14 September 1995
by Josef and Manfred FEHR, Hans MÄHNER, Eduard KESSLER, BAHTIM
Gaststätten GesmbH against Austria and registered on 5 October 1995
under file No. 28866/95;
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 first and second applicants, Mr. Josef and Mr. Manfred Fehr
are Austrian citizens residing in Feldkirch and owners of a firm. The
third applicant, Mr. Hans Mähner, is an Austrian citizen residing in
Feldkirch and also the owner of a firm. The fourth applicant,
Mr. Eduard Kessler, is an Austrian citizen residing in Riezlern where
he runs a hotel. The fifth applicant is a private company (Gesellschaft
mit beschränkter Haftung) having its place of business in Bregenz where
it runs a restaurant. Before the Commission all four applicants are
represented by Mr. Weh, a lawyer practising in Bregenz.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
a. The first and second applicants (Fehr)
On 20 July 1992 the applicants filed a request with the Feldkirch
Employment Office (Arbeitsamt) for the granting of a work permit for
the worker M.D., a citizen of former Yugoslavia.
On 11 September 1992 the Employment Office dismissed the request
in accordance with Section 4 para. 6 of the Employment of Foreigners
Act (Ausländerbeschäftigungsgesetz). The Employment Office found that
the maximum quota fixed for the employment of foreigners in Vorarlberg
had been exceeded and the Mediation Committee (Vermittlungsausschuß)
had not supported the granting of the work permit. Moreover, none of
the conditions of Section 4 para. 6 (2)-(4) of the above Act were met.
On 29 September 1993 the applicants appealed. They contested,
inter alia, the lawfulness of a determination of a maximum quota for
the employment of foreigners in general and the correctness of the
figures, in particular. They also complained that, in case the maximum
quota had been exceeded, the competence to grant work permits was de-
facto transferred to the Mediation Committee.
On 19 May 1993 the Vorarlberg Regional Employment Office
(Landesarbeitsamt) dismissed the appeal. It observed that the Federal
Minister for Labour and Social Affairs (Bundesminister für Arbeit und
Soziales) had fixed the maximum quota for the employment of foreigners
in Vorarlberg for 1993 at 17.000. According to official statistics the
number of foreign employees in Vorarlberg however amounted to 24.565.
The maximum quota set forth for Vorarlberg had therefore clearly been
exceeded. As the Mediation Committee had not supported the granting
of the work permit and as the applicants had not submitted any
exceptional reasons for the granting of the work permit, the appeal had
to be dismissed.
On 5 July 1993 the applicants filed a complaint with the
Constitutional Court (Verfassungsgerichtshof). Invoking Article 6 of
the Convention, they submitted that the refusal of a work permit
interfered with the civil rights of employers and employees. Therefore
they had been entitled to a hearing by an independent court. They also
submitted that the maximum quota for foreign employees for Vorarlberg
had been fixed arbitrarily, as the figures given by the authorities
were not correct, and was not open to review. Moreover, it was a
consequence of the fixing of a maximum quota that the competence to
grant work permits was de-facto transferred to the Mediation Committee.
On 28 September 1993 the Constitutional Court refused to deal
with the case for lack of prospects of success and remitted the case
to the Administrative Court (Verwaltungsgerichtshof).
On 27 January 1994 the applicants supplemented their complaint
with the Administrative Court. They submitted in particular that the
Vorarlberg Employment Office had not sufficiently investigated whether
the maximum quota had been exceeded and merely had referred to official
statistics.
On 21 April 1994 the Administrative Court discontinued the
proceedings as the Regional Employment Office had meanwhile quashed its
decision of 19 May 1993.
On 13 April 1994 the Regional Employment Office informed the
applicants in detail about the manner in which the number of work
permits issued is calculated and the relevant figures. It stated that
the maximum quota had been exceeded and since the applicants had not
submitted any arguments which would have justified the issuing of a
working permit under Section 4 para. 6 of the Employment of Foreigners
Act, the work permit would have to be refused.
On 29 April 1994 the applicants commented on the above
information. In their view the Regional Employment Office had wrongly
calculated the relevant figures as it had apparently not taken into
account that some of the foreigners to whom a work permit had been
issued had in the meantime become Austrian nationals, had left the
country, had died or were retired.
On 10 August 1994 the Regional Employment Office replied and
stated that all the elements invoked by the applicant had been taken
into account, moreover the relevant figures were constantly reviewed
and updated.
On 16 August 1994 the applicants repeated that the relevant
figures were incorrect.
On 27 September 1994 the Regional Employment Office again
dismissed the appeal. It stated that the Ministry for Labour and
Social Affairs had fixed the maximum quota for the employment of
foreigners in Vorarlberg at 16.000 for 1994 whereas in August 1994 the
number of work or equivalent permits issued amounted to 23.764. The
Mediation Committee composed of representatives of employers and
employees had not supported the granting of the work permit and no
exceptional grounds existed which could otherwise justify the issuing
of a work permit.
On 7 November 1994 the applicants filed a complaint with the
Administrative Court and submitted, in particular, that the Regional
Employment Office had failed to establish in an objective way that the
maximum quota for Vorarlberg had been exceeded. Instead it had
referred to official statistics which were not open to review.
On 24 February 1995 the Administrative Court dismissed the
complaint. It found that the Regional Employment Office had shown in
which way the statistics were calculated, assessed and updated and that
the applicant therefore had had the opportunity to comment on the
figures resulting from the statistics. These statistics had to be seen
as documentary evidence which could be disproved. The general
allegations of the applicant had not been sufficient to cast doubts on
the manner in which the number of work permits already issued had been
calculated. Since the Vorarlberg Employment Office had correctly found
that the maximum quota for the employment of foreigners in Vorarlberg
had been exceeded and since the applicant had not shown the existence
of any exceptional grounds which could otherwise justify the issuing
of a work permit, the decision of the Regional Employment Office was
not unlawful.
b. The third applicant (Mähner)
The essential facts concerning this applicant are almost
identical with those concerning the first and second applicants. Thus,
only the main steps of the proceedings will be described here.
On 3 February 1994 the applicant filed a request for the granting
of a work permit for the worker N.H., a citizen of Bosnia-Herzegovina.
On 24 February 1994 the Feldkirch Employment Office dismissed the
request under Section 4 para. 6 of the Employment of Foreigners Act on
the ground that the Mediation Committee had not supported the granting
of the work permit.
On 10 March 1994 the applicant filed an appeal with the
Vorarlberg Regional Employment Office contesting that the maximum quota
for Vorarlberg had been exceeded.
On 27 September 1994 the Regional Employment Office dismissed the
appeal on the ground that the maximum quota had been exceeded, the
Mediation Committee had not supported the granting of the work permit
and no exceptional grounds existed which could otherwise justify the
issuing of a working permit.
On 7 November 1994 the applicant filed a complaint with the
Administrative Court and submitted the same arguments as the first and
second applicants in their complaint with the Administrative Court of
7 November 1994.
On 24 February 1995 the Administrative Court dismissed the
applicant's complaint on the same grounds as in its decision of the
same date concerning the first and second applicants.
c. The fourth applicant (Kessler)
The essential facts concerning this applicant are almost
identical with those concerning the above applicants. Thus, only the
main steps of the proceedings will be described here.
On 21 October 1992 the applicant filed a request for the granting
of a work permit for the worker M.T., a citizen of former Yugoslavia.
On 4 February 1993 the Klein-Walsertal Employment Office
dismissed the request.
On 24 May 1993 the Vorarlberg Regional Employment Office
dismissed the applicant's appeal on the ground that the maximum quota
for Vorarlberg had been exceeded and that the Mediation Committee had
not supported the granting of the work permit.
On 28 September 1993 the Constitutional Court, upon the
applicant's complaint, refused to deal with the case and remitted it
to the Administrative Court.
On 21 April 1994 the Administrative Court discontinued the
proceedings as the Regional Employment Office had meanwhile quashed its
decision of 24 May 1993. On 27 September 1994 the Regional
Employment Office again dismissed the appeal on the ground that the
maximum quota had been exceeded, the Mediation Committee had not
supported the granting of the work permit and no exceptional grounds
existed which could otherwise justify the issuing of a work permit.
On 7 November 1994 the applicant filed a complaint with the
Administrative Court and submitted the same arguments as the first and
second applicants in their complaint with the Administrative Court of
7 November 1994.
On 24 February 1995 the Administrative Court dismissed the
applicant's complaint on the same grounds as in its decision of the
same date concerning the first and second applicants.
d. The fifth applicant (Bathim Gaststätten GesmbH)
On 23 December 1992 the applicant filed a request for the
granting of a work permit for the worker N.A., a Turkish citizen.
On 14 January 1993 the Bregenz Employment Office dismissed the
request.
On 25 May 1993 the Vorarlberg Regional Employment Office
dismissed the applicant's appeal. It found that the applicant had
failed to request the Employment Office to propose to it a suitable
employee. Furthermore, the maximum quota fixed for Vorarlberg had been
exceeded and the Mediation Committee had not supported the granting of
the work permit.
On 28 September 1993 the Constitutional Court, upon the
applicant's complaint refused to deal with the case for lack of
prospects of success and remitted the case to the Administrative Court.
On 21 April 1994 the Administrative Court quashed the decision
of the Regional Employment Office of 25 May 1993 for procedural errors.
The Administrative Court found in particular that the Vorarlberg
Employment Office, when stating that the maximum quota had been
exceeded, had merely referred to official statistics, without laying
the relevant evidence open. Therefore the applicant had no possibility
to comment on the evidence and the Administrative Court did not have
the possibility to review the compliance of the contested decision with
the law. Only the laying open of the statistics and the method of
calculation would make a review of the lawfulness of the decision
possible.
On 21 June 1994 Regional Employment Office again dismissed the
applicant's appeal, this time on the ground that N.A. had no residence
permit as required by Section 4 para. 3 (7) of the Employment of
Foreigners Act.
On 28 June 1994 the applicant filed a complaint with the
Constitutional Court, submitting that Section 4 para. 3 (7) of the
Employment of Foreigners Act providing that a work permit could only
be granted if the foreigner was in the possession of a residence permit
was unconstitutional.
On 27 September 1994 the Constitutional Court refused to deal
with the case for lack of prospects of success and remitted the case
to the Administrative Court.
On 11 January 1995 the applicant supplemented his complaint and
submitted, in particular, that the procedure under the Employment of
Foreigners Act interfered with his rights under Article 6 of the
Convention as the case was not heard by a tribunal.
On 24 February 1995 the Administrative Court dismissed the
applicant's complaint. It found that the Regional Employment Office
had correctly dismissed the request as under Section 4 para. 3 (7) of
the Employment of Foreigners Act a work permit could not be issued if
the person at issue had no residence permit. As to the applicant's
arguments relating to Article 6 of the Convention it noted that the
Constitutional Court in its case-law had found that this provision was
not applicable to proceedings for the issuing of a work permit.
B. Relevant domestic law
a. The Employment of Foreigners Act
Under the Austrian Employment of Foreigners Act the employment
of a foreigner requires a work permit issued by the Labour Office to
the employer (Section 3 paras. 1 and 2). For such a permit to be
issued the employer has to submit the proposed employment of a specific
employee to the authority (Section 19) and has to meet conditions
specified in Section 4 para. 3 (e.g. medical examination, suitable
accommodation, consultation of the works council, no previous breaches
of the Employment of Foreigners Act by the employer or the employee,
residence permit of the employee). Moreover, according to Section 4
para. 1 a work permit may only be granted if the situation and
development of the labour market so allows and provided important
public or economic interests are not infringed.
If a foreigner has continuously worked for more than a year, he
may request the issuing of a personal work permit (Arbeitserlaubnis)
which is normally valid for one region only and may be restricted to
certain kinds of employment (Section 14). After having worked for at
least five years in Austria, or if the foreigner has family links with
an Austrian national, he or she may be issued an "exemption
certificate" (Befreiungsschein) under Section 15, which relieves the
foreigner or a potential employer from the obligation to apply for a
work permit and he or she therefore can move freely on the labour
market. Furthermore certain groups of foreigners, like refugees and
foreigners who receive unemployment benefits, have a privileged access
to the labour market (Section 4b).
In order to protect the domestic labour market the Minister for
Labour and Social Affairs may, if need be, fix maximum quotas for the
employment of foreigners (Sections 12 and 13). If maximum quotas are
fixed the general assessment under Section 4 para. 1, i.e. whether the
situation and development of the labour market allows for the granting
of a particular work permit, is not to be carried out and the
representative bodies of employers and employees need not be heard
(Section 4 para. 5).
In principle, once the maximum quota has been exhausted no
further work permits may be issued. Section 4 para. 6 provides however
that in exceptional circumstances a work permit may nevertheless be
issued.
Section 4 para. 6 reads as follows:
"Über bestehende Kontingente ... hinaus sowie nach Überschreitung der Landeshöchstzahlen ... dürfen Beschäftigungsbewilligungen nur erteilt werden, wenn die Voraussetzungen der Abs. 1 und 3 vorliegen und 1. bei Kontingentüberziehung und bei Überschreitung der Landeshöchstzahl der Regionalbeirat einhellig die Erteilung der Beschäftigungsbewilligung befürwortet, oder 2. die Beschäftigung des Ausländers aus besonders wichtigen Gründen, insbesondere a) als Schlüsselkraft zur Erhaltung von Arbeitsplätzen inländischer Arbeitnehmer, oder b) in Betrieben, die in strukturell gefährdeten Gebieten neu gegründet wurden, oder c) als dringender Ersatz für die Besetzung eines durch Ausscheiden eines Ausländers frei gewordenen Arbeitsplatzes, oder d) im Bereich der Gesundheits- oder Wohlfahrtspflege erfolgen soll, oder 3. öffentliche oder gesamtwirtschaftliche Interessen die Beschäftigung des Ausländers erfordern, oder 4. die Voraussetzungen des § 18 Abs. 3 in Verbindung mit Abs. 4 gegeben sind." "When the regional maximum quotas have been exceeded work permits may only be issued if the conditions under paras. 1 and 3 are met and 1. if the Mediation Committee [according to an amendment of 1994 the body is now called Regional Advisory Committee] has unanimously supported the granting of the work permit, or 2. if the employment shall take place for particularly important reasons, especially (a) in a key position for the preservation of jobs of domestic employees, or (b) in enterprises which have been newly established in structurally endangered regions, or (c) as an urgent substitute for a job which has become vacant due to the leaving of a foreigner, or (d) in the domain of health care or welfare, or 3. if public or economic interests require the employment of the foreigner, or 4. if the conditions of Section 18 para. 3 taken together with para. 4 are met [i.e. temporary employment for the installation of production sites by a foreign company exceeding three months]." According to Section 23 the Mediation Committee (Regional Advisory Committee) is composed of two members nominated by the Chamber of Commerce (Kammer der gewerblichen Wirtschaft) and two members nominated by the Chamber of Workers and Employees (Kammer für Arbeiter und Angestellte). b. The Constitutional Court's case-law In its decision of 12 October 1990 (VfSlg. [Collection of Decisions of the Constitutional Court] 12506) the Constitutional Court reviewed the constitutionality, inter alia, of Section 4 para. 6 (a) of the Employment of Foreigners Act which provides for the hearing of the Mediation Committee before a work permit is granted or refused by the Employment Office. The Constitutional Court found that this provision was not unconstitutional. It considered that under this provision the Mediation Committee had to be heard in proceedings for the granting of a work permit and that it could only issue recommendations which had to be given unanimously. The recommendations of the Mediation Committee were not binding on the employment authorities, although the latter would normally be inclined to follow a positive recommendation. The specific function of the Mediation Committee in proceedings for the granting of a work permit when the maximum quota has been exceeded had to be examined the in the context of the whole framework of the Employment of Foreigners Act. It was to assist the authorities by expressing its view on whether the situation on the labour market apparently allowed for the granting of the work permit. If this was not apparent and this was shown by the Mediation Committee's refusal to support the granting of a particular work permit, it was again the exclusive task of the employment authority to find whether the exception grounds under Article 4 para. 6 were met. Since also the fixing of maximum quotas had to be made in consultation with the representative bodies of employers and employees it was only logical to give these representative bodies the possibility to be heard also in individual cases where the maximum quota had been exceeded. A further decision of 2 July 1993 (VfSlg. 13505) concerned the constitutional review of a provision providing for administrative sanctions (prohibition to employ foreigners in the future in case an employer had repeatedly unlawfully employed foreigners). In that case the Constitutional Court found that the proceedings for the granting of a work permit did not directly determine civil rights within the meaning of Article 6 para. 1 of the Convention. Such proceedings only had an indirect effect on the exercise of a civil right, i.e. the right to conclude employment contracts. They did not concern the "core area" (Kernbereich) of determination of civil rights, but only fell into the "outer circle" (Randbereich) of determination of "civil rights" for which the review by the Administrative Court was sufficient to ensure compliance with Article 6 para. 1 of the Convention. COMPLAINTS The applicants complain under Article 6 of the Convention that they did not have a fair hearing in the proceedings for the granting of work permits. They submit that the granting of a work permit is decisive for the validity of the employment contracts and that such proceedings therefore determine civil rights within the meaning of Article 6 para. 1 of the Convention. There had been a violation of this provision since the refusal of a work permit was based, inter alia, on the discretionary decisions of the Mediation Committee which were not reasoned and not open to judicial review. Thus, the discretionary power of the Mediation Committee interfered with their rights to a decision by a tribunal within the meaning of Article 6 of the Convention. The first to fourth applicants complain further that no oral hearing before the Administrative Court has taken place. In their view the Administrative Court, according to its previous case-law on the assessment of evidence in administrative proceedings should have decided in their favour so that they had not found it necessary to request an oral hearing. However, the Administrative Court changed its case-law unexpectedly and accepted that the Regional Employment Office had produced sufficient evidence concerning the matter that the maximum quota had been exceeded. The Administrative Court therefore should have ordered a public hearing on its own motion. As to the exhaustion of domestic remedies under Article 26 of the Convention, the first, second and fourth applicants submit that they did not file a complaint with the Constitutional Court in the course of the second set of proceedings, because already in the first set of proceedings the Constitutional Court had refused to deal with the cases for lack of prospects of success. The third applicant submits that in view of the first and third applicants' unsuccessful complaints he did not file any complaint with the Constitutional Court. THE LAW 1. The applicants complain under Article 6 (Art. 6) of the Convention that they did not have a fair hearing in the proceedings for the granting of a work permit. They submit that the negative decision of the Mediation Committee, which had neither been reasoned nor open to judicial review, had led to the refusal of their complaints. The first to fourth applicants complain further that no oral hearing before the Administrative Court has taken place. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows: "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law." 2. The Commission must first examine whether all applicants have exhausted all domestic remedies according to the generally recognised rules of international law as required by Article 26 (Art. 26) of the Convention. In this respect the Commission observes that the first, second and fourth applicants did not file a complaint with the Constitutional Court in the course of the second set of proceedings and that the third applicant did not file any complaint with the Constitutional Court. The Commission recalls however, that an applicant cannot be required to pursue an appeal which in similar cases has already proved ineffective (No. 10126/82, Dec. 17.10.85, D.R. 44, p. 73). The Commission observes that the Constitutional Court, on 28 September 1993, refused to deal with the first, second and third applicants' complaints for lack of prospect of success and that these complaints concerned essentially the same issues as those in the second set of proceedings of these applicants and in the proceedings brought by the third applicant. In these circumstances the Commission finds that the first to fourth applicants could not reasonably be expected to file (a further) complaint with the Constitutional Court and that the applicants therefore have complied with the requirement of exhaustion of domestic remedies under Article 26 para. 1 (Art. 26-1) of the Convention. 3. The Commission must next examine whether Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings for a work permit, that is, whether the decisions given by the domestic authorities in such proceedings involve a determination of the applicants' civil rights or obligations. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies only to disputes over "rights" 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 HR, Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). Moreover, Article 6 para. 1 (Art. 6-1) only applies if the "right" is "civil" in character (Eur. Court HR, Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The "dispute" must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (Eur. Court HR, Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, p. 17, para. 44). Under the Employment of Foreigners Act the validity of an employment contract concluded between an employer and a foreigner is in principle dependent on the granting of a work permit. The outcome of the proceedings for the granting of a work permit might therefore be considered as directly decisive for the right to conclude employment contracts and hence for the exercise of a civil right. However, the Commission need not determine whether or not the proceedings at issue involved the determination of the applicants' civil rights and obligations because, even assuming that this is the case, the application is in any event manifestly ill-founded for the following reasons. 4. As regards compliance with Article 6 para. 1 (Art. 6-1) of the Convention the applicants submit that their rights to a decision by a tribunal within the meaning of this provision has been violated since the refusal of a work permit was based, inter alia, on the discretionary decisions of the Mediation Committee which were not reasoned and not open to judicial review. The Commission recalls that in the Obermeier case the European Court of Human Rights has found that when the legislature has withdrawn from the courts the power to rule on a preliminary question and has conferred it on the administrative authorities, the conditions laid down in Article 6 para. 1 (Art. 6-1) of the Convention are only met if the decision of the administrative authorities binding the courts were delivered in conformity with the requirements of that provision. This is not the case if there is no review of the administrative decision by a judicial body that has full jurisdiction (Eur. Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, pp. 22-23, paras. 69-70). The Commission recalls further that the European Court of Human Rights found that the Austrian Administrative Court fulfils the requirements of Article 6 para. 1 (Art. 6-1) of the Convention in matters which are not exclusively within the discretion of administrative authorities and where the Administrative Court considers the submissions on their merits, point by point, without ever having to decline jurisdiction in replying to them or ascertaining various facts (Eur. Court HR, Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A, pp. 12-13, paras. 31-32). Furthermore, Article 6 para. 1 (Art. 6-1) does not require that the body with the guarantees of Article 6 (Art. 6) decides itself every single issue, but that it reviews the decisions of the lower authorities. In assessing the sufficiency of such a review, it is necessary to have regard to matters such as the subject-matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal (Eur. Court HR, Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, pp. 17-18, paras. 44-47). In refusing the first to fourth applicants' request for a work permit the employment authorities referred, inter alia, to the Mediation Committee's refusal to support their request, while in the case of the fifth applicant the refusal was based on the lack of a residence permit of the person to be employed. The Commission finds that these two types of case must be examined separately. a. As regards the first to fourth applicants' complaint relating to the involvement of the Mediation Committee the Commission observes that the Constitutional Court in its decision of 12 October 1990 (see "Relevant domestic law") examined the competence of the Mediation Committee in detail. It found that the Mediation Committee only exercises an advisory function and that its recommendations are not binding. A recommendation by the Mediation Committee supporting a request for a work permit might have a positive influence on the granting of a work permit, but the refusal of a recommendation does not automatically lead to the refusal of a work permit. Rather, in such a case the employment authorities must examine whether the criteria for the granting of a work permit have nevertheless been met. In the present case the Mediation Committee had refused to give a recommendation and the employment authorities considered whether exceptional grounds, as listed in Section 4 para. 6 of the Employment of Foreigners Act, would justify the granting of a work permit. The employment authorities found that this was not the case and in the proceedings before the Administrative Court the applicants did not challenge this finding. They only argued that the maximum quota had not been reached. These submissions were carefully considered by the Administrative Court which considered them as being unfounded. The Court did not decline jurisdiction in replying to any of the points raised by the applicants. b. As regards the refusal of a work permit to the fifth applicant the Commission observes that this decision was based on the ground that the person to be employed did not have a residence permit as required by Section 4 para. 3 (7) of the Employment of Foreigners Act. The fifth applicant did not challenge this finding but considered that he was nevertheless entitled to a work permit. Since a residence permit is explicitly mentioned in the relevant law as a precondition for the granting of a work permit, the Commission has doubts whether in these circumstances there was a genuine dispute on the existence or scope of a civil right within the meaning of Article 6 para. 1 (Art. 6-1), as required by the Convention organ's case-law (see Eur. Court HR, Masson and Van Zon judgment, op. cit., p. 17, para. 44). In any event, the Commission cannot find that on this issue the review by the Administrative Court was too limited in order to satisfy the requirements of Article 6 para. 1 (Art. 6-1). Accordingly, there is no appearance of a violation of the applicants' right to a fair hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention in this respect. 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. 5. Insofar the first to fourth applicants complain that the Administrative Court decided their complaint without having held an oral hearing, the Commission recalls that it is the practice of the Austrian Administrative Court not to hear the parties unless one of them expressly requests it to do so. Therefore the European Court of Human Rights constantly finds that whenever a complainant failed to make such a request, he or she must be deemed to have waived unequivocally his or her right to a hearing (Eur. Court HR, Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268, p. 14, para. 34; Fischer v. Austria judgment of 26 April 1995, Series A no. 312, p. 20, para. 44; mutatis mutandis Pauger v. Austria judgment of 28 May 1997, para. 60, to be published in Reports 1997). This rule also applies in the present case as none of the applicants has made a request for an oral hearing. It follows that 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. M.F. BUQUICCHIO J. LIDDY Secretary President to the First Chamber of the First ChamberTHE LAW
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