AS TO THE ADMISSIBILITY OF
Application No. 17196/90
by F.M. ZUMTOBEL Gesellschaft mbH & Co. KG,
Franz Martin ZUMTOBEL & Hans PRAMSTALLER
against Austria
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 February 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 24 July 1990 by
F.M. ZUMTOBEL Gesellschaft mbH & Co. KG, Franz Martin ZUMTOBEL and Hans
PRAMSTALLER against Austria and registered on 25 September 1990 under
file No. 17196/90;
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 first applicant is a private company incorporated under
Austrian law. The second applicant, an Austrian citizen residing in
Dornbirn, is the general partner and manager of the first applicant.
The third applicant is the owner of real property which he let to the
first and second applicant for business purposes. Before the Commission
the applicants are represented by Wilfried Ludwig Weh, a lawyer
practising in Bregenz.
Particular circumstances of the case
On 17 March 1987 the Mayor of Nußdorf-Debant granted a permit to
build two shops of approximately 360 square metres each to the third
applicant as owner of the land.
On 20 November 1987, after the construction works had been
terminated, the third applicant applied for a subsequent partial
modification of the building permit, which now should cover one big
sales-room of approximately 661 square metres.
On 7 June 1988 the Mayor refused the modification of the building
permit on the ground that the modification was contrary to Section 16b
of the Tyrol Regional Planning Act (Raumordnungsgesetz). By the same
decision the third applicant was ordered to erect the missing partition
wall between the two sales-rooms before 7 July 1988.
On 20 June 1988 the third applicant lodged an appeal with the
Local Council (Gemeinderat), which on 16 August 1988 dismissed the
applicant's appeal.
In its decision the Council found in particular that the
requested modification would lead to a shopping centre which could not
be erected on the applicant's land, as this was not designated as a
special area for shopping centres (Sonderfläche für Einkaufszentren).
On 15 September 1988 the Tyrolean Provincial Government
(Landesregierung) dismissed a further appeal finding that the requested
modification was contrary to the area zoning plan.
On 29 October 1988 the third applicant lodged a complaint with
the Constitutional Court (Verfassungsgerichtshof). He submitted that
the decision violated his freedom of commerce (Erwerbsfreiheit) and
Article 6 of the Convention. He also contended that its legal basis
(Section 16b of the Tyrolean Regional Planning Act) was contrary to the
distribution of legislative powers (Art. 10 - 15 of the Federal
Constitution) and to the principle of equality.
On 28 November 1988 the Constitutional Court refused to deal with
the complaint for lack of prospect of success and referred the case to
the Administrative Court (Verwaltungsgerichtshof).
On 9 November 1989 the Administrative Court dismissed the third
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.
Relevant domestic law and practice
I. Building legislation
According to Section 31 of the Tyrolean Building Regulations
(Bauordnung) as in force at the relevant time the authority had to
decide on a building request by a written decision. Paragraph 3 of
Section 31 stated:
[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."
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:
[Translation]
"(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 sales-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 in
regard 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
(Bundes-Verfassungsgesetz) 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
(Verwaltungsgerichtshofgesetz) 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 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 constitutes 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
..., 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 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 and that they 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. 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 Local 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 Austrian 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
examine this question.
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).
The Commission further 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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
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