GIESINGER UND KOPF GmbH & Co. KG ; Alfons GIESINGER v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 13062/87

                      by 1) GIESINGER UND KOPF GmbH & Co.  KG

                         2) Alfons GIESINGER

                      against Austria

        The European Commission of Human Rights sitting in private

on 29 May 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

                  B. MARXER

             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 1 June 1987

by Giesinger und Kopf GmbH & Co.  KG and Alfons Giesinger against

Austria and registered on 15 July 1987 under file No. 13062/87;

        Having regard to:

-       the Commission's decision of 4 September 1989 to bring the

application to the notice of the respondent Government and invite

them to submit written observations on its admissibility and merits;

-       the observations submitted by the respondent Government on

15 December 1989 and the observations in reply submitted by the

applicants on 21 February 1991;

        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 agreed by the parties may be

summarised as follows:

        The first applicant is a company established at Weiler,

Vorarlberg.  The second applicant, an Austrian citizen born in 1934

who resides at Weiler, is its managing partner with unlimited

liability.

        The applicants are represented by Mr.  René Laurer, a lawyer

practising in Vienna.

        The applicant company is engaged in the production and

retailing of packaging materials, including regenerated cellulose film

for wrapping food.  This material is traditionally produced with

certain additives (including monoethylene and diethylene glycol) as

moistening, softening and lubrifying agents.

        By an Ordinance (Verordnung) of 6 December 1985 (Federal Law

Gazette No. 541/1985) the Austrian Federal Minister for Health and

Environment Protection (Bundesminister für Gesundheit und

Umweltschutz) laid down new standards concerning the content

of these substances in packaging material for food.  As from

15 January 1986 it was forbidden to put into circulation packaging

material for food or food packed in material containing more than

0,05% of monoethylene or diethylene glycol.

        At this time the applicant company had a stock of regenerated

cellulose film which represented a market value of some three

million AS.  As a consequence of the new regulation this stock

became practically worthless, the applicants being unable to sell it,

in particular as part of the cellulose film had already been prepared

(cut and printed) for former Austrian buyers.

        On 8 April 1986 the applicants lodged a constitutional

complaint under Article 139 of the Federal Constitution against the

above Ordinance, claiming that they were directly affected by it and

that it was unlawful as the forbidden substances were not dangerous

to health.  The applicants further claimed that the Ordinance violated

the constitutional principle of equality before the law.

        By a decision of 9 October 1986, which was served upon the

applicants on 3 December 1986, the Constitutional Court (Verfassungs-

gerichtshof) rejected the applicants' complaint.  It accepted that the

applicants were directly affected by the Ordinance insofar as it

forbade the putting into circulation of certain packaging materials.

However, the Ordinance was based on Section 29 of the Food Act

(Lebensmittelgesetz) 1975, a legal provision which did not give rise

to any doubts as to its constitutionality.  This provision authorised

the Ministry, after hearing the competent Advisory Committee of the

Food Code (Kodexkommission), to prohibit or limit the use of certain

substances if this was necessary in the interest of consumer health

protection, having regard to the state of science and technology.  The

Minister had issued the Ordinance on the basis of a report of the

Ministry's experts (sachverständige Äusserung fachkundiger Beamter)

according to which diethylene glycol in regenerated cellulose film

could migrate into the packed food in quantities endangering health,

in particular in the case of children repeatedly consuming products

packed in such a manner.  The Advisory Committee of the Food Code had

not objected to this analysis.  An analysis by a Swiss laboratory

submitted by the applicants did not invalidate the detailed expert

opinion of the Ministry's experts and therefore the Minister could

rightly assume that the substances in question endangered health.  A

transitional provision of the Ordinance, which allowed the use of

packaging material put into circulation before the entry into force of

the Ordinance, if it was shown that in the particular case health was

not endangered, could not be invoked by the applicants as an argument

that there was generally no danger to health.

        The Constitutional Court's decision was taken in non-public

proceedings under Section 19 para. 4 of the Constitutional Court Act

(Verfassungsgerichtshofsgesetz).  The applicants were at no time

provided with a copy of the report of the Ministry's experts.

COMPLAINTS

        The applicants allege a violation of Article 6 para. 1 of

the Convention in that the Constitutional Court, called upon to

determine their civil rights and obligations, did not grant them a

"fair" and "public" hearing.  They submit that it was unfair that the

report of the Ministry's experts was not brought to their knowledge

and that the relative weight of this expert opinion and of the private

expert opinion submitted by them was not discussed on the basis of the

opinion of "neutral" experts.  The Constitutional Court's failure to

hold a public hearing was not covered by the Austrian reservation

concerning Article 6, which only applied to proceedings before the

ordinary courts.  Even if the reservation should extend to the

Constitutional Court's proceedings, the legal provision which enabled

the Constitutional Court to forgo a public hearing (Section 19 para.

4 of the Constitutional Court Act) was enacted in 1984 and thus after

the reservation had been made.  The reservation therefore could not

cover this legal provision.

        The applicants further allege a violation of Article 1 of

Protocol No. 1 to the Convention in that by the Ordinance their stock

of regenerated cellulose film was de facto expropriated without

sufficient justification.  In this respect they claim, in particular,

that there was no genuine public interest in forbidding the use of the

packaging material in question, the prohibition being based

exclusively on the opinion of the Ministry's experts, who were subject

to instructions, and whose opinion was contradicted by expert opinions

from neutral (Swiss and British) sources confirming that there was no

acute danger to health.  The absence of such a danger was also implied

in the transitional provision of the Ordinance concerning packaging

material already in circulation.  Compensation for the applicants'

damage of three million AS was excluded by Section 65 of the Food Act.

PROCEEDINGS

        The application was introduced on 1 June 1987 and registered

on 15 July 1987.

        On 4 September 1989 the Commission decided to give notice of

the application to the respondent Government and to invite them,

pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former

version), to submit observations in writing on the admissibility and

merits of the application before 17 November 1989.  This time-limit

was subsequently extended, at the Government's request, until

15 December 1989.

        The Government submitted their observations on that date and

the applicants replied on 21 February 1990.

THE LAW

1.      The applicants complain that before the Constitutional Court

they were not granted a fair and public hearing as required by

Article 6 para. 1 (Art. 6-1) of the Convention.  This provision reads

as follows:

"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.  Judgment shall be pronounced publicly but the press

and public may be excluded from all or part of the trial in

the interests of morals, public order or national security

in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

        The applicants claim that the dispute before the

Constitutional Court concerned the justification of a deprivation or

restriction of their property and thus involved a direct

determination of their "civil rights".  The Government contest this.

They submit that the proceedings instituted by the applicants before

the Constitutional Court were norm control proceedings (Normkontroll-

verfahren) in which the only questions to be determined were whether

the impugned ordinance had a sufficient legal basis in the Food Act

and whether it respected the principle of equality.  The inviolability

of property had not been invoked by the applicants, and therefore

there could be no question of a determination of the applicants'

"civil rights" in this respect.

        The Commission observes that the proceedings in question were

"norm control proceedings", i.e., proceedings in which the

Constitutional Court had to examine the lawfulness of the ordinance

under the Food Act and under the Constitution independently of the

particular case of the applicants.  This case was only of importance

for the applicants' procedural right to institute the proceedings in

question.  They had this right because they were directly affected by

the ordinance without the intervention of a judicial or administrative

decision.  However, in the examination of the merits of their

application the Constitutional Court was in no way required to deal

with the specific effects of the Ordinance on the applicants.

Moreover, it could not even indirectly deal with the effects of the

ordinance on the applicants' property rights as they failed to invoke

the constitutional principle of inviolability of property, which they

uncontestably could have done also in the context of norm control

proceedings.  The fact that the applicants referred to the value of

their stock of packaging material and urged an early decision in view

of its rapid deterioration cannot in the Commission's opinion replace

a formal invocation of the constitutional guarantee of property.

        The Commission therefore finds that the Constitutional Court's

proceedings in the present case did not come within the scope of

Article 6 para. 1 (Art. 6-1) of the Convention.  The applicants' complaints

concerning the conduct of these proceedings must accordingly be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being

incompatible with the provisions of the Convention ratione materiae.

2.      The Commission has examined whether an issue could

nevertheless arise under Article 6 para. 1 (Art. 6-1) of the

Convention in that the applicants were deprived of a judicial

procedure in conformity with this provision in which they could raise

the specific questions of the case which were excluded from the

Constitutional Court's examination in the norm control proceedings.

The applicants in fact seem to complain that the latter proceedings

were the only remedy available to them, and that for this reason they

were unable to claim compensation for the damage which resulted for

them from the enactment of the ordinance.  A claim to compensation

normally constitutes a "civil right" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention.

        However, the Commission is not required to pursue this aspect

of the case any further as the applicants did not exhaust the domestic

remedies in this respect as required by Article 26 (Art. 26) of the

Convention. In fact they could have tried either to institute

proceedings before the civil courts (e.g. under the Official Liability

Act) or, if they considered that the legislation did not provide them

with sufficient access to the courts in this respect, having regard in

particular to the exclusion of a compensation claim under Section 65

of the Food Act, they could have complained of this to the

Constitutional Court invoking Article 6 (Art. 6) of the Convention

which is directly applicable in Austria in the rank of constitutional

law.  This part of the application must accordingly be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

3.      The applicants finally complain that the 1985 Ordinance, by

which the use of certain chemicals in packaging material for food was

prohibited, violated Article 1 of Protocol No. 1 (P1-1) to the Convention,

which reads:

"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."

        The Government submit that any interference with the

applicants' property rights could only result from the Ordinance

itself, but not from the Constitutional Court's decision.  They

further submit that the applicants have not exhausted the domestic

remedies in conformity with the requirements of Article 26 (Art. 26)

of the Convention since in the proceedings before the Constitutional

Court they failed to invoke their constitutional right to the

inviolability of property.

        The applicants claim that by upholding the Ordinance the

Constitutional Court also interfered with their property rights.  They

further claim that in substance they raised the issue of property

rights in the Constitutional Court's proceedings by referring to the

value of the packaging material in their possession and urging an

early decision in view of its rapid deterioration.  They finally

invoke the Commission's case-law according to which they were not

required to invoke explicitly Article 1 of Protocol No. 1 (P1-1) to the

Convention.

        The Commission accepts that it is sufficient for the purposes

of Article 26 (Art. 26) of the Convention if an applicant has put

before the competent domestic authority the substance of the

complaints raised in the Convention proceedings.  However, for the

reasons set out above the Commission cannot accept that the applicants

in the present case in fact seized the Constitutional Court with the

question of their property rights.

        It follows that the applicants have failed to exhaust the

domestic remedies in respect of their complaint under Article 1

(Art. 1) of the Protocol, which must accordingly be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

        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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