THE FACTS
Whereas the facts as presented by the Parties may be summarised as
follows:
I. The Applicant Anna Hudetz, is an Austrian citizen living in Vienna.
She is represented by Dr. Adolf Weiss-Tessbach, a barrister practising
in Vienna.
The Applicant, Irma Haiek, is an Austrian citizen living in Vienna. She
is represented by Dr. von Beringe, a lawyer practising in Düsseldorf.
The Applicant Dipl. Ing. Friedl von Beringe, is Austrian by birth.
On 12th November 1945 she acquired German nationality by marriage while
retaining her Austrian citizenship. This Applicant is also represented
by Dr. von Beringe, who is her husband.
II. The Applicants are heirs to the gross royalty rights
(Bruttoprozentberechtigung) of Dipl. Ing. Anton Haiek who died in
Vienna on 8th March 1948.
Anton Haiek was manager and owner of the "Österreichische Bohr- und
Schürfgesellschaft m.b.H.", a private limited company in Vienna. He
and his company held prospecting rights for the area described as
"prospecting area 1 b" (Freischürfgebiet 1 b) in the map attached to
the Federal Law of 12th July 1960 (BGBl. No. 151/1960).
By agreement of 28th September 1934, between, on the one hand, Mr.
Haiek and his company and, on the other hand, the "Vacuum Oil Company
A.G.", a joint-stock company in Vienna, the above prospecting rights
were transferred to the "Vacuum Oil Company" which undertook to pay
gross royalties (Brutto prozente) on the production to Mr. Haiek and
his company. By a further agreement of 1st August 1940, between the
same parties, the amount of the gross royalties was reduced from 12 %
to 4 %.
In 1941 the gross royalty rights of the "Österreichische Bohr- und
Schürfgesellschaft" were transferred to Mr. Haiek who thus became the
sole beneficiary of the agreements of 1934 and 1940. The "Vacuum Oil
Company" was later converted into the "Rohöl-Gewinnungs-A.G."
III. The Bitumen Act (Bitumengesetz) of 31st August 1938 (Gesetzblatt
für das Land Österreich, No. 375/1938) provided in Article 1 that the
prospecting and production of bitumen in solid, liquid and gaseous
state were in principle, reserved to the State ("Die Aufsuchung und
Gewinnung von Bitumen in festem, flüssigem und gasförmigem Zustande ...
steht allein dem Staate zu, soweit paragraph 5 nichts anderes
bestimmt."). Applications for mining rights (Grubenmasse) had to be
lodged before 1st August 1940 in accordance with Article 5 of the Act.
On 5th August 1942, an agreement was reached between, on the one hand,
Mr. Haiek and various other persons entitled to gross royalties and,
on the other hand, the German Oil Companies. Under this agreement, the
German Oil Companies, which had been or would be granted licences in
accordance with the Bitumen Act, undertook, with effect from 1st August
1940, to 31st July 1960 to pay to the gross royalty recipients such
gross royalties to an amount not exceeding 3 %. The limit of 3 %,
however, did not apply in cases where the rate of gross royalties was
payable in accordance with agreements which had been concluded prior
to 31st December, 1941, taking the Bitumen Act into consideration. Such
an agreement with a rate of 4 % had been entered into by Mr. Haiek on
1st August 1940.
IV. On 5th November 1942, the General Director of Commerce
(Generalbevollmächtigter für die Wirtschaft) signed the "Order
Concerning Charges on Production of Mineral Oil in the Alpine and
Danube Provinces and in the Province Sudetenland" (Verordnung über
Förderabgaben von Erdöl in den Alpen- und Donau-Reichsgauen sowie im
Reichsgau Sudetenland, RGBl. 1 page 642) by which the Reichsminister
for Economic Affairs was authorised to regulate the production fees for
bitumen in these provinces and, in particular, "to reduce them to an
economically feasible extent and to limit their duration" ("sie auf ein
wirtschaftlich tragbares Mass herabzusetzen und zeitlich zubegrenzen").
On 15th September 1944, the Reichsminister for Economic Affairs, acting
under the above Order of 1942, issued an implementing Order
(Reichsministerialblatt des Reichswirtschaftsministeriums, page 291)
whereby an agreement of 5th August 1942, between the Special Section
of Mineral Oil Production (Fachgruppe Erdölgewinnung) and several
holders of gross royalty rights was declared binding in respect of all
mineral oil royalties concerning former prospecting rights in the
Alpine and Danube Provinces. The said gross royalties were accordingly
limited in time and amount.
V. After 27th April 1945 (the day of the declaration of independence
of Austria), the oil-fields to which Mr. Haiek's gross royalty rights
related were exploited by oil companies under Soviet administration.
The State Treaty for the re-establishment of an independent and
democratic Austria, which was signed in Vienna on 15th May 1955,
provided in Part IV, Article 22:
"German Assets in Austria
The Soviet Union, the United Kingdom, the United States of America and
France have the right to dispose of all German assets in Austria in
accordance with the Protocol of the Berlin Conference of 2nd August
1945.
1. The Soviet Union shall receive, for a period of validity of thirty
years, concessions to oil fields equivalent to 60 per cent of the
extraction of oil in Austria for 1947, as well as property rights to
all buildings, constructions, equipment, and other property belonging
to these oil fields, in accordance with list No. 1 and map No. 1
annexed to the Treaty.
2. The Soviet Union shall receive concessions to 60 per cent of all
exploration areas located in Eastern Austria that are German assets to
which the Soviet Union is entitled in conformity with the Potsdam
Agreement and which are in its possession at the present time, in
accordance with list No. 2 and map No. 2 annexed to the Treaty.
The Soviet Union shall have the right to carry out explorations on the
exploration areas mentioned in the present paragraph for eight years
and to subsequent extraction of oil for a period of twenty five years
beginning from the moment of the discovery of oil.
3. The Soviet Union shall receive oil refineries having a total annual
production capacity of 420,000 tons of crude oil in accordance with
list No. 3.
4. The Soviet Union shall receive those undertakings concerned in the
distribution of oil products which are at its disposal, in accordance
with list No. 4.
...
7. Legal position of Assets:
...
(e) The rights, properties and interests transferred to the Soviet
Union ... shall be transferred without any charges or claims ...
...
14. The provisions of this Article shall be subject to the terms of
Annex II of this Treaty."
Annex II of the State Treaty stated as follows:
"Having regard to the arrangements made between the Soviet Union and
Austria, and recorded in the Memorandum signed at Moscow on April 15,
1955, Article 22 of the present Treaty shall have effect subject to the
following provisions:
(1) On the basis of the pertinent economic provisions of the April 15,
1955, arrangements between the Soviet Union and Austria, the Soviet
Union will transfer to Austria, within two months from the date of
entry into force of the present Treaty, all property, rights and
interests to be retained or received by it in accordance with Article
22, except the Danube Shipping Company (D.D.S.G.) assets in Hungary,
Rumania and Bulgaria.
(2) It is agreed that in respect of any property, right or interest
transferred to Austria in accordance with this Annex, Austria's rights
shall be limited only in the manner set out in paragraph 13 of Article
22."
According to Article 36 of the State Treaty, the Annexes constituted
integral parts of the Treaty.
The State Treaty came into force on 27th July 1955. Subsequently, the
former German-owned oil-companies, then under Russian management, were
handed over to the Austrian Republic; the latter merged them to form
a single company to which, as the "Österreichische
Mineralölverwaltungs-AG", it granted a licence under the Bitumen Act
of 1938.
VI. On 25th July 1956, the Austrian Parliament (Nationalrat) enacted
"Order No. 1 in Application of the State Treaty" (1.
Staatsvertragsdurchführungsgesetz, BGBl. No. 165/1956). This Order
concerned, inter alia, "the properties, rights and interests (assets)",
whose ownership had been transferred to the Republic of Austria by the
Soviet Union in accordance with the State Treaty of 1955. Article 20,
paragraph (7), of the Order stated:
"Claims for charges on production of bitumen (gross royalties) can be
brought only on the basis of special federal legislation."
["Ansprüche auf Förderabgaben von Bitumen (Brutto prozente) können nur
auf Grund einer besonderen bundesgesetzlichen Regelung geltend gemacht
werden."]
VII. On 3rd September 1958, Austria ratified the Convention on Human
Rights and the Protocol to the Convention. "Being desirous of avoiding
any uncertainty concerning the application of Article 1 of the Protocol
in connection with the State Treaty of 15th May 1955", Austria declared
the Protocol ratified with the reservation "that there shall be no
interference with the provisions of Part IV 'Claims arising out of the
War' and Part V 'Property, Rights and Interests' of the above-mentioned
State Treaty".
VIII. The "special legislation" envisaged in Article 20, paragraph (7),
of Order No. 1 in Application of the State Treaty was passed by means
of the "Federal Act Concerning the Settlement of Charges on Production
of Bitumen (Gross Royalties)" [Bundesgesetz betreffend die Regelung der
Förderabgaben von Bitumen (Bruttoprozente), BGBl. No. 151/1960] of 12th
July 1960.
Article 1 of this Act stated:
"The prospecting and production agreements for bitumen, entered into
with the German Reich, are deemed null and void as of 27th April, 1945.
The same applies in respect of the rights and obligations to gross
royalties in conjunction with such agreements.
("Die vom Deutschen Reich abgeschlossenen Schürf- und
Gewinnungsverträge auf Bitumen gelten mit 27. April 1945 als erloschen.
Das gleiche gilt hinsichtlich der im Zusammenhang mit diesen Verträgen
stehenden Berechtigungen und Verpflichtungen aus Brutto prozenten.")
Similarly, Article 8 stated:
"With effect from the date indicated in Article 1, the Order of 5th
November 1942, Concerning Charges on Production of Mineral Oil in the
Alpine and Danube Provinces and in the Province Sudetenland ... and the
Order of 15th September 1944, Concerning Charges on Production of
Mineral Oil in the Alpine and Danube Provinces ... have become invalid
as being inapplicable."
("Mit dem in Paragraph 1 genannten Zeitpunkt sind die Verordnung über
Förderabgaben von Erdöl in den Alpen- und Donau-Reichsgauen sowie im
Reichsgau Sudetenland vom 5. November 1942 ... und die Anordnung über
Förderabgaben von Erdöl in den Alpen- und Donau-Reichsgauen vom 15.
September 1944 ... als unanwendbar ausser Kraft getreten.")
Article 2 of the Act provided that, "for formerly existing claims for
gross royalties on the production of mineral oil in the territory of
prospecting claims compensation shall be payable according to this
Federal Act" ("Für ehemals bestandene Ansprüche auf Bruttoprozente an
der Förderung von Erdöl, die sich aus Gebieten von Freischürfen
abgeleitet haben, sind Vergütungen nach diesem Bundesgesetz zu
leisten.").
According to Article 4, claims for compensation had to be lodged with
the Federal Ministry for Trade and Reconstruction which alone was
competent to decide upon them.
IX. By decision of 10th August 1961, the Ministry awarded the
Applicants a total of 12,975,000 Austrian schillings under the above
Gross Royalties Act.
On 27th September 1961, the Applicants lodged appeals (Beschwerden)
with the Constitutional Court (Verfassungsgerichtshof) from these
decisions. They alleged violations of the Austrian Constitution and
of Articles 6 and 14 of the Convention and Article 1 of the Protocol.
The Applicants submitted that on the basis of the legislation
applicable before the entry into force of the Gross Royalties Act on
1st August 1960, they were entitled to royalties totalling 250,489,622
Austrian schillings.
On 27th June 1962, the Constitutional Court dismissed their appeals and
stated in particular:
1. that the Applicant's gross royalty rights were founded on an
agreement entered into with the German Reich as the supreme mining
authority (Träger der Berghoheit);
2. that, with Austria's restoration on 27th April, 1945, the
administration of the mines had passed into Austrian hands with the
result that, where Austrian territory was concerned, the other party
to the agreement had ceased to exist;
3. that Article 20, paragraph (7), of Order No. 1 in Application of the
State Treaty was to be interpreted not as a mere suspension of existing
claims for gross royalties but as an indication that there was no legal
basis for such claims and that the future legislator was free to decide
whether such a basis should be created;
4. that Articles 1 and 8 of the Gross Royalties Act of 1960 correctly
stated the legal situation as of 27th April 1945; and
5. that the decision of the Ministry for Trade and Reconstruction,
which was given in application of the Gross Royalties Act, did not
violate any constitutional rights of the Applicants.
The decision of the Constitutional Court was communicated to the
Applicants on 10th September 1962.
Submissions of the Parties
Whereas the Applicants allege violations of Articles 6 and 14 of the
Convention and of Article 1 of the Protocol; whereas their arguments
may be summarised as follows:
The Applicants submit that their gross royalty rights were founded not
on a contract concluded with the German Reich but on certain legal
provisions, namely the Orders concerning Charges on Production of
Mineral Oil of 1942 and 1944. These Orders became part of Austrian law
by virtue of the "Transfer of Law Act" (Rechts-Überleitungsgesetz,
StBGl. No. 6/1945) of 1st May 1945. Under Article 20, paragraph (7),
of Order No. 1 of 1956 in Application of the State Treaty, only the
procedural right to seize the courts of claims for gross royalties was
suspended (Klagestop) but otherwise the Orders of 1942 and 1944
remained operative until they were repealed by the Gross Royalties Act
of 1960. This is confirmed by the legal opinions of Professor
Gschnitzer and Professor Kralik, dated 8th January 1956, and 28th
September 1965 respectively.
The Applicants further submit that their claims under the Convention,
concerning royalties for the period between 13th August 1955, and 1st
August 1960, are not affected by the Austrian reservation to Article
1 of the Protocol, made under Article 64 of the Convention in respect
of Parts IV and V of the Austrian State Treaty. According to the
generally recognised rules of international law, this reservation must
be interpreted restrictively. In support of this submission the
Applicants have referred to the legal opinion of 17th January 1966, of
Professor Kipp and to Article 6 of the State Treaty which states as
follows:
"Human Rights
1. Austria shall take all measures necessary to secure to all persons
under Austrian jurisdiction, without distinction as to race, sex,
language or religion, the enjoyment of human rights and of the
fundamental freedoms, including freedom of expression, of press and
publication, of religious worship, of political opinion and of public
meeting.
2. Austria further undertakes that the laws in force in Austria shall
not, either in their content or in their application, discriminate or
entail any discrimination between persons of Austrian nationality on
the ground of their race, sex, language or religion, whether in
reference to their persons, property, business, professional or
financial interests, status, political or civil rights or any other
matter."
Finally, the Applicants refer to Article 124 of the Mining Act
(Berggesetz) of 1854 which is still applicable today and which provides
that minerals do not become the property of the holder of the
concession until they are extracted. The Applicants submit that
consequently Article 22 of the State Treaty and the above Austrian
reservation do not cover bitumen products which were extracted after
the entry into force of this Treaty on 27th July 1955.
Whereas the Respondent Government submits that the Applications are
inadmissible both ratione temporis and as a result of the reservation
made by Austria in respect of Article 1 of the Protocol;
Whereas the arguments of the Government may be summarised as follows:
The Orders Concerning Charges on Production of Mineral Oil of 1942 and
1944, on which the Applicants base their claims, became invalid as
being inapplicable as at 27th April 1945, when the mines administration
passed into Austrian hands. Article 8 of the Gross Royalties Act of
1960 merely confirmed this legal situation. The Act did not
retroactively repeal the said German provisions and did not, therefore
destroy any rights of the Applicants relating to the period between
1945 and 1960. It follows that the gross royalty rights of the
Applicants lapsed on 27th April 1945, that is thirteen years before 3rd
September 1958, the date of the entry into force of the Convention with
respect to Austria. Consequently, the Applications are inadmissible
ratione temporis.
Moreover, in 1956, which was two years before the entry into force of
the Convention with respect to Austria, Article 20, paragraph (7), of
Order No. 1 in Application of the State Treaty stated that there was
no legal basis for gross royalty rights as claimed by the Applicants.
In this respect, too, the Applications are inadmissible ratione
temporis.
The Government further submits that the Austrian reservation to Article
1 of the Protocol applies in the present cases. Under Article 22 of
Part IV of the State Treaty, the Soviet Union was to receive
concessions in regard to the oil-fields to which the Applicants' gross
royalty claims related. Order No. 1 in Application of the State Treaty
implemented Part IV of this Treaty and the "special legislation"
mentioned in Article 20, paragraph (7), of Order No. 1 was passed by
means of the Gross Royalties Act of 1960. Thus the Gross Royalties Act
was issued in indirect application of Part IV of the State Treaty. It
follows that, in view of the Austrian reservation in respect of Part
IV of the State Treaty, the Commission is not competent to examine the
question of the compatibility of the Gross Royalties Act with Article
1 of the Protocol to the Convention.
THE LAW
I. Whereas the Applicants complain that the Gross Royalties Act of 1960
violated their rights under Article 1 (P1-1) of the Protocol to the
Convention on Human Rights by depriving them of possessions and
offering them inadequate compensation; whereas the Respondent
Government submits that examination of this complaint by the Commission
is excluded by virtue of the Austrian reservation to Article 1 (P1-1)
of the Protocol;
Whereas it is true that Austria, when ratifying the Convention and the
Protocol, "being desirous of avoiding any uncertainty concerning the
application of Article 1 (P1-1) of the Protocol in connection with the
State Treaty" ("von dem Wunsch geleitet, jede Unsicherheit betreffend
die Anwendung des Artikels 1 des Zusatzprotokolls im Zusammenhang mit
dem Staatsvertrag ... zu vermeiden"), made the reservation "that there
shall be no interference with the provisions of Part IV ... and Part
V ... of the ... State Treaty" ("dass die Bestimmungen des Teiles IV
... und des Teiles V ... des ...Staatsvertrages unberührt bleiben");
Whereas this reservation was made under Article 64 (Art. 64) of the
Convention which permits reservations in respect of any particular
provision of the Convention to the extent that any law then in force
in the territory of the State concerned is not in conformity with this
provision;
Whereas reservations of a general character are not permitted under
Article 64 (Art. 64); whereas the Commission finds that the reservation
made by Austria to Article 1 of the Protocol is in accordance with the
conditions mentioned in Article 64 (Art. 64) of the Convention;
Whereas, in particular, this reservation is not of a "general
character", but relates specifically to Parts IV and V of the State
Treaty which, apart from being an international treaty, has been a law
in force in Austria since 1955;
Whereas, in respect of the above reservation, reference has also been
made by the Applicants to certain obligations, concerning the
protection of human rights, which Austria accepted under Article 6 of
the State Treaty; whereas, in this regard, the Commission points out
that, under Article 19 (Art. 19) of the Convention on Human Rights, it
is only competent to ensure the observance of the engagements
undertaken by the Contracting States in the Convention; whereas it
follows that the Commission has no jurisdiction to decide whether or
not a Contracting Party to the Convention has observed its obligations
under other international agreements; whereas, therefore, it cannot
examine whether or not the Austrian reservation to Article 1 (P1-1) of
the Protocol to the Convention is compatible with Article 6 of the
State Treaty;
Whereas it results from the above findings that the Commission, when
considering the admissibility of the Applicants' complaint that the
Gross Royalties Act of 1960 violated their rights under Article 1
(P1-1) of the Protocol must take into account the terms of the Austrian
reservation to this provision; and whereas it cannot deal with the
complaint if it finds that the Gross Royalties Act, insofar as it
concerns the claims of the Applicants, falls within the terms of the
reservation;
Whereas the Gross Royalties Act related to claims of the Applicants in
respect of the production of oil in a certain area and during a certain
period; whereas, consequently, the following questions arise: whether
the oil production concerned falls within the terms of the Austrian
reservation to Article 1 (P1-1) of the Protocol whether, if so, the
corresponding royalty claims of the Applicants are equally covered by
the reservation; and whether, if this is also found to be the case,
the reservation excludes examination by the Commission of the Gross
Royalties Act, insofar as it concerned the claims of the Applicants;
Whereas, with regard to the area of the oil production concerned, it
is to be observed that the Austrian reservation to Article 1 of the
Protocol (P1-1) includes, inter alia, Article 22 of the State Treaty;
whereas this Article provided in paragraph 1 that the Soviet Union
should receive "concessions to oil fields ... in accordance with list
No. 1 and map No. 1 annexed to the Treaty"; and whereas it is not
disputed between the Parties to the present case that Article 22 of the
State Treaty covered the oil fields to whose production the Applicants'
royalty claims related;
Whereas, further, with respect to the period of the oil production
concerned, the Commission observes that, according to Article 22 of the
State Treaty, the Soviet Union should receive concessions to the oil
fields in question "for a period of validity of thirty years", and
whereas the State Treaty was signed and entered into force in 1955;
Whereas it follows that the period referred to in Article 22 was to run
from 1955 until 1985; whereas, on the other hand, under the agreement
of 5th August 1942, and the Order Concerning Charges on Production of
Mineral Oil of 15th September 1944, the duration of the Applicants'
royalty rights was limited until 31st July 1960, that is before the end
of the period for which the Soviet Union should receive concessions
under the said provision of Article 22 of the State Treaty; whereas it
follows that the period of oil production, to which the Applicants'
royalty claims related, falls also within the terms of this provision;
Whereas it results from the above findings that both the area and the
period of oil production, with regard to which the Applicants claim
royalties, are covered by Article 22 of the State Treaty which, as
stated above, falls within the terms of the Austrian reservation to
Article 1 (P1-1) of the Protocol to the Convention;
Whereas, in this connection, the Commission has also considered the
Applicant's reference to Article 124 of the Mining Act of 1854 and
their submission that, in view of this provision, Article 22 of the
State Treaty cannot be interpreted as covering bitumen products which
were extracted after the entry into force of this Treaty on 27th July,
1955; whereas, however, it results from the above findings of the
Commission that Article 22 of the State Treaty covers production for
a period of thirty years after 1955; whereas a different interpretation
does not appear to be in accordance with the clear text and purpose of
Article 22; and whereas the Applicants themselves do not contest that
Article 22 covers the production for some time after the entry into
force of the State Treaty; whereas, consequently, consideration of
Article 124 of the Mining Act does not affect the above finding of the
Commission that the oil production with respect to which the Applicants
claim gross royalties falls within the terms of Article 22 of the State
Treaty;
Whereas it remains to be examined whether the corresponding royalty
claims of the Applicants are equally covered by Article 22 of the State
Treaty; whereas, in this respect, it results from paragraph 7,
sub-paragraph (e), of the Article that the concessions to oil fields,
which the Soviet Union should receive in accordance with paragraph 1,
were to be granted "without any charges or claims"; whereas, in other
words, the soviet Union should have the "uncurtained benefit" from the
production of these oil fields (opinion of Professor Kipp, page 14);
whereas, consequently, the Applicants' royalty claims, which related
to the production of the oil fields referred to in Article 22,
paragraph 1, of the State Treaty, must be considered as "charges"
within the meaning of paragraph 7, sub-paragraph (e), of this Article;
Whereas it follows that these claims are equally covered by Article 22
of the State Treaty;
Whereas, in this connection, the Commission has also considered Annex
II of the State Treaty; whereas, in this Annex, the Soviet Union,
having regard to the Memorandum signed in Moscow on 15th April, 1955,
undertook to "transfer to Austria, within two months from the date of
entry into force of the present Treaty, all property, rights and
interest to be ... received by it in accordance with Article 22";
and whereas, in pursuance of this provision, the oil fields in question
were in fact already handed over to Austria on 13th August, 1955;
Whereas, however, it results from the Moscow Memorandum that, in
exchange, Austria promised to deliver crude oil to the Soviet Union;
whereas this shows that Annex II of the State Treaty, though modifying
the ultimate consequences of Article 22, took into account that certain
rights of the Soviet Union had been created in this Article;
Whereas these included the right to be granted concessions to the oil
fields in question "for a period ... of thirty years"; whereas,
consequently, an examination of Annex II does not change the conclusion
which the Commission has reached above in respect of Article 22 of the
State Treaty;
Whereas, moreover, the finding that the royalty claims of the
Applicants are covered by this Treaty, is confirmed by certain
considerations which are based on Order No. 1 in Application of the
State Treaty;
Whereas Order No. 1 concerned, inter alia, "the properties, rights and
interests (assets)", whose ownership had been transferred to Austria
by the Soviet Union under the State Treaty;
Whereas Article 20, paragraph (7) of the Order stated that claims for
gross royalties could be brought only on the basis of special federal
legislation; and whereas it is not disputed between the Parties that
this provision covered the royalty claims of the Applicants;
Whereas it is further to be observed that Order No. 1 in Application
of the State Treaty was enacted on 25th July, 1956, that is more than
two years before 3rd September, 1958, the date when Austria ratified
the Convention and the Protocol with the above reservation in respect
of Parts IV and V of the State Treaty; whereas, in interpreting this
reservation with regard to its obvious motives, account must be taken
of the legislation which was in force in Austria at that time; and
whereas it is clear from the relevant provision, namely, Article 20,
paragraph (7), of Order No. 1 in Application of the State Treaty, that
the royalty claims of the Applicants were then considered under
Austrian law to be a matter dealt with in this Treaty;
Whereas it results from the above findings that the royalty claims of
the Applicants fall within the terms of the Austrian reservation to
Article 1 (P1-1) of the Protocol to the Convention; made in respect
of Parts IV and V of the State Treaty of 1955; whereas, consequently,
the regulations which, with regard to these same claims, were
subsequently issued in the Gross Royalties Act of 1960 are also covered
by the reservation; whereas, in this connection, the Commission refers
to its decisions on the admissibility of Application Nos. 473/59 and
1731/62 (Yearbook of the European Convention on Human Rights, Volume
2, pages 400 - 406, and Collections of Decisions of the Commission,
Volume 15, pages 33 - 39); whereas it follows that the Commission has
no competence to examine the complaint of the Applicants that the Gross
Royalties Act violated their rights under Article 1 (P1-1) of the
Protocol; whereas, therefore, this complaint is incompatible with the
provisions of the Convention and the Protocol as applicable to Austria
(Article 27, paragraph 2 (Art. 27-2) of the Convention);
II. Whereas, with reference to the Gross Royalties Act of 1960 and the
subsequent proceedings before the Constitutional Court, the Applicants
further allege a violation of Article 6 (Art. 6) of the Convention;
whereas paragraph (1) of this Article (Art. 6-1) states that, in the
determination of his civil rights, everyone is entitled to a fair and
public hearing by an independent and impartial tribunal established by
law; and whereas it is true that the text of the reservation made by
Austria in respect of the State Treaty refers only to Article 1 (P1-1)
of the Protocol and not to Article 6 (Art. 6) of the Convention;
Whereas, however, in its decision on the admissibility of Applications
Nos. 473/59 and 1008/61 (Yearbook, Volume 2, pages 400, 406, and Volume
5, pages 82, 86), the Commission has already stated that certain
complaints under Article 6 (Art. 6) of the Convention, which were made
in those cases and which were similar to the present complaint, could
not "be dissociated from the subject of the reservation" to Article 1
(P1-1) of the Protocol, so that the Commission "could not accept them
without disregarding the obvious intention of the reservation";
Whereas, in respect of the present complaint under Article 6 (Art. 6)
of the Convention, the Commission has also had regard to Order No. 1
in Application of the State Treaty; whereas Article 20, paragraph (7),
of the Order stated that claims for gross royalties "can be brought
only on the basis of special federal legislation" (können nur auf Grund
einer besonderen bundesgesetzlichen Regelung geltend gemacht werden");
Whereas, although the opinions of the Parties differ as to the
interpretation of this provision, it is not disputed between them that
it excluded, for the time being, any court action in respect of the
royalty claims concerned; and whereas it has already been observed that
Order No. 1 in Application of the State Treaty, having been enacted in
1956 with express reference to this Treaty, is relevant for the
interpretation of the reservation which Austria made subsequently when
ratifying the Convention and the Protocol in 1958;
Whereas, consequently, in considering the effect of the reservation on
the present complaint under Article 6 of the Convention, account must
be taken of Article 20, paragraph (7), of Order No. 1, which, before
the entry into force of the Convention with respect to Austria,
affected the Applicants' right to seize the courts of claims for
royalties;
Whereas, having regard to Order No. 1 in Application of the State
Treaty, the Commission finds that the Applicants' complaints under
Article 6 (Art. 6) cannot be dissociated from the subject of the
Austrian reservation to Article 1 (P1-1) of the Protocol made in regard
to Parts IV and V of this Treaty; whereas, therefore, the Commission
cannot accept the complaint without disregarding the obvious intention
of the Austrian reservation; whereas it follows that this complaint is
also incompatible with the provisions of the Convention as applicable
to Austria (Article 27, paragraph 2) (Art. 27-2).
III. Whereas, finally, the Applicants allege a violation of Article 14
(Art. 14) of the Convention; whereas this Article prohibits
discrimination only with reference to the rights and freedoms set forth
in the Convention and the Protocol (see Application No.911/60,
Yearbook, Volume 4, pages 198, 222); and whereas it has already been
stated that the Commission has no competence to examine the Applicants'
complaints under Article 6 (Art. 6) of the Convention and Article 1
(P1-1) of the Protocol; whereas it follows that their remaining
complaint under Article 14 (Art. 14) is equally outside the
jurisdiction of the Commission and, consequently, incompatible with the
Convention (Article 27, paragraph 2) (Art. 27-2).
Now therefore the Commission declares this Application INADMISSIBLE.