AS TO THE ADMISSIBILITY OF
Application No. 21426/93
by Anton HAMMERLE
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 16 November 1992
by Anton Hammerle against Austria and registered on 25 February 1993
under file No. 21426/93;
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 applicant is an Austrian citizen. He lives in Mäder in
Vorarlberg and is represented before the Commission by Mr. W. L. Weh,
a lawyer practising in Bregenz. The facts of the application, as
submitted by the applicant, may be summarised as follows.
The applicant owned two egg production units, one in Ötz in the
Tyrol with a capacity of 16,000 laying hens, and the other in Mäder,
Vorarlberg, with a capacity of 27,000 laying hens.
On 12 August 1986 the applicant made an application to the
Federal Ministry for Agriculture and Forestry for "an additional quota
of 16,000 laying hens in Mäder" and for permission for a "site transfer
of these hens". In his request he explained how he wished to cease
production at Ötz because it was situated some 100 kilometres from
Mäder, he was unable to run both sites himself and because the tenant
who had had a lease of the Ötz site had terminated the lease because
of the success of a frozen food business and a restaurant. He pointed
out that he would continue to deliver eggs from Mäder to Ötz.
The Ministry, by reference to Section 13 of the Livestock Act
1983 (Viehwirtschaftsgesetz) dismissed the applicant's requests on
4 March 1988. Section 13 of the Livestock Act (so far as relevant)
provided that consent for the keeping of over 10,000 laying hens was
only to be granted if farm production was not endangered and if
conditions in the relevant markets appeared stable. The Ministry,
which had consulted various authorities and given the applicant the
opportunity to comment on the submissions, found that prices had fallen
in previous years, whilst production had increased, and consumption was
stagnant or decreasing. It considered that this amounted to unstable
market conditions, and added that the concentration of egg production
which had been seen in recent years would be exacerbated if the
applicant's request were granted. This could only make farm production
more difficult. In these circumstances, the Ministry concluded, the
mandatory provisions of Section 13 prevented the requests from being
granted.
The applicant made a constitutional complaint which the
Constitutional Court (Verfassungsgerichtshof) dismissed on 20 June
1989. The Constitutional Court had no doubt that the aims pursued by
the Livestock Act - protection of domestic livestock markets,
stabilisation of prices for meat animals and animal products, and the
maintenance of the quality of supplies - were legitimate concerns of
the legislator. The Livestock Act, in accord with the Agriculture Act
1976, aimed at maintaining a viable community of family farms which
could ensure the supply of basic foodstuffs. The Constitutional Court
did not disagree with the legislator's assumption that large scale
animal production in the hands of a few businesses resulted in the loss
of a large number of farms. The Constitutional Court also considered
that the legislator had not interfered disproportionately with the
constitutionally guaranteed right to commercial freedom, because it
provided for large numbers of animals to be kept if certain conditions
(no danger to farm production and stable markets) applied. Section 13
was therefore not in conflict with the right to commercial freedom.
In connection with the right to property, the Constitutional
Court found a sufficient "public" or "general" interest to justify any
restrictions. In connection with Article 6 of the Convention, the
Constitutional Court considered that the review given by the
Administrative Court (Verwaltungsgerichtshof) was adequate, at any rate
when what was at issue, as here, was not disputes as to civil rights
themselves, but merely disputes the effect of which could affect such
rights. The Constitutional Court transferred the case to the
Administrative Court.
On 29 April 1992 the Administrative Court quashed the decision
of the Ministry of 4 March 1988 for unlawfulness. It found that the
Ministry had been wrong to consider questions of a transfer of the Ötz
business to Mäder, because the business in Ötz was a separate entity
and, as such, the permission which had been granted for the keeping of
10,000 laying hens there was only able to be operated from that site.
Accordingly, it was wrong to consider the question of a transfer in
connection with Section 13 of the Livestock Act because that provision
could not apply to a transfer. The case was remitted to the Ministry
for a new decision, without consideration of the applicant's further
points.
On 16 December 1992 the Ministry took a second decision in the
case. It rejected the applicant's requests in relation to transfer
because the Ministry had no jurisdiction, and it dismissed the request
for a new quota of 16,000 additional laying hens in Mäder.
COMPLAINTS
The applicant alleges violation of Article 6 para. 1 of the
Convention and of Article 1 of Protocol No. 1 to the Convention.
In connection with Article 6 of the Convention, he considers that
every businessman has the right to transfer business assets, and where
that right is limited, any proceedings related thereto must determine
civil rights. He considers that he had a right to transfer his
chickens, and that he fulfilled the conditions for such a transfer.
He considers that the Administrative Court does not comply with the
requirements of Article 6 of the Convention because it is a mere court
of review, and is not able to decide questions of fact. In connection
with the Zumtobel judgment (Eur. Court H.R., judgment of
23 October 1993, Series A no. 273), he considers that the
Administrative Court failed to consider his submissions point by point,
as required by the Court in that case. He also alleges that the
proceedings exceeded the "reasonable time" requirement of that
provision.
In connection with Article 1 of Protocol No. 1 to the Convention,
the applicant accepts the principle of quotas for production as such,
but considers that a refusal to permit him to "move" one of his quotas
to the place of business of the other quota exceeds the margin of
appreciation accorded to states under the provision.
By a letter of 20 June 1994, the applicant informed the
Commission that he had not challenged the Ministry's second decision,
of 16 December 1992, before the Administrative and/or Constitutional
Courts, and he expressly withdrew his complaints concerning the refusal
of a further quota.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention, which provides, so far as relevant, as follows:
"1. 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."
To the extent that the applicant complains of the length of the
proceedings and other related procedural aspects, the Commission
considers that it cannot, on the basis of the file, determine the
admissibility of this complaint and that it is therefore necessary, in
accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give
notice of this part of the application to the respondent Government.
2. To the extent that the applicant alleges a violation of Article
6 (Art. 6) of the Convention in connection with the actual decision
given by the Administrative Court, the Commission notes that that
decision quashed the decision of the Ministry and remitted the case to
the Ministry for a further decision. It therefore found that it was
not necessary to deal with the applicant's further complaints.
The Commission further notes that the applicant did not pursue
any remedies against the Ministry's subsequent decision of
16 December 1992.
However, the Commission finds that it is not required to
determine these complaints under Article 6 (Art. 6) of the Convention
as the applicant has failed to exhaust the remedies available to him
under Austrian law, as is required by Article 26 (Art. 26) of the
Convention. The applicant's challenge to the Ministry's decision was
successful before the Administrative Court, and the case was sent back
for a further decision. Had there been any complaints of a procedural
nature concerning the new decision, the applicant could have made a
fresh complaint to the Administrative Court. Moreover, an examination
of the case does not disclose the existence of any special
circumstances which might have absolved the applicant, according to the
generally recognised rules of international law, from exhausting the
domestic remedies at his disposal. In particular, the Administrative
Court's refusal to deal with the applicant's remaining complaints after
it had decided to quash the Ministry's decision does not affect the
position: had there been any relevant, outstanding matters which the
applicant felt remained unanswered, he could have put them in a second
administrative complaint.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies in this respect under Article
26 (Art. 26) of the Convention, and that this part of the application
must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
3. The applicant also alleges a violation of Article 1 of Protocol
No. 1 (P1-1) to the Convention in respect of the refusal to permit him
to transfer his quota of 16,000 laying hens from Ötz to Mäder.
Article 1 of Protocol No. 1 (P1-1) to the Convention provides 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 connection with this complaint the Commission accepts that the
applicant has exhausted the domestic remedies at his disposal as the
Administrative Court stated plainly that Austrian law did not provide
for the possibility of transferring the quota. The Ministry, in taking
its second decision, was bound by the findings of the Administrative
Court in this matter, and could not therefore have come to any other
conclusion in this respect.
The applicant's complaint under Article 1 of Protocol No. 1
(P1-1) is expressly limited to his inability under Austrian law to
transfer his quota from Ötz to Mäder.
The Commission notes that the applicant owned two sites, each of
which had a separate quota. The Constitutional Court in its decision
of 20 June 1989 discussed the justification for the legislative
provisions of the Livestock Act in some depth, coming to the conclusion
that they met a legitimate need and were proportionate. The
Administrative Court, in its decision of 29 April 1992, confirmed that
it was not possible to transfer a quota, and quashed the Ministry's
decision because it was based in part on the misconception that
transfer was possible.
Article 1 of Protocol No. 1 (P1-1) is only applicable where
"possessions" are at issue. It is not clear in the present case
whether the quota the applicant held was a possession because - as the
Administrative Court found - it was a permission which attached to the
land and could not be transferred. However, even assuming it to be a
possession, the Commission finds the complaint inadmissible for the
following reasons:
The Commission notes that the applicant's quota at Ötz was not
revoked or limited by the State, but was one of the prerequisites to
carrying on business in Ötz. The applicant decided that it was not in
his interest to run both production units, and wanted to merge them.
He was not prevented from selling the land and assets in Ötz, and
indeed could have sold the unit as an egg production unit if he could
have found a willing purchaser, as the quota would have passed with the
business. The position is thus quite different from the case of the
holder of a licence whose possessions are adversely affected by the
withdrawal of such a licence (as, for example, in Eur. Court H.R., Tre
Traktörer AB judgment of 7 July 1989, Series A no. 159, p. 21, para.
53).
In these circumstances, the Commission finds that the
"interference" with the applicant's possessions was, at most, a control
of the use of property, in the sense that he was prevented from
transferring his egg production unit from Ötz to Mäder. The Commission
must examine this interference under the second paragraph of Article 1
of Protocol No. 1 (P1-1) to the Convention.
The Constitutional Court considered the aims of the Livestock Act
in its decision of 20 June 1989. It found the aims of the Livestock
Act - protection of domestic livestock markets, stabilisation of prices
for meat animals and animal products, and the maintenance of the
quality of supplies - to be legitimate concerns of the legislator. In
the context of a system which aims to regulate the size of production
units, the Commission finds nothing arbitrary in legislation which
permits units in excess of a particular size and grants quotas for
those units only, without envisaging quota transfers. The Commission
finds that the purpose of the interference is compatible with the
requirements of the "general interest" set out in Article 1 of Protocol
No. 1 (P1-1).
The Commission next notes that the applicant was not prevented,
initially, from holding two quotas, and was not prevented subsequently
from applying for an extension of his quota at Mäder. It also notes
that the quota he held was not personal to him, in the sense that he
would have been able to sell the Ötz unit with its quota if he had
found a willing buyer. Accordingly, given that the applicant is in
substance claiming a right to transfer a quota from one site to
another, and that Article 1 of Protocol No. 1 (P1-1) protects existing
possessions rather than extending them, the Commission finds that the
interference in the present case was proportionate to the aim pursued.
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.
For these reasons, the Commission unanimously
DECIDES TO ADJOURN its examination of the complaints under
Article 6 of the Convention concerning the proceedings in the
present case, in particular their length;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy