AS TO THE ADMISSIBILITY OF
Application No. 19441/92
by HILTI & JEHLE OHG
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 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
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 10 January 1992
by HILTI & JEHLE against Austria and registered on 27 January 1992
under file No. 19441/92;
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 company runs a construction enterprise. It was
founded in 1876 and has its head office in Feldkirch, Austria. The
company's two sole partners, Messrs. Hilti and Jehle, are citizens of
Liechtenstein. Mr. Jehle was, however, born in Feldkirch where he is
currently living. The company is represented by Mr. W. L. Weh, a
lawyer practising in Bregenz.
I.
It follows from the applicant company's statements and the
documents submitted that on 27 April 1989 the Real Property Transaction
Commission (Grundverkehrs-Landeskommission) denied the applicant
company's request to approve the acquisition by sales contract of a
plot of land situated in the Vorarlberg region and registered under
No. 2039/106 of the Altenstadt real estate register (Grundbuch). An
appeal (Berufung) was rejected on 11 January 1991 by the Real Property
Transaction Senate (Grundverkehrssenat). In its decision the Board
stated that under Section 5 para. 2 of the Real Property Transaction
Act (Grundverkehrsgesetz - GVG) the acquisition of real estate by a
foreigner had to be approved if it did not affect the interests of
agriculture, forestry or state policy (staatspolitische Interessen) and
if the acquisition served a cultural, economic or social interest
(kulturelles, volkswirtschaftliches oder soziales Interesse).
The Board considered this provision to be applicable because the
company's sole partners are foreign citizens. It pointed out that
neither cultural nor social interests had been involved and considered
that economic interests were not given as the applicant company's
purpose in exploiting the land as a gravel pit was not feasible.
According to an expert opinion of the Regional Government
(Landesregierung) a garbage dump already existed on the site in
question and there was no reason to remove this dump. The existence
of the garbage dump however rendered the extraction of gravel
impossible. It was furthermore unlikely that the necessary
authorisation for a gravel pit would be obtained from the water and
nature conservation authorities.
The applicant company then lodged a constitutional complaint
invoking the right to protection of property and claiming that it had
to be considered as an Austrian company. The complaint was rejected
by the Constitutional Court (Verfassungsgerichtshof) on 10 June 1991
(notified on 11 July 1991).
II.
On 10 July 1990 another request to approve the acquisition of a
plot of land in the same area and registered under no. 2039/102 was
likewise rejected and an appeal dismissed by the Real Property
Transaction Senate on 29 November 1991 for the reasons already stated
in the earlier decision of 11 January 1991.
The applicant company lodged another constitutional complaint,
this time also alleging a violation of Article 6 of the Convention.
The complaint was rejected by the Constitutional Court on
13 November 1992.
The applicant company's argument that the Real Property
Transaction Senate was not an impartial tribunal within the meaning of
Article 6 of the Convention was considered to be unfounded in the light
of the Constitutional Court's constant jurisprudence. The Court
pointed out that in particular the applicant's counsel was aware of
this jurisprudence as he had represented the applicant company in a
similar matter which had been decided by the Court on 10 June 1991.
It added that in the present case there were no circumstances to doubt
the impartiality of the Board's members. Neither the fact that the
chairman was formerly a politician and a high official in real estate
matters nor the fact that another Board member was a civil servant did,
in itself, put their impartiality into question.
Insofar as the applicant company had complained that it had not
been given adequate opportunity to question the official expert
opinion, it is pointed out that the company had been aware of it since
December 1990, while the oral hearing before the Board had taken place
on 21 November 1991.
Insofar as the company objected to having been considered as
"foreign", the Court again referred to its prior judgment of
10 June 1991 and stated in addition that the legislative regulation
according to which companies registered in Austria but largely owned
by foreigners were to be considered as "foreign" was objectively
justified because it served the purpose of stopping foreigners from
circumventing the authorisation requirement by founding a company to
buy real estate on their behalf.
COMPLAINTS
1. The applicant company first alleges a violation of Article 6 of
the Convention. It considers that the members of the Real Property
Transaction Senate are not impartial and independent as they are
representatives of various interest groups. The presiding judge, so
it is alleged, was prior to being appointed to this office, for 25
years not only a member of the Regional Government but in that capacity
was mainly entrusted with real estate matters. It is also pointed out
in this context that the former presiding judge in the meantime became
a member of the Regional Government where he is also charged as a
member of the executive with real estate matters.
In these circumstances the independence and impartiality appears,
at least from the viewpoint of the applicant company, to be doubtful
and the present matter had to be distinguished from Application
No. 18991/91, Kohler v. Austria, which was rejected by the Commission
on 13 October 1993.
Furthermore, the Regional Agrarian Chamber (Landwirtschafts-
kammer) has nominated its President to be a member of the Real Property
Transaction Senate. The applicant company argues that the President
can not be considered as an impartial and independent judge, rather it
would appear that he would favour the interests of the Agrarian Chamber
which are in principle identical to those of the agricultural
authorities which denied approval of the land acquisition.
Insofar as the Constitutional Court rejected the complaints under
Article 6 by referring to its constant jurisprudence, the applicant
company submits that the circumstances of the present case are
distinguishable from prior cases, given that the two allegedly biased
members of the Board were appointed in July 1990, therefore the
Constitutional Court should have dealt with in substance the present
complaints and not just reject them by referring to prior
jurisprudence.
Furthermore, the applicant company considers that the rapporteur
of the Real Property Transaction Senate is likewise not impartial and
independent, being a member of the Regional Government where he has to
deal with administrative and penal administrative matters. It is
pointed out in this context that the legislator decided on 8 July 1993
to abolish the Real Property Transaction Board.
2. Finally, the applicant company alleges a violation of Article 1
of Protocol No. 1 also read in conjunction with Article 14 of the
Convention. In this respect it is alleged that the denial of the
authorisation to buy a plot of land is a disproportionate measure as
it does not strike a fair balance between public and private interests.
It is submitted that domestic law does not even allow striking such a
balance as it refers only to public interests which should be taken
into account. In this context it is also alleged that an Austrian
company was treated favourably in that it was allowed to buy a
neighbouring plot. There are no justified reasons to deny the
authorisation to the applicant company which allegedly existed in
Austria for the past 115 years.
THE LAW
1. As regards the complaint under Article 6 para. 1 (Art. 6-1) of
the Convention related to the composition of the Real Property
Transaction Senate which in the applicant's opinion violates the
principle of impartiality and independence the Commission recalls at
the outset that the organisation of the authorities responsible for the
control of land acquisition in Austria does not, in principle, raise
any problems regarding the judicial character or the independence of
these authorities (see, inter alia, Eur. Court of H.R., Ringeisen
judgment of 16 July 1971, Series A no. 13, p. 39, para. 95; Sramek
judgment of 22 October 1984, Series A no. 84, pp. 17-20, paras. 36-42).
As regards the question whether the members of the Senate in the
applicant company's case satisfied the requirements of impartiality,
both subjectively and objectively (see Eur. Court H.R., Langborger
judgment of 22 June 1989, Series A no. 155, p. 16, para. 32), the
Commission observes the following :
The mere fact that the President of the Senate had previously
been a member of the Regional Government for 25 years cannot bear out
a challenge of bias: the subjective impartiality of a judge is presumed
until the contrary is proven (Eur. Court H.R., Hauschildt judgment of
24 May 1989, Series A no. 154, p. 21, para. 47). Furthermore, this
fact in itself is not sufficient to warrant legitimate doubts as to his
impartiality.
As regards the Senate member who was at the same time president
of the Regional Agricultural Chamber, the Commission finds no evidence
to support that this Senate member was biased. Moreover, there is no
reason to question his objective impartiality. The European Court of
Human Rights found no element of bias in respect of another comparable
body, the Regional Real Property Transactions Commission
(Landesgrundverkehrsdommission) of Upper Austria, on account of the
fact that one of its members had been nominated by the local chamber
of agriculture (Eur. Court H.R., Ringeisen judgment, loc. cit., p. 40,
para. 97). The fact that, in the present case, it was the president
of the chamber who had been appointed does not, in the opinion of the
Commission, warrant a different conclusion. This fact is not enough
to create any legitimate doubts that the balance of interests inherent
in the composition of the Senate was upset in the applicant company's
case (cf. Eur. Court H.R., Langborger judgment, loc. cit., p. 16, para.
35). In this context the Commission notes in particular that the
protection of the interests of the local farmers was explicitly
recognised by the legislation in question as a legitimate interest
under the law (cf. De Moor v. Belgium, Comm. Report 8.1.93, paras. 58-
59, to be published).
As regards the Rapporteur on the Senate, the Commission recalls
that the presence of civil servants on the comparable Upper Austrian
Regional Commission was found to be compatible with the Convention (see
Eur. Court H.R., Ringeisen judgment, loc. cit., pp. 39-40, paras. 95-
97) and that the Regional Government itself was not a party to the
present proceedings (cf. Eur. Court H.R., Sramek judgment, loc. cit.,
pp. 19-20, paras. 41-42). In the light hereof, the Commission does not
consider that this complaint raises any issue as to either the
objective or subjective impartiality or independence of the Senate.
The Commission, accordingly, finds no indication of any violation
of the applicant company's right to an impartial tribunal as guaranteed
by Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the complaint under Article 6 para. 1 (Art. 6-1)
has to be rejected as being manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant company alleges a violation of its right
to the peaceful enjoyment of possessions as guaranteed by Article 1 of
Protocol No. 1 (P1-1) it can be left undecided whether or not the sales
contract effected a transfer of the real property it concerned. In any
event it created a claim to the transfer of the property which in
itself also enjoys protection under Article 1 of Protocol No. 1
(P1-1).
However, the use of property may be subject to regulations under
the conditions set out in Article 1 para. 2 of the Protocol (P1-1-2).
It has not been disputed that the measure complained of is based
on domestic law.
The law in question serves the purpose of safeguarding
agriculture, forestry and state policy and must therefore be considered
to be in the general public interest.
Contrary to the applicant company's submissions the law in
question also allows the competent authorities to consider the private
interests in the acquisition of land as it refers to cultural, economic
or social interests which may well coincide with the interests of the
individual buyer.
In the present case the refusal was found to be lawful by the
Constitutional Court and there is nothing to show that the domestic
decisions complained of arbitrarily disregard any vital interests of
the complainant company such as to upset the fair balance which has to
be struck between the demands of the public interest of the community
and the requirements of protection of the individual's fundamental
rights (c.f. Eur. Court H.R., Sporrong and Lönnroth judgment of
23 September 1982, Series A no. 52, p. 26 para. 59).
The Commission accordingly finds no indication of a violation of
Article 1 of Protocol No. 1 (P1-1). It follows therefore that the
complaint must also be rejected as being manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Furthermore, insofar as in another case the acquisition of land
was allegedly approved by the authorities it has not been shown that
the companies in the two cases were in an analogous situation.
In any event, the applicant has failed to substantiate that he
has been discriminated on any of the grounds listed in Article 14
(Art. 14) of the Convention. There is consequently no appearance of
a violation of Article 1 of Protocol No. 1 read in conjunction with
Article 14 (P1-1+14)of the Convention and that this part of the
application is therefore likewise manifestly ill-founded.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy