AS TO THE ADMISSIBILITY OF
Application No. 25170/94
by Herwig LIEBSCHER, Caroline HÜBL
and Christoph LIEBSCHER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 1 September 1994
by Herwig LIEBSCHER, Caroline HÜBL and Christoph LIEBSCHER against
Austria and registered on 16 September 1994 under file No. 25170/94;
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
All three applicants are lawyers (Rechtsanwälte) practising in
Salzburg. The first and second applicant are represented by the third
applicant in the proceedings before the Commission.
The facts of the case, as they have been submitted by the
applicants, may be summarised as follows.
A. Particular circumstances of the case
On 13 November 1992 the applicants requested the Executive
Committee of the Salzburg Lawyers' Chamber (Ausschuß der Salzburger
Rechtsanwaltskammer) to give a declaratory decision (Feststellungs-
bescheid) according to which they were allowed to exercise their
profession as lawyers in the form of a private company (Gesellschaft
mit beschränkter Haftung). The applicants acknowledged that under
Section 21c para. 2 of the Practising Lawyers Act
(Rechtsanwaltsordnung) they could be prevented from founding a private
company, as it provided that lawyers could only be members of a
partnership as fully liable partners. However in their view, this
provision was unconstitutional as it infringed their freedom to
exercise a profession (Erwerbsausübungsfreiheit). They had a legal
interest in a declaratory decision because otherwise they ran the risk
of being punished for exercising their profession in the form of a
economic association prohibited by the Professional Lawyers Act.
On 1 December 1992 the Executive Committee of the Lawyers'
Chamber dismissed the request. It found that the wording of Section
21c (2) of the Practising Lawyers Act was clear and unambiguous and did
not allow the exercise of the profession of a lawyer in the form of a
private company. Thus, the requested decision could not be given.
On 29 January 1993 the applicants filed a complaint with the
Constitutional Court (Verfassungsgerichtshof). They submitted that
Section 21c of the Practising Lawyers Act violated their freedom to
exercise a profession and the principle of equality (Gleichheitssatz).
On 1 March 1994 the Constitutional Court declined to deal with
the applicants' complaint for lack of prospect of success. It also
found that the matter was not excluded from the competence of the
Administrative Court (Verwaltungsgerichtshof).
B. Relevant domestic law
Austrian law provides for essentially four types of profit making
associations. Stock corporations (Aktiengesellschaften) and private
companies (Gesellschaften mit beschränkter Haftung) are companies
limited by shares (Kapitalgesellschaften). They can be set up for any
economic activity and the liability of the owners is limited to the
amount and value of the shares. The Commercial Code (Handels-
gesetzbuch) provides for two further types of economic associations,
the commercial partnership (Offene Handelsgesellschaft) and the limited
partnership (Kommanditgesellschaft). They can only be set up for
commercial activities within the meaning of the Commercial Code, which
e.g. excludes agriculture and the liberal professions. Either all
(commercial partnership) or a part of its members (limited partnership)
are fully and personally liable for all debts of the partnership. The
Partnership Act of 1990 (Erwerbsgesellschaftengesetz) now allows the
establishment of commercial and limited partnerships for economic
activities not covered by the Commercial Code.
Section 1a of the Practising Lawyers Act (Rechtsanwaltsordnung)
provides that lawyers may exercise their profession in associations,
in particular registered partnerships (Erwerbsgesellschaften). Section
21c para. 2 of the Act provides that lawyers may be members of a
partnership only as fully liable partners. Lawyers who temporarily do
not exercise their profession and relatives of lawyers may be members
of a partnership only as limited partners (Kommanditist) or as dormant
partners (stiller Gesellschafter).
The Accountants Act (Wirtschaftstreuhänder-Berufsordnung)
provides that the profession of an accountant may be exercised by a
company limited by shares.
COMPLAINTS
1. The applicants complain under Article 11 of the Convention that
the impossibility to associate in the form of a private company for the
purpose of exercising their profession violated their freedom of
association.
2. They further complain that they were discriminated against
compared with accountants who could found companies limited by shares
for exercising their profession and rely on Article 14 of the
Convention.
3. They also complain that they had no effective remedy within the
meaning of Article 13 of the Convention in order to complain about the
above violations.
4. Lastly they complain about a violation of Article 6 para. 1 of
the Convention in that their request for a declaratory decision was not
determined by a tribunal within the meaning of Article 6 para. 1 and
that no public hearing had been held. Furthermore, the Constitutional
Court did not sufficiently motivate its decision.
THE LAW
1. The applicants complain that the impossibility to associate in
the form of a private company for the purpose of exercising their
profession violated their freedom of association. They invoke Article
11 (Art. 11) of the Convention which, inter alia, provides that
"everyone has the right ... to freedom of association with others ...".
However, the Commission recalls that Article 11 paragraph 1
(Art. 11-1) of the Convention does not secure any particular treatment
of associations, or their members, by the State (see Eur. Court H.R.,
Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no.
20, p. 15, para. 39; Union of Atheists v. France, Comm. Report
6.7.1994, para. 68).
In the present case the Commission finds that the applicants have
the possibility to associate for the purpose of exercising their
profession, in particular they can form a partnership under the
Partnership Act. Thus the choice of a specific form of profit making
associations is not in itself essential to the real exercise of the
applicants' freedom of association (see Union of Atheists v. France,
loc. cit.).
In these circumstances the Commission finds that there is no
appearance of a violation of the applicants' freedom of association as
guaranteed by Article 11 (Art. 11) of the Convention.
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 further complain that they were discriminated
against compared with accountants who could found companies limited by
shares for exercising their profession and rely on Article 14 (Art. 14)
of the Convention, which reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and the Protocols. It
has no independent existence since it has effect solely in relation to
"the enjoyment of the rights and freedoms" safeguarded by those
provisions. Although the application of Article 14 (Art. 14) does not
necessarily presuppose a breach of those provisions - and to this
extent it is autonomous -, there can be no room for its application
unless the facts at issue fall within the ambit of one or more of the
latter (see Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment
of 28 May 1985, Series A no. 94, p. 35, para. 71).
The applicants do not invoke any substantive provision of the
Convention. However, the commission has examined the present complaint
under Article 14 (Art. 14) of the Convention read in conjunction with
Article 11 (Art. 11).
In this respect the Commission recalls that Article 14 (Art. 14)
safeguards individuals, placed under analogous situations, from
discrimination (see Eur. Court H.R., van der Mussele judgment of 23
November 1983, Series A no. 70, p. 22, para. 46). The Commission
recalls further that in the quoted judgment the Court has found that
no such analogous situation existed as regards the bar and other
professions, like veterinary surgeons, pharmacists, dentists and the
judicial and parajudicial profession as each of them was characterized
by a corpus of rights and obligations of which it would be artificial
to isolate one specific aspect (loc. cit.; No. 18168/91, Dec. 1.12.93,
unpublished).
In the present case, the Commission likewise considers that the
applicants have failed to show that they were in an analogous situation
as other liberal professions, in particular chartered public
accountants, as the possibility to associate in a specific type of
profit making association is one single feature of a corpus of rights
and obligations governing the exercise of liberal professions. The
Commission finds that in these circumstances the difference in
treatment the applicants complain of does not constitute discrimination
prohibited by Article 14 (Art. 14) of the Convention.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants also complain that they had no effective remedy
within the meaning of Article 13 (Art. 13) of the Convention in order
to complain about the above violations.
Article 13 (Art. 13) of the Convention, as far as relevant reads
as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority ..."
The Commission recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February
1990, Series A no. 172, p. 14, para. 31).
The Commission, having regard to the above findings, considers
that the applicant's submissions do not give rise to a prima facie
issue under Article 11 and Article 14 (Art. 11, 14) of the Convention,
and thus cannot be considered to be an arguable claim. Consequently,
Article 13 (Art. 13) of the Convention does not apply in respect of the
applicants' complaint under Article 11 and Article 14 (Art. 11, 14) of
the Convention.
It follows that this also part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Lastly the applicants complain under Article 6 para. 1 (Art. 6-1)
of the Convention about the proceedings on their request for a
declaratory decision in several respects.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads a follows:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission recalls that Article 6 (Art. 6) of the Convention
only applies 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 (see Ear. Court H.R., James and others judgment of
21 February 1986, Series A no. 98, p. 46, para. 81, and Lithgow and
others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).
The dispute which gives a right to a determination by a court must be
"genuine and of a serious nature" (see Eur. Court H.R., Benthem
judgment of 23 October 1985, Series A no. 97, p. 14, para. 32). The
dispute may relate not only to the actual existence of a right but also
to its scope or the manner in which it may be exercised, and it may
concern both questions of fact and questions of law (see Ear. Court
H.R., van Marle and Others judgment of 26 June 1986, Series A no. 101,
p.11, para. 32; Karni v. Sweden, Comm. Report 15.12.88, D.R. 62 pp. 90,
para. 86).
The Commission notes that the applicants applied to the Executive
Committee for a declaratory decision that they were allowed to exercise
their profession in the form of a private company. They acknowledged
that Section 21c para. 2 of the Practising Lawyers Act allowed lawyers
only to exercise their profession in the form of a partnership.
However they considered the lack of a more general provision allowing
the exercise of the profession of a lawyer also in companies limited
by shares as unconstitutional. The applicants' request was refused by
the Executive Committee which referred to the clear and unambiguous
wording of Section 21c para. 2 of the Practising Lawyers Act. Their
complaint to the Constitutional Court was not admitted for lack of
prospect of success.
The Commission finds that in the present case there was no
dispute on facts, as the applicants essentially requested a legal
ruling from the Executive Committee. Furthermore, there was no dispute
regarding the scope or manner of a "right" or "obligation". The
applicants merely challenged the law in force. The Commission finds
that the applicants could not on arguable grounds claim a right to
exercise their profession in a private company. The dispute thus did
not concern a "right" within the meaning of Article 6 para. 1
(Art. 6-1) and the applicants therefore cannot rely on that provision
in this instance.
It follows that this part of the application must accordingly be
rejected as incompatible ratione materiae with the provisions of the
Convention in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy