AS TO THE ADMISSIBILITY OF
Application No. 19790/92
by LÖWA Warenhandel GesmbH
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 28 February 1992
by LÖWA Warenhandel GesmbH against Austria and registered on
1 April 1992 under file No. 19790/92;
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 facts, as submitted by the applicant, may be summarised as
follows.
The applicant, a limited company registered in Vienna, is running
supermarkets. Before the Commission, the applicant company is
represented by Mr. J. Brandstätter, a lawyer practising in Vienna.
On 7 March 1977, upon request of the applicant company, the
Vienna City Council (Magistrat) modified the conditions of the
industrial plant permission (Betriebsanlagengenehmigung) of one of the
applicant's branch shops. Due to the underground location of this
supermarket and the insufficient lighting conditions in the shop, all
employees were entitled to a supplementary resting time of 4 hours a
week.
On 24 April 1989 the applicant company requested the Vienna City
Council to modify the above condition of the industrial plant
permission in that all supplementary resting times be suppressed. In
this respect, the applicant company submitted that the maximum working
time according to the law and the collective agreement
(Kollektivvertrag) meanwhile had been reduced from 40 to 38.5 hours a
week.
On 6 December 1989 the City Council rejected the applicant's
request as being the same as already decided upon in 1977.
On 23 February 1990 the Works Council (Angestelltenbetriebsrat)
of the supermarket brought a class-action with the Vienna Labour Court
(Arbeits- und Sozialgericht). It claimed that the applicant company
had disregarded the provision of the industrial plant permission of
7 March 1977 ordering supplementary resting time to be granted to its
employees. The applicant company's employees thus had worked longer
than they had to, without however receiving a higher salary. The Works
Council therefore claimed compensation for supplementary resting time
the applicant company had refused to its employees between 1 March 1987
and 31 January 1990.
On 30 March 1990 the Vienna Regional Governor (Landeshauptmann),
partly upheld the applicant's appeal against the City Council's
decision of 6 December 1989. The Regional Governor found that the
weekly working time had meanwhile been reduced to 38.5 hours and
reduced the supplementary resting time accordingly. The applicant
company appealed against this decision.
On 7 August 1990 the Labour Court ordered the applicant company
to pay its employees a compensation for the denied resting time. It
noted that no appeal had been lodged against the City Council's
decision of 1977, which, therefore, had become final. The Labour Court
found that the working time of the applicant company's employees was
thus determined by the City Council's decision of 1977 and not by the
general provisions of labour law or by collective agreements. Since
the modifications of the industrial plant permission requested on
24 April 1989 had not yet been finally decided upon and, moreover,
would only have an effect for the future, the City Council's decision
of 1977 was still legally valid and binding on the courts.
On 15 February 1991 the Vienna Court of Appeal (Oberlandes-
gericht) dismissed the applicant company's appeal. The Court of Appeal
confirmed the findings of the Labour Court.
On 10 July 1991 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's further appeal (Revision). The Supreme Court
confirmed the Court of Appeal's decision and held further that it was
not necessary to suspend the labour court proceedings pending the
outcome of the industrial plant proceedings on the applicant's request
of 24 April 1989, as the decision to be reached in the latter
proceedings would have no retroactive effect, and, thus, would be of
no relevance for the labour law proceedings which only concerned
disputes over the past.
On 19 January 1993 the Federal Minister for Economic Affairs
(Bundesminister für wirtschaftliche Angelegenheiten) upheld the
applicant company's appeal against the Regional Governor's decision of
30 March 1990 and quashed all conditions in the applicant's industrial
plant permission imposing supplementary resting times for employees.
COMPLAINTS
The applicant company complains under Article 6 of the
Convention that the Austrian Courts were bound by decisions of the
administrative authorities, thereby refusing it access to a court which
had full jurisdiction on all questions of law and fact. It further
complains under Article 1 of Protocol No. 1 about being forced by
unlawful court decisions to bear higher labour costs.
THE LAW
1. The applicant company complains under Article 6 (Art. 6) of the
Convention that the Courts were bound by decisions of the
administrative authorities, thereby refusing it access to a court which
had full jurisdiction on all questions of law and fact.
The Commission recalls that in disputes concerning civil rights
the conditions laid down in Article 6 para. 1 (Art. 6-1) of the
Convention, as regards the right of access to a court, are only met if
the decisions of the administrative authorities binding the courts were
delivered in conformity with the requirements of that provision (see,
Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A no. 179,
pp. 22, para. 70)
However, the Commission notes that the Supreme Court in its
judgment of 10 July 1991 found that the outcome of the proceedings
relating to the modification of the industrial plant permission, for
the lack of any retroactive effect, could not have been relevant in a
dispute between the applicant and its employees concerning a period
before the entering into force of the modification.
The Commission further notes that, at the material time, the
working time of the employees was therefore still determined by the
industrial plant permission of 7 March 1977 which had been issued on
the applicant company's own request.
The Commission cannot find that the opinion expressed by the
Austrian Courts that the existing administrative decision prevented
them from examining the validity of the industrial plant permission
constituted an arbitrary limitation of the applicant company's right
of access to court, nor that this finding impaired the applicant
company's opportunity to argue its case in any other way. Accordingly,
there is no appearance of a violation of Article 6 para. 1 (Art. 6-1)
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 applicant further complains under Article 1 of Protocol No. 1
(P1-1) about having been forced by unlawful court decisions to bear
higher labour costs.
The Commission recalls that the mere fact that an individual was
the unsuccessful party to private litigation concerning his civil
rights and obligations does not appear to be sufficient to engage state
responsibility for an alleged violation of Article 1 of Protocol No.
1 (P1-1) (No. 11949/86, Dec. 1.12.86, D.R. 51 p. 195, at p. 211).
It follows that in this case the outcome of the proceedings in
which the applicant company was involved, which resulted in the Labour
Court's order that the applicant company should pay its employees a
compensation for the denied resting time, did not give rise to a
violation of the rights protected by Article 1 of Protocol No. 1
(P1-1).
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.
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