AS TO THE ADMISSIBILITY OF
Application No. 12337/86
by Helmut RANTNER
against Austria
The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 June 1986 by
Helmut RANTNER against Austria and registered on 5 August 1986 under
file No. 12337/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
&_THE FACTS&S
The facts of the case as submitted by the applicant may be
summarised as follows:
The applicant, a practising lawyer, is an Austrian citizen
born in 1938 who resides at Absam, Tyrol. Another application
(No. 12028/86) concerning matters not related to the present case is
still pending before the Commission. The present case concerns
various proceedings relating to a farm at Terfens which the applicant
acquired in 1976 and which he subsequently ran along with his
professional activities as a lawyer, although he did not permanently
live on the farm nor perform all the work himself.
After the acquisition of the farm from a friend, with whom
he had previously started to run a Haflinger stud on the farm, the
applicant first applied to the agricultural authorities for
administrative approval of the sales contract under the Provincial
Agricultural Settlement Act (landwirtschaftliches Siedlungsgesetz,
Provincial Law Gazette No. 49/1969). The applicant's friend, who was
a farmer, had previously obtained such approval for his acquisition of
the same property. However, in the applicant's case it was refused in
all instances, essentially on the grounds that he was not a farmer,
did not intend to live and work permanently on the farm with his
family, and that the taking-over of a farm by a lawyer in such
circumstances did not lead to a structural improvement of agriculture
as envisaged by the above Act. The applicant's complaints against the
agricultural authorities' decisions were rejected by the Constitutional
Court (Verfassungsgerichtshof) on 9 June 1983 and by the Administrative
Court (Verwaltungsgerichtshof) on 25 October 1983.
Subsequently, the applicant applied for administrative
approval of the sales contract under the Provincial Real Property
Transactions Act (Tiroler Grundverkehrsgesetz, Provincial Law Gazette
No. 69/1983). However, this application too was rejected in all
instances. The local Real Property Transactions Authority (Grund-
verkehrsbehörde) for Terfens established at the District Authority
(Bezirkshauptmannschaft) of Schwaz ruled on 28 February 1984 that
consent had to be refused because the acquisition of the farm by the
applicant did not serve the public interest in the preservation of an
effective farming community and of economically sound agricultural
enterprises. He was not, neither did he intend to become, a full-time
farmer. Running the farm along with his main professional activity as
a practising lawyer, he would enjoy better economic conditions than a
full-time farmer because he did not have to make his livelihood from
the farm and could invest other income, thus creating an unfair
competitive relationship with other farmers. Moreover, the applicant
had leased out part of the agricultural land and this was an
additional reason to withhold consent to the acquisition of the farm.
The applicant's appeal against this decision was rejected by
the Provincial Real Property Transactions Authority (Landesgrund-
verkehrsbehörde) on 1 March 1985. The applicant's claim that he
should be recognised as a farmer as he worked the farm himself,
although on a part-time basis, was not accepted. The Authority
considered that only a person who worked almost daily on the farm
could be regarded as exploiting it himself (Eigenbewirtschaftung).
The applicant was present on the farm only from Friday to Sunday,
and this was not sufficient to satisfy the legal requirements.
The applicant then complained to the Constitutional Court,
invoking his constitutional rights to the inviolability of property,
to freedom of acquisition of land, to equality before the law, to free
choice of profession, and to proceedings before an independent and
impartial tribunal. However, the Constitutional Court rejected these
complaints on 5 March 1986.
The Constitutional Court recognised that the measure
interfered with the applicant's property rights, but noted that it
was based on legal provisions which did not give rise to doubts as
to their constitutionality. Therefore the constitutional right of
property could only be violated if the law had been applied in an
unreasonable manner (denkunmögliche Gesetzesanwendung). However, this
was not the case as it could reasonably be argued that a lawyer who
personally worked on the farm three days of the week only did not
exploit it himself. There was further no violation of the principle
of equality before the law because the decision had not been
arbitrary. The right to free acquisition of property was not
infringed by restrictions of the type in question, in any event the
acquisition of the farm by the applicant had not been refused in order
to privilege a farmer. The right to the free choice of a profession
had not at all been interfered with.
Finally, as regards the right to proceedings before an
independent and impartial tribunal (Article 6 of the Convention), the
Constitutional Court referred to proceedings which it had opened
following the Sramek judgment of the European Court of Human Rights
(judgment of 22 October 1984, Series A no. 84) in order to review the
constitutionality of the relevant provisions of the Provincial Real
Property Transactions Act of the Tyrol. In its decision of 17 October 1985
(G 157/85) it had found that the violation of Article 6 para. 1
established by the European Court of Human Rights in the Sramek case
was not based on the legislation itself, but on organisational
arrangements by which a person had been appointed as Rapporteur of the
Provincial Real Property Transactions Authority who was in a
relationship of functional and hierarchical subordination to the
Province's Real Property Transactions Officer (Landesgrundverkehrsreferent).
In the present case, however, the Real Property Transactions Officer had
not been involved in the proceedings, and therefore there could be no
question of a breach of Article 6 of the Convention.
In July 1985 the applicant applied to the municipal council
(Gemeinderat) of Terfens for the redesignation of part of the land
belonging to the farm. This land had hitherto been designated as
agricultural land and the applicant requested that, in connection with
the development of certain adjoining land, its designation should be
changed into constructible land (Bauland). However, the redesignation
was refused by a decision of the municipal council on 1 October 1985
of which the applicant was informed on 3 October 1985. He then lodged
a complaint with the Constitutional Court, claiming that the
municipal council's decision was to be regarded as a decree
(Verordnung) which accordingly could be challenged under Article 139
of the Federal Constitution. However, on 7 June 1986 the
Constitutional Court declined jurisdiction, holding that the municipal
council's decision was not a decree, but merely information that
proceedings for issuing a redesignation decree would not be instituted.
In the meantime the applicant had made important investments
on the farm, in particular with a view to extending the Haflinger stud
and adding a riding school. As it did not make a profit during the
first years the applicant, in his tax declarations for the years
1975 - 1981, deducted the considerable losses (total of more than
6.7 million AS) from his income. However, by a series of decisions
issued on 20 August 1982, the tax and revenue office (Finanzamt)
refused the recognition of the relevant deductions from the income
and turnover tax on the ground that the applicant's agricultural
activities were to be regarded as hobby-farming (Voluptuarbetrieb).
The applicant appealed to the Regional Directorate of
Finance (Finanzlandesdirektion für Tirol) claiming that the losses
were only of a temporary nature and that profits could be expected in
the future. However, the Directorate rejected the appeal on
10 December 1985, stating that the nature of the agricultural
enterprise had changed (Änderung des Betriebsgegenstandes) following
the exclusion of the applicant from the Haflinger stud association in
1981. Therefore it was justified, from the point of view of income
taxation, to consider the periods before and after the change
separately. The period after the change was not at issue, but as
regards the previous period the farm could not be considered as an
enterprise capable of making profits and therefore the losses were not
deductible from the applicant's other income.
As regards the turnover tax, the Directorate observed that a
hobby farm was not to be considered as an "enterprise" within the
meaning of the relevant legislation, and therefore it quashed the
relevant decisions of the tax and revenue office.
The applicant then appealed to the Administrative Court which,
however, rejected his complaints by a decision of 3 June 1986. It
confirmed the view that the farm, as originally organised, could not
have made a profit in the foreseeable future even if the applicant had
not been excluded from the Haflinger stud association. It was therefore
justified to consider the applicant's agricultural activities during
the relevant period as hobby-farming and refuse tax deductions on this
ground.
&_COMPLAINTS&S
1. The applicant first complains that the proceedings under the
Real Property Transactions Act violated his right to the determination
of his civil rights and obligations by an "independent and impartial
tribunal" under Article 6 para. 1 of the Convention. The Real
Property Transactions Authority included among its members several
civil servants from the Office of the Provincial Government who,
outside their functions in this Authority, were subject to
instructions and did not enjoy the guarantee of irremovability. In
particular, they were not sufficiently independent of the Province's
Real Property Transactions Officer. Although none of the members of
the Authority is in a relationship of direct hierarchical subordination
to this Officer any more, the new organisation has not, in the
applicant's view, substantially changed the situation from that
considered in the Sramek case. The applicant furthermore complains
that one of the members of the Constitutional Court was also a civil
servant of the Provincial Government of the Tyrol, and that therefore
this Court was also not organised in conformity with the requirements
of Article 6 para. 1.
The applicant further alleges that the above proceedings
unjustifiedly interfered with his right to the peaceful enjoyment of
his possessions and his right to the free choice of profession. He
also claims that the relevant decisions infringed the principle of
equality. He considers it unjustified that because of his status as a
practising lawyer he was refused permission to acquire a farm although
he was actually willing to do the farm work on a part-time basis.
2. The applicant also alleges a violation of Article 6 of the
Convention in the proceedings concerning the redesignation of a
certain part of his land. He claims that these proceedings affected
his civil rights and that the refusal of a judicial review by the
Constitutional Court was contrary to the Convention.
3. The applicant finally complains of the tax proceedings. He
claims that the Regional Directorate of Finance cannot be regarded
as an independent and impartial tribunal, and that the decision to
refuse the deduction of losses, on the ground that his activity was
hobby-farming, violated the principle of equality and his right to
freedom of profession, in particular as the unlawfulness of his
exclusion from the Haflinger stud association was not sufficiently
taken into account by the Administrative Court.
THE LAW
1. The applicant first complains of the proceedings before the
Real Property Transactions Authority of the Tyrol which he claims is
not an "independent and impartial tribunal" within the meaning of Article 6
para. 1 (Art. 6-1), first sentence, of the Convention. Insofar as relevant,
this provision reads as follows:
" 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."
For the reasons stated in the Sramek judgment of 22 October
1984 (Eur. Court H.R., Series A no. 84, paras. 34-35) the proceedings
complained of come within the scope of this provision. However, in
the above judgment the Court considered the Real Property Transactions
Authority to be in line with Article 6 para. 1 (Art. 6-1) of the Convention,
except for the position of the Rapporteur who, at that time, in his
functions outside the Authority, was in a relationship of hierarchical
and functional subordination to the Province's Real Property
Transactions Officer (ibid., paras. 37-42). This relationship of
hierarchical and functional subordination of one of the members of
the Authority to an agent of the Provincial Government competent
to represent the latter as a party in real property transaction
proceedings no longer existed at the time when the Authority decided
the applicant's case. Moreover, unlike in the Sramek case, the
Province's Real Property Transactions Officer did not participate
in the proceedings (in this respect, cf. the findings of the
Constitutional Court in its decision of 5 March 1986). Further,
according to the Ettl and Others judgment of 23 August 1987 (Eur.
Court H.R., Series A no. 117, p. 18, paras. 38-41), the participation
of civil servants in a collegiate body of the type in question does
not impair their "independence and impartiality" if, in the exercise
of their functions, they are free from instructions, although they may
be subject to instructions as regards other activities. In these
circumstances the Commission does not find any appearance in the
present case of the Real Property Transactions Authority not being
organised in conformity with the requirements of Article 6 para. 1
(Art. 6-1) of the Convention. The applicant's complaint in this respect is
therefore manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant further alleges that the Constitutional Court,
when dealing with his complaint against the Real Property Transactions
Authority's decision, was not organised in conformity with Article 6
para. 1 (Art. 6-1) because one of its members was a civil servant of the
Provincial Government. However, even assuming that the Constitutional
Court's procedure when examining the applicant's constitutional
complaints involved a determination of his civil rights and
obligations, and that Article 6 para. 1 (Art. 6-1) therefore applied to this
procedure, it must be noted that in the exercise of his functions in
the Constitutional Court the member in question was not subject to
instructions from the Provincial Government. Moreover, it has not
been alleged that there was any organisational link between the other
activities of this member of the Constitutional Court and the Real
Property Transactions Authorities of the Tyrol. In these
circumstances, there is no appearance of a violation of Article 6 para. 1
(Art. 6-1) in this respect either, and the applicant's above complaint is also
manifestly ill-founded.
3. As regards the applicant's remaining complaints concerning
the real property transactions procedure, the Commission observes that
the freedom of profession which the applicant invokes in this respect
is not guaranteed in the Convention. The Commission has examined his
complaints under Article 1 of Protocol No. 1 (P1-1) to the Convention, read
in conjunction with Article 14 (Art. 14) of the Convention. These provisions
read as follows:
Article 1 of Protocol No. 1 (P1-1):
"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."
Article 14 (Art. 14) of the Convention:
"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 considers that the requirement of
administrative consent to the acquisition of real property as
stipulated in the Tyrol Real Property Transactions Act constitutes a
"control of the use of property" within the meaning of the second
paragraph of Article 1 of Protocol No. 1 (P1-1). It clearly is "in
accordance with the general interest" that the legislation aims at
preserving viable agricultural enterprises in the hands of the rural
population depending on agriculture for their livelihood. In view of
this legitimate aim it was also justified to refuse the applicant
permission to acquire the farm in question, having regard to the fact
that he intended to run it on a part-time basis and under conditions
with which other farmers could not compete. In this context the
Commission notes the important investments which the applicant made
from financial resources which were open to him as a practising lawyer
and which apparently could not be refinanced from the yield of the
farm itself. It was for this reason that he tried to claim tax
reductions in respect of his lawyer's income. The Commission
concludes that the restriction complained of was covered by the second
paragraph of Article 1 of Protocol No. 1 (P1-1).
Furthermore, there is no appearance of discrimination of the
applicant contrary to Article 14 (Art. 14) of the Convention. As regards the
enjoyment of his property rights, the applicant was not treated
differently from other persons merely on the ground that he was a
practising lawyer. Members of other professions, except farmers,
would likewise have been refused permission to acquire the farm under
such conditions. The differential treatment of farmers, however, is
based on reasonable and objective criteria and thus cannot be regarded
as discriminatory.
The applicant's above complaints are therefore again
manifestly ill-founded.
4. Insofar as the applicant complains of the procedure whereby
redesignation of certain land was refused to him, he apparently wishes
to rely on Article 6 para. 1 (Art. 6-1) of the Convention. However, this
provision is not applicable to the proceedings in question as these
did not concern the applicant's civil rights and obligations. The
applicant clearly had no civil right to a redesignation of his
agricultural land as a building plot (cf. mutatis mutandis No. 11844/85,
X v. Sweden, Dec. 29.2.88, not yet published). This part of the
application is accordingly incompatible with the provisions of the
Convention ratione materiae and must be rejected under Article 27
para. 2 (Art. 27-2) of the Convention.
5. As regards the tax proceedings, the applicant again seems to invoke
Article 6 para. 1 (Art. 6-1) of the Convention. However, in this respect, too,
Article 6 (Art. 6) is not applicable. The Commission here refers to its
constant case-law (cf. e.g. No. 8903/80, Dec. 8.7.80, D.R. 21 p. 246; No.
9908/82, Dec. 4.5.83, D.R. 32 p. 266). This part of the application is also
incompatible with the provisions of the Convention ratione materiae and must be
rejected under Article 27 para. 2 (Art. 27-2).
6. As regards, finally, the result of the tax proceedings, which the
applicant seems to challenge under Article 1 of Protocol No. 1 (P1-1) in
conjunction with Article 14 (Art. 14) of the Convention, the Commission notes
that he has not lodged a complaint with the Constitutional Court and thus has
not exhausted the domestic remedies in conformity with the requirements of
Article 26 of the Convention. This last part of the application must
accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)