AS TO THE ADMISSIBILITY OF
Application No. 11835/85
by 1) M. S.
and 2) P. P.
against Austria
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 11 July 1985 by 1) M.S.
and 2) P.P. against Austria and registered on 14 October 1985 under file N°
11835/85;
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 applicants, two Austrian medical doctors, are living and practising
in Lofer. M.S. was born in 1941 and P.P. in 1945. They are both represented
by Mr. W. Berger, a lawyer practising in Salzburg.
It follows from their statements and the documents they have
submitted that both had been granted the authorisation (Dr. Schlederer
in 1973 and Dr. Pechlaner in 1979) to run a medicine cabinet (ärztliche
Hausapotheke) in connection with their medical practice.
On 10 June 1983 the competent local authorities (Landeshauptmann)
granted the pharmacist, Mr. H, a licence to open a pharmacy in Lofer.
The applicants' request to be heard in the licence proceedings were
rejected by the local authorities on 16 March 1984. An appeal was
rejected on 17 September 1984 by the Minister of Health. A further
appeal to the Administrative Court (Verwaltungsgerichtshof) was
pending when the application was lodged.
On 15 June 1984 the applicants' authorisation to run a medicine
cabinet was withdrawn on the ground that a public pharmacy had been
opened in the same locality. Their appeals were rejected on 27 and 28
August 1984 by the competent authorities (Landeshauptmann). The
applicants complained of these decisions to the Constitutional Court
(Verfassungsgerichtshof) alleging a violation of Article 6 of the
Convention.
On 10 October 1984 the Constitutional Court rejected the
constitutional complaints as offering no prospects of success. The
Court informed the applicants of the possibility to submit their cases
to the Administrative Court.
The applicants in fact also appealed to this Court which,
however, rejected their appeals on 22 November 1984. These decisions
were served on their lawyer on 16 January 1985.
The Administrative Court found that Section 29 of the
Pharmacy Act (ApG) cogently provided for the withdrawal of the
authorisation for a medicine cabinet when a public pharmacy was opened
on the basis of a valid licence. The Court rejected the applicants'
argument that it also had to examine whether the granting of the
licence for the public pharmacy was lawful. The Court considered that
this question was of no relevance in the applicants' proceedings.
The applicants submit that, according to an amendment of the
Pharmacy Act, which was, however, not yet in force at the relevant
time and therefore was not applicable in their case, the opening of a
public pharmacy no longer leads to the automatic withdrawal of the
authorisation of a medicine cabinet run in the same locality.
&_COMPLAINTS&S
The applicants submit that the withdrawal of their
authorisation to run a medicine cabinet deprives them of more than
40% of their net income possibilities and therefore seriously affects
their economic situation. They consider that the proceedings in which
they complained of the withdrawal of their authorisations concerned
the determination of a civil right within the sense of Article 6
para. 1 of the Convention. They consider that an effective legal
protection as envisaged by this provision would have been given only
if they had had the possibility of contesting the lawfulness of the
granting of a licence for the public pharmacy. They allege a
violation of Article 6 para. 1 of the Convention and/or Article 1 of
Protocol No. 1.
&_THE LAW&S
The applicants have complained that, in rejecting their appeal
against the withdrawal of their authorisations to run a medicine
cabinet, the Austrian Administrative Court wrongly refused to examine
whether the granting of the licence for a public pharmacy, the cause
of the withdrawal of their authorisations, had been lawful.
With regard to the judicial decision of which the applicants
complain, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77,
Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that in this case the applicants allege a violation of
Article 6 para. 1 (Art. 6-1) of the Convention on the ground that the Austrian
Administrative Court denied them the right to question the lawfulness of the
licence granted a pharmacist to run a public pharmacy. However, Article 6
para. 1 (Art. 6-1) extends only to "contestations" (disputes) over civil
"rights and obligations" which can be said to be recognised under domestic law
(Eur. Court H.R., R. judgment of 8 July 1987, Series A No. 121, para. 78). In
the present case the Austrian Court found that the right claimed by the
applicants did not exist under Austrian law. To the extent that the applicants
claim a right to continue to run a medecine cabinet and assuming that this
right can be considered as a civil right within the meaning of Article 6 para.
1 (Art. 6-1) the Commission notes that the applicants had access to a court
which heard and determined their claim that their authorisations were
wrongfully withdrawn. It has not been alleged in this case that the
proceedings before the Administrative Court as such failed to satisfy the
requirements of Article 6 para. 1 (Art. 6-1). Furthermore, the Commission
refers to its case-law, according to which it does not violate any Convention
rights, in particular Article 1 of Protocol No. 1 (P1-1), if a licence granted
on certain conditions is withdrawn because such conditions are no longer
fulfilled (No. 10438/83, Dec. 3.10.84 to be publ. in D.R.41).
It follows that 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
&_DECLARES THE APPLICATION INADMISSIBLE.&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)