AS TO THE ADMISSIBILITY OF
Application No. 15267/89
by Franz Martin ZUMTOBEL and
Firma F.M. ZUMTOBEL
against Austria
The European Commission of Human Rights sitting in private
on 15 October 1991, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy 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 22 June 1989 by
Franz Martin ZUMTOBEL and Firma F.M. ZUMTOBEL against Austria and
registered on 20 July 1989 under file No. 15267/89;
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 of the case, as submitted by the applicants, may be
summarised as follows.
Particular circumstances of the case
The first applicant, an Austrian citizen born in 1947 residing
at Dornbirn, is a businessman. The second applicant is a private
company under Austrian law. It is owned by the first applicant.
Before the Commission the applicants are represented by Mr. W.L. Weh,
a lawyer practising in Bregenz.
On 25 March 1986 the Innsbruck Executive Council
(Stadtmagistrat) refused the second applicant's request for a permit
to build a shopping centre in Innsbruck, Grabenweg 61. In its
decision the Executive Council found in particular that the building
permit was requested for an area that was not designated as a special
area for shopping centres (Sonderfläche für Einkaufszentren).
The second applicant appealed against the decision, claiming
that the decision was unlawful as its legal basis, the Regional
Planning Act, was unconstitutional.
On 8 July 1986 the Innsbruck Appeal Board for Building Matters
(Berufungskommission in Bausachen) dismissed the appeal on the ground
that the authority in question had been bound by the law in force at
the time of the decision.
The second applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). It submitted that the
decision violated its right of property and that its legal basis
(Section 16b of the Tyrolean Regional Planning Act) was inter alia
contrary to the distribution of legislative powers (Articles 10 -
15 of the Federal Constitution). The second applicant further
contended that the decision contradicted Article 6 of the Convention,
the principle of equality and the independence of local authorities
(Gemeindeautonomie).
On 2 March 1988 the Constitutional Court dismissed the
complaint on the ground that the provincial legislature was competent
to enact Section 16b of the Tyrolean Regional Planning Act and that
there was no violation of the independence of local authorities.
The Constitutional Court found no other indication of
unconstitutionality of the legal basis of the decision. The
Constitutional Court further found that it did not have to examine
whether a constitutional right of the second applicant had been
violated as such a violation had not been substantiated.
On 6 July 1988 the Constitutional Court referred the complaint
to the Administrative Court (Verwaltungsgerichtshof).
On 5 September 1988 the second applicant filed with the
Administrative Court a supplement to its complaint. It now alleged a
violation of Article 6 of the Convention which guaranteed before a
court a complete establishment of facts, an oral hearing as well as an
interrogation of experts. The second applicant further complained
about the fact that Section 16b of the Regional Planning Act deprived
it of its right to constitutional proceedings with legal remedies.
On 24 November 1988 the Administrative Court dismissed the
complaint. In the Court's opinion it was undisputed that the land in
question was not designated as a special area for shopping centres and
Section 16b of the Regional Planning Act precluded the permit for
building a shopping centre on the land in question. The decision was
served on the second applicant on 22 December 1988.
Relevant domestic law and practice
I. Building permits
According to Section 31 of the Tyrolean Building Regulations
(Bauordnung) in the former version the authority has to decide on
a building request by a written decision. Paragraph 3 of Section 31
states:
[Translation]
"A building request is to be refused without an oral
hearing, if already the request or the documents reveal that
the project is contrary to the area zoning plan, the
building development plan or to local building provisions
(Section 20 of the Tyrolean Regional Planning Act) or if a
building prohibition under Section 29 of the Tyrolean
Regional Planning Act precludes the project."
[German]
"Ein Bauansuchen ist ohne Durchführung einer mündlichen
Verhandlung abzuweisen, wenn sich bereits aus dem Ansuchen
bzw. den Unterlagen ergibt, daß das Bauvorhaben dem
Flächenwidmungsplan, dem Bebauungsplan oder örtlichen
Bauvorschriften (§ 20 des Tiroler Raumordnungsgesetzes)
widerspricht oder wenn dem Bauvorhaben eine Bausperre nach
§ 29 des Tiroler Raumordnungsgesetzes entgegensteht."
II. Land planning legislation
Land planning in Austria is divided into regional and local land
planning (überörtliche und örtliche Raumordnung). In the present case
the building permit at issue was governed by Tyrolean law.
In order to achieve the goals of the regional land planning
laid down in Section 1 of the Tyrolean Regional Planning Act the
Provincial Government (Landesregierung) has to issue development
programmes (Entwicklungsprogramme) (Section 4).
The local land planning is carried out by the communities
which issue area zoning plans (Flächenwidmungspläne) that designate
the land as building land (Bauland), undeveloped land (Freiland) or
main traffic areas (Hauptverkehrsflächen).
Even if a plot of land is designated as building land certain
buildings may only be built there if there is express provision in a
development programme. Section 16b of the Regional Planning Act
provides for "special areas for shopping centres" (Sonderflächen für
Einkaufszentren). This provision, as far as relevant, reads as
follows:
"(1) Shopping centres within the meaning of this Act are
buildings with sale-rooms of a total effective area of more
than 400 m², in communities with more than 10,000
inhabitants according to the last census of a total
effective area of more than 800 m², in which especially
articles of everyday use, at any rate food, are offered.
...
(2) The building permit for the construction of a shopping
centre may only be granted if this building will be erected
on land which is designated as a special area for shopping
centres and if the total effective sale-room area planned in
this building does not exceed the maximum prescribed by
the area zoning plan. ...
(3) Special areas for shopping centres may only be
designated in a building area and only in so far as a
development programme provides that a use of land
corresponding to this designation is admissible in a
particular community. ..."
[German]
"(1) Im Sinne dieses Gesetzes sind Einkaufszentren Gebäude
mit Verkaufsräumen von insgesamt mehr als 400 m² Nutzfläche,
in Gemeinden, die nach dem Ergebnis der jeweils letzten
Volkszählung mehr als 10.000 Einwohner haben, von insgesamt
mehr als 800 m² Nutzfläche, in denen insbesondere auch Waren
des täglichen Bedarfes, jedenfalls Lebensmittel, angeboten
werden. ...
(2) Die Baubewilligung für die Errichtung eines
Einkaufszentrums darf nur erteilt werden, wenn dieses
Gebäude auf einer Grundfläche, die als Sonderfläche für
Einkaufszentren gewidmet ist, errichtet wird und die
Nutzfläche der in diesem Gebäude vorgesehenen Verkaufsräume
insgesamt das im Flächenwidmungsplan festgesetzte
Höchstausmaß nicht übersteigt. ...
(3) Sonderflächen für Einkaufszentren dürfen nur im Bauland
und nur insoweit gewidmet werden, als in einem
Entwicklungsprogramm bestimmt ist, daß eine dieser Widmung
entsprechende Verwendung von Grundflächen in der
betreffenden Gemeinde zulässig ist. ..."
Both the development programme and the area zoning plan are
Ordinances (Verordnungen). These ordinances can be challenged before
the Constitutional Court (Verfassungsgerichtshof) for unlawfulness
according to Article 139 of the Austrian Federal Constitution. In
general, however, one cannot complain about the fact that an authority
has not issued an ordinance.
In the present case the Provincial Government did not issue a
development programme for the community in question. The owners of
affected land are neither parties in the planning proceedings nor can
they request an exemption from the designation provided for in the plans.
III. The jurisdiction of the Constitutional Court
The Austrian Constitutional Court pronounced itself on the
applicability and scope of Article 6 para. 1 of the Convention to
building proceedings originating from Austrian administrative
authorities in its decision of 14 October 1987 (B 267/86, VfSlg
11500/1987). It held that the refusal of a building permit was not a
decision on a "civil right". The Court stated the following:
[Translation]
"The refusal of a building permit is rather an interference
by the State in the public interest - it is indeed the very
archetype of such an interference -, and the upholding of
public interests including the necessary balancing of public
and private interests is the essential function of
administration. The fact that the subject of the
interference is generally property and hence a private
property right, does not change its public law character."
[German]
"Vielmehr ist die Versagung einer Baubewilligung ein
hoheitlicher Eingriff im öffentlichen Interesse - ja
geradezu der Prototyp eines solchen Eingriffs -, und die
Wahrnehmung der öffentlichen Interessen einschließlich der
nötigen Abwägung gegenüber privaten Interessen die
wesentliche Aufgabe der Verwaltung. Daß der Gegenstand des
Eingriffs regelmäßig das Eigentum und damit ein privates
Vermögensrecht ist, ändert an seinem öffentlich-rechtlichen
Charakter nichts."
The Court distinguished between decisions concerning the core
of civil law (i.e. disputes among private persons) and decisions on
disputes which only concern civil rights in their effects (namely the
relationship between the private person and the public). In order to
avoid a complete change of the Austrian State structure, the Court
considered that the requirements of a tribunal within the meaning of
Article 6 para. 1 of the Convention should depend on whether the
dispute concerned the one or the other category. With regard to
decisions concerning civil rights only in their effects the Court
found that it sufficed under Article 6 para. 1 if a tribunal exercised
a mere subsequent control of the decision. The Court continued:
[Translation]
"Such a subsequent control would in any event suffice if,
regardless of its nature as a merely subsequent control
which does not provide for the reopening of proceedings, the
court effectively (and not merely theoretically and in the
abstract) has the possibility to convince itself of the
correctness of the solution in regard to the facts and
the law applied and its judgment on the matter is capable of
being enforced. Such a control falls to the Austrian
Administrative Court in the light of an understanding of the
Administrative Court Act which is oriented towards the
Constitution."
[German]
"Eine solche nachprüfende Kontrolle müsste jedenfalls dann
genügen, wenn sie ungeachtet ihres bloss nachprüfenden,
nicht auf einer Neudurchführung des Verfahrens beruhenden
Charakters dem Gericht - nicht bloss theoretisch und
abstrakt, sondern im Ergebnis auch wirksam - Gelegenheit
gibt, sich von der Richtigkeit der Lösung sowohl der Tat -
wie der Rechtsfrage zu überzeugen und sein Urteil über die
Sache auch durchzusetzen, wie dies bei einem an der
Verfassung orientierten Verständnis des
Verwaltungsgerichtshofgesetzes dem österreichischen VwGH
aufgetragen ist."
IV. Proceedings before the Administrative Court
According to Article 130 para. 1 of the Federal Constitution
the Administrative Court reviews allegations of unlawfulness of an
administrative decision. Article 130 para. 2 excludes the review of
the exercise of discretionary powers within the scope of the law. The
Administrative Court is also competent to deal with complaints that
the administrative authority has violated its duty to take a decision
(Article 132).
Section 41 of the Administrative Court Act provides, insofar
as relevant:
[Translation]
"(1) Insofar as the Administrative Court does not find
unlawfulness on account of a lack of jurisdiction of the
authority against which the appeal is directed or on account
of a violation of procedural provisions (Section 42 para. 2
[2] and [3]) ..., the Court must examine the contested
decision on the basis of the facts as accepted by the
authority against which the appeal is directed within the
framework of the alleged complaint ... If it is of the
opinion that reasons would be relevant for the decision on
the unlawfulness of the contested decision ... which were
so far not known to a party, it must hear the parties
thereupon and, if necessary, adjourn the proceedings.
(2) In the cases of Article 132 of the Federal Constitution
the Court must determine the facts, taking into account
Section 36 para. 9."
[German]
"(1) Der Verwaltungsgerichtshof hat, soweit er nicht
Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde
oder wegen Verletzung von Verfahrensvorschriften gegeben
findet (§ 42 Abs. 2 Z 2 und 3) ... den angefochtenen
Bescheid auf Grund des von der belangten Behörde
angenommenen Sachverhaltes im Rahmen der geltend gemachten
Beschwerdepunkte ... zu überprüfen. Ist er der Ansicht,
dass für die Entscheidung über die Rechtswidrigkeit des
Bescheides in einem der Beschwerdepunkte ... Gründe
massgebend sein könnten, die einer Partei bisher nicht
bekanntgegeben wurden, so hat er die Parteien darüber zu
hören und wenn nötig, eine Vertagung zu verfügen.
(2) In den Fällen des Art. 132 B-VG hat der
Gerichtshof den Sachverhalt unter Bedachtnahme auf § 36 Abs.
9 festzustellen."
As regards the decisions of the Administrative Court, Section
42 para. 2 of the Administrative Court Act provides, insofar
as relevant:
[Translation]
"(2) The contested decision must be quashed
1. on account of the unlawfulness of its content,
2. on account of unlawfulness due to the lack of
jurisdiction of the authority against which the
appeal is directed,
3. on account of unlawfulness due to a violation of
procedural provisions because
a) the authority against which the appeal is
directed has determined the facts on an
important point contrary to the
case-file, or
b) the facts need to be supplemented on an
important point, or
c) procedural provisions have been disregarded
which, if taken into consideration by the
authority against which the appeal is
directed, would have led to a different
decision of the authority."
[German]
"(2) Der angefochtene Bescheid ist aufzuheben
1. wegen Rechtswidrigkeit seines Inhaltes,
2. wegen Rechtswidrigkeit infolge Unzuständigkeit
der belangten Behörde,
3. wegen Rechtswidrigkeit infolge Verletzung von
Verfahrensvorschriften, und zwar weil
a) der Sachverhalt von der belangten Behörde
in einem wesentlichen Punkt aktenwidrig
angenommen wurde oder
b) der Sachverhalt in einem wesentlichen
Punkt einer Ergänzung bedarf oder
c) Verfahrensvorschriften ausser acht gelassen
wurden, bei deren Einhaltung die belangte
Behörde zu einem anderen Bescheid hätte
kommen können."
The proceedings before the Administrative Court consist of an
exchange of written observations between the parties (Section
36) and an oral hearing of their legal arguments (Sections 39 and
40). The parties have a right to request a hearing (Section 39,
para. 1 [1]).
The decision of the Administrative Court is either to dismiss
the complaint or to quash the decision complained of (Section 42 para.
1). If the complaint is allowed the authorities are obliged to
establish immediately with the legal means available to them the legal
situation which corresponds to the view of the Administrative Court
in the particular case (Section 63).
COMPLAINTS
The applicants complain under Article 6 para. 1 of the
Convention that in the building proceedings they did not benefit from
a procedure in conformity with this provision before an independent
and impartial tribunal having full jurisdiction on questions of law
and fact. In particular they complain about the fact that no tribunal
issued a development programme for the community in which the
applicants' land is situated.
With reference to Article 1 of Protocol No. 1 to the
Convention the applicants complain that Section 16b of the Tyrolean
Regional Planning Act constituted an unjustified restriction of the
use of property.
Finally, the applicants allege a violation of Article 13 of
the Convention in that in the proceedings before the Constitutional
Court the two judges were allegedly biased and in that there was no
instance which has full jurisdiction on law and facts.
THE LAW
1. The applicants complain that in the proceedings in which they
were involved they did not have access to an independent and impartial
tribunal as guaranteed by Article 6 (Art. 6) of the Convention. This
provision states, insofar as it is relevant:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ..."
a) The applicants complain in particular that they did not have
access to an independent and impartial tribunal which would have
issued a development programme.
The applicants submit that the proceedings at issue concerned
their right to build a shopping centre and subsequently their right to
practise gainful activities in the shopping centre. In their view
their civil rights have been determined in the building proceedings.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of
the Convention applies only 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 (cf. Eur. Court H.R., Lithgow and
others judgment of 8 July 1986, Series A No. 102, p. 70, para. 192).
The Commission further recalls that the Court found that
there was a dispute over a "right" if an unlawful prolongation of the
building prohibition by an area plan is alleged (Eur. Court H.R.,
Allan Jacobsson judgment of 25 October 1989, Series A No. 163, pp. 19 -
20, para. 67 et seq.), if an unlawful amendment of a building plan is
alleged (Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990,
Series A No. 180, p. 12 et seq., para. 30 et seq.), or if the
applicant claims a right to an exemption from the building plan (Eur.
Court H.R., Skärby judgment of 28 June 1990, Series A No. 180, p. 36 et
seq., para. 27 et seq.). The Commission recalls that these judgments
dealt with building proceedings in which the applicants could claim an
individual right which was affected by a building or area plan.
The Commission notes that in the present case the applicants
do not have an individual right to enforce the adoption of a
development programme by the Provincial Government which allowed the
designation of land as a "special area for shopping centres" in a
particular community. According to Austrian law the adoption of a
development programme only concerns the competence of that community
to designate land for particular purposes.
The Commission therefore concludes that the question whether a
development programme should have been issued did not involve a
"determination of (the applicants') civil rights and obligations"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that, insofar as the applicants complain that in
the proceedings concerning the issue of a development programme they
did not have access to an independent and impartial tribunal, the
application is incompatible ratione materiae with the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) The applicants also direct their complaints under Article 6
para. 1 (Art. 6-1) of the Convention against the proceedings
concerning the building permit.
The Commission does not find it necessary to decide whether
there was a serious dispute over a right within the meaning of Article
6 (Art. 6) of the Convention. It notes that the applicants applied
for a permit to build on their land and that the applicants had a
right in general to build on their land according to the regional
legislation.
Assuming that the applicants could claim a "right" to build on
their land, this "right" would be of a "civil" nature for the purposes
of Article 6 para. 1 (Art. 6-1) (see e.g. the above-mentioned Allan
Jacobsson judgment, p. 20, para. 73).
The Commission therefore accepts that Article 6 para. 1
(Art. 6-1) of the Convention is applicable to the building proceedings
at issue.
With regard to the proceedings concerning the building permit
the applicants complain under Article 6 para. 1 (Art. 6-1) that they
did not have access to an independent and impartial tribunal.
The Commission considers that the proceedings before the
Executive Council and the Appeal Board do not satisfy the requirements
of Article 6 para. 1 (Art. 6-1) of the Convention. However, these
requirements would be satisfied if subsequently the applicants' civil
rights had been determined by a tribunal within the meaning of Article
6 para. 1 (Art. 6-1). Such a determination would require that the
court could undertake a comprehensive examination of all relevant
questions of law and fact (see Ettl and others v. Austria, Comm.
Report 3.7.1985, para. 78 with further references).
In the present case the Commission need not examine in the
abstract whether the Administrative Court meets the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes in
particular that in the proceedings before the Administrative Court the
establishment and the assessment of the facts were not in dispute
between the parties. Rather the only question raised by the second
applicant within the jurisdiction of the Administrative Court was
whether or not the request for building a shopping centre complied
with the requirements of the area zoning plan. This was, however,
solely a question of the application of the law. It is not contested
by the applicants that the Administrative Court was competent to
undertake this examination.
As a result, the Commission considers that the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention have been complied
with. 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 also allege a violation of Article 1 of
Protocol No. 1 (P1-1) in that Section 16b of the Tyrolean Regional Planning
Act constituted an unjustified restriction of their use of property.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"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."
In fact, Section 16b of the above-mentioned law made the
designation of a land as an area for shopping centres subject to the
issue of a development programme.
The Commission considers, assuming that this restriction was
an interference with the applicants' right to peaceful enjoyment of
their possessions, that it was justified under the second paragraph
of Article 1 of Protocol No. 1 (P1-1) (see, mutatis mutandis, the
above-mentioned Allan Jacobsson judgment, p. 16, para. 54).
The Commission notes that the restriction was lawful.
Moreover, the purpose of the provisions - to facilitate land planning
- is in accordance with the general interest as envisaged in Article 1
para. 2 of Protocol No. 1 (P1-1-2).
As to the proportionality the Commission finds that it cannot
be considered disproportionate to the requirements of the legitimate
aim of land planning if the Provincial Government is given competence
to decide in which community there should be a shopping centre.
As a result this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Insofar as the applicants complain under Article 13 (Art. 13)
of the Convention that in the proceedings before the Constitutional
Court two judges were biased and that there was no instance which has
full jurisdiction on the law and facts, the Commission finds that no
issue arises under this provision.
The Commission therefore concludes that this complaint must be
rejected as 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.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)
Full & Egal Universal Law Academy