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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FISCHER v. AUSTRIA - 16922/90 [1995] ECHR 11 (26 April 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/11.html Cite as: (1995) 20 EHRR 349, [1995] ECHR 11, 20 EHRR 349

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In the case of Fischer v. Austria (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr F. Matscher,

Mr C. Russo,

Mr S.K. Martens,

Mr A.N. Loizou,

Sir John Freeland,

Mr D. Gotchev,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 22 September 1994 and

24 March 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 52/1993/447/526. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court on 10 December 1993 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 para. 1 (art. 32-1) and

Article 47 (art. 47) of the Convention. It originated in an

application (no. 16922/90) against the Republic of Austria lodged with

the Commission under Article 25 (art. 25) on 11 May 1990 by an Austrian

citizen, Mr Josef Fischer.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Austria recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30). The President gave the lawyer in question

leave to use the German language.

3. The Chamber to be constituted included ex officio Mr F. Matscher,

the elected judge of Austrian nationality (Article 43 of the

Convention) (art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 3 (b)). On 28 January 1994, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr R. Bernhardt, Mr C. Russo, Mr S.K. Martens,

Mr A.N. Loizou, Sir John Freeland, Mr D. Gotchev and Mr P. Jambrek

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Austrian Government

("the Government"), the applicant's lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 37 para. 1 and

38). Pursuant to the order made in consequence, the Registrar received

the Government's memorial on 21 June 1994 and the applicant's memorial

on 24 June 1994. The Secretary to the Commission informed the

Registrar that the Delegate would submit his observations at the

hearing.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 September 1994. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr W. Okresek, Head of the International

Affairs Division, Constitutional Service,

Federal Chancellery, Agent,

Ms E. Bertagnoli, Human Rights Division,

International Law Department, Federal Ministry

of Foreign Affairs,

Mr F. Oberleitner, Federal Ministry of

Agriculture and Forestry, Advisers;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicant

Mr M. Gnesda, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Pellonpää, Mr Gnesda and

Mr Okresek.

6. On 3 October 1994 the Government filed a written statement in

reply to the applicant's claim for just satisfaction under Article 50

(art. 50) of the Convention.

AS TO THE FACTS

I. Circumstances of the case

7. Mr Josef Fischer was born in 1932 and lives in Vienna.

8. Since 1975 the applicant has owned a refuse tip at Theresienfeld

in the Land of Lower Austria. He used to operate it under a revocable

refuse-tipping licence granted to his predecessor in title on

30 July 1973 under the Water Rights Act 1959 (Wasserrechtsgesetz).

9. On 5 December 1986 the tipping licence was revoked by the

Governor (Landeshauptmann) of the Land of Lower Austria on the grounds,

inter alia, that dangerously high levels of toxic substances had been

found in the groundwater (which forms part of a groundwater reservoir

for drinking-water for over half a million people); several barrels

found at the site contained unauthorised substances; and the site was

in any event unsuitable for tipping - even ordinary domestic waste

should not be dumped there.

10. Mr Fischer appealed to the Federal Ministry of Agriculture and

Forestry (Bundesministerium für Land- und Forstwirtschaft), complaining

also that he should have had the right to be heard. On 20 July 1987

the appeal was dismissed on the ground that it was absolutely essential

to close the tip in order to safeguard water supplies, since it was not

technically possible to render the site safe. As to the applicant's

right to be heard, he had had ample opportunity to make his views known

and an oral hearing was not required in proceedings involving

revocation of licences.

11. On 2 September 1987 Mr Fischer filed a complaint with the

Constitutional Court (Verfassungsgerichtshof) alleging a violation of,

inter alia, Article 6 para. 1 (art. 6-1) of the Convention, in that the

administrative authorities had not granted his request for an oral

hearing. He requested that a hearing be held before the Constitutional

Court. On 14 March 1988, pursuant to Article 144 para. 2 of the

Federal Constitution (see paragraph 22 below) the Constitutional Court

declined to accept the applicant's complaint. It found that the bulk

of the complaint related to allegations that the ordinary law had been

applied incorrectly. To the extent that the complaint did touch upon

questions of constitutional law, it did not have sufficient prospects

of success. No hearing was held.

12. On 6 August 1987, before his constitutional complaint, the

applicant had lodged an appeal with the Administrative Court

(Verwaltungsgerichtshof) in which he alleged that the decision of

20 July 1987 was unlawful and that the administrative authorities

should have held a hearing. He requested that the decision be quashed

and that a hearing be held before the Administrative Court.

On 21 September 1989 the Administrative Court dismissed the

applicant's complaint as ill-founded pursuant to section 42 (1) of the

Administrative Court Act (see paragraph 18 below). The court found

that an oral hearing before the Ministry had not been necessary and

rejected the applicant's request for such a hearing before the court

itself under section 39 (2) (6) of the Administrative Court Act (see

paragraph 21 below).

13. The following reasons were given in the judgment:

"The appellant submitted in the first place that in the reasons

given for the decision at first instance the scope of the 1973

licence was wrongly restricted in terms of area; the revocation

of the licence, which was upheld on appeal, without this question

- raised in the appeal - having been dealt with, therefore

remained contradictory. The Court can discern no such

contradiction. The revocation by the water-rights authority of

first instance, which was upheld by the respondent authority,

related - according to the terms of the formal order - to the

1973 licence without any restriction. Similarly, where in the

reasons given for the Land Governor's decision of 5 December 1986

the words 'where the gravel pit has already been closed' are used

when parcel 514-1 KG Theresienfeld is being particularised, they

are merely taken from the decision of 30 July 1973 whereby the

licence was granted. Moreover, the use of the expression 'part

of the area' (Teilfläche) merely clarifies - in the context of

setting out the earlier history - the meaning which the same

authority attributed to the outline description in the decision

whereby the revoked licence had been granted. This is not a

legally binding determination, nor does it in any way restrict

the revocation itself, which at all events applied to the 1973

licence in its entirety, regardless of how the indication 'where

the gravel pit has already been closed' - which is not more

closely defined - is to be understood. It is accordingly clear,

without it being necessary to go into the appeal submissions in

detail, that neither the aforementioned comment in the decision

at first instance nor the absence of any reference to these

issues in the impugned decision amounted to an interference with

the rights of the appellant.

It is irrelevant whether the reservation of the right to revoke

the licence under section 21 (1) of the Water Rights Act 1959 was

properly included in the 1973 decision, as that decision became

final and the aforesaid incidental provision became legally

effective likewise. The Court agrees with the respondent

authority and, on this point, the appellant that even where, as

in the present case, a reservation of the right to revoke is not

spelt out in more detail, revocation is justifiable only where

there are sufficient objective reasons for it; these, however

(and to this extent the Court's view does not coincide with the

one reflected in the decision appealed against), could only

derive from considerations of public interest, since the right

to revoke was not reserved in the interests of third parties.

Ultimately, the revocation of a decision under the Water Rights

Act can only be regarded as objectively justified if it can be

considered necessary within the meaning of the Act; and that

applies only where it does not serve interests that can be

asserted under provisions of the Water Rights Act without any

specific need for a revocation.

The appellant criticises the respondent authority for having

confirmed the revocation of the water-rights licence for no valid

reason.

The appellant complains that in the decision at first instance

and in the impugned decision it is stated, among other things,

that waste tipping in accordance with the terms of the licence

could contribute to an increased potential hazard. In the

decision at first instance the remark relating to an increased

risk of this kind plainly goes back to a finding - also cited in

the reasons - by the officially appointed medical expert that,

in view of its position in the central area of the Mitterndorf

basin, the site of the refuse tip was to be rejected on health

grounds and represented a potential hazard to the groundwater.

The same expert referred to a comment by the officially appointed

technical expert, who had stated that by present-day criteria a

renewal of the licence for a refuse tip on this site was to be

ruled out. In the decision appealed against, the site of the tip

as such was likewise described as problematical on the basis of

the experts' reports - in the expert opinion that is reproduced

in the impugned decision it is stated that it was out of the

question that areas where there were sources of groundwater

suitable in quantity and quality for use as a water supply should

be used for refuse tips - and the tipping of waste that

endangered the groundwater was attributed to among other things

the 'imprecise wording of the licence' of 1973. This last

observation concerns the past, and the appellant cannot rely on

the distinction between licensed and unlicensed tipping as set

out in this Court's decision of 19 May 1987, no. 86/07/0147, to

rebut it. This distinction was indeed recognised partly in

contradiction of the view that had been advanced by the

appellant's predecessor in title. It accordingly cannot be ruled

out that, prior to publication of the court decision just

mentioned, the operator of the tip disregarded the differences

that are pointed out in it and which are of importance as regards

authorised tipping of waste. As to the technical comments on the

choice of site, however, these appear to the Court sufficient to

justify the view that even authorised tipping was at least

'problematical' on the particular site.

The appellant further submitted that dumping in accordance with

the licence had not so far been proved to have had any effects

in the area around the tip; he referred to the report of

29 April 1986 by an officially appointed technical expert, in

which, however, the possibility of groundwater contamination by

domestic waste is also described in detail. In the expert report

reproduced in the decision appealed against, reference was also

made to the fact that a considerable length of time passed

between the moment of pollution and the first observable signs

of harmful substances in the subsoil or in the groundwater, a

fact that had previously been regarded as pointing to the

subsoil's (only) seemingly unlimited cleansing and storing

capacity and in many cases had led to an approach to the siting

and licensing of refuse tips that would nowadays be regarded as

untenable. The fear of adverse effects on the groundwater is

thus not shown to be baseless - as the appellant's objection

amounts to saying - by even a single finding.

The appellant further submitted that in the impugned decision an

additional argument in favour of revocation was wrongly put

forward to the effect that waste which was dumped contrary to the

terms of the licence was so mixed up with that which was tipped

in accordance with it that it was in practice impossible to

separate the two kinds. The appellant contended that this

argument overlooked the fact that, according to the officially

appointed technical expert's opinion of 21 October 1986 on the

issue of a general clearing up of the site, it was assumed that

hazardous waste discovered on the site was separable from the

other waste; in the decision at first instance, moreover, such

a mixing up was a mere supposition. Apart from the fact that in

describing the two types of waste as being 'in practice'

inseparable (as was assumed), account was clearly taken of the

practical difficulties which were mentioned in the same expert

opinion, with express reference to the need to establish 'a

highly qualified water-supervision unit that must have

appropriate facilities available to it for carrying out analyses

and for the safe disposal of any hazardous waste', this

observation concerning the past is in any case of no vital

importance for the revocation, which has its effects in the

future, preventing future dumping.

The appellant pointed out that a mass of findings confirmed that

there was no danger in the western part of the site, contrary to

what was stated in the impugned decision; it followed that the

cleaned-up western part of the site was ready for use for dumping

in accordance with the terms of the licence. The passages from

the administrative file which the appellant cites in evidence in

this connection do not, however, support that assertion. In the

opinion submitted on 23 April 1985 the domestic refuse deposited

on the site is described by the expert as posing a threat to the

groundwater, independently of the barrels to be disposed of. In

a letter of 28 May 1985 from the district authority

(Bezirkshauptmannschaft), which is also referred to by the

appellant, it was admittedly announced that the cleaning-up

operation had been completed, but at the same time the issue of

what was to be done with the domestic waste whose existence had

originally not been known about was also addressed. In an expert

opinion of 15 May 1985, likewise cited by the appellant, it was

confirmed that digging works were being carried out in the

western part of the pit, but it was also noted that domestic

waste had been found there and that it could not be ruled out

that chemicals had been buried with it; furthermore, the

possibility of sealing the site without removing the waste was

rejected on technical grounds and because of the danger that

barrels had been buried with it. In the district authority's

letter of 18 June 1986 it was stated that the domestic waste

still remaining in the cleaned-up western area would be removed

once the decision had been taken on cleaning up the entire site.

Thus, it has not been made out that the western part of the site

is free of any dangerous waste nor has the argument been refuted

that further tipping of permissible waste, on top of the waste

already on the site, must be stopped precisely for the purpose

of removing that existing waste.

For these reasons and because, as set out in greater detail

above, no further dumping of waste on the aforesaid site should

be allowed - because there should be no refuse tip there at all

and clearing-up work is still pending - it was not necessary for

a 'final cleaning-up programme' to be in existence, as the

appellant maintained, before further tipping under the licence

could be stopped (by revocation of the licence). Nor is a

cleaning-up programme thereby pre-empted; such a programme may

very well make special licences necessary; and even a partial

continuation of the current tipping operations until a

cleaning-up project is embarked on could not on that account be

regarded as justifiable.

The appellant also considered the weighing of interests to have

been inadequate and to have produced the wrong result; this

applied, on the one hand, to those municipalities which would in

future be deprived of their facilities for dumping refuse, and,

on the other, to the appellant, who would be financially ruined.

As regards the aforementioned municipalities, the appellant

cannot legally represent their interests inasmuch as they are the

interests of third parties, and it is moreover clear that the

danger posed by the dumped waste affects a much larger number of

people, as is apparent from the fact that it is widely known

that, owing to its size, the Mitterndorf basin serves as a

reservoir for drinking-water. The same considerations of public

interest are valid with regard to the economic interests of an

individual; the respondent authority did not, as the appellant

maintained, disregard the relevant considerations, since in the

decision appealed against it said, among other things, that in

the case in issue 'the public interest in ensuring the supply of

drinking-water outweighs the economic interest in continuing the

operation of the tip'. It is equally untrue that the question

of blame for the dumping of prohibited waste had a bearing on the

revocation, as the revocation concerned the licence and thus the

operation of the tip as permitted by that licence up to then.

The appellant also complains that he was not told the name of the

hydraulic engineer who was officially appointed as an expert when

his opinion was made known in the respondent authority's

communication (Vorhalt) of 18 March 1987. The appellant,

however, did not contradict the comment in the decision appealed

against that his lawyer had been informed of the expert's name

during an inspection of the entire file on 22 April 1987. As the

appellant was familiar with the 'original' of the opinion

concerned (it is referred to in the appeal), he must also have

been aware of the exact date of the opinion, which was not given

in the respondent authority's communication. The appellant

further criticised the same expert on the ground that his opinion

contained no 'findings of fact', a matter to which reference had

already been made in the reply to the authority's communication.

The way in which this point was dealt with in the impugned

decision has been set out in the recital of facts. The technical

opinion submitted in the appeal proceedings was an expert

assessment of the same facts as those on which the first-instance

authority had based its decision; the technical assessment in the

appeal proceedings was intended - in view of the appellant's

appeal - precisely to throw light on whether the factual

situation (which was essentially identical both at first instance

and on appeal) should lead to the legal characterisation given

it by the Governor; it was not a question of assessing changed

or substantially supplemented facts. For this reason it was

unnecessary for the expert appointed by the respondent authority

himself to set out afresh the facts to be taken as a basis. In

a case such as the present one there can be no question of the

facts on which the expert opinion was based not being known or

of a further special reference being necessary to how they came

about. By 'third-party documents' (Fremdakten) - a term used

several times in the expert report - is usually understood, as

can easily be inferred from the context, documents that have not

been drawn up by the authority (in this instance the respondent

authority) itself; since the questions being dealt with always

related to the refuse tip concerned, it is clear that what was

meant were the water-rights documents of other authorities than

the respondent authority which related to the tipping site. As

to the appellant's specific criticism to the effect that the

expert did not make clear what he meant by 'the abuses found',

it should be noted that immediately after that passage there

follows a more detailed explanation, in particular through the

reference to failures to comply with the decision of

21 September 1972 and condition 9 of the decision of

30 July 1973, by which is meant the occurrences which led to the

revocation by the Governor on 16 May 1983 of the licence to dump

distillation residues. The entire comment relating to this has

little bearing on the revocation, however, because it was made

by the expert only in connection with his general remarks on the

need for precise definition of waste if there was to be any

effective control of what was dumped. A separate reply to the

question - posed in its observations in reply to the respondent

authority's communication and repeated in the present appeal -

whether account had been taken of the fact that in the eastern

part of the tip there was a compressed mass of domestic refuse

about 18 metres thick on the floor of the site does not seem to

the Court to be of decisive importance with regard to the

revocation stopping future tipping in view of the fact that - as

set out in greater detail in the present appeal - it can 'now

indisputably' be assumed that 'under a 15 to 18-metre-thick layer

of highly compressed domestic refuse thousands of barrels of, in

all probability, unauthorised dangerous solvents have been dumped

there' and that the area must be cleaned up - which precludes all

further tipping.

The appellant complained that further details about the

significance of the Mitterndorf basin for the water supply were

lacking in the expert report and considered the reference it

contained to the 'expert opinions in the third-party documents'

and the 'specialist literature' to be insufficient. Attention

need only be drawn in the first place to the regulations issued

by the respondent authority as early as 1969 (Federal Gazette -

Bundesgesetzblatt - no. 126), which define the groundwater

conservation area on whose periphery the refuse tip is situated.

Furthermore - in response to the appellant's criticism -

reference is rightly made in the impugned decision to the fact

that the importance of the area was well known. The Environment

Protection Agency's (Umweltschutzanstalt) survey report of

17 February 1987, according to which a groundwater sample taken

on 22 October 1986 had shown, among other things, that the

chlorinated hydrocarbon content had further fallen, had no

influence on the expert opinion in this context - this is

confirmed in a note by the expert. In this connection, it must

be borne in mind that the measurement was based on only a single

sample and was merely 'better' than one from an earlier sample.

Even the appellant does not infer from it that the dangerous

eastern part of the site is thereby shown to be free of danger;

if the licence continued in force, further tipping could not, in

the expert's view, be regarded as conducive to further

improvement in the quality of the groundwater. The appellant's

objection that there was no water seepage through an open

'compressed, 18-metre-thick' layer of domestic refuse is

impossible to understand. Since this waste was alleged to exist

in the eastern part of the tip, it was on that account alone not

unreasonable to prevent further tipping in accordance with the

licence by revoking that licence, given the need - mentioned even

by the appellant - for a cleaning up of the site. It may

therefore be concluded that in this respect the alleged material

defects in the expert opinion are non-existent.

The appellant is also wrong to maintain that the licence should

only have been revoked after special appeal proceedings in which

the appeal authority would have had to make its own investigation

of the facts. The facts which the Governor took as a basis were

set out in detail in the decision at first instance. The alleged

defects were gone into in the appeal proceedings or have now been

asserted in the present appeal. In both instances, however, the

appellant partly relied on facts that were irrelevant to the

issue of the revocation.

Nor does the Court agree with the appellant's submission that the

technical expert's opinion in the initial appeal proceedings was

defective because it contained legal arguments. In the section

'Definition of waste, control of tipping' there is firstly merely

a discussion of stipulations in the revoked decision [to grant

a licence] and then a mention of the applicability of the Poisons

Act in connection with technical observations concerning water

contaminants, with a reservation ('... would have to be checked

by the water-rights authority ...'); the question whether

revocation was absolutely essential or whether defects under

section 33 (2) of the Water Rights Act 1959 could be remedied is

dealt with from an exclusively technical point of view; the

closing remark on the subject is at all events inaccurately

reproduced in the appeal inasmuch as the expert endorsed the

revocation in the light not of legal but of economic

requirements. Contrary to what the appellant maintained, there

was no pre-emption of the legal assessment to be made by the

respondent authority.

The appellant further complained that the respondent authority

did not, as requested, seek further expert opinions. Reference

is made in the appeal to possible alternatives to revocation and

to an opinion of 29 April 1986 by the hydraulic engineer

officially appointed as an expert by the Governor. The appellant

inferred from this expert opinion that approval of measures he

had planned would have meant that the revocation could have been

avoided; in that opinion, however, it was suggested - on the

assumption of 'dangers which, if the principle that prevention

is better than cure is applied', ruled out 'further tipping' (and

it was stated that even tipping of domestic refuse 'undoubtedly'

increased the danger 'significantly in quantitative terms') and

on the basis of the facts - that 'the question of revoking the

licence granted by decision of the Governor, ON 14' (i.e. the

decision of 1973), should be looked into, 'as important

assumptions, on which the issuing of the licence [had] been

based' had proved to be false. The expert opinion cited, which

points in exactly the direction that was subsequently - in the

last instance by the respondent authority - taken, was therefore

an unsuitable basis for obtaining, as requested, further expert

reports. Even if in the same context reference is made in the

appeal to the expert report submitted in the water-rights

proceedings of 18 November 1986 in support of the view that the

're-storage variant' (final disposal of the 'eastern refuse' in

the western part of the tip), which the appellant had suggested

as an alternative to revoking the licence, was 'technically

feasible', little is gained - particularly in view of the many

discussions that, according to the administrative documents, had

already taken place - in the way of showing that the additional

investigations that were held to be unnecessary in the impugned

decision are in fact needed.

Lastly, the Court cannot accept the appellant's submission that

an oral hearing should have been held for the specific purpose

of considering the question of a revocation; on the one hand, no

provision is made for a hearing for this purpose in the law, as

the appellant himself concedes, and, on the other, issues

relating to a cleaning up of the tip were discussed from a large

variety of angles, most recently in the proceedings of

18 November 1986 which preceded the revocation by the

first-instance authority, and for this reason it has not been

shown that 'the facts before the appellant authority [were] so

inadequate that the holding or reholding of an oral hearing'

should have been regarded as 'unavoidable' (section 66 (2) and

(3) of the General Administrative Procedure Act 1950).

The appellant has consequently not succeeded in showing that the

licence was revoked on grounds that were not objective and thus

unlawfully.

As the appeal is consequently unfounded, it must be dismissed

pursuant to section 42 (1) of the Administrative Court Act.

The requested hearing was dispensed with under section 39 (2) (6)

of the Administrative Court Act.

..."

II. Relevant domestic law

A. Article 90 para. 1 of the Federal Constitution

14. Article 90 para. 1 of the Federal Constitution provides:

"Hearings in civil and criminal cases by the trial court shall

be oral and public. Exceptions may be prescribed by law."

B. Applications to the Administrative Court

15. By virtue of Article 130 of the Federal Constitution, the

Administrative Court has jurisdiction to hear, inter alia, applications

alleging that an administrative decision is unlawful.

16. Pursuant to section 36 of the Administrative Court Act,

proceedings consist essentially in an exchange of written pleadings.

If one of the parties so requests the Administrative Court may hold a

hearing which is in principle held in public (sections 39 (1) (1) and

40 (4)).

17. Section 41 (1) of the same Act reads as follows:

"In so far as the Administrative Court does not find any

unlawfulness deriving from the respondent authority's lack of

jurisdiction or from breaches of procedural rules (section 42

(2), paragraphs 2 and 3) ..., it must examine the contested

decision on the basis of the facts found by the respondent

authority and with reference to the complaints put forward ...

If it considers that reasons which have not yet been notified to

one of the parties might be decisive for ruling on [one of these

complaints] ..., it must hear the parties on this point and

adjourn the proceedings if necessary."

18. Section 42 (1) states that, save as otherwise provided, decisions

of the Administrative Court shall either dismiss a complaint as

ill-founded or quash the contested decision.

19. By virtue of section 42 (2),

"The Administrative Court shall quash the impugned decision if

it is unlawful

1. by reason of its content, [or]

2. because the respondent authority lacked jurisdiction, [or]

3. on account of a breach of procedural rules, in that

(a) the respondent authority has made findings of fact which are,

in an important respect, contradicted by the case file, or

(b) the facts require further investigation on an important

point, or

(c) procedural rules have been disregarded, compliance with which

could have led to a different decision by the respondent

authority."

20. Under section 63 (1) of the Administrative Court Act, if the

court quashes the challenged decision, "the administrative authorities

are under a duty ... to take immediate steps, using the legal means

available to them, to bring about in the specific case the legal

situation which corresponds to the Administrative Court's view of the

law (Rechtsanschauung)".

C. Hearings before the Administrative Court

21. Section 39 (2) of the Administrative Court Act provides:

"Notwithstanding a party's application ..., the Administrative

Court may decide not to hold a hearing where

...

6. it is apparent to the Court from the pleadings of the parties

to the proceedings before it and from the files relating to the

earlier administrative proceedings that an oral hearing is not

likely to clarify the case further."

D. Hearings before the Constitutional Court

22. Under Article 144 para. 2 of the Federal Constitution:

"The Constitutional Court may ... decline to accept a case for

adjudication if it does not have sufficient prospects of success

or if it cannot be expected that the judgment will clarify an

issue of constitutional law. The Court may not decline to accept

for adjudication a case excluded from the jurisdiction of the

Administrative Court by Article 133."

PROCEEDINGS BEFORE THE COMMISSION

23. Mr Fischer applied to the Commission on 11 May 1990. He relied

on Article 6 para. 1 (art. 6-1) of the Convention in so far as he was

not able to bring his case before a "tribunal" which complied with this

provision or to have a public hearing on the issue of the revocation

of his tipping licence.

24. The Commission declared the application (no. 16922/90) admissible

on 8 September 1992. In its report of 9 September 1993 (Article 31)

(art. 31), the Commission expressed the opinion that

(a) there had been no violation of the applicant's right to have

his case determined by a tribunal within the meaning of Article 6

para. 1 (art. 6-1) (twelve votes to one);

(b) the lack of an oral hearing in the Administrative Court had

violated Article 6 para. 1 (art. 6-1) (unanimously); and

(c) the lack of an oral hearing in the Constitutional Court had

not violated Article 6 para. 1 (art. 6-1) (twelve votes to one).

The full text of the Commission's opinion and of the two separate

opinions contained in the report is reproduced as an annex to this

judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 312 of Series A

of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

25. The Government asked the Court to "hold that Article 6 (art. 6)

of the Convention has not been violated in the case at issue".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

26. The applicant alleged a breach of Article 6 para. 1 (art. 6-1)

of the Convention, which provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing ... by [a] ...

tribunal ..."

His complaints concerned his right of access to a court invested

with full jurisdiction as well as the complete lack, throughout the

proceedings, of any oral hearing.

A. Right of access to a court

27. Mr Fischer claimed that none of the bodies before which his case

came in the impugned proceedings could be regarded as a "tribunal"

within the meaning of Article 6 para. 1 (art. 6-1). This applied not

only to the Constitutional Court, whose review was limited to aspects

of constitutional law, but, most importantly, to the Administrative

Court.

28. The Court reiterates that under Article 6 para. 1 (art. 6-1) of

the Convention it is necessary that, in the determination of "civil

rights and obligations", decisions taken by administrative authorities

which do not themselves satisfy the requirements of that Article

(art. 6-1) be subject to subsequent control by a "judicial body that

has full jurisdiction" (see the Albert and Le Compte v. Belgium

judgment of 10 February 1983, Series A no. 58, p. 16, para. 29, and,

as the most recent authority, the Ortenberg v. Austria judgment of

25 November 1994, Series A no. 295-B, pp. 49-50, para. 31).

29. The Court agrees with the applicant and the Commission that the

Austrian Constitutional Court does not have the requisite jurisdiction

(see the Zumtobel v. Austria judgment of 21 September 1993, Series A

no. 268-A, p. 13, para. 30, and the Ortenberg judgment previously

cited, p. 50, para. 32). Its review is confined to ascertaining

whether the administrative decision is in conformity with the

Constitution. It may even refuse to consider the merits of a complaint

where "it cannot be expected that the judgment will clarify an issue

of constitutional law" (see paragraph 22 above).

30. As for the scope of the Administrative Court's review, the

applicant submitted that such a review was insufficient for the

purposes of Article 6 para. 1 (art. 6-1) since only legal issues could

be examined, not factual ones. The Administrative Court was a kind of

Court of Cassation, having no jurisdiction in matters of fact. Only

in very limited cases was it allowed to supplement the facts

established by the administrative authority, even where those

authorities had failed to take important evidence.

31. In the Commission's view, although the decisions of the

Administrative Court were generally expressed as embodying a review of

the administrative decision rather than a finding of fact on each and

every issue, this did not mean that in the instant case it regarded

itself as being restricted in its review of the facts.

Furthermore, the Administrative Court could have quashed the

administrative authority's decision as being unlawful and imposed on

the authority its own view as to the assessment of the facts (see

paragraph 20 above). In the case under consideration, therefore, the

Ministry of Agriculture and Forestry's decision of 20 July 1987, which

confirmed the revocation of 5 December 1986, was subject to control by

a court which had the jurisdiction required by Article 6 para. 1

(art. 6-1).

32. The Government endorsed the Commission's opinion and added that

there was no indication in the case that any discretion had been

exercised by the administrative authorities. Moreover, the

Administrative Court had dealt in detail with all the complaints raised

by the applicant. That being so and as the case bore greater

similarity to the Zumtobel case (previously cited) than to the

Obermeier v. Austria case (judgment of 28 June 1990, Series A no. 179),

the requirements of Article 6 para. 1 (art. 6-1) had been complied

with.

33. The European Court should confine itself as far as possible to

examining the question raised by the case before it. Accordingly, it

should only decide whether, in the circumstances of the case, the scope

of the competence of the Administrative Court satisfied the

requirements of Article 6 para. 1 (art. 6-1).

34. The Court notes at the outset that, as was pointed out by the

Government and not contested by the applicant, the decision to revoke

the tipping licence which gave rise to the present case was, as in the

Zumtobel case (previously cited, p. 13, para. 31), not one which lay

"exclusively within the discretion of the administrative authorities".

It is not the task of the Court to assess the quality of the experts'

reports on which the revocation was based. The Court is satisfied that

the impugned administrative decision was based on objective criteria

that left relatively little room for discretion. In this respect the

instant case is distinguishable from the Obermeier case (previously

cited, p. 23, para. 70).

As to the applicant's arguments concerning the Administrative

Court's limited powers to examine questions of fact and to take new

evidence, there is nothing before the Court to suggest that any such

limitations were in issue in his case. As is evident from the

extensive reasoning in its judgment (see paragraph 13 above), the

Administrative Court considered all the applicant's submissions on

their merits, point by point, without ever having to decline

jurisdiction in replying to them or in ascertaining facts.

Regard being had to the nature of Mr Fischer's concrete

complaints as well as to the scope of review necessitated by such

complaints, the Administrative Court's review of the decision being

challenged fulfilled the requirements of Article 6 para. 1 (art. 6-1).

B. Lack of a hearing

35. The applicant further complained that the Administrative Court

and the Constitutional Court had refused to hold an oral hearing. In

his submission, Austria's reservation in respect of Article 6 (art. 6)

of the Convention did not apply to the case or, if it did, was invalid

for failure to comply with the requirements of Article 64 (art. 64) of

the Convention.

1. Austria's reservation

36. Austria's reservation in respect of Article 6 (art. 6) of the

Convention reads as follows:

"The provisions of Article 6 (art. 6) of the Convention shall be

so applied that there shall be no prejudice to the principles

governing public court hearings laid down in Article 90 of the

1929 version of the Federal Constitutional Law." (see

paragraph 14 above)

37. Article 64 (art. 64) of the Convention provides:

"1. Any State may, when signing [the] Convention or when

depositing its instrument of ratification, make a reservation in

respect of any particular provision of the Convention to the

extent that any law then in force in its territory is not in

conformity with the provision. Reservations of a general

character shall not be permitted under this Article (art. 64).

2. Any reservation made under this Article (art. 64) shall

contain a brief statement of the law concerned."

38. In the applicant's submission, the reservation did not apply to

hearings in the Administrative Court and the Constitutional Court.

Both were special courts, which concentrated on issues of legality or

constitutionality and did not conduct a full review of the cases before

them. Such courts did not come within the concept of the traditional

criminal and civil courts contemplated in the reservation. If they

did, it would mean that the reservation was open to different

interpretations and was not drafted with the "precision and clarity"

required by Article 64 para. 1 (art. 64-1). This conclusion was, in

the applicant's view, consistent with the ruling given by the European

Court in the case of Belilos v. Switzerland (judgment of 29 April 1988,

Series A no. 132, p. 26, para. 55).

In any event the reservation was invalid under Article 64

para. 2 (art. 64-2), since it did not contain any statement whatsoever

of the content of the law concerned.

39. The Government drew a parallel between the instant case and the

cases of Ringeisen v. Austria (judgment of 16 July 1971, Series A

no. 13) and Ettl and Others v. Austria (judgment of 23 April 1987,

Series A no. 117), in which the Court had held that the reservation

applied in proceedings before a court dealing with questions of

administrative law. In their view, even if Article 90 of the Federal

Constitution referred only to "civil and criminal cases", the

reservation was also applicable to cases before administrative courts

when those courts determined questions of "civil rights", within the

meaning of Convention case-law. The same conclusion could be reached

by looking at the intention of the Federal Government at the time of

making the reservation.

The Government further argued that even though section 39 (2) (6)

of the Administrative Court Act was added in 1982, its scope was no

broader - from a teleological point of view - than that of the

corresponding provisions in force in 1958. In all cases, albeit for

different reasons, the Administrative Court could refuse to hold a

hearing which, in the particular circumstances of a given case, would

be of purely "academic" interest.

40. It thus has to be determined whether the Austrian reservation

covers the power of the Administrative Court under section 39 (2) (6)

of the Administrative Court Act to refuse a hearing, having regard to

the terms of the reservation and to the conditions laid down in

Article 64 (art. 64) of the Convention.

41. The Court would note firstly that that section came into force

in 1982, whereas Austria ratified the Convention and made the

reservation in question in 1958. Under Article 64 para. 1 (art. 64-1)

only laws "then in force" in the State's territory can be the subject

of a reservation.

The Court cannot discern how section 39 (2) (6) and the

provisions in force when the reservation was made can be seen, as the

Government submitted, as essentially identical provisions. As the

Commission rightly pointed out, the introduction of subsection (2) (6)

in effect considerably extended the Administrative Court's power to

refuse to hold a public hearing. The grounds for such a refusal that

were in force in 1958 related to cases in which formal or procedural

matters were in issue as well as those where a ruling favourable to the

appellant to quash an administrative decision was to be made. The

ground added in 1982 made it possible for the first time for the

Administrative Court, after considering the written pleadings and other

documents in the file, to refuse an oral hearing on grounds pertaining

to the merits of the case, in instances where the appeal fell to be

dismissed.

The Court therefore concludes that the applicant's complaint that

the Administrative Court had not held a hearing is not excluded from

review by the above reservation, since the provision on which the

refusal to hold such a hearing was based was not in force at the time

the reservation was made.

42. In view of this conclusion, the Court does not consider it

necessary to examine the validity of the reservation in the light of

the other conditions laid down in paragraphs 1 and 2 of Article 64

(art. 64-1, art. 64-2) of the Convention, or to determine whether the

reservation could be read as encompassing administrative-court

proceedings such as those at issue in the present case.

2. Compliance with Article 6 para. 1 (art. 6-1) of the

Convention

43. It remains to be examined whether in the present case Article 6

para. 1 (art. 6-1) conferred on the applicant the right to an oral

hearing. As stated earlier (see paragraph 29 above), only the

proceedings before the Administrative Court are in issue; the other

authorities which dealt with the applicant's complaint, notably the

Austrian Constitutional Court, cannot be considered tribunals invested

with full jurisdiction for the purposes of Article 6 (art. 6).

44. The practice of the Austrian Administrative Court is not to hear

the parties unless one of them asks it to do so (see paragraph 16

above). Contrary to what happened in the Zumtobel case, Mr Fischer

expressly requested an oral hearing in the Administrative Court. This

was refused on the ground that it was not likely to contribute to

clarifying the case (see paragraph 21 above). There is accordingly no

question of the applicant's having waived that right.

Furthermore, there do not appear to have been any exceptional

circumstances that might have justified dispensing with a hearing. The

Administrative Court was the first and only judicial body before which

Mr Fischer's case was brought; it was able to examine the merits of his

complaints; the review addressed not only issues of law but also

important factual questions. This being so, and having due regard to

the importance of the proceedings in question for the very existence

of Mr Fischer's tipping business, the Court considers that his right

to a "public hearing" included an entitlement to an "oral hearing" (see

the Fredin v. Sweden (no. 2) judgment of 23 February 1994, Series A

no. 283-A, p. 10, para. 21).

The refusal by the Administrative Court to hold such a hearing

amounted therefore to a violation of Article 6 para. 1 (art. 6-1) of

the Convention.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

45. Article 50 (art. 50) of the Convention reads:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

A. Pecuniary damage

46. According to the applicant, the pecuniary loss resulting from the

unlawful revocation of his tipping licence amounted to a total of

7,737,000 French francs. He referred to the supporting evidence

produced before the Commission.

In the Government's submission, compensation could not be awarded

on the basis of speculating as to what the outcome of the proceedings

would have been had an oral hearing taken place.

At the hearing, the Delegate of the Commission questioned whether

there was a sufficient causal link between the alleged violation and

the resulting loss.

47. The Court agrees; it cannot speculate as to the outcome of the

proceedings had an oral hearing taken place before the Administrative

Court. The claim must therefore be rejected.

B. Costs and expenses

48. Mr Fischer further claimed 874,272.37 Austrian schillings (ATS)

in respect of costs and expenses incurred in the domestic proceedings

and in those before the Strasbourg institutions.

The Government argued that only the proceedings in the

Administrative Court - where the violation was said to have been

committed - and before the Convention institutions could be taken into

consideration. They further contested the basis on which legal fees

had been calculated. In their contention, a global sum of ATS 140,000

would represent a reasonable compensation for all relevant costs and

expenses.

The Delegate of the Commission submitted that if the Court, like

the Commission, were to uphold only one of the two complaints before

it, the amount of the reimbursement granted should reflect this

finding.

49. The Court notes that, as to the costs incurred in the domestic

proceedings, only those related to the request for an oral hearing come

into consideration.

Having regard to the fact that only one of the two complaints

declared admissible by the Commission has led to the finding of a

violation and to the criteria laid down in its case-law, the Court,

making an assessment on an equitable basis, as required by Article 50

(art. 50) of the Convention, awards the applicant ATS 200,000 in

respect of costs and expenses.

FOR THESE REASONS, THE COURT

1. Holds, by eight votes to one, that there has been no violation

of Article 6 para. 1 (art. 6-1) of the Convention as regards the

applicant's complaint that he was not able to bring his case

before a "tribunal";

2. Holds, unanimously, that there has been a violation of

Article 6 para. 1 (art. 6-1) of the Convention as regards the

lack of an oral public hearing before the Administrative Court;

3. Holds, unanimously, that Austria is to pay the applicant, within

three months, the sum of 200,000 (two hundred thousand) Austrian

schillings in respect of costs and expenses;

4. Rejects, unanimously, the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 26 April 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the following

separate opinions are annexed to this judgment:

(a) concurring opinion of Mr Matscher;

(b) separate opinion of Mr Martens;

(c) concurring opinion of Mr Jambrek.

Initialled: R. R.

Initialled: H. P.

CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

1. I voted with the majority of the Chamber to the effect that there

had been a breach of Article 6 para. 1 (art. 6-1) because the

Administrative Court had dispensed with a public oral hearing.

Nevertheless, I should like to draw attention to the following.

I value proceedings being oral and public in so far as this

amounts to a procedural safeguard; I attach no value to it where such

a procedure becomes a mere ritual (or a ceremony) or where it is sought

for purposes that have nothing to do with a procedural safeguard.

As an example of the first aspect of proceedings being oral

unnecessarily, I should like to mention the reading out of the

judgments of our Court (Rule 55 para. 2 of Rules A) at the crack of

dawn to a room that is usually empty except for a single official from

the Commission and a representative of the Government, who are bound

to attend out of consideration for the Court.

The second aspect to which I referred may arise for various

reasons:

- exploiting the fact of proceedings being oral and public to

proclaim to the general public political or other ideas which have very

little to do with the case being tried, in other words turning the

hearing before the court into a forum for an ideological debate. There

are a good many examples of this, both in national proceedings and

among hearings before our Court;

- relying - legitimately, in formal terms - on the absence of a

public oral hearing within the meaning of Article 6 para. 1 (art. 6-1)

to secure a finding of a breach in a case which discloses no other

failure to comply with the requirements of the Convention; here too

there are numerous examples in our case-law;

- requesting a hearing before a national court - where it is in

principle not mandatory under the applicable procedure - mainly in

order to be able to seek lawyers' fees for the hearing which, in a case

in which the sum in dispute is a large one, may be considerable, even

if the hearings amount to a pure formality, lasting a few minutes,

without even a semblance of any real oral argument; there are likewise

numerous examples of this in national courts of appeal and supreme

courts.

In neither of these respects is the fact of proceedings being

oral and public in the nature of a true procedural safeguard worthy of

protection.

2. The Chamber reached the finding of a breach by interpreting the

scope of Austria's reservation in respect of Article 6 (art. 6)

extremely narrowly. This is in keeping with the Court's tendency,

first shown in the Belilos v. Switzerland judgment of 29 April 1988

(Series A no. 132), to restrict the scope of reservations and

interpretative declarations, and even to eliminate them as far as

possible. From the point of view of international law, this practice

strikes me as highly questionable, given that Article 64 (art. 64)

expressly authorises States to make reservations, even if the

Convention makes them subject to certain conditions. The Contracting

States which made such reservations in respect of a Convention Article

or one of its Protocols did so in good faith, trusting to the

interpretation of certain provisions of the Convention that were

current at the time of ratification, and they could not foresee the

steady development that the case-law would undergo in the future. In

this way, many reservations and interpretative declarations have become

obsolete or, to put it another way, the mutual trust has been betrayed.

To return to the instant case: in the ordinary types of case that

come before the courts, Austrian law provides for a reasonable balance

between oral/public proceedings and written proceedings; in order to

preserve that position, Austria made a reservation in respect of

Article 6 (art. 6) that was naturally confined to the ordinary types

of court case. It could not foresee that as a result of the Convention

institutions' evolutive interpretation of the Convention, many

administrative and disciplinary matters which, according to the

prevailing judicial opinion at the time, were not caught by Article 6

(art. 6), would subsequently be covered by it.

Having regard to the mutual trust to which I referred above, the

Court took the view for some while that Austria's reservation covered

administrative proceedings which now are caught by Article 6 (art. 6)

(see, for example, the Ringeisen v. Austria judgment of 16 July 1971,

Series A no. 13, pp. 40-41, para. 98, and the Ettl and Others v.

Austria judgment of 23 April 1987, Series A no. 117, p. 19, para. 42).

This course, however, which I would describe as a wise one, is

apparently no longer taken. In saying that, I do not overlook that in

the instant case the reasoning in the judgment may be considered

correct since the scope for the proceedings in question to be oral and

public was formally restricted when section 39 (1) of the Act on

proceedings before the Administrative Court was reworded in 1982, that

is to say after the reservation had been made.

3. The result will be that the Austrian legislature will have to

amend section 39 (2) so as to make a public oral hearing compulsory

every time a party requests one. All this will make proceedings in the

Administrative Court longer and more expensive, without affording any

additional procedural safeguard to the parties.

4. Nevertheless, out of a spirit of solidarity with my colleagues

but not without hesitation, I voted in favour of finding a breach of

Article 6 para. 1 (art. 6-1) in that the proceedings in the

Administrative Court were neither oral nor public.

SEPARATE OPINION OF JUDGE MARTENS

1. The applicant's case originates in the revocation (in 1986) by

the Governor of Lower Austria of the tipping licence under which the

applicant exploited a refuse tip. The applicant, whose means of

subsistence were at stake, challenged that revocation under the

administrative proceedings open to him. It is common ground that

Article 6 (art. 6) of the Convention applies to these proceedings.

What is at issue before the Court is whether and, if so, to what extent

it was violated.

I. IS THE VERWALTUNGSGERICHTSHOF A TRIBUNAL WITHIN THE MEANING OF

ARTICLE 6 (art. 6) OF THE CONVENTION?

A. INTRODUCTION

2. Undoubtedly by far the most important issue in this case - from

a general viewpoint as well as for the applicant - is whether the

Verwaltungsgerichtshof (Administrative Court) is to be deemed a

tribunal within the meaning of Article 6 (art. 6) of the Convention.

In answering this question in the affirmative (paragraph 34 of its

judgment), the Court has evidently followed its Zumtobel v. Austria

judgment of 21 September 1993 (Series A no. 268-A) and its Ortenberg

v. Austria judgment of 25 November 1994 (Series A no. 295-B) (see

paragraph 32 of the judgment).

I was not a member of the Chambers which delivered those

judgments and to my regret I feel unable to subscribe to the doctrine

laid down therein (hereinafter "the Zumtobel doctrine").

3. The applicant's case falls within the ever growing but also

problematic category of proceedings which under national law are purely

administrative, whereas under the Convention they are considered as

determining civil rights or criminal charges. Since its judgment of

23 June 1981 in the case of Le Compte, Van Leuven and De Meyere v.

Belgium (Series A no. 43) the Court has consistently held that it is

not incompatible with the Convention for the first and second stages

(should there be a second stage) in such proceedings to be conducted

before administrative bodies which do not satisfy the requirements of

Article 6 (art. 6), provided that the individual can bring the ultimate

decision of those bodies for subsequent control before a court that

does afford the safeguards of that provision (1).

_______________

1. For cases concerning civil rights and obligations, see inter alia:

the Albert and Le Compte v. Belgium judgment of 10 February 1983,

Series A no. 58; the O. v. the United Kingdom judgment of 8 July 1987,

Series A no. 120-A, pp. 27-28, para. 63; the Belilos v. Switzerland

judgment of 29 April 1988, Series A no. 132, p. 31, para. 70; the

Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 15,

para. 30; the Obermeier v. Austria judgment of 28 June 1990, Series A

no. 179; the Oerlemans v. the Netherlands judgment of 27 November 1991,

Series A no. 219, pp. 21-22, paras. 53-56; the Beaumartin v. France

judgment of 24 November 1994, Series A no. 296-B, pp. 62-63, para. 38;

for cases concerning criminal charges, see inter alia: the Öztürk v.

Germany judgment of 21 February 1984, Series A no. 73, and the

Bendenoun v. France judgment of 24 February 1994, Series A no. 284.

_______________

It is common ground that neither the Governor (Landeshauptmann)

of Lower Austria - who took the original decision to revoke the

applicant's tipping licence - nor the Federal Minister of Agriculture

and Forestry (Bundesminister für Land- und Forstwirtschaft) - who

dismissed the applicant's administrative appeal against the original

decision - satisfied the requirements of Article 6 (art. 6) and that,

consequently, what is decisive is whether the Verwaltungsgerichtshof

- to which the applicant appealed from the Minister's decision - does.

The divergence between the Court and myself concerns both the

method of ascertaining whether the Verwaltungsgerichtshof fulfils the

essential requirements of a "tribunal" within the meaning of

Article 6 (art. 6) (see paragraphs 15 to 18 below) and the outcome of

that query (see paragraphs 19 to 21).

4. Before going into that divergence of opinion and before

explaining why I cannot subscribe to the Zumtobel doctrine, I note that

the applicant has alleged no other ground for doubting whether the

Verwaltungsgerichtshof fulfils the essential requirements of a

"tribunal" within the meaning of Article 6 (art. 6) than the scope of

its control.

B. GENERAL CONSIDERATIONS

5. Both judgments referred to in paragraph 2 above were unanimous.

However, it is not simply out of deference to the Court that I feel

that the Zumtobel doctrine calls for a thorough discussion. It is also

because I fear that it not only concerns the Austrian administrative

courts but may generally affect the category of proceedings mentioned

in paragraph 3 above. It is especially in view of the latter aspect

that I feel bound to speak against it.

I propose, firstly, to make some general remarks on the

consequences of applicability of Article 6 para. 1 (art. 6-1) in the

field of administrative law and, secondly, to analyse the Court's

case-law on the notion of a "tribunal" within the meaning of that provision.

1. Consequences of applicability of Article 6 para. 1 (art. 6-1)

in the field of administrative law

6. The Court's gradual widening of the ambit of Article 6 (art. 6)

into the field of administrative procedures undoubtedly creates

problems as well as tensions, since administrative procedure has

traditions and demands which are often at variance with the

requirements of the Convention. The Court, when setting and

maintaining that course, was without doubt well aware of those

problems, but was equally clearly prompted by the conviction that one

of the demands of the rule of law is that the type of dispute between

the individual and the executive referred to in paragraph 3 above must,

in the last resort, be decided by the judiciary. I would recall the

Court's fundamental statement in its Klass judgment (2):

"The rule of law implies, inter alia, that an interference by the

executive authorities with an individual's rights should be

subject to an effective control which should normally be assured

by the judiciary, at least in last resort, judicial control

offering the best guarantee of independence, impartiality and

proper procedure."

_______________

2. Klass and Others v. Germany judgment of 6 September 1978,

Series A no. 28, pp. 25-26, para. 55.

_______________

Consequently, the problems can never be resolved nor the tensions

mitigated at the price of impairing the very essence of the protection

to which the individual is thus entitled under Article 6 para. 1

(art. 6-1). The Court confirmed this when, right at the outset of the

case-law referred to in paragraph 3, it made it clear that the

aforementioned traditions and demands should be heeded, but only as far

as is compatible with effective protection of the individual's rights

under the Convention (3).

_______________

3. See the Le Compte, Van Leuven and De Meyere judgment (cited at

paragraph 3 above), p. 23, para. 51 under (a).

_______________

7. It follows that also in the context of administrative proceedings

coming within the ambit of Article 6 (art. 6) a fair balance has to be

struck between conflicting interests - that is to say, between

protecting the individual on the one hand and leaving sufficient

freedom of action to the executive authorities on the other.

It is in so doing that we meet the problems and tensions referred

to in paragraph 6 above. When endeavouring to strike the requisite

balance, it should not be overlooked that some of these tensions and

problems result from views already long overtaken by developments in

legal thinking and practice, such as for instance the doctrine that

there should be a strict partition between administration and judiciary

(4). It seems justified to presume that legal thinking and practice

in the member States generally go in the direction of acceptance of an

"effective control" of the executive by the judiciary (see the Klass

judgment, paragraph 6 above), a judicial control which is not always

restricted to the legality of administrative acts but may sometimes to

a certain extent include matters of expediency. In this context it is

not without importance that all member States have now accepted a final

control through the supervisory mechanism of the Convention, which is

essentially judicial in nature. This control by an international court

should help to dispose of remnants of the old doctrine to the effect

that the administration cannot be accountable to the judiciary (5).

_______________

4. This doctrine is, however, consecrated by Article 94 of the

Austrian Constitution as construed by the Verfassungsgerichtshof; in

its judgment of 14 October 1987, EuGRZ 1988, pp. 166 et seq., this

court held that a strict separation between judiciary and executive is

essential for the Austrian Constitution. It concluded therefrom that

the Constitution made it impossible to introduce a system of

administrative proceedings at two instances. On this important

judgment, see inter alia: W.L. Weh, EuGRZ 1988, pp. 438 et seq.; Merli,

ZaöRV 1988, pp. 251 et seq.; Holoubek, Grund- und Menschenrechte in

Österreich, pp. 73 et seq.

5. In this context the influence of the Court of Justice of the

European Communities should also be mentioned; as to the influence of

its case-law on national legal thinking and practice, see Schwartze,

op. cit. (note 6), pp. 93 et seq.

_______________

On the other hand, even a superficial glance at comparative

literature (6) makes it clear that there are certain areas where it is

imperative that administrative courts should be in a position to leave

sufficient freedom of manoeuvre to the executive authorities. I am

thinking of areas where highly technical questions or important

diplomatic issues are decisive or where the authorities may

legitimately maintain secrecy even towards the courts. If ever

judicial restraint is obligatory, it is in such areas.

_______________

6. See inter alia: Ule, Verwaltungsprozeßrecht (Beck, München, 1987),

pp. 408 et seq.; The protection of the individual in relation to acts

of administrative authorities (Council of Europe, 1975); Frowein,

Festschrift für Felix Ermacora (1988), pp. 141 et seq.; Banda,

Administratief procesrecht in vergelijkend perspectief (Tjeenk Willink,

Zwolle, 1989); Bok, Rechtsbescherming in Frankrijk en Duitsland

(Kluwer, Deventer, 1992); Schwartze, European Administrative Law (Sweet

and Maxwell, London, 1992), pp. 97 et seq.; Banda, Het onderzoek door

de rechter, in: Ten Berge et al., Nieuw Bestuursrecht (Kluwer,

Deventer, 1992), pp. 99 et seq.; Klap, Vage normen in het bestuursrecht

(Tjeenk Willink, Zwolle, 1994).

_______________

8. This brings me to another aspect of the above-mentioned balancing

exercise: one should, probably, take into account the particular

subject-matter of the proceedings in question. In another context the

Court has already indicated that the particular subject-matter is of

importance, notably as regards the degree of precision with which a law

conferring discretion upon administrative authorities should indicate

the scope of that discretion (7). Likewise, it would seem acceptable

that in administrative proceedings the scope of the control exercised

by the administrative judge should - to a certain extent - vary

according to the particular subject-matter of the case at hand. In

this context I would recall that the Court itself leaves the States a

wider margin of appreciation in some fields than in others.

_______________

7. See inter alia: the Herczegfalvy v. Austria judgment of

24 September 1992, Series A no. 244, p. 27, para. 89; the Chorherr v.

Austria judgment of 25 August 1993, Series A no. 266-B, pp. 35-37,

para. 25, and the Vereinigung Demokratischer Soldaten Österreichs and

Gubi v. Austria judgment of 19 December 1994, Series A no. 302,

pp. 15-16, para. 31.

_______________

A persuasive indication for this view is to be found in the

Court's judgments of 8 July 1987 in the cases of O., H., W., B. and R.

v. the United Kingdom (8). In these judgments the Court held that the

powers of the English courts were insufficient to satisfy fully the

requirement of Article 6 para. 1 (art. 6-1) that the tribunal should

have jurisdiction to examine the merits of the matter (9).

_______________

8. Series A nos. 120 and 121.

9. See for example: Series A no. 120, p. 28, para. 64.

_______________

The subject-matter of the proceedings was a parent's right of

access to his child taken into care. The parents had the possibility

of asking for judicial review. However, on an application for judicial

review, the courts would not review the merits of the decision but

would confine themselves to ensuring, in brief, that the authorities

had not acted illegally, unreasonably or unfairly (10). "In a case of

the present kind", said the Court, Article 6 para. 1 (art. 6-1)

required that the parents should be able to have "the local authority's

decision reviewed by a tribunal having jurisdiction to examine the

merits of the matter".

_______________

10. ibid., p. 27, para. 63.

_______________

The significance of this judgment can only be appreciated if it

is compared with that in the AGOSI case (11). In that case, which

concerned confiscation, the Court found the scope of the powers of the

English courts on an application for judicial relief to be sufficient

to satisfy the requirements of Article 1 of Protocol No. 1 (P1-1). To

reconcile these judgments, one has to assume either that the

requirements of Article 1 of Protocol No. 1 (P1-1) are less exacting

than those of Article 6 para. 1 (art. 6-1) - which is rather unlikely

- or that the difference of subject-matter was decisive for the

difference of outcome. If - as it would seem - the latter premise is

correct, one may perhaps presume that the Court would require power of

full control in all those cases where the proceedings, although

administrative in nature under national law, directly concern rights

coming within the ambit of Article 8 (art. 8) of the Convention, or in

which - more generally - the general interest is clearly much less

involved than that of the individual. An example of the latter

category may possibly be seen in the Obermeier case (see note 1), where

the subject-matter was the right of a disabled person not to be

dismissed unless dismissal was socially justified.

_______________

11. AGOSI v. the United Kingdom judgment of 24 October 1986,

Series A no. 108.

_______________

The examples given suggest that particular kinds of

subject-matter may result in stricter requirements as to the scope of

the tribunal's powers than are normally acceptable in the field of

administrative law under discussion: in such cases, it would appear,

the tribunal should have the power to overrule the administrative

decision and to give the final decision in the dispute. I am inclined

to think that there is no room for the opposite effect, that is: the

particular subject-matter entailing less strict requirements than are

normally acceptable. However that may be, I repeat that whatever

allowances may be made as regards the special characteristics of the

administrative proceedings at hand, these allowances should never be

taken to the point where the very essence of the guarantees for the

protection of the individual implied in Article 6 (art. 6) is impaired

(12).

_______________

12. Since, in my opinion, it is part of the essence of Article 6

(art. 6) that the "tribunal" should be able to determine all aspects

of the matter on the basis of its own investigation of the facts (see

notably paragraph 13 below), I am not persuaded by the plea made by the

Austrian Verfassungsgerichtshof in its decision referred to in note 4.

According to this almost emotional plea, in the category of cases under

discussion (see paragraph 3 above) the requirements of Article 6

(art. 6) should be deemed to be fulfilled even if the "tribunal" in

question were only competent to exercise a limited control, provided

such control would enable it to satisfy itself that, in outcome, the

administration's decision was right both as regards questions of law

and as regards questions of fact.

_______________

9. Finally, the Committee of Ministers has repeatedly stressed the

importance of uniform protection of the individual in the field of

administrative law in all member States (13). The Court has expressed

a similar view in terms of the principle of equality of treatment. It

has recently done so in its Salesi v. Italy and Schuler-Zgraggen v.

Switzerland judgments (14). This means, on the one hand, that in the

aforementioned balancing exercise one should be careful not to attach

undue weight to local particularities and traditions as regards the

organisation of administrative justice and, on the other, that States

should be treated equally. In this respect it may be recalled, for

instance, that the Benthem v. the Netherlands (15) judgment obliged the

Netherlands to reorganise completely their system of administrative

justice (16), just as a series of judgments made it necessary for

Sweden to do the same. Other States cannot claim that they should not

be obliged to bear similar consequences of the Court's gradual widening

of the ambit of Article 6 (art. 6) into the field of administrative

procedure, however unexpected this evolution of the case-law may have

been (17). They should not be allowed to seek shelter behind their

Constitution: if need be, they may be required to amend their

Constitution in order to comply with their obligations under the

Convention (18).

_______________

13. See Recommendations Nos. R (77) 31 (28 September 1977),

R (80) 2 (11 March 1980) and R (89) 8 (13 September 1989).

14. Judgment of 26 February 1993, Series A no. 257-E, p. 59,

para. 19, and judgment of 24 June 1993, Series A no. 263, p. 17,

para. 46.

15. Judgment of 23 October 1985, Series A no. 97.

16. I cannot refrain from noting that this reorganisation has lead to

the introduction of a completely new and uniform system of

administrative procedure based on the notion that the primary function

of rules of administrative procedure is to protect the individual: see

Daalder, De Groot and Van Breugel, De Parlementaire geschiedenis van

de Algemene wet bestuursrecht, Tweede Tranche (Samsom H.D. Tjeenk

Willink, Alphen aan den Rijn, 1994), pp. 174 et seq. (para. 2.3) and

pp. 460 et seq. (Afd. 8.2.6).

17. The Contracting States are under the obligation to organise their

legal systems so as to ensure compliance with the requirements of

Article 6 para. 1 (art. 6-1): see the De Cubber v. Belgium judgment of

26 October 1984, Series A no. 86, p. 20, para. 35.

18. If the Austrian Verfassungsgerichtshof in its decision referred

to in note 4 above was intending to suggest that under the reservation

to be discussed in paragraphs 23 et seq. below this cannot be required

of Austria, it is mistaken: the reservation is invalid.

_______________

2. Analysis of the Court's "full jurisdiction" doctrine

10. Coming now to the analysis announced in paragraph 5 above, I

would firstly recall that the requirement of "determination" by a

"tribunal" is one of the constitutive elements of the guarantee

afforded to the individual by Article 6 para. 1 (art. 6-1) (19).

_______________

19. See the De Wilde, Ooms and Versyp v. Belgium judgment of

18 June 1971, Series A no. 12, p. 41, para. 78.

_______________

In its case-law referred to in paragraph 3 above the Court has

made it clear that the requirement of the individual's being enabled

to have the ultimate decision of the administrative authorities

controlled by a "tribunal" within the meaning of Article 6 (art. 6)

means that the jurisdiction (20) of the relevant court should be such

that it may determine (21) all matters in issue, whether they concern

questions of law or of fact (22). Summarising this requirement in its

judgment of 23 September 1982 in the case of Sporrong and Lönnroth v.

Sweden (23), the Court said that the individual was entitled to have

his case heard by

"a tribunal competent to determine all the aspects of the

matter".

_______________

20. See the Le Compte, Van Leuven and De Meyere judgment

(paragraph 3 above), p. 23, para. 51.

21. See the Le Compte, Van Leuven and De Meyere judgment, loc. cit.,

and the Albert and Le Compte judgment (note 1 above), p. 16, para. 29.

As the latest authorities for the power to give a binding decision

being one of the essential elements of the notion of a tribunal within

the meaning of Article 6 (art. 6), see the Van de Hurk v. the

Netherlands judgment of 19 April 1994, Series A no. 288, p. 16,

para. 45; and the Beaumartin v. France judgment of 24 November 1994,

Series A no. 296-B, pp. 62-63, para. 38.

22. See note 19.

23. Series A no. 52, p. 31, para. 87.

_______________

11. One of the requirements of a "tribunal" within the meaning of

Article 6 (art. 6) being that it is "established by law", there is

little doubt to my mind that, when referring to the jurisdiction or

competence of the "tribunal" in question, the Court was adverting to

the very same notion and, consequently, to competence pursuant to the

law under which the "tribunal" was established. Accordingly, that law

- of course, as construed by the national courts - should be the basis

for determining whether or not the powers of the court in question are

sufficient.

12. What are questions of law may, at first sight, appear clear (24),

but may become less so if one takes into account the so called "vague

norms" to which, especially in the field of administrative law, our

legislatures frequently resort. Controlling the application of such

norms poses, as every lawyer familiar with "cassation" proceedings

knows, delicate problems of demarcation, since such application

undoubtedly has a factual component. However, in the present context

these niceties may be left aside since the Court specified that the

"tribunal" should be competent to determine both questions of law and

of fact. Which evidently means that, in principle, that "tribunal"

should be able to control fully the application of vague norms. "In

principle", since that application may be bound up with questions of

factual assessment which fall within the "discretion" of the

administrative authorities (see paragraph 7 above and paragraph 13

below) (25).

_______________

24. Since it is probably immaterial in the present case, I leave aside

the intriguing - and, as far as I know, hitherto unexplored - question

whether the basic idea of protection of the individual implies that the

"tribunal" should be invested with the power of applying the maxim ius

curia novit, and thus of going ex officio into questions of law not

raised by the parties.

25. It is interesting to note that according to Bok (see note 6),

pp. 150 and 193 et seq., both the French and the German administrative

courts take the view that they have power to control fully the

application of vague norms by the authorities without - except in

rather special cases - leaving room for discretion. However, see also

Klap (note 6), pp. 125 et seq., and 250.

_______________

13. For the sake of discussion (26), questions of fact may be divided

into at least two categories:

(1) questions about facts: the "tribunal" should be free to take

into account all facts which it deems relevant (27), it should be free

to determine whether such facts are established or not (28) and, if

not, be competent to take evidence;

(2) questions of factual assessment.

_______________

26. "For the sake of discussion": obviously the two categories

intertwine, since a tribunal lacking the power to take into account

other facts than those on which the executive authorities have based

themselves can less well control questions of factual assessment even

if in principle it is empowered to carry out such control.

27. Once again I pass over the question whether and to what extent the

"tribunal" - in order to compensate the imbalance between the parties

and better to protect the individual - should be free or even obliged

actively to try to ascertain the relevant facts. I note, for the rest,

that here lies another, rather difficult problem, viz. whether the

tribunal should review ex tunc or ex nunc: should it be allowed to take

into account new facts or not? I only note the problem, adding that

for the moment I am inclined to think that the requirements of

Article 6 para. 1 (art. 6-1) imply the power to review ex nunc. On the

ex tunc/ex nunc problem, see Teunissen in: Ten Berge et al., Nieuw

Bestuursrecht (Kluwer, Deventer, 1992), pp. 111 et seq. (who treats the

Article 6 (art. 6) aspect on pp. 126 et seq.); Schueler, Vernietigen

en opnieuw voorzien (Tjeenk Willink, Zwolle, 1994), pp. 215 et seq.

28. It should be competent to "rectify factual errors": see the Le

Compte, Van Leuven and De Meyere judgment (paragraph 3 above).

_______________

In this connection - especially as regards "questions of factual

assessment" - we touch a sensitive issue, for we enter the province of

the "discretion" of the administrative authorities. Does the

requirement that the "tribunal" should be "competent to determine all

the aspects of the matter" imply that it should have competence to

control fully all factual assessments made by those authorities?

I am convinced that this fundamental question should be answered

in the affirmative.

Of course, as stated already (see paragraph 7 above), it is

imperative to ensure that the executive authorities should have proper

freedom of manoeuvre, but that does not warrant accepting a restriction

on the "tribunal's" competence as to "questions of fact". It suffices

to accept that the "tribunal" be empowered to exercise judicial

restraint when and where that is called for. As explained in paragraph

8 above, there may be exceptional cases in this sphere where, in view

of the subject-matter of the proceedings in question, the "tribunal"

should fully control even all factual assessments made by the executive

authorities, but as a rule the "tribunal" should exercise judicial

restraint with respect to issues of expediency (29). Judicial

restraint, however, presupposes competence. Only a "tribunal" which

has full competence can decide, on the merits of each case, whether and

to what extent it must exercise restraint.

_______________

29. To that extent - but only to that extent - I agree with the

Zumtobel doctrine: see paragraph 32 in fine of the Zumtobel judgment

(paragraph 2 above).

_______________

If the legislature generally curtails the "tribunal's" competence

as to questions of fact, the latter's position is like that of a man

having to fight with one arm bound behind his back. It will sometimes

find that it simply cannot properly exercise its control over whether

the impugned administrative decision is lawful without to some extent

going into certain questions of fact. To illustrate the point I am

trying to make, I would recall that the Court, as a rule, does not

control findings of fact made by the national courts, but reserves

itself the right to do so where such control is indispensable for a

proper exercise of its task (30). What is at stake here is the

above-mentioned balancing operation between protecting the individual -

which requires full control - and leaving proper freedom of action to

the executive authorities. This balancing operation is far too subtle

and too dependent on the specific type of subject-matter of each case

to be left to the legislature; the rule of law implies that it should

be left to the judiciary, which should have the last word.

_______________

30. According to the consistent case-law of the German Constitutional

Court, where the right of freedom of expression is at stake,

unacceptable curtailment of that right can only be prevented if factual

assessments made by the normal courts are fully reviewable by the

Constitutional Court (see Bverfge 43,130 = EUGRZ 1977, pp. 109 et

seq.). The European Court has taken the same approach. As the latest

authority, see the (Grand Chamber) judgment of 23 September 1994 in the

case of Jersild v. Denmark (Series A no. 298), pp. 23-24, para. 31.

See also my concurring opinion in the case of Schwabe v. Austria

(Series A no. 242-B, pp. 40 et seq.) and paragraph 4 of my dissenting

opinion in the case of Prager and Oberschlick v. Austria (Series A

no. 313).

_______________

This view is in conformity with the spirit of the Court's

case-law, which, taken as a whole, warrants the conclusion: (1) that

one of the basic notions underlying the Convention is that the

individual should be effectively protected against arbitrariness, and

(2) that this implies that even assessments which fall within the

administration's discretion should, to a certain extent, be controlled

by the judiciary.

For the first proposition it suffices to refer to such judgments

as Silver and Others (31), Malone (32), Leander (33), Olsson (no. 1)

(34), Chappell (35), Eriksson (36), Kruslin (37) and Herczegfalvy (38).

_______________

31. Silver and Others v. the United Kingdom, judgment of

25 March 1983, Series A no. 61, pp. 33-34, paras. 88-89.

32. Malone v. the United Kingdom, judgment of 2 August 1984,

Series A no. 82, p. 32, para. 67.

33. Leander v. Sweden, judgment of 26 March 1987, Series A no. 116,

p. 23, para. 51.

34. Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A

no. 130, p. 30, para. 61 under (c).

35. Chappell v. the United Kingdom, judgment of 30 March 1989,

Series A no. 152-A, p. 24, para. 57.

36. Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156,

pp. 24-25, paras. 59-62.

37. Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A,

pp. 22-25, paras. 30-36.

38. Herczegfalvy v. Austria, judgment of 24 September 1992, Series A

no. 244, p. 27, para. 89.

_______________

As to the second, it should be noted firstly that already in the

judgment inaugurating its case-law under discussion the Court required

that the "tribunal" should be competent to examine such a typically

"discretionary" question as whether "the sanction is proportionate to

the fault" (39). Furthermore, in its Obermeier judgment the Court

found that judicial control of discretionary assessment by the

administrative authorities which was restricted to testing whether

these authorities had acted ultra vires - to be precise: had used their

discretion in a manner incompatible with the object and purpose of the

relevant law - did not constitute effective review. The Court did not

indicate what measure of control it would have held sufficient. It may

be that the case fell, in its opinion, in the above-mentioned category

where, in view of the subject-matter of the proceedings, only a full

review as to the merits is sufficient (40). This hypothesis is,

however, not necessary to understand the Court's finding: in view of

such judgments as Pudas (41), Allan Jacobsson (42), Mats Jacobsson (43)

and Skärby (44), one can very well surmise that the control in the

Obermeier case would have been found satisfactory if the "tribunal"

could have scrutinised not only whether the authorities had acted ultra

vires in making their assessment, but also whether they had duly

observed "generally recognised legal and administrative principles"

(45).

_______________

39. See the Le Compte, Van Leuven and De Meyere judgment

(paragraph 3 above), p. 23, para. 51 in fine.

40. See paragraph 8 above.

41. Pudas v. Sweden, judgment of 27 October 1987, Series A no. 125-A,

p. 15, para. 34.

42. Allan Jacobsson v. Sweden, judgment of 25 October 1989, Series A

no. 163, p. 20, para. 69.

43. Mats Jacobsson v. Sweden, judgment of 28 June 1990, Series A

no. 180-A, p. 13, para. 32.

44. Skärby v. Sweden, judgment of 28 June 1990, Series A no. 180-B,

p. 37, para. 28.

45. I am thinking of such principles as, for instance, that of

treating like cases alike, that of legal certainty and that of

proportionality.

_______________

14. A final aspect which deserves attention is the kind of decision

which the "tribunal" should take. It is clear from its case-law that

in the Court's opinion the power to bring the proceedings to an end by

means of a binding decision on all issues raised before it constitutes

an essential requirement of a "tribunal" within the meaning of

Article 6 (art. 6) (46).

_______________

46. As the latest authority, see the Van de Hurk v. the Netherlands

judgment of 19 April 1994, Series A no. 288, p. 16, para. 45. To avoid

misunderstanding, I would add that in my opinion this requirement does

not imply that the final decision of the "tribunal" should constitute

res judicata in the sense that new proceedings on the same issue would

be impossible or only possible under exceptional circumstances; it only

implies that the final decision should be made by the "tribunal" itself

and not by any other authority.

_______________

As to the contents of such a decision in the domain under

discussion, two further remarks seem appropriate.

Firstly: it follows from the foregoing considerations that the

appeal to the "tribunal" should be an appeal de novo: the individual

will have all the benefits of a fair trial (47) only if the tribunal

is in principle competent to review completely the original decision,

be it that it should be empowered to exercise restraint with regard to

such decisions and assessments by the executive authorities which, in

its opinion, should properly be left to their discretion. However,

even in this respect it should have competence to control at least

whether the authorities have duly observed "generally recognised legal

and administrative principles".

_______________

47. See Robertson-Merills, Human Rights in Europe (Manchester

University Press, Manchester and New York, 1993), p. 91.

_______________

Secondly: it is an open question whether the "tribunal" should

have the power to settle the case itself or whether it suffices if it

has the power to quash the administrative decision, leaving the final

settlement to the administrative authorities. It goes without saying

that the individual's protection is better served when the "tribunal"

has the former power, but it must be acknowledged that conferring that

power upon the judiciary goes against a long and deeply rooted

tradition in many member States. However that may be, it follows - I

would think - from the Court's AGOSI judgment (48) that the latter

alternative is in line with the principles underlying the above

case-law only when the administrative authorities, in finally settling

the case, have to exercise their discretion within the boundaries drawn

by the tribunal's decision (49) and if the "tribunal" has power to

quash if they overstep those boundaries.

_______________

48. AGOSI v. the United Kingdom, judgment of 24 October 1986,

Series A no. 108, p. 20, para. 58, in conjunction with p. 14, para. 38,

last dash.

49. In this respect the Verwaltungsgerichtshof meets the requirements

of Article 6 para. 1 (art. 6-1), since under Article 63 of the

Administrative Court Act, when the Verwaltungsgerichtshof has quashed

a decision of the administrative authorities, these have to decide

again according to the legal opinion of the Verwaltungsgerichtshof and

if they fail to do so the Verwaltungsgerichtshof may itself decide (see

the decision of the Verfassungsgerichtshof referred to in note 4).

_______________

C. METHODOLOGICAL OBJECTIONS

15. Having indicated in the foregoing paragraphs how the Court, on

the basis of its case-law preceding the Zumtobel doctrine, should have

decided these cases, I now come to the divergence between the Court and

myself as to the method of ascertaining whether the

Verwaltungsgerichtshof fulfils the essential requirements of a

"tribunal" within the meaning of Article 6 (art. 6).

It is a basic characteristic of the Zumtobel doctrine that the

Court simply refuses to decide this question once and for all, but

proclaims that it will do so only on a case-by-case basis ("in the

circumstances of the case") (50). My first methodological objection

is directed against both this refusal and the argument on which it is

based.

_______________

50. See the Zumtobel judgment (paragraph 2 above), p. 14, para. 32,

and paragraph 33 of the present judgment.

_______________

16. This refusal to decide the question once and for all is (merely)

based on the Court's doctrine that the Court "should confine itself as

far as possible to examining the question raised by the case before

it".

This doctrine is in my opinion no more than a regrettable petitio

principii. No provision of the Convention compels the Court to decide

in this way on a strict case-by-case basis. This self-imposed

restriction may have been a wise policy when the Court began its

career, but it is no longer appropriate (51). A case-law that is

developed on a strict case-by-case basis necessarily leads to

uncertainty as to both the exact purport of each judgment and the

precise contents of the Court's doctrine. Hence the need for comments.

Hence speculation by annotators, which creates further uncertainty.

The Court rightly is wont to stress that the protection of the rights

and freedoms under the Convention falls primarily to national

authorities. It should, however, not overlook that the reverse side

of this coin is that national authorities are obliged to seek guidance

in its case-law. It is thus duty bound to see to it that this case-law

meets the very same standards of clarity, precision and foreseeability

by which the Court usually measures laws of member States in the field

of fundamental rights and freedoms.

_______________

51. See also my concurring opinion in the case of Fey v. Austria,

Series A no. 255-A, p. 16, para. 1.

_______________

17. Furthermore, I fail to see how the legal uncertainty thereby

created by the Court's refusal to decide once and for all whether the

Verwaltungsgerichtshof meets the requirements of a "tribunal" may be

reconciled with its older case-law which, in my opinion, clearly

conveys the idea that the competence of the "tribunal" is to be

assessed on the basis of the provisions of the law, as construed by the

national courts, under which it is established (see paragraph 11

above).

18. My second objection to the Zumtobel doctrine concerns its tests

for assessing whether or not "in the circumstances of the case" the

scope of the Verwaltungsgerichtshof's competence satisfies the

requirements of Article 6 para. 1 (art. 6-1).

I say "tests", for there is a double test: the first test is

whether the decisive issue in the particular proceedings concerns a

matter which is "exclusively within the discretion of the

administrative authorities" (52); the second - which is to be applied

only if the answer under the first is in the negative - is whether in

the particular proceedings the Verwaltungsgerichtshof was able to

consider all the applicant's submissions "on their merits, point by

point, without ever having to decline jurisdiction in replying to them

or in ascertaining various facts".

_______________

52. See the Zumtobel judgment (paragraph 2 above), p. 13, para. 31,

and paragraph 34 of the present judgment. It would at least seem

questionable whether this first test is adequately formulated, since

under Article 130 para. 1 of the Federal Constitution (see

paragraph 20 below) the Verwaltungsgerichtshof lacks competence in so

far as the authorities have discretion.

_______________

An initial point to be made is that the second test is to a

certain extent irrational and perhaps even unfair, since it fails to

take into account that when - as is the case here - there are certain

legal restrictions as to the scope of a court's powers of review,

prudent lawyers will, of course, avoid making submissions with respect

to which that court will have to decline jurisdiction.

A second and, in my opinion, even more serious drawback is that

the two tests oblige the Court to carry out a very minute and delicate

examination both of the file and the relevant provisions of Austrian

law (53). It is by no means an easy task to ascertain whether the

decisive issue in the proceedings concerns a matter which is

"exclusively within the discretion of the administrative authorities".

The task of ascertaining whether, in the case before the Court, the

Verwaltungsgerichtshof was able to consider all the applicant's

submissions "on their merits", point by point, "without ever having to

decline jurisdiction in replying to them or in ascertaining various

facts" is even more delicate. In any event it requires a scrutiny of

the complete file (54) that can reasonably only be made by an

experienced lawyer, completely conversant with Austrian law and

Austrian legal practice and style of litigation. In my opinion this

aspect on its own is sufficient to condemn the Zumtobel doctrine.

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53. Or, since it is to be feared that the Zumtobel doctrine will be

applied to administrative courts of other member States, of the law of

such States.

54. That is because the test at least implies that the Court should

compare "point by point" the applicant's submissions to the

Verwaltungsgerichtshof and the latter's judgment in order to ascertain

whether all submissions are really dealt with.

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D. MATERIAL OBJECTION

19. My material objection is that application of the Zumtobel

doctrine has led the Court to the conclusion that the scope of the

Verwaltungsgerichtshof's competence in the present case as well as in

the cases mentioned in paragraph 2 above satisfied the requirements of

Article 6 para. 1 (art. 6-1) of the Convention, whereas in my opinion

that scope - when assessed properly, that is according to the

principles set out in paragraphs 5 to 14 above on the basis of the

relevant legal provisions - does not fulfil these requirements.

20. It is perhaps significant that neither the present judgment nor

those mentioned in paragraph 2 above contain (a translation of) all

legal provisions relevant for ascertaining the scope of jurisdiction

of the Verwaltungsgerichtshof.

What is lacking is a reference to Articles 129a and 130 of the

Federal Constitution. Article 129a makes it clear that the essential

task of the Verwaltungsgerichtshof is to ensure the lawfulness

(Gesetzmäßigkeit) of the executive. Accordingly, Article 130 para. 1

gives the Verwaltungsgerichtshof jurisdiction to hear, inter alia,

complaints alleging unlawfulness (Rechtswidrigkeit) of an

administrative decision (55). Paragraph 2 of this provision specifies,

however, that there is no question of unlawfulness in so far as the law

refrains from imposing binding regulations with regard to the conduct

of the authorities themselves, and the authorities have used their

discretion in accordance with the object and purpose of the law (56).

Together, these provisions make it clear that even with respect to what

are usually called questions of law the Verwaltungsgerichtshof has no

full jurisdiction, since it can but very restrictively control

discretion, which severely limits its powers as far as so-called vague

norms are concerned (see paragraph 12 above).

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55. See paragraph 15 of the Court's judgment.

56. "Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von

einer bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht

und die Bestimmung dieses Verhaltens der Behörde selbst überläßt, die

Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch

gemacht hat."

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21. Sections 41 and 42 of the Administrative Court Act

(Verwaltungsgerichtshofsgesetz) (57) set forth the restrictions on the

Verwaltungsgerichtshof's competence with regard to questions of fact.

I do not intend to analyse these intricate provisions, nor to comment

upon them further than to say that at the least they do not easily

disclose an exact notion of the scope of the Verwaltungsgerichtshof's

control in this respect. It is no wonder, therefore, that their exact

meaning and - what is more important in the present context - the

question whether that scope is sufficient with regard to the

requirements of Article 6 para. 1 (art. 6-1) are the subject of

controversy in Austrian legal literature. In the proceedings before

the Court both parties have quoted those learned authors who supported

their view (58).

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57. See paragraphs 17 and 18 of this judgment.

58. Neither party quoted L.K. Adamovich and B.-C. Funk, Allgemeines

Verwaltungsrecht, (3., neubearb. Aufl. Springer, Wien, New York, 1987)

pp. 93-94, 449 and 453. I mention this book because the first-named

author is the President of the Austrian Constitutional Court. The

latter fact makes it significant that the authors write that it is open

to doubt (lassen es zweifelhaft erscheinen) whether the competence of

the Verwaltungsgerichtshof meets the requirements of Article 6

para. 1 (art. 6-1). They mention notably the principle that the

Verwaltungsgerichtshof may only quash a decision, that it has only a

limited competence to review the facts (begrenzte Sachverhaltsprüfung)

and also a limited possibility to review discretionary acts of the

executive. They add that fundamental changes in the system may prove

necessary.

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The Government relied on a very comprehensive and lucid essay by

K. Ringhofer (59), which has, however, much helped me to come to the

above conclusion. That is because Ringhofer has made it entirely clear

that, whatever the exact scope of the Verwaltungsgerichtshof's

jurisdiction, the appeal to that court cannot be considered an appeal

de novo (see paragraph 14 above): the relevant legal provisions are the

result of a compromise between the requirements of the protection of

the individual and those of the protection of the

Verwaltungsgerichtshof (60). The legislature realised that since the

Verwaltungsgerichtshof was to be the one and only administrative court

in Austria, giving it competence to control de novo all administrative

decisions was impossible, however desirable such a competence might be

in terms of the protection of individual rights. The compromise

consisted in setting up the appeal as one on questions of law only -

the Verwaltungsgerichtshof being in principle bound by the findings of

fact made by the administrative authorities - but allowing for certain

exceptions to these principles. How far these exceptions exactly go

is controversial, but even Ringhofer concedes that the competence of

the Verwaltungsgerichtshof as to questions of fact is restricted (61).

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59. K. Ringhofer, Der Sachverhalt im verwaltungsgerichtlichen

Bescheidprüfungsverfahren, in: Festschrift zum 100-jährigen Bestehen

des österreichischen Verwaltungsgerichtshofes, pp. 351-75.

60. Ringhofer, loc. cit., pp. 353, 358 and especially 361-62.

61. Ringhofer, loc. cit., p. 363. In its decision referred to in

note 4 the Austrian Verfassungsgerichtshof essentially confirmed

Ringhofer's analysis. It held: "However, the Constitution does not

permit the abandonment of the very system of limited control (das

System der nachprüfenden Kontrolle) or the conferment on the

Verwaltungsgerichtshof of the competence to give (at the request of one

of the parties) in all administrative matters a binding decision on the

dispute on the basis of a completely new investigation of the facts ...

The Verwaltungsgerichtshof could not fulfil that task, if only in view

of its magnitude."

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In my opinion that is decisive. One of the essential

constitutive elements of the protection which Article 6 para. 1

(art. 6-1) affords the individual involved in a dispute concerning

civil rights and obligations - or, for that matter, prosecuted under

a criminal charge (62) - is that "all aspects" of his dispute with the

authorities should be determined by a "tribunal". Article 130

para. 2 of the Constitution and section 41 (1) of the Administrative

Court Act - which one should not consider separately, since (as follows

from the above) they are clearly interrelated - bar such determination

by the Verwaltungsgerichtshof. Such is the core of the above

compromise. However, essentials do not allow of compromise.

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62. In a judgment of the same date as its decision referred to in note

4 the Austrian Verfassungsgerichtshof has held that with regard to

criminal matters (im Bereich des Strafrechts) "the merely limited

control (die bloß nachprüfende Kontrolle)" of the

Verwaltungsgerichtshof did not meet the requirements of Article 6

para. 1 (art. 6-1). It is interesting to note (see Merli (note 4),

p. 257) that the Verfassungsgerichtshof did so although the Government

had relied in this case too on the analysis of Ringhofer (see note 59):

apparently, this analysis of its Vice-President impressed the

Verfassungsgerichtshof less than it did the European Court of Human

Rights!

To my mind this judgment of the Verfassungsgerichtshof with

regard to criminal matters is decisive since there is no ground to

distinguish between the requirements of a "tribunal" as far as the

determination of a criminal charge and that of civil rights and

obligations are concerned. The latter point has been conceded by the

Verfassungsgerichtshof: in its later case-law it has applied its

doctrine of the insufficiency of the Verwaltungsgerichtshof's

jurisdiction to administrative procedures which, in the European

Court's doctrine, concern "civil rights and obligations" within the

meaning of Article 6 para. 1 (art. 6-1), be it only if the rights at

stake can be said to belong to a special, self-created category of

"essentially civil rights" (see Holoubek, note 4).

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E. CONCLUSION

22. To sum up, neither the reasoning nor the outcome of the Zumtobel

doctrine is, in my opinion, acceptable. As compared with the Court's

previous achievements in the area under discussion, the Zumtobel

doctrine represents - clearly and deplorably - a step back. The Court

has tried to conceal this by referring, at the outset, to its "full

jurisdiction" doctrine (63). I hope that the foregoing considerations

have made it clear why that reference, in my opinion, is mere lip

service.

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63. See paragraph 28 of the present judgment.

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For these reasons I have, firstly, but in vain, urged that the

present case be referred to a Grand Chamber and, secondly, voted for

the finding of a violation of Article 6 para. 1 (art. 6-1) on the basis

that the applicant's case was not heard by a tribunal within the

meaning of that provision.

II. THE AUSTRIAN RESERVATION

23. There is a second issue on which I wish to express my opinion,

although I have voted with the majority, namely the Austrian

reservation on Article 6 (art. 6) (64).

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64. For the text of the reservation, see paragraph 36 of the present

judgment.

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24. There were - in my opinion - three different possible ways of

dismissing the Government's plea based on this reservation:

(a) to hold that the reservation does not satisfy the

requirements of Article 64 para. 2 (art. 64-2) as construed in the

Court's Belilos v. Switzerland judgment (65) and, therefore, is

invalid;

(b) to hold that it does not apply to proceedings before the

Verwaltungsgerichtshof;

(c) to hold that it does not apply to the present refusal of oral

argument by the Verwaltungsgerichtshof.

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65. See note 1.

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25. Like the Commission the Court opted for possibility (c) (66).

I would, however, have preferred option (a).

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66. See paragraph 41 of its judgment.

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To my mind option (c) has a rather artificial ring. The choice

of just that possibility may therefore suggest that the Court preferred

to avoid the other two options and may, on a subsequent occasion, be

lured into finding the reservation valid and applicable to proceedings

before the Verwaltungsgerichtshof. After all, as the Government have

stressed, the Court has already twice implicitly recognised the

reservation as valid and construed it broadly as encompassing

administrative proceedings also (67). Since in my opinion the a

fortiori construction of the Ringeisen judgment - which was followed

in the Ettl and Others judgment - is no longer tenable following the

Court's statement (in paragraph 59 of its Belilos judgment) that

reservations are to be construed stricto sensu, I do not like creating

the impression that the Court might be induced to maintain that old

construction. The less so because I think that it follows from the

Belilos judgment that the reservation is invalid (68). In this respect

I fully share the opinion of Mrs Liddy.

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67. See the Ringeisen v. Austria judgment of 16 July 1971, Series A

no. 13, p. 40, para. 98, and the Ettl and Others v. Austria judgment

of 23 April 1987, Series A no. 117, p. 19, para. 42.

68. This is also the prevailing opinion in Austria: see

C. Grabenwarter, Juristische Blätter, Jg. 116, p. 107, para. 5.

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CONCURRING OPINION OF JUDGE JAMBREK

I voted with the majority on all four points of the Court's

judgment. I am, however, of the opinion, that the principle, laid down

in paragraph 33 of the judgment (the European Court should confine

itself as far as possible to examining the question raised by the case

before it) should neither be phrased nor be applied in too restrictive

a way. Accordingly, the European Court should not hesitate also to

couch its findings in more general terms. In this respect, I would

recall the Court's recent description of the Convention "as a

constitutional instrument of European public order (ordre public)"

(Loizidou v. Turkey judgment of 23 March 1995, Series A no. 310, p. 24,

para. 75). It seems to me that reasoning not solely restricted to the

scope and the circumstances of the case would contribute better to the

quality of the Court's case-law in the service of the Convention as a

living constitutional instrument on European public order. In this

respect, my own views come close to the methodological objection raised

by Judge Martens in paragraph 16 of his separate opinion.