AS TO THE ADMISSIBILITY OF


Application No. 11402/85
by Gerhard ZÜCHNER
against the Federal Republic of Germany


        The European Commission of Human Rights sitting in private on
2 March 1987, the following members being present:


                    MM. C.A. NØRGAARD, President
                        J.A. FROWEIN
                        B. KIERNAN
                        A.S. GÖZÜBÜYÜK
                        A. WEITZEL
                        J.C. SOYER
                        H.G. SCHERMERS
                        H. DANELIUS
                        H. VANDENBERGHE
                   Mr.  F. MARTINEZ

                   Mr.  J. RAYMOND, Deputy Secretary to the Commission


        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 16 November 1984
by Gerhard ZÜCHNER against the Federal Republic of Germany and registered
on 22 February 1985 under file No. 11402/85;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a German citizen, born in 1928 and living in
Rosenheim.

        His application concerns three distinct subject matters.

1.      In 1979 the applicant brought an action against a bank
claiming restitution of 15 DM which the bank had allegedly wrongly
charged as fees for the transfer on the applicant's account of
10,000 DM to Italy.  The applicant submitted that the charging of the
fee in question violated Article 67 of the E.E.C. Treaty.  The
District Court (Amtsgericht) of Rosenheim submitted the issue to the
European Court of Justice for a preliminary ruling in accordance with
Article 177 of the E.E.C. Treaty and eventually dismissed the
applicant's action.  The applicant was ordered to pay the costs of the
proceedings.  The applicant's appeal (Berufung) was dismissed by the
Regional Court (Landgericht) of Traunstein as being inadmissible.

        The costs, as fixed by the District Court, included fees and
travel expenses amounting to 2,463.24 DM incurred by the adverse
party in connection with the participation of counsel and an adviser
in the hearing before the European Court of Justice.

        The applicant's appeal (sofortige Beschwerde) against the
order fixing the costs was rejected by the Traunstein Regional Court
on 9 January 1984.  This court confirmed the District Court's opinion
that the travel expenses were justified.  Even if a lawyer in
Luxembourg had been charged by the defendant party to attend the
hearing before the European Court of Justice it would have been
necessary to instruct this lawyer.  Such instruction could even have
necessitated two visits of defendant's counsel to Luxembourg and would
thus have caused even higher costs.  Furthermore, so the Regional
Court reasoned, the costs were not disproportionate to the value of
the claim at issue (i.e. 15 DM) because the issue was, in view of the
numerous international money transfers effected by the defending bank,
of such importance that the defending bank had a justified interest in
defending the case in an extensive and adequate manner.

        The applicant lodged a constitutional complaint
(Verfassungsbeschwerde) arguing that under the German Code of Civil
Procedure (Zivilprozessordnung) only the costs incurred in the
proceedings before the competent German court had to be borne by the
losing party.  He also pointed out that the risk of having to bear
costs which were disproportionate in relation to the value of the
claim at issue would practically oblige a claimant to withdraw his
action in case the matter was submitted to the European Court of
Justice.

        The applicant's constitutional complaint was rejected on
6 July 1984 by a group of three judges of the Federal Constitutional
Court (Bundesverfassungsgericht) as offering no prospects of success.
It is stated in the decision that the Regional Court's finding that
the costs in question had been necessary within the meaning of
Section 91 of the Code of Civil Procedure did not disclose any
violation of constitutional law.

2.      In 1981 the applicant brought an action before the Munich
Social Court (Sozialgericht) against the Federal Insurance Office for
Employees (Bundesversicherungsanstalt für Angestellte) claiming an
invalidity pension (Erwerbsunfähigkeitsrente) as from 1 October 1972
until 1 February 1978 and reimbursement of costs for medical treatment
necessitated by a traffic accident on 4 May 1972 leaving the applicant
with paraplegia.

        While the Munich Social Court partly granted the action and
ordered the defendant to pay invalidity pension as requested, the
action was, as a whole, dismissed by the Bavarian Social Court of
Appeal (Landessozialgericht) on 8 March 1984.  This court found that
the applicant had no claim to an invalidity pension as he exercised
his profession as an independent trade agent until March 1982.
Furthermore he had no claim to a disability pension (Berufsunfähig-
keitsrente) for the period previous to 1 February 1978 because he had,
in a letter of 20 December 1972, withdrawn his request for a pension.
The appellate court considered, unlike the Social Court, that the
defendant had not violated its obligation to inform the applicant in
an adequate manner about his rights in connection with his traffic
accident.  A claim for reimbursement of the costs caused by the
applicant's medical treatment was rejected on the ground that the
Bremen Trade Insurance Agency (Handelskrankenkasse) had paid the
benefits due under the law (gesetzliche Leistungen).

        On 12 December 1984 the Federal Social Court (Bundessozial-
gericht) refused to grant leave to appeal.  This decision was served
on the applicant's counsel on 5 January 1985.

        The applicant submits that counsel, a retired social court
judge 73 years old, had fallen ill shortly before and as counsel did
not employ a secretary the time limit for lodging a constitutional
complaint expired before the applicant himself was informed about the
decision of 5 January 1985.

3.      On 18 August 1986 the Rosenheim District Court dismissed the
applicant's claim for about 4,000 DM against an insurance company
concerning reimbursement of certain lawyer's fees.  The Court found
that the fees in question were not covered by the contract.  Moreover
the Court considered that there was no reason to request a preliminary
ruling of the European Court of Justice as the applicant had failed to
show that his case raised an issue under European Community law.

        The applicant's constitutional complaint was rejected by the
Federal Constitutional Court on 6 November 1986 as offering no
prospects of success.  The Court found that even assuming that the
arbitrary omission of a court to request a preliminary ruling of the
European Court of Justice amounted to a denial of the lawful judge
(gesetzlicher Richter) there was no such violation of the applicant's
constitutional rights in the present case in that the District Court
was not obliged to request a preliminary ruling.  The rule that under
German law (Versicherungsaufsichtsgesetz) insurance companies were
only admitted to take up business under certain conditions as regards
the protection of consumers did not violate the freedom of European
insurance companies to take up business in the Federal Republic of
Germany.  Moreover there was no indication of a restraint on the free
competition between foreign and national companies.

COMPLAINTS

1.      As to the first part of the application, the applicant
complains that he was ordered to pay the costs as fixed by the
Rosenheim District Court although the German procedural law does not
contain any express provision relating to costs of proceedings before
the European Court of Justice.  He points out that a national court
can take the decision to submit a matter to the European Court of
Justice in accordance with Article 177 of the E.E.C. Treaty
independently of the will of the parties.  The costs of the
proceedings before that Court should not, therefore, be imposed on
the losing party because otherwise the financial risk involved with a
legal action would become so great that it would practically bar
access to the courts.  He invokes Articles 6 and 14 of the Convention.

2.      As to the second part of the application, the applicant
complains that his action was wrongly dismissed and that he was denied
access to and a fair hearing before the Federal Social Court.  He
considers that the social courts disregarded the relevant facts and
violated the relevant law.  Furthermore he submits that his action was
dismissed on the sole ground that, as a consequence of this accident,
he received an important amount of money from a private insurance he
had taken out.  He alleges a violation of Article 6, alone and in
conjunction with Article 14 of the Convention.

3.      As to the third part of the application, the applicant
complains under Article 6 para. 1 of the Convention that the District
Court did not request a preliminary ruling of the European Court of
Justice.


THE LAW

1.      The applicant has first complained that in connnection with
civil proceedings before a German court he was wrongly ordered to pay
the costs incurred by the defending party in consequence of the fact
that the German court submitted the case to the European Court of
Justice for a preliminary ruling.  The applicant considers that costs
which, as in his case, by far exceed the value of the claim at issue,
have the effect of barring access to the courts and therefore violate Article 6
(Art. 6) of the Convention, also read in conjunction with Article 14 (Art. 14).

        In its examination of this complaint the Commission has first had
regard to Article 1 para. 2 of Protocol No. 1 (P1-1-2) to the Convention,
which recognises the right of a State "to enforce such laws as it deems
necessary .... to secure the payment of .... contributions". Costs in a
judicial procedure are contributions within the meaning of this provision (No.
7909/74, Dec. 12.10.78 D.R. 15, p. 160).  In this particular case they were
imposed under Section 91 of the Code on Civil Procedure which provides, inter
alia, that the losing party has to reimburse those costs of the adverse party
which are necessarily incurred.  According to the decisions complained of this
provision also covers costs incurred in proceedings under Article 177 of the
E.E.C. Treaty and this corresponds to similar regulations in the law of other
High Contracting Parties.  The Commission finds that Section 91, as applied,
can reasonably be considered as "necessary" within the meaning of Article 1
para. 2 of Protocol No. 1 (P1-1-2) and therefore as covered by Article 1
despite the possible discrepancy between the amount of costs and the value of
the claim raised by the applicant.

        The Commission here observes that the value of the applicant's
claim was so low that he had to expect that it would be substantially
exceeded by the total of the costs incurred in the proceedings in
which, uncontestably, an issue of general importance for the defendant
had to be determined.  In particular, when the matter was brought
before the European Court of Justice, the applicant had to choose
between either the risk of high costs, in case his action was
dismissed, or the withdrawal of his claim of 15 DM.  The costs finally
claimed by the defendant were examined in detail by the German courts
and were granted only in so far as they were found to have been both
necessary and justified.

        The Commission concludes that there is no appearance of a
violation of Article 1 of Protocol No. 1 (P1-1).

        It also finds no indication of a violation of Article 6 (Art. 6),
either alone or read in conjunction with Article 14 (Art. 14) of the
Convention. Article 6 (Art. 6) embodies the right of access to a court for the
determination of civil rights and obligations, and high procedural costs may in
certain circumstances constitute a denial of access (Eur. Court H.R., Airey
judgment of 9 October 1979, Series A No. 32).  In the present case, however,
the applicant could apparently afford the institution of proceedings before the
District Court and their continuation when the case was submitted to the
European Court of Justice.

        It follows that there is no appearance of a violation of the
rights invoked by the applicant and this part of the application must
therefore be rejected as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.      The applicant has further complained that his social court
action was wrongly dismissed and that he was denied leave to appeal to
the Federal Social Court.

        It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures
to everyone the right to a fair hearing and this right may, in certain
circumstances, also be invoked with regard to proceedings relating to social
security rights.

        However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Article 26 (Art. 26) of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted, according
to the generally recognised rules of international law.

        In the present case the applicant failed to raise his
complaint before the Federal Constitutional Court and has, therefore,
not exhausted the remedies available to him under German law.
Moreover, an examination of the case does not disclose the existence
of any special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal.

        The fact that the applicant's counsel fell ill and therefore
failed to inform the applicant of the beginning of the time limit for
lodging a constitutional complaint cannot absolve the applicant from
the obligation to comply with the domestic time-limit.  The applicant
knew that his counsel was a retired judge who apparently did not
entertain a regular law office.  He was therefore himself obliged to
see to it that his case was conducted in an adequate manner.

        It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.

3.      The applicant finally complains under Article 6 para. 1 (Art. 6-1) of
the Convention that the District Court did not request a preliminary ruling of
the European Court of Justice in the proceedings concerning his claim for
reimbursement of lawyer's fees.

        It is true that Article 6 para. 1 (Art. 6-1) of the Convention
guarantees a fair hearing by a "tribunal established by law".  However, even
assuming that this clause might be interpreted as including a requirement that
domestic rules concerning the jurisdiction of particular courts for particular
matters be observed, there is no indication of a violation of such a right in
the present case.  The District Court and the Federal Constitutional Court,
after careful examination of the relevant legal provisions of European
Community law, found that the applicant's claim did not raise any issue
requiring a preliminary ruling of the European Court of Justice.  The
Commission therefore concludes that there is no appearance of a violation of
the applicant's right to the determination of his civil rights by a tribunal
established by law.

        It follows that this part of his application must be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.


Deputy Secretary to the Commission          President of the Commission




         (J. RAYMOND)                             (C.A. NØRGAARD)