THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45289/99 
by Martin BRUNNTHALER 
against Austria

The European Court of Human Rights (Third Section), sitting on 16 June 2005 as a Chamber composed of

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr C. Bîrsan
 Mrs E. Steiner
 Mrs A. Gyulumyan, 
 Ms R. Jaeger, judges 
and Mr M. Villiger, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 3 November 1998 and on 25 March 1999,

Having regard to the partial decision of 28 February 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Martin Brunnthaler, is an Austrian national, who was born in 1949 and lives in Linz. Before the Court he is represented by Mr Helmut Blum, a lawyer practising in Linz. The respondent Government are represented by their Agent Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a chimney sweeper by profession.

Request for an industrial licence

On 4 August 1988 the applicant filed a request for an industrial licence (Konzession) for chimney sweeping in Linz. On 31 March 1989 he filed an alternative request to start chimney sweeping in a specified administrative area (Kehrgebiet). Following a new regulation concerning the division of those administrative areas which entered into force in December 1991, the applicant, on 14 January 1992, modified his request into one for an industrial licence as a chimney sweeper in a different specified administrative area.

As the Upper Austria Regional Governor (Landeshauptmann) did not deal with his request, the applicant, on 20 July 1992, filed a request for the transfer of jurisdiction (Devolutionsantrag) with the Federal Minister of Economic Affairs (Bundesminister für wirtschaftliche Angelegenheiten).

On 3 June 1993 the Federal Minister allowed his request for transfer but dismissed his application for the industrial licence.

On 20 July 1993 the applicant filed a complaint with the Administrative Court.

On 20 December 1994 the Administrative Court (Verwaltungs-gerichtshof) quashed the decision on procedural grounds.

On 3 February 1995 the Federal Minister rejected the applicant's request for a transfer of jurisdiction, finding that, according to the amended Trade Act (Gewerbeordnung), the authority now competent for applications of the applicant's kind was the Administrative District Authority, namely the Linz Municipal Office (Magistrat).

On 19 December 1995 the Administrative Court confirmed this decision.

As the Municipal Office did not decide on his request, the applicant, on 7 March 1996, filed a request for the transfer of jurisdiction with the Regional Governor.

On 10 May 1996 the Regional Governor dismissed the applicant's request.

Following the information in this decision as to further remedies (Rechtsmittelbelehrung), the applicant filed against this decision a complaint with the Constitutional Court.

On 30 September 1997 the Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant's complaint and, upon the applicant's request, transferred the case to the Administrative Court.

On 17 April 1998 the Administrative Court rejected the applicant's complaint for non-exhaustion of administrative remedies as he had failed to file an appeal with the Federal Minister for Economic Affairs.

Referring to the erroneous information as to further remedies in the decision of the Regional Governor of 10 May 1996, the applicant requested reinstitution into the proceedings (Wiedereinsetzungsantrag) and at the same time filed an appeal against that decision with the Federal Minister for Economic Affairs

On 1 July 1998 the Regional Governor allowed the reinstitution into proceedings. On 3 September 1999 the Federal Minister for Economic Affairs dismissed the applicant's appeal.

Meanwhile, however, the Linz Municipal Office, on 23 January 1997, dismissed the applicant's request for an industrial licence.

On 21 July 1997 the Regional Governor confirmed this decision.

On 30 September 1997 the Constitutional Court declined to deal with the applicant's complaint and, upon the applicant's request of 29 December 1997, transferred the case to the Administrative Court.

On 13 March, 7 April, 28 April and on 15 May 1998 the applicant, in compliance with the Administrative Court's order to remedy certain procedural effects, filed further submissions.

On 9 September 1998 the Administrative Court dismissed the applicant's complaint as being unfounded.

Official liability proceedings

Upon the applicant's request, the Linz-Land District Administrative Authority on 25 January 1994 stated that the legal requirements for the exercise chimney sweeping by the applicant in Linz-Land were met. Against this decision the Regional Guild filed an appeal. On 21 June 1994 the Regional Governor rejected the Regional Guild's appeal on procedural grounds. This decision was later quashed by the Administrative Court and the Regional Governor, on 19 May 1995, refused the applicant's request.

Subsequently, the applicant instituted official liability proceedings against the Republic of Austria with the Linz Regional Court (Landesgericht) and claimed compensation for damage incurred by the allegedly unlawful decision of the Regional Governor to reject the Regional Guild's appeal. The applicant submitted that, because of the Regional Governor's decision, he had paid and lost the purchase price for a chimney sweeping company in Linz-Land.

On 30 October 1998 the Regional Court partly dismissed the applicant's action.

On 3 February 1999 the Linz Court of Appeal (Oberlandesgericht), giving extensive reasons, confirmed this decision. It noted that there was no relevant connection (Rechtswidrigkeitszusammenhang) between the damage allegedly suffered and the decision of the Regional Governor.

The applicant's extraordinary appeal is apparently still pending before the Supreme Court (Oberster Gerichtshof).

COMPLAINTS

The applicant complains under Article 6 of the Convention about the unreasonable length of the administrative proceedings relating to his request for an industrial licence. He further complains under Article 6 about the Austrian authorities' legal reasoning in the official liability proceedings.

THE LAW

1. The applicant complains about the length of administrative proceedings. He invokes Article 6 § 1 of the Convention, which, so far as material, reads as follows:

 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

a. As regards the applicability of Article 6 to the proceedings at issue, the Government referred to the Pellegrin v. France judgment ([GC], no.28541/95, §§ 64-71, ECHR 1999-VIII). According to this judgment employment disputes between the authorities and public servants whose duties typified the specific activities of the public service, in so far as the latter were acting as the depositary of public authority responsible for protecting the general interests of the State, were not “civil” and were excluded from the scope of Article 6 § 1. The Government argued that this case-law was to be applied per analogiam to the case at issue, as the granting of an industrial licence for chimney sweeping entailed the authorisation (Beleihung) to exercise public authority in the context of fire police activities. Reference was made in particular to the duty of chimney sweepers annually to examine buildings as to their conformity with fire protection legislation, to inform operators of heating facilities about relevant legislation and, in a case of imminent danger, to report the matter to the competent authority. The Government concluded that Article 6 § 1 was not applicable to the proceedings at issue. The applicant contested the Government's view.

The Court does not exclude that persons not employed in the State's service might act as a depositary of public authority, namely because of special authorisation and assignment by the State. Article 6 might consequently not be applicable to disputes between these persons and the administrative authorities.

The Court nevertheless need not go any further into this issue, as, in any event, it does not consider, on the basis of the available information, that the duties and responsibilities of a chimney sweeper under Austrian law are akin to those that “typify the specific activities of the public service ... as the depository of public authority responsible for protecting the general interests of the State or other public authorities” (see, mutatis mutandis, Pellegrin, cited above, § 66). The Court is therefore called upon to examine this complaint under Article 6 § 1.

b. As to the period to be taken into consideration, the Court reiterates that, in cases such as the present one, in which an administrative authority's decision is a necessary preliminary for bringing the case before a tribunal, the relevant period starts running, not when the request is lodged, but only once a “dispute” arises (see Morscher v. Austria, no. 54039/00, § 38, 5 February 2004). In the present case, the date of 20 July 1992 constitutes the starting point. On that date the applicant filed a request for the transfer of jurisdiction with the Federal Minister of Economic Affairs as the Regional Governor had failed to reply to his original application within the statutory time-limit (see G. H. v. Austria, no. 31266/96, § 18, 3 October 2000). The proceedings lasted until 9 September 1998 when the Administrative Court finally refused the applicant's request. They thus lasted for six years and some two months.

c. The Government asserted that the length of the proceedings was reasonable. Certain delays were due to the applicant's conduct and the fact that proceedings were complex, namely because careful investigations had to be undertaken and at the same time the applicable law underwent modifications.

The applicant maintained that the length of the proceedings breached the “reasonable time” requirement laid down in Article 6 § 1.

The Court considers, in the light of the relevant criteria established in its case-law (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The applicant also complained under Article 6 about the Austrian authorities' legal findings in the official liability proceedings. Even assuming exhaustion of domestic remedies, this complaint is inadmissible for the following reasons.

The Court recalls that it is not its task to substitute itself to the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of the interpretation of domestic law and the assessment of facts (see, inter alia, Pérez de Rada Cavanilles v. Spain judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 43). The Court finds no indication that the domestic authorities acted arbitrarily in the present case. Furthermore, the applicant has not substantiated any procedural unfairness in the conduct of the proceedings.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaint about the length of the proceedings;

Declares inadmissible the remainder of the application.

Mark Villiger Boštjan M. ZupanČiČ 
 Deputy Registrar President

BRUNNTHALER v. AUSTRIA DECISION


BRUNNTHALER v. AUSTRIA DECISION