FIRST SECTION

DECISION

Application no. 640/03 
by MOSGÖLLER & PARTNER ENGINEERING GMBH 
against Austria

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

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges,  
and Mr S. quesada, Deputy Section Registrar,

Having regard to the above application lodged on 20 December 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant company, Mosgöller & Partner Engineering Gmbh, is a limited liability company with its seat in Vöslau. It was represented before the Court by Prunbauer, Themmer & Toth, a company of lawyers practising in Vienna.

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

On 18 November 1997 the applicant company instituted civil proceedings against the R. company with the Wiener Neustadt Regional Court (Landesgericht), claiming approximately 515 000 Austrian schillings (ATS) (about 37 400 euros).

On 4 October 2002 the applicant company filed a request under S. 91 of the Court Organisation Act (Fristsetzungsantrag). In particular, it requested that a time-limit be set for the Regional Court to decide whether it had jurisdiction to deal with the case at issue.

Having heard several witnesses, the Regional Court, on 26 November 2003, rejected the applicant company's claim as it found that it had no jurisdiction in the case at issue. On 19 July 2004 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant company's appeal. Proceedings concerning the applicant company's extraordinary appeal with the Supreme Court (Oberster Gerichtshof) are still pending.

COMPLAINT

The applicant company complained under Article 6 § 1 of the Convention that the length of the above proceedings was excessive.

THE LAW

On 12 May 2005 the Court received the following declaration from the Government:

I declare that the Government of Austria offer to pay ex gratia the amount of EUR 8,000 to Mosgöller & Partner Engineering GmbH with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum which is, to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

On 23 May 2005 the Court received the following declaration from the applicant company:

I note that the Government of Austria are prepared to pay ex gratia the sum of EUR 8,000 to Mosgöller & Partner Engineering GmbH with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to this case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Santiago Quesada Christos Rozakis 
 Deputy Registrar President

MOSGOLLER & PARTNER ENGINEERING GMBH v. AUSTRIA DECISION


MOSGOLLER & PARTNER ENGINEERING GMBH v. AUSTRIA DECISION