AS TO THE ADMISSIBILITY OF
by Gerlinde MÜHLE and Gerhard MÜHLE
European Court of Human Rights (Fifth Section), sitting on
10 February 2009 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 June 2005,
Having deliberated, decides as follows:
The applicants, Ms Gerlinde Mühle and Mr Gerhard Mühle, are German nationals who were born in 1954 and 1955 respectively and live in Dresden. They were represented before the Court by Mr T. Purps, a lawyer practising in Potsdam.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1983 the Dresden City Council (Rat der Stadt Dresden) granted
the applicants permission to build a house on 411 square metres of
public land. On 15 November 1983 the house-owners’ right of use
(dingliches Nutzungsrecht) was registered in the land register.
May 1990 the applicants requested the sale of the property by the
City of Dresden (“the City”) in accordance with the Act
GDR Parliament (Volkskammer) on the Sale of Public Property.
On 15 September 1993 the City was registered as the owner of the land in the land register.
April 1997 the City and the applicants agreed on the terms of the
sale of the property before a notary public. The parties agreed on
the purchase price of 2,055 German marks (DEM – 1,050.70 euros
(EUR)), corresponding to the value of the land (Bodenwert)
in 1990, in accordance with the City’s practice regarding
requests for sale made prior to
30 June 1990 by those who had legally built their houses on public land. The value of the land was estimated at DEM 92,175 (EUR 47,128.33) in 1998.
sale could only take effect once approved by the supervisory
administrative body, as required by section 120 of the Saxony
Municipal Act (see “Relevant domestic law and practice”
below), and on
27 January 1999 the City requested that the sale be approved by the Free State of Saxony, represented by the Dresden Regional Council (Regierungspräsidium Dresden – “the Regional Council”).
On 3 March 1999 the City informed the Regional Council that the difference between the purchase price and the value of the land would not be accounted for in the City’s budget. On 26 March 1999 the Regional Council refused to approve the sale. The Regional Council noted that a municipality was entitled to sell land below the market price in order to further the acquisition of private property in accordance with
section 90(3), point (1), of the Saxony Municipal Act
(Sächsische Gemeindeordnung – see “Relevant domestic law and practice” below), but, referring to a decree of the Ministry of the Interior of the Free State of Saxony of 22 April 1996, found that a sale in the present case would have an adverse effect on the municipal budget.
On 26 July 1999 the Regional Council dismissed an objection by the applicants.
On 8 May 1999 the Dresden Administrative Court (Verwaltungsgericht) ordered that the sale of the property be approved, noting that in accordance with section 90(3), point (1), of the Saxony Municipal Act taken in conjunction with section 61(1) and section 68(1) of the Property Law Reform Act (Sachenrechtsbereinigungsgesetz – see “Relevant domestic law and practice” below), the sale price should be set at half the value of the land but reasonable reductions might be granted in appropriate circumstances.
On 27 January 2004 the Bautzen Administrative Court of Appeal (Oberverwaltungsgericht) reversed that decision and dismissed the applicants’ claim, holding that the refusal to approve the sale had been lawful as the conditions of section 90(3), point (1), of the Saxony Municipal Act had not been met. The applicants had no right to have the sale approved in view of the Dresden Regional Council’s approval of similar sales prior to the decree of 22 April 1996; only prior lawful administrative actions could give rise to a right to be treated alike, not approvals of contracts in violation of section 90 of the Saxony Municipal Act. The court noted that the applicants could either buy the property for half of the value of the land or reach an agreement with the City on another reasonable reduction of the purchase price; therefore the core of their property rights had not been impaired.
On 5 August 2004 the Federal Administrative Court refused leave to appeal on points of law because the matter was not of fundamental importance and the lower courts had not committed procedural errors.
30 November 2004 the Federal Constitutional Court refused to accept
the applicants’ constitutional complaint for examination
(no. 1 BvR 2113/04).
B. Relevant domestic law
Section 90 of the Saxony Municipal Act provides, inter alia:
“(1) A municipality may sell assets if it does not need the assets to fulfil its obligations and if the sale does not conflict with the interests of general welfare. Assets shall be sold for their full value. The municipality may grant reasonable reductions on the purchase price of freehold apartments and real property on the basis of social considerations to further the acquisition of private property.
(3) Legal transactions by which the municipality undertakes
1. to sell real property or similar rights ... require the approval of the supervisory administrative body.”
Section 120 of the Saxony Municipal Act provides that legal transactions that require approval have no legal effect until approved; if the approval is refused, the legal transactions are void ab initio.
Section 61 of the Property Law Reform Act provides, inter alia, that the owner of a house that has been legally built on public property may sue the owner of the land with a view to obtaining acceptance of an offer to purchase it. Section 68(1) of the Property Law Reform Act provides that the purchase price must be half of the value of the land.
Sections 8(1) and (1)(a) of the Act on the Identification of the Allocation of Former Public Property provide that municipalities may sell real property that is still listed as public property in the land register without it being subject to restrictions on the sale of municipal real property.
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
applicants maintained that they had a “legitimate expectation”
to acquire the property because they had built a house on it and had
requested the sale before 30 June 1990. As a consequence, they were
entitled to have either the sale approved or the requirement of the
approval dispensed with in order to be treated in the same way as
home owners who had previously acquired former public property for
its 1990 value. Furthermore, the
non-execution of the sale agreement had amounted to an unjustified expropriation without compensation of their interest in remainder (Anwartschaftsrecht) in acquiring the property. Referring to Article 14 of the Convention, they also claimed that they were victims of discrimination as some 2,300 home owners had previously acquired land on which they had built their houses, whereas the applicants could not.
The Court first notes that the applicants’ complaint under Article 14 compares their position with that of beneficiaries under other legal regimes. The requirement that a sale be approved by the supervisory administrative body pertains only to municipal property; sales of public property did not require such an approval. The Court further notes that the reason for the difference in treatment compared to the sales of municipal property for the value of the land in 1990 was the existence of different legal regimes before and after the entry into force of the decree of the Ministry of the Interior of the Free State of Saxony of 22 April 1996. The Court therefore does not accept that the position of the applicants was “relevantly similar” to that of home owners under an earlier legal regime. It will therefore deal with the complaint solely under Article 1 of Protocol No. 1.
Court reiterates that an applicant can allege a violation of
Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his or her “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74(c), ECHR 2005-V, and Kopecký v. Slovakia [GC], no. 44912/98, § 35(c), ECHR 2004-IX). A proprietary interest may only be regarded as an asset and thus give rise to a “legitimate expectation” protected by Article 1 of Protocol No. 1 if it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký, cited above, § 52). However, no “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký, cited above, § 50, and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65,
ECHR 2007 ...).
1 of Protocol No. 1 applies only to a person’s existing
possessions (see Marckx v. Belgium, 13 June 1979, § 50,
Series A no. 31, and Anheuser-Busch Inc., cited above, §
64); it neither guarantees the right to acquire property (see Van
der Mussele v. Belgium, 23 November 1983, § 48,
Series A no. 70, and Slivenko and Others v. Latvia (dec.)
[GC], no. 48321/99, § 121, ECHR
2002-II), nor can a conditional claim which lapses as a result
of the non-fulfilment of the condition be considered a “possession”
within the meaning of Article 1 of Protocol No. 1
(see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 XII; Prince Hans-Adam II of Liechtenstein v. Germany [GC],
no. 42527/98, § 83, ECHR 2001-VIII; and Gratzinger and
Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).
Court reiterates that a person who complains of a violation of his or
her right to property must first show that such a right existed
(see Pištorová v. the Czech Republic, no. 73578/01, § 38, 26 October 2004; Des Fours Walderode v. the Czech Republic (dec.), no. 40057/98,
ECHR 2004-V; and Zhigalev v. Russia, no. 54891/00, § 131, 6 July 2006).
to the circumstances of the present case, the Court observes that the
applicants were never the owners of the property in issue. Therefore,
the proceedings did not relate to the applicants’ “existing
It accordingly remains to be examined whether the applicants could have had any “legitimate expectation” of realising their claim to the property under German law.
Court observes that the applicants had requested the sale of the plot
of land in May 1990 and had reached an agreement on the sale with the
City of Dresden on 30 April 1997. However, pursuant to section 90(3),
point (1), of the Saxony Municipal Act, the validity of the sale
agreement depended on its approval by the Regional Council, which was
refused. Pursuant to section 120(1) of the Saxony Municipal Act, the
sale was thus void
ab initio. Accordingly, the applicants’ interest in remainder in the acquisition of the property expired.
The Court further observes that, according to the Bautzen Administrative Court of Appeal’s findings, the refusal to approve the sale was in accordance with the relevant laws, because the City had failed to establish in a separate assessment whether the reduction of the price was justified in the applicants’ case.
follows that the applicants had a conditional claim to the property
on the basis of the contract of sale. This conditional claim lapsed
as a result of the refusal to approve the sale. Furthermore, there is
no indication that the application of the relevant provisions by the
Bautzen Administrative Court of Appeal was in any way arbitrary.
Hence the applicants cannot claim to have had a “legitimate
expectation” within the meaning of
Article 1 of Protocol No. 1 to acquire the property on the basis of the contract of sale.
The Court now turns to the applicants’ submission that as a matter of domestic law they were entitled to buy the property for the value of the land in 1990 in view of previous administrative practice. The Court observes that the applicants’ case falls to be distinguished from the cases in which the City sold public property without being registered as the owner in the land register because a different legal regime applied to those cases. The Court notes that the Bautzen Administrative Court of Appeal held that the applicants could not rely on their right to be afforded equal treatment in order to have the sale approved or the approval dispensed with in their case. This decision was carefully reasoned and does not disclose any appearance of arbitrariness. It follows that the applicants cannot claim to have had a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to acquire the property on the basis of previous administrative practice.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
They alleged, in particular, that the Bautzen Administrative Court of Appeal had erroneously applied the domestic law and that the Federal Administrative Court had incorrectly stated the reasons set out in their application for leave to appeal on points of law and had adjudicated their application prematurely without giving them the opportunity to comment on the respondent’s further observations.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen