CASE OF FRANZ MAIER GMBH v. AUSTRIA
(Application no. 24143/11)
14 February 2017
This judgment is final but it may be subject to editorial revision.
In the case of Franz Maier GmbH v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Vincent A. De Gaetano, President,
Gabriele Kucsko-Stadlmayer, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 24 January 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 24143/11) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Franz Maier GmbH, an Austrian company (“the applicant company”), on 18 April 2011.
2. The applicant company was represented by Mr Georg Eisenberger, a lawyer practising in Graz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.
3. On 20 December 2013 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4. The applicant company is a limited liability company with its seat in Bad Gleichenberg, producing building materials of concrete and using crushed stones (Schotter) for this purpose.
5. On 29 November 2002 the applicant company requested the Steiermark Regional Governor (Landeshauptmann) to issue a licence under the Water Act (wasserrechtliche Genehmigung) for dredging (Nassbaggerung) on its plot.
6. On 20 May 2003 the Steiermark Regional Governor decided to issue the licence for dredging and imposed certain conditions.
7. On 31 July 2003 H.P., the owner of the Sicheldorfer mineral water spring appealed against this decision, claiming that the dredging had a negative impact on the spring.
8. On 8 September 2004 the Ministry for Agriculture, Forestry, Environment and Water (Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft) (“the Ministry”) ordered the applicant company to submit a plan of the projected dredging area and of all the springs and wells concerned.
9. On 21 September 2004 the applicant company submitted some plans but stated that it had no knowledge about the location of the spring and H.P. refused to provide the necessary information.
10. On 13 October 2004 the applicant company submitted further plans to the authorities.
11. On 23 February 2005 the Ministry served an expert opinion on the applicant company. According to this expert opinion the information submitted by the applicant company was not sufficient to prove that there was no negative impact of dredging on the springs. The applicant company was requested to comment hereon.
12. On 19 April 2005 the Ministry quashed the decision of the Steiermark Regional Governor and remitted it back to the first instance authority on the grounds that the applicant company had failed to provide sufficient information in order to assess a possible negative impact on the spring.
13. On 17 May 2005 the Steiermark Regional Governor ordered the applicant company to submit the missing documents.
14. On 4 October 2005 the applicant company submitted a private expert opinion to the Regional Governor.
15. On 21 November 2005 an oral hearing was held.
16. On 13 February 2006 the Steiermark Regional Governor again issued the requested licence for dredging and imposed certain conditions.
17. On 1 March 2006 H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company appealed against this decision to the Ministry.
18. On 31 July 2006 the applicant company submitted written comments to the Ministry.
19. On 25 September 2006 the applicant company complained to the Administrative Court (Verwaltungsgerichtshof) about the administration’s failure to decide (Säumnisbeschwerde).
20. On 27 September 2006 the Administrative Court ordered the Ministry to decide within three months.
21. On 24 November 2006 the Ministry transmitted another expert’s opinion to the parties and requested the applicant company to submit the missing documents.
22. On 28 November 2006 the Ministry requested the Administrative Court to extend the deadline for the decision to nine months as the proceedings were not finalised.
23. On 29 December 2006 the applicant company commented on the recently obtained expert opinion (see paragraph 21 above) claiming, inter alia, that the Ministry failed to determine which missing documents were to be submitted.
24. On 26 February 2007 the Administrative Court prolonged the deadline for the Ministry until 30 April 2007.
25. On 13 March 2007 the applicant company submitted another private expert opinion to the Ministry.
26. On 17 April 2007 the Ministry rejected the requested dredging licence on the grounds that the applicant company had failed to submit all the requested documents.
27. On 26 April 2007 the Administrative Court closed the proceedings on the applicant company’s complaint about the administration’s failure to decide (see paragraph 19 above) and ordered the reimbursement of the costs related to this complaint.
29. On 1 June 2007 the Administrative Court asked the Ministry and the other parties to submit written observations within eight weeks.
30. On 12 June 2007 H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company submitted their written observations.
31. The Ministry submitted written observations which were served on the applicant company on 11 July 2007.
32. On 19 July 2007 the applicant company put forward further submissions in reply to the Ministry’s observations; H.P., the Bad Radkersburg municipality and the Bad Radkersburg spring company replied hereto on 2 August 2007.
33. On 30 October 2008 the Administrative Court quashed the decision by the Ministry as it was not clarified which documents the applicant company had to submit.
34. On 11 December 2008 the applicant company submitted two other private expert opinions to the Ministry.
35. On 22 May 2009 the applicant company lodged another application against the administration’s failure to decide with the Administrative Court.
36. On 27 May 2009 the Administrative Court ordered the Ministry to decide within three months.
37. On 5 August 2009 the Ministry submitted another expert opinion to the parties and asked the applicant company to submit certain precisely mentioned documents within four weeks.
38. On 28 August 2009 the applicant company referred to the already submitted private expert opinions and claimed that the mentioned documents were not necessary. In addition, it requested to appoint another expert. Nonetheless, it submitted a supplementary expert opinion.
39. On 28 September 2009 the Administrative Court extended to 15 months the deadline for the Ministry to decide.
40. On 12 January 2010 the Ministry requested the Bad Radkersburg municipality and the Bad Radkersburg spring company (H. P.’s appeal had meanwhile been considered to be withdrawn) to submit written observations on the documents recently transmitted by the applicant company.
41. On 12 February 2010 the Bad Radkersburg municipality and the Bad Radkersburg spring company submitted their written observations, to which the applicant company replied on 19 February 2010.
42. On 26 July 2010 the applicant company submitted another private expert opinion to the Ministry in compliance with the Ministry’s request of 5 August 2009 (see paragraph 37 above).
43. On 10 August 2010 the Ministry communicated a further expert opinion for the applicant company’s information.
44. On 20 October 2010 the Ministry dismissed the appeals and therefore permitted the requested dredging by the applicant company. This decision, served on the applicant company on 27 October 2010, became final.
45. On 18 November 2010 the Administrative Court closed the proceedings on the applicant company’s second complaint about the administration’s failure to decide (see paragraph 35 above) and ordered the reimbursement of the costs related to this complaint.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
46. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
47. The Government argued that the relevant period started on 19 April 2005 when the Ministry quashed the decision of the Steiermark Regional Governor (see paragraph 12 above) and ended when the Ministry’s decision was served on the applicant company on 27 October 2010 (see paragraph 44 above).
48. The applicant company did not comment on this point.
49. In the Court’s view the period to be taken into consideration began on 31 July 2003, when H.P. lodged an appeal against the decision granting the applicant company the permission to dredge crushed stones (see paragraph 7 above). Indeed, as from that date a “dispute” arose within the meaning of Article 6 § 1 of the Convention, the third party’s appeal being a necessary preliminary step for bringing the case before a tribunal (see, mutatis mutandis, Morscher v. Austria, no. 54039/00, § 38, 5 February 2004, and Rambauske v. Austria, no. 45369/07, § 16, 28 January 2010). It ended on 27 October 2010, when the final decision of the Ministry was served on the applicant company (see paragraph 44 above). The proceedings thus lasted seven years, two months and 27 days for three levels of jurisdiction.
50. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
51. The applicant company maintained that the proceedings had lasted unreasonably long, particularly as there were several delays in the proceedings before the Ministry and the Administrative Court; that it had always submitted the requested documents within the time-limits set by the domestic authorities and therefore had not caused any delays; and finally that the subject matter of the present case was not of a complex nature and that it could have been solved within a reasonable time if the domestic authorities had appointed the right expert earlier.
52. The Government contended that the domestic authorities could not be blamed for any inactivity and delays; that complex questions had to be answered by different expert opinions; and that the submissions of several opposing parties had to be taken into account. Moreover, the applicant company had caused considerable delays by submitting a certain expert opinion almost one year after the Ministry’s request of 5 August 2009 and by repeatedly challenging the official expert opinions obtained by the domestic authorities. In sum, the length of proceedings complied with the reasonable time requirement.
53. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
54. The Court notes that even if the proceedings were of a certain complexity as several expert opinions had to be taken, there were still remarkable periods of inactivity before the Ministry. In particular, after H.P. had lodged an appeal on 31 July 2003, the Ministry took almost one year to order the applicant company to submit further documents (see paragraphs 7 and 8 above). Two periods of inactivity of approximately six months led to the applicant company’s two complaints about the administration’s failure to decide (see paragraphs 19 and 35 above); in both cases the Administrative Court had to set a time-limit and prolonged it upon the Ministry’s request (see paragraphs 20, 24, 36 and 39 above). As to the applicant company’s conduct, the Court finds that it transmitted its submissions, documents and expert opinions in compliance with the domestic authorities’ requests and within the time-limits set by them and therefore did not cause any substantial delay. Finally, it cannot be stated that the dredging licence which enables to extract crushed stones was of no importance for the applicant company and its business of building materials of concrete.
55. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see for example, Wurzer v. Austria, no. 5335/07, §§ 45-50, 6 March 2012, and Hall v. Austria, no. 5455/06, §§ 42-47, 6 March 2012).
56. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the instant case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
57. There has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
58. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
59. The applicant company requested 601,388.42 euros (EUR) under the head of pecuniary damage, in particular for the expenses of crushed stones which could have been avoided if the licence for dredging had been issued earlier. It further claimed non-pecuniary damage “in a reasonable amount”.
60. The Government contested these claims.
61. The Court finds that the applicant company failed to prove that there had been a causal link between the violation found and the pecuniary damage alleged. Consequently, no award is made under this head.
62. On the other hand, the Court considers that the applicant company must have sustained non-pecuniary damage related to the violation found. Ruling on an equitable basis, it awards it EUR 3,000 under that head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
63. The applicant company also claimed reimbursement of costs incurred in the domestic proceedings of altogether EUR 223,001.65 (including EUR 130,301.65 for costs of expert opinions) and of costs incurred before the Court of altogether EUR 24,300.
64. The Government asserted that the claim was excessive.
65. According to the Court’s case law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before it, plus any tax that may be chargeable to the applicant company on this amount. It rejects the claim for costs and expenses concerning the domestic proceedings, as these costs would have arisen in any event and therefore were not related to the violation of Art 6 § 1 of the Convention. Moreover, the costs related to the applicant company’s two complaints about the administration’s failure to decide have already been reimbursed by the domestic authorities (see paragraphs 27 and 45 above).
C. Default interest
66. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant company, within three months, the following amounts:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses,
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant company’s claim for just satisfaction.
Done in English, and notified in writing on 14 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Vincent
A. De Gaetano
Deputy Registrar President