European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF ULRICH LELL GMBH v. AUSTRIA

 

(Application no. 6783/11)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

17 January 2017

 

 

 

 

This judgment is final. It may be subject to editorial revision.

 




In the case of Ulrich Lell GmbH v. Austria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Vincent A. De Gaetano, President,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 6 December 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 6783/11) 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 an Austrian company, Ulrich Lell GmbH (“the applicant company”), on 24 January 2011.

2.  The applicant company was represented by Mr G. Huber, a lawyer practising in Traun. 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 28 November 2013 the application was communicated to the Government.

THE FACTS

4.  The applicant company is a limited liability company with its seat in Ansfelden.

5.  On 3 May 2000 the applicant company applied to the Linz-Land District Administrative Authority (Bezirkshauptmannschaft - DAA) for the permission to modify its facility site by constructing a loading zone and a noise protection wall. An oral hearing was held on 1 March 2001.

6.  On 12 July 2001 the applicant company lodged an application for transfer of jurisdiction, because the DAA had not rendered a decision within the statutory six-month time-limit.

7.  By decision of 23 July 2001 the DAA granted the applicant company permission to modify its facility site and dismissed the objections lodged by persons living in the vicinity of the site (hereinafter, “the neighbours”).

8.  On 18 December 2001 the Upper Austria Regional Governor (Landeshauptmann von Oberösterreich - hereinafter, “the Regional Governor”) lifted the DAA’s decision because of lack of jurisdiction, and on 19 December 2001 he dismissed the applicant company’s application for transfer of jurisdiction.

9.  The applicant company appealed against the latter decision, but its appeal was dismissed by the Federal Minister of Economy and Labour (Bundesminister für Wirtschaft und Arbeit - hereinafter, the “Minister”) on 20 August 2002.

10.  The Administrative Court (Verwaltungsgerichtshof) lifted the Minister’s decision on 17 December 2002 and held that the Regional Governor was the competent authority to decide on the matter.

11.  On 16 October 2003 the Minister lifted the Regional Governor’s decision of 19 December 2001 and held that the latter was competent to decide on the merits of the applicant company’s case.

12.  Meanwhile, on 14 January 2002 the DAA had granted the applicant company permission to modify its facility site and dismissed the neighbours’ objections.

13.  On 22 December 2003 the Regional Governor lifted the DAA’s decision because of lack of jurisdiction, and granted the applicant company the permission.

14.  On 26 January 2004 the neighbours appealed against this decision to the Minister.

15.  On 1 September 2004 the applicant company filed an application for transfer of jurisdiction, because a decision had not been reached within the statutory six-month time-limit.

16.  On 7 September 2004 the Administrative Court ordered the Minister to take a decision within three months. On 11 November 2004, upon request by the Minister, it extended the time-limit by another six months.

17.  On 11 May 2005 the Administrative Court refused another request by the Minister for an extension of the time-limit and assumed jurisdiction. After having requested an additional statement from an official expert (Amtssachverständiger) on 14 October 2008, the Administrative Court dismissed the neighbours’ appeal as being unfounded by judgment of 1 July 2010 (served on the applicant company’s counsel on 28 July 2010).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18.  The applicant company 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, in so far as relevant, 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...”

19.  The period to be taken into consideration began on 18 December 2001, when the Regional Governor lifted the decision of the DAA by which the applicant company had been granted the permission to modify its facility site (see Rambauske v. Austria, no. 45369/07, § 16, 28 January 2010), and ended on 28 July 2010, when the final judgment of the Administrative Court was served on the applicant company’s counsel (see paragraph 17 above). It thus lasted more than eight years and seven months for four levels of jurisdiction.

A.  Admissibility

20.  The Court notes that the application 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.

B.  Merits

21.  The applicant company maintained that the proceedings had lasted unreasonably long.

22.  The Government did not comment on the merits of this complaint.

23.  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).

24.  The Court notes that there are no indications that the proceedings at issue were particularly complex, or that any delays could be attributed to the applicant company’s conduct during the proceedings. In particular, the Court notes that the case was pending before the Administrative Court for more than five years and two months (from 11 May 2005 to 28 July 2010 - see paragraph 17 above).

25.  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 Rambauske v. Austria, no. 45369/07, §§ 20-23, 28 January 2010, and Gierlinger v. Austria, no. 38032/05, §§ 18-21, 29 November 2007, both with further references).

26.  Having examined all the material submitted to it and 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.

27.  There has accordingly been a breach of Article 6 § 1.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.  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.”

A.  Damage

29.  The applicant company claimed 195,360 euros (EUR) in respect of pecuniary damage. It did not make a claim in respect of non-pecuniary damage.

30.  The Government contested the claim and pointed out that the domestic courts had rejected the applicant company’s claims for pecuniary damage as being time-barred.

31.  The Court notes that the applicant company has failed to show the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As the applicant company made no claim in respect of non-pecuniary damage, the Court does not make an award under this head either.

B.  Costs and expenses

32.  The applicant company also claimed a total sum of EUR 21,226.99 for the costs and expenses incurred before the domestic courts.

33.  The Government contested the claim, pointing out that the applicant company had been granted compensation of EUR 8,254.04 by the Federal Ministry of Economy and Labour for lawyer’s fees and that it had further been awarded compensation by the Administrative Court in the total amount of EUR 3,050.

34.  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 were reasonable as to quantum. The Court concludes from the documents at its disposal that those costs claimed by the applicant company which were aimed at preventing or putting right the violation of the “reasonable time” requirement have already been reimbursed by the authorities. The remainder of the costs were not related to the violation of Article 6 § 1 of the Convention. Therefore, the Court rejects the claim for costs and expenses concerning the domestic proceedings. As the applicant company made no claim for the costs incurred in the Convention proceedings, no award is made under this head either.

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;

 

3.  Dismisses the applicant company’s claim for just satisfaction.

Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti                                                       Vincent A. De Gaetano
Deputy Registrar                                                                  President