5.  The applicant was born in 1949 and lives in Bad Dürheim, Germany. She was born and grew up in Schwarzenberg (Austria), but moved to Germany when she married. Her father held shares as a member of the Alpe Rotenbach Agricultural Association (Agrargemeinschaft - hereafter “AA”). 6.  The AA is a public law body, which owns several plots of land in Schwarzenberg. Membership of the AA is expressed in shares which comprise 86 grazing rights (Weiderechte) and ten hut rights (Hüttenrechte). 7.  After their father’s death in 1993, the applicant and her four sisters inherited his property. In the subsequent succession proceedings, the Bezau District Court transferred the title to a share of the deceased’s property to the applicant (Einantwortung) which included three and three-quarters grazing rights and one hut right of the AA Rotenbach. She also inherited three grazing rights relating to another AA, the Alpe Obere, from her father. 8.  On 14 April 1994 the Bregenz District Agricultural Authority (Agrarbezirks­behörde - DAA) rejected, according to the statutes of the AA, the applicant’s requests to be granted the necessary permits to make use of her grazing rights. These decisions were based on the fact that the applicant did not have her ordinary residence (ordentlicher Wohnsitz) in one of the court districts of Bezau, Dornbirn or Bregenz. The Land Vorarlberg has altogether six court districts. 9.  On 29 September 1994 and 3 October 1994, the Vorarlberg Regional Land Reform Board (Landesagrarsenat - “the Regional Board”) dismissed the applicant’s appeals. 10.  The Constitutional Court declined to deal with the applicant’s joint complaint for lack of prospect of success. Subsequently, the Administrative Court dismissed the applicant’s complaint on 23 May 1996 because she did not fulfil the criteria set out in the statutes of the AA. 11.  At the beginning of 1997 the applicant sold the three grazing rights relating to the Alpe Obere to Mr Z., another member of this AA. 12.  On 10 December 1997 the applicant requested the DAA to hold that the provision of the statutes of the AA concerning the inheritance of grazing and hut rights was void and that no authoritative permit was necessary for the enjoyment of these rights. In the alternative she requested the DAA to grant her the permit. 13.  On 15 December 1997 the DAA rejected the applicant’s alternative request as res judicata, because it had already decided on the issue on 14 April 1994. The DAA did not decide on the two main requests. 14.  On 30 June 1998 the Regional Board, after having held a hearing, dismissed her appeal against this decision. 15.  On 7 October 1998 the Constitutional Court declined to deal with the complaint. 16.  On 16 December 1999 the Administrative Court quashed the Regional Board’s decision, holding that European Community Law should be taken into account following Austria’s accession to the European Union. Furthermore, the DAA should have decided first on the applicant’s main requests, before being competent to decide on the alternative request. 17.  Subsequently, the Regional Board gave a decision on 21 June 2000, but failed to serve this new decision on the applicant. 18.  Thereupon, on 15 December 2000, the applicant filed a request for transfer of jurisdiction (Devolutionsantrag). 19.  On 7 March 2001 the Supreme Land Reform Board (Oberster Agrarsenat – Supreme Board) granted the applicant’s request for transfer of jurisdiction and quashed the DAA’s decision of 15 December 1997, because the DAA had not been competent to decide on the alternative request prior to the main request. 20.  Due to the DAA’s and the Reform Board’s failure to render new decisions, the applicant filed two further requests for transfer of jurisdiction on 27 September 2001and 18 December 2002. 21.  On 24 March 2003 the applicant’s counsel requested access to the applicant’s files at the Supreme Board. This request was met, with the exception of two documents. One concerned a legal expert opinion from the Auditor-General’s Department (Finanzprokuratur) to the Federal Chancellery (Bundes­kanzleramt), concerning different proceedings initiated by the applicant against the State. The second document was a preparatory report by the Regional Board prior to one of its sessions. 22.  On 4 June 2003 the Supreme Board, after hearing the applicant’s counsel, again granted the transfer of jurisdiction and thus found itself competent to adjudicate the case. It rejected the applicant’s main requests put forward on 10 December 1997. After having declared the alternative request a res non judicata, the Supreme Board dismissed the request, because it found that the statutory provisions of the AA were not discriminatory under national or European Community law. It held that limiting the right to property according to the owners’ ordinary residence was in the common interest and constituted a pressing need in order to guarantee the good administration and cultivation of the land. Finally, the Supreme Board also dismissed the applicant’s request for inspection of two documents in the file. It reiterated that the first document, a legal opinion prepared by the Auditor-General’s Department and addressed to the Legal Service in the Federal Chancellery, concerned civil proceedings pending between the applicant and the Republic of Austria. It was in essence advice by the legal representative, namely the Auditor-General’s Department, to a party to the civil proceedings which it represented and for this reason confidential. The second document could not be inspected because, being a draft for a decision to be deliberated on by the Regional Board, it was covered by the confidentiality of deliberations (Beratungs­geheimnis).
On 23 July 2003 the applicant filed a complaint with the Constitutional Court against the decision (Bescheid) of the Supreme Board of 4 June 2003 and, on 4 September 2003, the Constitutional Court granted suspensive effect to the complaint. 23.  The Supreme Board submitted observations on 18 September 2003. 24.  On 24 November 2003 the applicant replied to the observations. 25.  On 3 December 2003 the Constitutional Court dismissed the applicant’s request to be granted access to the two documents, for the same reasons as had been given by the Supreme Board. The Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success on 23 February 2004. It found that the decision of the Supreme Board did not breach the applicant’s constitutional rights. It was not unreasonable that the members of an AA found it necessary for the purpose of the common administration of their alp to provide in the statutes adopted by them a requirement of close residence of all its members. Subsequently, on the applicant’s request, the Constitutional Court transferred the case to the Administrative Court. 26.  The Administrative Court invited the applicant on 27 April 2004 to supplement her complaint and, on 11 June 2004 the applicant did so. The Supreme Board submitted observations on 3 August 2004. 27.   On 7 July 2005 the Administrative Court dismissed the applicant’s complaint. It found that the Supreme Board had acted correctly when rejecting the requests for a declaratory decision as that matter could also have been decided in proceedings on the applicant’s request of transfer of grazing rights. As to the decision on the alternative request, the Administrative Court found that the request for granting transfer of the grazing rights was not inadmissible as res judicata, because, following the accession of Austria to the European Union, the authorities had to take their decision not only on the basis of domestic but also EU law. Assuming that the transfer of shares of an AA was covered by the freedom of movement of capital, restriction of this freedom was justified if it pursued an aim in the general interest and applied in a non-discriminatory manner. 28.  Referring to the case-law of the European Court of Justice, the Administrative Court found that a requirement as to residence as laid down in the AA’s statutes was not a priori discriminatory in nature as it was intended to achieve the specific objectives of preserving agricultural communities, viable farms and the promotion of reasonable use of the available areas. AAs and the structure of cultivation created by them were means to achieve these objectives as they secured an efficient and reasonable cultivation and use of the available land. The active common use by several persons entitled to do so was a particular feature of an AA and it could function properly and in accordance with its aim, only with the active participation of its members. Such participation became all the more difficult the greater the distance between the land of the AA on the one hand and the place of residence of the entitled person on the other. In such circumstances, also a feeling of affinity for the community property and an understanding for necessary investments as well as other interests could be lost. 29.  The Administrative Court further considered that, for ensuring the proper administration and running of an AA, a less strict means for achieving this aim than a residence clause for members was not conceivable. Finally, the Administrative Court found that the fact that the person acquiring the right, but who was refused a permit by the agricultural authority in case of inheritance, had to transfer his or her share right at the usual local estimated value to persons entitled to an acquisition struck a fair balance between compensation for the material value of his/her share right and the public interest in securing that the use the land could be exercised within the agricultural community.
This decision was served on the applicant’s counsel on 1 August 2005.