LANSCHÜTZER GMBH v. AUSTRIA
Inadmissible
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
1. The applicant company, Lanschützer GmbH, is a limited liability company based in Graz. It is represented before the Court by Mrs C. Lanschützer, 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 European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On an unspecified date the applicant company applied, at that time under its previous name, Edelweis Rundfunk GmbH, for a broadcasting licence in Vienna. However, the licence was awarded to another company, the S.R. Company. The applicant company appealed. 4. On 18 June 2007 the Federal Communications Panel (Bundeskommunikationssenat – “the FCP”) dismissed the applicant company’s appeal. 5. Afterwards, on 9 August 2007, the applicant company lodged a complaint with the Constitutional Court and requested that suspensive effect be granted to their complaint. It was signed by two of its business managers. 6. On 10 August 2007 the applicant company sent a letter to the S.R. Company - transmitting a copy of its complaint against the FCP’s decision of 18 June 2007 - proposing to withdraw the complaint if it received payment on its business bank account of 150,000 euros (EUR), an amount which should partially cover the losses sustained by the applicant company because they had not been awarded the licence. The applicant company pointed out that its complaint to the Constitutional Court had not been signed by a lawyer and would be returned in order for that procedural defect to be remedied. Thus, before the complaint was resubmitted by a lawyer the S.R. Company would have the opportunity to obtain the applicant company’s withdrawal from the proceedings by paying the above-mentioned amount. 7. On 13 August 2007 the S.R. Company’s lawyer informed the Constitutional Court of the applicant company’s letter and enclosed a copy of that letter. 8. By a letter of 23 August 2007 the Constitutional Court ordered the applicant company to remedy the procedural defects of its complaint. It noted that the complaint did not bear the signature of a lawyer, which was contrary to the statutory requirement, and observed that the applicant company, as could be seen from its letter to the S.R. Company, had been perfectly aware of that requirement. The Constitutional Court ordered the applicant company to remedy that defect by resubmitting its complaint through a lawyer within one week and, within the same time-limit, to clarify its letter of 10 August 2007, a copy of which was attached. 9. On 29 August 2007 the applicant company replied to the Constitutional Court’s order of 23 August 2007. It submitted that its letter of 10 August 2007 to the S.R. Company had merely been intended to find a viable solution for all parties. In its view, the S.R. Company’s application for a broadcasting licence had had fundamental defects which would have led to the licence being revoked and would have caused an untenable financial risk for the S.R. Company. The amount requested had been justified because, for the applicant company, the time spent waiting for the decision of the Constitutional Court would have resulted in a standstill and loss of opportunities. 10. On 30 August 2007 the applicant company’s lawyer and member of the Styria Bar, Mr F.P.-P., submitted the same, unsigned, complaint again. Attached to the complaint there was a letter signed by the latter, saying that he represented the applicant company. 11. On 3 October 2007 the Constitutional Court rejected the applicant company’s complaint as inadmissible for formal reasons. It noted that Mr F.P.-P. had resubmitted the original complaint with a covering letter bearing his signature, along with the statement that he represented the applicant company, but the complaint itself did not bear his official stamp and signature. The Constitutional Court concluded that the applicant company had failed to comply with its order. 12. Article 144 of the Federal Constitution Act (Bundes-Verfassungsgesetz) reads as follows: “(1) The Constitutional Court decides on rulings by administrative authorities including independent administrative panels, in so far as the complainant alleges an infringement by the ruling of a constitutionally guaranteed right or the infringement of personal rights caused by an illegal ordinance, an illegal pronouncement on the republication of a law (state treaty), an unconstitutional law, or an unlawful treaty. The complaint can only be lodged after all other legal remedies have been exhausted. (2) The Constitutional Court can decide to decline to deal with a complaint before an oral hearing if it has no reasonable prospect of success or if the decision cannot be expected to clarify a constitutional problem. It must not decline to deal with a complaint if, under Article 133, the case at hand falls outside the jurisdiction of the Administrative Court. (3) If the Constitutional Court finds that a right within the meaning of sub-section 1 above has not been infringed by the challenged ruling, and if, under Article 133, the case at hand does not ,fall outside the jurisdiction of the Administrative Court, the Court shall, on the request of the applicant, transfer the complaint to the Administrative Court for a decision as to whether the applicant has suffered an infringement of any other right as a result of the ruling of the administrative authority. This also applies by analogy in the case of decisions in accordance with sub-section 2 above.” 13. In the report of the Constitutional Committee (Verfassungsausschussbericht) of the National Council (Nationalrat) on the draft amendment of the Federal Constitutional Act 1983 it is stated that if the Constitutional Court decides to decline to deal with a complaint it is dispensed from examining the admissibility of that complaint (AB 766 BlgNR XV. GP, p. 2). In such a case the Constitutional Court is therefore relieved from examining whether all formal criteria, such as time-limits and representation by a lawyer have been complied with. This is also the Constitutional Court’s case-law (see, for example, B 1306/88 27 September 1988; B 880/89, 9 June 1992; B 1850/08, 2 December 2008). 14. Section 17 of the Constitutional Court Act, in so far as relevant, reads as follows: “(2) ... complaints must be submitted by an authorised lawyer ...” 15. Section 18 of the Constitutional Court Act reads as follows: “Submissions which do not comply with the requirements of section 15 and section 17, or other requirements of form laid down in the present Act, shall be returned by the rapporteur to the complainant for the procedural defects to be remedied within a certain period of time, if it can be expected that the defects are likely to be remedied.” 16. Section 19 of the Constitutional Court Act, in so far as relevant, reads as follows: “(1) ... the judgments of the Constitutional Court are given after a public oral hearing to which the complainant, the opposing party and any third parties are summoned. (2) The judgments are pronounced and delivered on behalf of the Republic. (3) Upon an application by the rapporteur, the following decision may be taken in a non-public session, without any further proceedings and without conducting a hearing: 1. The refusal to deal with a complaint, under Article 144(2) and Article 144a(2) of the Constitutional Court Act. 2. The rejection of a submission: a) for a clear lack of jurisdiction of the Constitutional Court; b) for failure to meet a statutory deadline; c) for a non-remedied deficiency in the formal requirements; d) in the case of final and enforceable matters, and e) in the absence of a right to sue or be sued. 3. The discontinuation of proceedings when an application is withdrawn or deprived of its cause of action (section 86 - Klaglosstellung).” 17. According to the case-law of the Constitutional Court, the requirement of section 17(2) of the Constitutional Court Act that a complaint must be submitted by an authorised lawyer means that a lawyer representing a complainant must submit his or her own complaint signed by him or her (see, inter alia, Collection of Decisions of the Constitutional Court (VfSLG) 17759/2006).