CASE OF FRANZ MAIER GMBH v. AUSTRIA
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
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. 28. On 29 May 2007 the applicant company lodged a complaint with the Administrative Court. 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.