CASE OF WIESINGER v. AUSTRIA
Violation of Art. 6-1;No violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
N. Valticos;R. Pekkanen
8. Mr Konrad Wiesinger and his wife Klara are Austrian farmers residing at Hartkirchen, Upper Austria. They complain of consolidation measures (Zusammenlegungsverfahren) taken in respect of their land since July 1975. 9. On 22 July 1975 the Linz District Agricultural Authority (Agrarbezirksbehörde, "the District Authority") opened the Hacking land consolidation proceedings, pursuant to section 29 of the Upper Austrian Agricultural Land Planning Act 1972 (Flurverfassungs-Landesgesetz, "the 1972 Act"). The measures concerned at least 67 landownersand covered approximately 172 hectares, including the applicants’ property at Hartkirchen. On 15 July 1976 Mr and Mrs Wiesinger made a "declaration of wishes" (Wunschaufnahme), expressing their wish to receive parcels situated near their farmhouse. On 13 August 1976 the District Authority adopted the land valuation schedule, against which the Wiesingers did not appeal. 10. On 13 October 1978 the District Authority ordered the provisional transfer of compensatory plots (Grundabfindungen) on the basis of a draft consolidation scheme (Neueinteilungsplan), pursuant to section 22 of the 1972 Act (see paragraph 36 below). The applicants had agreed to this plan, which provided them with a parcel of 23,219 square metres near their farm, and did not contest the transfer decision. While they lost the ownership of land formerly belonging to them (including the five plots mentioned in paragraph 12 below), which passed to the association of landowners (see paragraph 33 below), they acquired the provisional ownership of certain plots subject to a condition subsequent, namely that they would be dispossessed of them under the final consolidation scheme, if it did not confirm the allocation thereof to the applicants (section 22 of the 1972 Act). 11. On 1 September 1978 the municipal council of Hartkirchen had adopted an area zoning plan (Flächenwidmungsplan; see paragraphs 42-43 below), which was approved on 10 October by the government of the Land. The Wiesingers’ property, which was covered by the consolidation scheme, retained its designation as agricultural land, although certain adjoining plots had been redesignated as building land in 1976 and 1978. 12. At the request of the new (provisional) owners, the municipal council amended the area zoning plan on 16 November 1979. It classified as building land five plots covering a surface of 25,206 square metres which had previously belonged to the applicants. On 16 April 1980 the Land government approved the decision, which became final on 6 May. Subsequently the five plots were divided into parcels and sold to several persons who were granted building permits in respect of them. 13. On 10 August 1982 Mr and Mrs Wiesinger asked the District Authority to return to them the five plots by withdrawing them from the consolidation scheme. In their view the plots in question were now to be regarded as land of special value which under the relevant legislation was in principle to be left to the previous owners. In the alternative, they asked to be allocated building land or to be accorded financial compensation (Geldwertentschädigung). They also sought compensation (Schadensersatz) on account of loss of interest (Zinsverlust) arising from the fact that they had not themselves been able to sell the five plots after the amendment of the area zoning plan; they estimated this amount at 1,600,000 schillings on the basis of a price of 400 schillings per square metre at an interest rate of 10%. 14. The District Authority replied by a letter of 17 January 1983. It referred to the Upper Austrian Agricultural Land Planning Act 1979 ("the 1979 Act"), which had replaced the 1972 Act, and drew their attention to the fact that claims for compensation had to be submitted within six months of the date on which the consolidation scheme became final (section 20(6); see paragraph 37 below). It therefore requested the applicants to await the publication of the scheme which was scheduled for July. 15. The Wiesingers took the view that the District Authority had failed to resolve within the statutory time-limit of six months the questions which they had raised with it and, on 23 August 1983, filed with the Provincial Land Reform Board (Landesagrarsenat, "the Provincial Board") an application for a ruling on the matter (section 73 of the General Administrative Procedure Act, Allgemeines Verwaltungsverfahrensgesetz; see paragraph 41 below). The Provincial Board gave its decision on 17 November. It dismissed the request for the five plots to be withdrawn from the consolidation scheme. It considered that, in order to attain its objective, the scheme had to include the land in question and the fact that the plots were now building land made no difference in this respect. It found that the District Authority’s refusal to rule on the applicants’ other claims was justified since the merits of such claims could not be determined until the consolidation scheme had become final. The Provincial Board ordered the District Authority not to approve or authorise any further division into parcels of the land in question or to allow any further conversion into building land or any further issue of building permits. 16. The Wiesingers appealed to the Supreme Land Reform Board (Oberster Agrarsenat, "the Supreme Board"), which declared their appeal inadmissible on 1 February 1984. Its decision was upheld on 27 June by the Constitutional Court (Verfassungsgerichtshof) and on 25 September 1984 by the Administrative Court (Verwaltungsgerichtshof). 17. Previously, on 10 January 1984, the applicants had contested the Provincial Board’s decision of 17 November 1983 (see paragraph 15 above) directly in the Administrative Court, which gave its decision on 20 March 1984. It upheld the impugned decision in so far as the Provincial Board had refused to return the five plots to the applicants, but at the same time declared the appeal well-founded on the other points. As the District Authority had not ruled within the statutory period of six months on the alternative claims filed by the applicants, the Provincial Board ought to have decided them itself. 18. In new proceedings before it, the Provincial Board gave its decision on 18 October 1984. In its view it was not possible under the 1979 Act to afford compensation for the alleged damage. The Act provided that the owners of plots of special value covered by a consolidation scheme should in principle be compensated by the allocation of land of the same type. As regards the building land claimed by the Wiesingers, the Board noted that the provisional transfer of the plots precluded altering their allocation for the time being. However, the provisional transfer did not prejudge the consolidation scheme which would determine definitively the question of land of special value. Furthermore, the building plots were referred to only in the area zoning plan for Hartkirchen and there was therefore an inseparable link between that plan and the question of statutory compensation for land of special value. Accordingly, the area zoning, which was the responsibility of the municipal authorities and not the agricultural authorities, was a precondition. The municipal council of Hartkirchen had announced that it proposed to convert into building land certain of the compensatory plots allocated to the applicants, but their area and location had not yet been fixed. The Provincial Board concluded that it could not rule on the merits of the question until an appeal had been filed concerning the consolidation scheme, once the latter had been adopted and published. 19. Mr and Mrs Wiesinger then appealed to the Constitutional Court, which on 24 June 1985 refused to entertain their appeal as the case did not raise any specific questions of constitutional law. It remitted the case to the Administrative Court, in accordance with the applicants’ alternative plea. 20. The Administrative Court dismissed the appeal on 19 November 1985. It noted in the first place that the applicants had themselves obtained the plots which they had wished and whose designation as agricultural land had not been changed. They had thus suffered no temporary disadvantage for which they could claim financial compensation. It was true that the area zoning plan had reclassified a part of their former land after its provisional transfer. However, the consolidation scheme, which was to fix the statutory compensation, would have to take into account any changes in the value of the land occurring in the course of the proceedings, for example following a new area zoning plan as in this instance. Consequently, the contested decision was not unlawful. 21. Relying on section 7a(4) of the Federal Agricultural Proceedings Act 1950 (Agrarverfahrensgesetz, "the 1950 Federal Act"), according to which the consolidation scheme is to be published not later than three years after the final decision on the provisional transfer of plots, the Wiesingers asked the Provincial Board on 17 January 1984 to take jurisdiction over the case in accordance with section 73 of the General Administrative Procedure Act (see paragraphs 37 and 41 below). On 7 June the Board refused. It considered that it was empowered to adopt the consolidation scheme only if the failure to comply with the statutory time-limit of three years was exclusively the fault of the District Authority. This was not the case. Since the provisional transfer the District Authority had made every effort to draw up the consolidation scheme. Its work had been delayed on account, in particular, of the proposed route for a new major road and its link roads across the area in question, which made it necessary to revise the position of 43 owners. Furthermore, a substantial part of the file had had to remain for several months with the Provincial Board in connection with appeal proceedings instituted by a landowner; likewise, the Wiesingers’ application of 23 August 1983 had required the file to be sent to the Provincial Board, then to the Supreme Board and to the Administrative Court, and had therefore prevented a decision from being taken during this period. The District Authority could have adopted and published the consolidation scheme in 1983 if further consideration, inquiries and interviews had not been necessary following the alteration to the Hartkirchen area zoning plan. With a view to expediting the final adoption of the area zoning plan, it had held discussions with the municipal council as early as 8 September 1983, and then with the authorities with competence in the field of land development on 25 January, 22 February, 5 March and 10 April 1984. As the area zoning plan had still not been settled, it had not been possible to adopt the consolidation scheme, because the District Authority could not yet determine whether the allocation of land provided the applicants with sufficient compensation, thereby satisfying the statutory criteria. It was, moreover, contrary to the principles of efficient administration to finalise the consolidation scheme before the adoption of the area zoning plan. The conduct of the District Authority had thus been justified. Under section 38 of the General Administrative Procedure Act, it was possible to stay (aussetzen) proceedings pending a definitive decision on a preliminary question which was the subject of other proceedings. In this case the area zoning constituted a preliminary question for the consolidation proceedings. 22. The applicants appealed to the Supreme Board, which dismissed their appeal on 6 March 1985. It began by upholding the Provincial Board’s decision that the latter had competence to adopt a consolidation scheme solely where the failure to comply with the statutory time-limit of three years was exclusively the fault of the District Authority. According to the established case-law of the Administrative Court, there was no such fault where the delay resulted from the conduct of one of the parties or from an insurmountable obstacle. In the present case it had not been suggested that the applicants’ conduct had been in any way reprehensible, nor could the failure to comply with the statutory three-year time-limit be blamed on the District Authority. Throughout the consolidation proceedings, it had to take account of the area zoning plans and any amendments thereto. It was therefore impossible, and indeed contrary to the principles of efficient administration, to adopt a consolidation scheme where no final land-development plan or area zoning plan existed, and where negotiations for the adoption of such plan were in progress. Even before the Wiesingers’ appeal had been filed, the competent authority had conducted further inspections of the land and had had contacts with the Hartkirchen municipal council, which was considering the possibility of converting some of the plots allocated to them into building land. In those circumstances, there was no justification for adopting a consolidation scheme which would probably have been defective as from its adoption, if the municipal authority subsequently fixed an amended area zoning plan. The finalisation of such a plan in fact constituted a precondition for the adoption of the consolidation scheme. For all these reasons, the District Authority had been right to stay the proceedings pending the final decision of the municipal council and was not responsible for the delay in the consolidation proceedings. 23. Mr and Mrs Wiesinger contested this decision before the Constitutional Court, which, on 23 November 1985, refused to entertain their appeal on the same grounds as those set out in its judgment of 24 June (see paragraph 19 above). It remitted the case to the Administrative Court in accordance with the applicants’ alternative plea. The Administrative Court dismissed the applicants’ appeal on 8 April 1986. It found, inter alia, that the Provincial Board’s refusal to assume jurisdiction had been justified, since the failure to comply with the statutory time-limit was not exclusively attributable to the District Authority. Furthermore, the applicants’ claims concerning the nature and extent of the compensatory plots related to the question of the statutory compensation, which would be dealt with by the consolidation scheme. 24. On 16 July 1986 the District Authority published the consolidation scheme (see paragraph 37 below); it returned to the Wiesingers 9,680 square metres of their former land and allocated to them plots covering an area of 19,909 square metres classified as a zone capable of being redesignated as building land (Bauerwartungsland). It pointed out that the applicants had already received monetary compensation, in 1974, for certain plots that they had had to give up in connection with the construction of the new major road. It dismissed their claim for compensation for the increased value of their former land following its reclassification, because that had been taken into consideration when the compensatory plots were allocated definitively. Finally, the District Authority found that the applicants had not suffered any temporary damage and were not entitled to any financial reparation. 25. The applicants contested the scheme before the Provincial Board. They argued that the land which they had ultimately received was of a lower value than their former land; they had, they claimed, sustained a loss of more than 4,000,000 schillings. 26. The different agricultural authorities attempted first to secure a friendly settlement of the dispute: the District Authority, between 20 October 1986 and 8 July 1987, during which period twelve meetings were held, and the Provincial Board, between 28 September 1987 and 28 August 1989, at eignteen meetings with the parties concerned, the local authorities, the highways department and the land designation supervisory authority. In the course of these meetings the Provincial Board invited the municipal authorities in question to redesignate a particular plot which they were proposing to allocate to the applicants as building land. However, the authorities’ efforts were in vain. 27. After the attempts to reach a friendly settlement had failed, the Provincial Board held a hearing on 28 September 1989. On 24 January 1990 it allowed in part the Wiesingers’ appeal. It awarded to them a part of their former land, now reclassified, and other plots converted or to be converted into industrial sites. On the other hand, it dismissed once again their claim for financial compensation. 28. The applicants appealed against this decision to the Supreme Board, which dismissed their appeal on 5 December 1990. After having examined in detail the Wiesingers’ objections, the Supreme Board concluded that they had received compensatory plots of a value equivalent to that of their former land, as was required under the 1979 Act. Accordingly, the impugned decision did not infringe their statutory rights. Furthermore, according to the Supreme Board, if the new situation of agriculture in the area was compared to the old one, it could be said that the consolidation scheme had been a success and had achieved its goals. In the meantime the applicants had appealed to the Constitutional Court, which has not yet ruled. 29. Prior to the adoption of the consolidation scheme, the Wiesingers applied to the civil courts for an order directing the cessation of the construction work which had begun on their former land. On 16 October 1985 the Wels Regional Court (Kreisgericht) found that it lacked jurisdiction. Its decision was overturned on 21 February 1986 by the Linz Court of Appeal (Oberlandesgericht), but on 19 June 1986 the Supreme Court (Oberster Gerichtshof) confirmed that the civil courts were not competent to decide the matter. The Supreme Court declined, on account of the exclusive powers vested in the District Authority under Austrian law (section 102(2) of the 1979 Act; see paragraph 33 below), to follow its previous case-law, although it concerned similar facts. 30. The applicants also requested authorisation to construct two animal feed silos on their compensatory plots near their farm. However, the authorities refused on the ground that they were only provisionally owners of the land in question. 31. The basic rules applying to the consolidation of agricultural land are embodied in the Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. The Länder have regulated the matters for which they are made responsible under the Federal Legislation in provincial agricultural land planning Acts (Flurverfassungs-Landesgesetze). In Upper Austria, consolidation is governed by the Agricultural Land Planning Act 1979 ("the 1979 Act"). This replaced an Act of 1972, which had itself replaced an Act of 1911 that had been brought into force again in 1954. The proceedings in the present case were instituted under the 1972 Act, on the basis of which the provisional transfer was ordered. However, the subsequent proceedings were governed by the 1979 Act. 32. The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area (section 1(1) of the 1979 Act). It comprises communal measures and facilities and redistribution of land. The operation takes place in the following stages: - the initial proceedings; - ascertainment of the occupiers of the land in question and assessment of its value; - planning of communal measures and facilities; - provisional transfer of land, where appropriate; - adoption of the consolidation plan. None of these stages may begin until the previous stage has been terminated with a final decision. 33. The initial proceedings, which are instituted of the authorities’ own motion, serve to determine the consolidation area, which, in addition to farmland and forest, may include land voluntarily offered for consolidation and land required for communal facilities (sections 2 and 3). Land which is not needed for the purposes of consolidation may subsequently be withdrawn from the area (section 4(2)). The owners form an association (Zusammenlegungsgemeinschaft), which is a corporate body governed by public law. The institution of proceedings means that land use is restricted until the proceedings are concluded; any change in use must be approved by the appropriate agricultural authority. This authority has exclusive jurisdiction, inter alia, over disputes concerning ownership and tenure of land in the consolidation area (section 102). 34. Once the decision to open proceedings has become final, the agricultural authority ascertains who are the occupiers of the land and assesses its value (sections 11 and 12). Its decision (Besitzstandsausweis und Bewertungsplan) determines the value of the land in accordance with precise statutory criteria (section 13). Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others. Once the agricultural authority’s decision has become final, however, it is binding on all of them. 35. Communal measures (e.g. soil improvement, alterations to terrain or landscape) and communal facilities (e.g. private roads, bridges, ditches, drainage and irrigation) are ordered, where they are needed, in a specific decision by the relevant authority (Plan der gemeinsamen Massnahmen und Anlagen), which must also settle the question of costs, these usually being shared by the landowners. 36. Under section 22, in both the 1972 and the 1979 Act, land may be provisionally transferred before the adoption of the consolidation scheme, even if some owners object. Decisions by the competent authorities ordering provisional transfers are not appealable; but section 7 of the Federal Agricultural Authorities Act 1950 (Agrarbehördengesetz, as amended in 1974, "the 1950/1974 Federal Act") provides that the final decision shall lie with the Provincial Board, except in cases where an appeal lies to the Supreme Board (see paragraph 39 below). The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period. The land transferred becomes the property of the transferees subject to a condition subsequent: ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation plan (Eigentum unter auflösender Bedingung, section 22(2)). This provisional, conditional ownership is, as a rule, not entered in the land register, since it is subject to a resolutive condition and it is possible that the parties concerned may be allotted other parcels once the proceedings are completed. The District Authority has to authorise any entry in the land register (sections 94 et seq.). 37. At the end of the proceedings, the agricultural authority adopts the consolidation scheme (Zusammenlegungsplan, section 21). Since 1977 this has to be published within three years of the final decision provisionally to transfer parcels of land (section 7a(4) of the 1950 Federal Act), failing which the person concerned may request the higher authority to assume jurisdiction. The adoption of the plan is an administrative act which is supported by maps and other technical data, and whose main function is to determine the compensation due to the landowners who are parties to the proceedings. The 1979 Act includes the following regulations on this matter: - when compensatory parcels are being determined, regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme; - any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or, if that is not possible, to be reallocated his previous parcels, including building land (section 19); - changes in the value of land which come about in the course of the proceedings, including those occurring after the provisional transfer, must be taken into account in the final allocation under the consolidation scheme (section 14(1)); - claims for compensation have to be submitted within six months from the date on which the consolidation scheme becomes final (section 20(6)). 38. The provincial legislation does not provide for any financial compensation for damage suffered, before a final consolidation plan comes into force, by landowners who successfully challenge the lawfulness of compensation received in the form of land. 39. The first-instance authority in Upper Austria is the District Agricultural Authority, which is a purely administrative body. The higher authorities are the Provincial Board, established at the Office of the Provincial Government (Amt der Landesregierung), and the Supreme Board, set up within the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft). These boards include judges and constitute a kind of "specialised administrative tribunal". 40. Decisions (Bescheide) of the District Authority can be challenged by way of appeal (Berufung) to the Provincial Board, whose decision is final except where it varies the decision in question and where the dispute concerns one of the issues listed in section 7(2) of the 1950/1974 Federal Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board. The executive can neither set aside nor vary the decisions of these three bodies, but they can be challenged in the Administrative Court (section 8 of of the 1950/1974 Federal Act and Article 12 para. 2 of the Federal Constitution). 41. Procedure before the land reform boards is governed by the 1950 Federal Act, section 1 of which stipulates that the General Administrative Procedure Act - except for one section of no relevance in the instant case - shall apply, subject to the variations and additional provisions made in the 1950 Federal Act. The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act). By section 9(1) and (2) of the 1950 Federal Act, the boards take their decisions after a private hearing. Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73(1)). If the board’s decision (Erkenntnis) is not notified to the parties concerned within that time, they may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73(2)). If the latter authority fails to give a decision within the statutory time-limit, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act). 42. In the present case, area zoning planning is governed by the Upper Austrian Land Planning Act (Raumordnungsgesetz). In Austrian law area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), even if they only concern one individual’s property. Accordingly, the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them. However, the competent local authorities (Gemeinden) must take into consideration planning proceedings of neighbouring local authorities and other public law corporations, as well as regionally significant measures of other planning organisations (section 15(10)), including the planning projects of the agricultural authorities. 43. The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal Constitution. However, case-law has established that area zoning plans cannot be directly challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings. This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. Ultimately this question can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution or by a request made by the Administrative Court under Article 89 para. 2 and Article 139 of the Federal Constitution. 44. The decisions of land reform boards can be challenged in the Constitutional Court. The latter will determine whether there has been any infringement of the applicant’s rights under the Constitution and whether the boards have applied a decree (Verordnung) that is unauthorised by statute law, an unconstitutional statute or an international treaty that is unlawful (rechtswidrig) under Austrian law (Article 144 of the Federal Constitution). 45. As an exception to the general rule laid down in Article 133 para. 4 of the Federal Constitution, section 8 of the 1950/1974 Federal Act provides for an appeal to the Administrative Court against the decisions of land reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court. The latter will, if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests, refer the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution). Under Article 130 of the Federal Constitution, the Administrative Court determines applications alleging the unlawfulness of an administrative act (Bescheid) or a breach by a competent authority of its duty to take a decision. It also hears appeals against decisions of boards whose members include judges - such as the land reform boards (see paragraph 39 above) - where such jurisdiction is conferred on it by statute.