PROCEDURE

The case originated in an application (no. 21539/07) 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 a business firm registered in Austria, company Franz Steininger (“the applicant company”), on 3 May 2007.

The applicant was represented by Mr J. Hofer and Mr T. Huemer, lawyers practising in Wels. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The applicant alleged, in particular, that no tribunal within the meaning of Article 6 § 1 of the Convention had decided on the imposition of surcharges for unpaid contributions to the Austrian Agricultural Marketing Association.

On 23 October 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant company, which has its seat of business in Ernstbrunn (Austria), carries out cattle and pig slaughter, and is therefore liable to agricultural marketing charges, calculated on the basis of the number of animals slaughtered, to be paid to Agrarmarkt Austria (AMA) under the Agricultural Market Act (Agrarmarktgesetz).

On 30 May 2006 the AMA issued a payment order against the applicant company, ordering it to pay outstanding contributions for the period of December 2005 and January 2006 in the amount of 11.730,05 euros (EUR) and, in addition, imposing a surcharge for failure to pay, amounting to 60% of the unpaid contributions. The applicant company appealed against the order. It argued in particular that the above system was contrary to the rules of the European Union on state aid. It also asked for oral hearings to be held on the appeal and also asked that the proceedings for enforcing the payment order be suspended.

The Federal Minister of Agriculture, Forestry, Environment and Water (Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasser­wirtschaft), acting as the appeal authority, dismissed the applicant company’s appeal on 17 July 2006 without holding a hearing.

As regards the applicant’s argument that the AMA contributions were levied for financing activities, the AMA quality programme, which was not in accordance with EU law, the Federal Minister found that after the decision of the European Commission of 30 June 2004 (C(2004)2037), the applicant company was in a position to know precisely which charges it had to pay. In that decision the European Commission had expressed that it had no objection to the AMA Quality programmes and quality mark registered as state aid NN 34A/2000 (“Qualitätsprogramme und das AMA-Biozeichen und das AMA-Gütezeichen”), because that state aid was in accordance with the Common Market provided for in the Treaty establishing the European Community. The Federal Minister referred further to the Administrative Court’s decision of 20 March 2006, no. 2005/17/230, according to which also the levying of AMA contributions was in accordance with the relevant provisions of EU law (se §§ 24-27 below). The Federal Minister further held that it had not been necessary to hold a hearing because a hearing was only held if a decision was taken by a panel on an appeal against the decision of a tax office or a regional directorate of finance, which was not the case here.

On 25 July 2006 AMA dismissed the request for suspension of the enforcement.

Thereupon the applicant company lodged complaints with the Constitutional Court and the Administrative Court against the Federal Minister’s decision. Before the Constitutional Court the applicant company complained, inter alia, that the surcharge imposed violated its constitutional right to property. Before the Administrative Court the applicant company complained that the appeal authority was not a court within the meaning of the case-law of the European Court of Justice which prevented it from having the lawfulness of the decision by the European Commission of 30 June 2004 reviewed by the European Court of Justice in proceedings under Article 234 of the Treaty of the European Union. As regards the imposition of the surcharge the applicant company complained that the findings of fact were insufficient. In particular the authority had failed to establish whether the objective and subjective elements of the offence (objektiven und subjektiven Tatbildvoraussetzungen) had been met. Relying on Article 6 of the Convention it complained further that no public hearing had been held and that no impartial tribunal established by law decided on the criminal charge against it (“es ist kein unparteiisches, auf Gesetz beruhendes Gericht über den erhobenen strafrechtlichen Vorwurf eingeschritten”). As the authorities imposing the surcharges had failed to hold an oral hearing, the applicant company asked the Administrative Court for a public hearing.

On 25 September 2006 the Constitutional Court declined to deal with the applicant company’s complaint under Article 144 of the Federal Constitution for lack of prospect of success.

The Administrative Court dismissed the applicant company’s complaint on 30 January 2007 and held as follows: “The present case does not differ in the questions of relevance to the decision from the one decided by the Administrative Court on 20 March 2006, no. 2005/17/230. Pursuant to Section 43(2) of the Administrative Court Act reference is made to it. For the reasons set out in that decision the breach of law complained of by the applicant company also does not exist in view of the present complaint, for which reason it can be dismissed without further proceedings in camera. For the reasons set out in the decision referred to also Article 6 of the Convention is of no relevance here.”