Mellacher vs. Austria

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In the judgment of Mellacher and others against Austria  (1989), the European Court of Human Rights ruled on the compatibility of national regulations limiting rents with the fundamental right to property protection enshrined in the first additional protocol to the European Convention on Human Rights (ECHR) .

background

In 1981 a new tenancy law was passed in Austria , which also defined upper rent limits. On the basis of Section 44 of the Tenancy Law Act (Federal Law Gazette No. 520/1981), the tenant was also able to apply to tenancy agreements concluded before the Tenancy Law came into force - in deviation from the general provision in Section 43 (2), according to which the new Tenancy Law Act does not apply to existing contracts is - request a reduction in the rent to 150% of the rent upper limit permitted under the Tenancy Law for new rentals if the contractually determined rent exceeds this amount.

As a result of this new regulation, the complainant, who was affected by such a reduction in the rent for a rental contract concluded before the tenancy law came into force, had seen an interference with the integrity of his property and, after exhaustion of the domestic appeal, had turned to the European Commission for Human Rights . The latter had agreed with the complainant's opinion and brought an action against Austria at the European Court of Human Rights . Specifically, the complainant argues that the new regulation encroaches on his contractual freedom and deprives him of a substantial part of his future income from rent (Section 40 of the judgment). The complaint was based on Art. 1 of the first additional protocol to the ECHR (1st ZP ECHR):

Article 1 - Protection of property

Every natural or legal person has the right to respect for their property. No one may be deprived of his property unless it is in the public interest and only under the conditions provided for by law and by the general principles of international law.

However, the above provisions in no way affect the right of the state to apply those laws which it deems necessary to regulate the use of the property in accordance with the general interest or to secure the payment of taxes, other levies or fines.

judgment

The case was dismissed by the Court of Justice. First, the Court argues that the individual states have extensive freedom to adapt their tenancy law to the needs of the population and the common good. The Court of Justice would not have the right to rule on the system of rent regulation as such (section 41 of the judgment).

In relation to Art. 1 1st ZP ECHR, the Court notes that this article consists of three provisions. The first sentence addresses the principle of respect for property. In the following two sentences, a distinction is made between the question of the deprivation of property (expropriation) on the one hand and property restrictions on the other. Stricter standards are set for expropriations than for property restrictions (Section 42 of the judgment with reference to the Marckx judgment).

The complainants alleged that the encroachments on their property rights to the apartment were already so serious that they were de facto expropriation because they were demoted to administrators of the apartments. Since the Sporrong and Lönnroth judgment (of September 23, 1982), the European Court of Human Rights has ruled that, under certain conditions, property restrictions as de facto expropriations are to be equated with formal expropriations , whereby Article 1, Paragraph 1, Clause 2, 1st ZP ECHR apply is. However, the Court concluded that there was no expropriation (Sections 43 and 44 of the judgment). This means that only the regulations on property restrictions apply.

In the case of property restrictions, however, the legislature has a very free hand as long as the measures are in the public interest (interest of the general population). An inadmissible restriction of property exists, however, if the decision of the legislature obviously lacks a reasonable basis (Section 45 of the judgment with reference to Section 46 of the James et al. Judgment). In addition, the interference must be proportionate, which is the case with the Tenancy Law (Sections 48 to 56 of the judgment).

As a second point, the complainants asserted an interference with existing contracts and thus an inadmissible interference with property rights in the application of the law to existing tenancies (Section 50 of the judgment). The Austrian Constitutional Court has already determined in this context that there is no provision in the Federal Constitution that “would fundamentally prevent interference with well-acquired rights” (quoted from Section 36 of the judgment). The European Court of Human Rights followed suit.

criticism

The judgment was already controversial in the European Court of Human Rights. Five judges at the European Court of Human Rights had a dissenting opinion, but remained in the minority. The judgment was also sharply criticized in specialist journals. This is justified, among other things, by the fact that a silent or factual expropriation (i.e. when the income can no longer cover the expenses) already specifically endangers the property itself.

The German Federal Constitutional Court has ruled that a regulation is not compatible with the German Basic Law if it limits the rents to an extent that the maintenance costs of the property cannot be covered.

The same decision was reached by the Commission which brought the matter to the ECHR in the Mellacher proceedings.

literature

  • Katja Gelinsky: The protection of property according to Art. 1 of the First Additional Protocol to the European Convention on Human Rights. An analysis of the case law of the Strasbourg institutions. 1st edition, Duncker & Humblot, Berlin 1996, ISBN 3-428-08788-7 .
  • Mellacher et al. a. against Austria - judgment of December 19, 1989 (plenary) , No. 33 in Europäische Grundrechte Zeitschrift EGMR-E 4, 33, NP Engel Verlag, pp. 485–507 ( PDF , eugrz.info)

Individual evidence

  1. ↑ Federal Act of November 12, 1981 on Tenancy Law (Tenancy Law - MRG), Federal Law Gazette No. 520/1981
  2. ↑ a b c d e f g h i Judgment Mellacher and others 1981 ECHR 13/1988/157 / 211-213 (PDF; 2.7 MB)
  3. ↑ Marckx judgment of June 13, 1979, Series A No. 31
  4. ↑ Katja Gelinsky: The protection of property according to Art. 1 of the First Additional Protocol to ... , p. 57 .
  5. ↑ Judgment of James et al. a. of February 21, 1986, Series A, No. 98.
  6. ↑ Philipp Hedrich: The protection of property according to the Basic Law, the ECHR and the law of the EU , p. 29 .
  7. ↑ BVerfGE 87, 114 (146 ff.)
  8. ↑ EKMR decision Mellacher, § 213