03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… A. The first applicant organisation’s victim status 32. The Government contested the first applicant organisation’s locus standi under Article 34 of the Convention. 33. Referring to the Court’s case-law, they asserted that the first applicant organisation was a governmental organisation under Article 34, as, legally, it was a public body entrusted with fulfilling governmental duties. Those tasks were fulfilled by exercising typically governmental powers, such as the issuing of decrees. In proceedings relating to decisions, the first applicant organisation was bound by the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz), and the enforcement of its decisions was based on the Federal Law for the Enforcement of Administrative Orders (Verwaltungsvollstreckungsgesetz). The decrees issued by the first applicant organisation were supervised by the Vienna Regional Government, which had powers to suspend them. Therefore, the first applicant organisation was not fully independent, as required by the Court’s case-law. Moreover, the relevant statement had been issued in the process of discharging the first applicant organisation’s legal public responsibilities. 34. The first applicant organisation contested that assertion. It was true that, legally, it was a public entity entrusted with the exercise of public functions. It was therefore correct that it was, in general, required to safeguard fundamental rights but did not enjoy such rights. However, aside from this legal aspect, it also had a non-governmental aspect, which rendered it capable of being a party under Article 34 of the Convention. The Court should therefore not examine the general abilities of the organisation to use the powers conferred on it by law, but the act in question itself. The issuing of the statement was not an act of a governmental organisation, but rather one of a private-law nature. 35. The Court refers to its well-established case law to the effect that a legal entity “claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto” may submit an application to the Court, provided that it is a “nongovernmental organisation” within the meaning of Article 34 of the Convention. The Court reiterates that the idea behind this principle is to prevent a Contracting Party from acting as both an applicant and a respondent party before the Court. The term “governmental organisations”, as opposed to “nongovernmental organisations” within the meaning of Article 34, includes legal entities which participate in the exercise of governmental powers or run a public service under government control. The term “governmental organisations” applies not only to the central organs of the State, but also to decentralised authorities that exercise “public functions”, regardless of their autonomy vis-à-vis the central organs; likewise it applies to regional and local authorities, including municipalities. In order to determine whether any given legal person falls within one of the two above categories, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out, the context in which it is carried out, and the degree of its independence from the political authorities (see Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X, and Islamic Republic of Iran Shipping Lines v. Turkey (no. 40998/98, §§ 78-81, ECHR 2007-V). 36. The Court has therefore considered a company to be a “non-governmental organisation” where it was governed essentially by company law, did not enjoy any governmental or other powers beyond those conferred by ordinary private law in the exercise of its activities, and was subject to the jurisdiction of the ordinary rather than the administrative courts. In the past, the Court has also taken into account the fact that an applicant company carried out commercial activities, and had neither a public service role nor a monopoly in a competitive sector (see Vỳchodoslovensk Vodárenská Spoločnost, A.S. v. Ukraine (dec.), no. 40265/07, § 31, 2 July 2013; State Holding Company Luganksvugillya v.Ukraine (dec.), no. 23938/05, 27 January 2009); and Transpetrol, a.s. v. Slovakia (dec.), no. 28502/08, 15 November 2011)). 37. With regard to Austria, the Court has stated that communes and the Chamber of Commerce had to be seen as governmental organisations within the meaning of Article 34 (see, respectively, 16 Austrian Communes and some of their Councillors v. Austria, no. 5767/72, Commission decision of 31 May 1974, and Weiss v. Austria, no. 14596/89, Commission decision of 10 July 1991). However, the Austrian Broadcasting Corporation (Österreichischer Rundfunk - ORF) was not seen as an governmental organisation within the meaning of Article 34, as it did not exercise governmental www.bailii.org/eu/cases/ECHR/2016/179.html 8/13