AS TO THE ADMISSIBILITY OF
Application No. 32601/96
by EVORA B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 April 1996 by
Evora B.V. against the Netherlands and registered on 13 August 1996
under file No. 32601/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a company with limited liability having its
registered seat in Renswoude, the Netherlands. In the proceedings
before the Commission the applicant company is represented by Mr D.W.F.
Verkade, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
a. Particular circumstances of the present case
The applicant company owns a chain of pharmacies in the
Netherlands which offer low priced articles including perfumes and
other cosmetic products of well-known brands. These pharmacies' offer
includes certain Dior products which are advertised in the pharmacies'
habitual manner. The applicant company is not a retail trader in the
exclusive distribution system of Dior products.
As it was considered that the applicant company's manner of
advertising Dior products affected the prestige and image of Dior
products, the French company Parfums Christian Dior SA and the Dutch
company Parfums Christian Dior BV instituted summary proceedings (kort
geding) against the applicant company before the President of the
Regional Court (Arrondissementsrechtbank) of Haarlem, seeking an
injunction against all use of the Dior logo or Dior products in the
applicant company's advertising activities. It was not alleged that the
applicant company had unlawfully obtained the Dior products it had
offered in its advertisements.
On 29 December 1993, following adversarial proceedings, the
President of the Regional Court found against the applicant company and
granted the injunction.
As the injunction granted entailed important consequences for the
applicant company, it chose to file an urgent appeal (spoed appel) with
the Court of Appeal (Gerechtshof) of Amsterdam.
In its judgment of 19 May 1994, following adversarial
proceedings, the Court of Appeal of Amsterdam quashed the decision of
29 December 1993 and rejected the request for an injunction. The Dior
companies filed an appeal in cassation with the Supreme Court (Hoge
Raad).
In its interlocutory judgment of 20 October 1995, the Supreme
Court rejected the argument submitted by the applicant company that the
injunction sought by the Dior companies would be contrary to Article
10 of the Convention. It held on this point that the right to freedom
of expression may be subject to lawful limitations necessary in a
democratic society for the protection of, inter alia, the rights of
others. The Supreme Court found these rights to include trade mark and
copyrights. The Supreme Court found that the applicant company's
arguments on this point did not prompt the conclusion that the
applicant company's right to freedom of expression should outweigh the
Dior companies' interest in respect for their trade mark and
copyrights.
However, since questions arose under the Uniform Benelux Act on
Trade Marks (Eenvormige Beneluxwet op de merken) and EC rules, the
Supreme Court decided to seek a preliminary ruling from the Benelux
Court of Justice (Benelux Gerechtshof) on five questions under the
Uniform Benelux Act on Trade Marks and a preliminary ruling from the
EC Court of Justice (Hof van Justitie van de Europese Gemeenschappen)
on six questions under EC rules. It adjourned any further decision
pending the outcome of the proceedings before the Benelux Court of
Justice and the EC Court of Justice. These proceedings are currently
still pending.
b. Relevant domestic law
In disputes falling within the competence of the civil courts and
where an urgent decision is called for, it is possible to institute
summary proceedings (kort geding) before the President of the Regional
Court seeking an interim measure pending the outcome of the regular
proceedings on the merits (bodemprocedure). After one hearing, the
President decides whether or not to issue the interim measure
requested. Such an interim measure remains in force pending the outcome
of the regular proceedings on the merits. The judicial authorities
deciding on the merits are not bound by this interim measure in their
decision.
As in many cases the summary proceedings are not followed by
regular proceedings on the merits, the outcome of the summary
proceedings often constitutes the sole judicial decision on a dispute.
It is possible to file an appeal against a decision taken in
summary proceedings before the Court of Appeal. Such an appeal must be
lodged within two weeks. These appeal proceedings are dealt with in a
regular manner although generally speaking the Court of Appeal will
deal with such appeals expeditiously.
An urgent appeal (spoed appel) in interim injunction proceedings,
which has no statutory basis and which can only be lodged with the
Court of Appeal of Amsterdam, obliges an appellant to formulate all
objections in the appeal summons which must be served within a time-
limit of two weeks. No further objections can be raised subsequently.
In the oral proceedings every party is allowed twenty minutes for
pleadings. If these requirements are met, the Court of Appeal of
Amsterdam grants precedence to the case and will issue its decision
within a period of about four months.
COMPLAINTS
1. The applicant company complains under Article 6 paras. 1 and
3 (b) of the Convention that its defence rights were too restricted in
the proceedings at issue. It submits that the complexity of the case
is illustrated by the fact that the Supreme Court considered it
necessary to seek preliminary rulings from the Benelux Court of Justice
and the EC Court of Justice on issues related to trade marks and
copyrights which the applicant company had raised in the proceedings
on appeal. The applicant company complains in particular that in the
urgent appeal procedure before the Court of Appeal of Amsterdam, it had
to formulate all its objections within a time-limit of two weeks
without having the possibility to make any subsequent changes and only
had twenty minutes for making its oral submissions. As a result it
could not make any elaborate submissions on a number of arguments
including that relating to Article 10 of the Convention.
2. The applicant company further complains that the Supreme Court
unjustly rejected the argument that the prohibition against including
Dior products in its advertisement activities constitutes an
unjustified interference with its rights under Article 10 of the
Convention.
THE LAW
1. The applicant company complains under Article 6 paras. 1 and
3 (b) (Art. 6-1, 6-3-b) of the Convention that its defence rights were
too restricted in the proceedings at issue.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair ... hearing ... by a ... tribunal established by law. ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the
preparation of his defence;
..."
As the proceedings at issue cannot be considered as constituting
a determination of a "criminal charge" within the meaning of Article
6 (Art. 6) of the Convention, the Commission is of the opinion that
these proceedings fall outside the scope of Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention and cannot, therefore, be examined under
this provision.
Insofar as the applicant complains under Article 6 para. 1
(Art. 6-1) of the Convention, the Commission finds that the proceedings
at issue can be regarded as constituting a determination of the
applicant company's civil rights and obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention and can thus be examined
under this provision.
As to the question whether these proceedings are in conformity
with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention
as to the fairness of proceedings, the Commission recalls that as a
rule this can only be determined by examining the proceedings as a
whole, that is to say only after they have been concluded (cf. No.
12952/87, Dec. 6.11.90, D.R. 67, p. 175). However, it is not impossible
that a particular procedural element could be so decisive that the
fairness of the proceedings could be determined at an earlier stage
(cf. No. 9938/82, Dec. 15.7.86, D.R. 48, p. 21).
The Commission, noting that in its interlocutory judgment of
20 October 1995 the Supreme Court adjourned its final decision in the
present case pending the outcome of the proceedings before the Benelux
Court of Justice and the EC Court of Justice, finds that the applicant
company's submissions do not disclose any elements in view of which the
fairness of the present proceedings could be determined before a final
decision within the meaning of Article 26 (Art. 26) of the Convention
has been taken.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant company further complains that the Supreme Court
unjustly rejected the argument that the prohibition against including
Dior products in its advertisement activities constitutes an
unjustified interference with its rights under Article 10 (Art. 10) of
the Convention.
Article 10 (Art. 10) of the Convention provides as follows:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television
or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
The Commission notes that the Supreme Court, in its interlocutory
judgment of 20 October 1995, rejected the applicant company's argument
that the injunction sought by the Dior companies would be contrary to
Article 10 (Art. 10) of the Convention.
However, the Commission further notes that, following the
judgment of 19 May 1994 of the Court of Appeal of Amsterdam, the
injunction at issue has been quashed and, consequently, is no longer
in force. Whether the Supreme Court will uphold this judgment cannot
be answered for the time being as the Supreme Court has adjourned its
decision on the Dior companies' appeal in cassation against the Court
of Appeal's decision pending the replies to the preliminary questions
put by the Supreme Court to the Benelux Court of Justice and the EC
Court of Justice.
The Commission considers that the final outcome of the
proceedings before the Supreme Court will be decisive for whether or
not the applicant company will be directly affected by the Supreme
Court's rejection of the applicant company's arguments under Article
10 (Art. 10) of the Convention and thus for whether or not it may claim
to be a victim within the meaning of Article 25 (Art. 25) of the
Convention (cf. No. 15404/89, Dec. 16.4.91, D.R. 70, p. 262).
Consequently, the question of the applicant company's capacity as a
victim of an alleged violation of Article 10 (Art. 10) cannot be
determined until there is a final judgment in the domestic proceedings.
A consequence of this reasoning is of course that the six months
time-limit laid down in Article 26 (Art. 26) of the Convention did not,
as regards the applicant company's complaint under Article 10 (Art. 10)
of the Convention, begin to run from 20 October 1995, i.e. the date of
the Supreme Court's interlocutory judgment, but will only be calculated
from the date on which the final decision in the proceedings between
the Dior companies and the applicant company will be given on whether
or not an injunction should be granted against the applicant company.
It follows that this part of the application is also premature
and, consequently, must be rejected as manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy