AS TO THE ADMISSIBILITY OF
Application No. 18411/91
by F.M. Z. Gesellschaft mbH & Co. KG
F.M. Z.
against Austria
The European Commission of Human Rights sitting in private on
12 January 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 10 June 1991 by
F.M. Z. mbH & Co. KG and F.M. Z. against Austria and registered on 24
June 1991 under file No. 18411/91;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant is a commercial firm at Dornbirn in Austria
established as a limited partnership (Kommanditgesellschaft) under
Austrian law. The second applicant, an Austrian citizen, resides at
Dornbirn and is the owner of the first applicant. Before the
Commission both applicants are represented by Mr. W. L. Weh, a lawyer
practising in Bregenz.
A. Particular circumstances of the case
Since 1985 the first applicant company has operated a food stuff
super market in Wels (Austria), organised principally as a wholesale
market selling to retailers and on 600 square metres of the whole
selling area of 7.200 square metres as a retail market selling to
consumers. In spring 1987 the selling area reserved to retailers was
opened up to consumers.
In July 1987 three associations for the protection of fair
competition, the "VSW-Verein für sauberen Wettbewerb", the "WSV-
Wettbewerbsschutzverband" and the "Schutzverband gegen den unlauteren
Wettbewerb", instituted civil proceedings under Section 1 of the Unfair
Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb) against
the first applicant. The last mentioned association also requested an
interim injunction (einstweilige Verfügung) against the first
applicant.
On 14 August 1987 the Wels Regional Court (Kreisgericht) issued
an interim injunction against the first applicant ordering it to
refrain from granting access to consumers at its premises on a selling
area exceeding 600 square metres while the main proceedings were
pending. The Regional Court held that the first applicant operated a
retail market on premises where this was not allowed. The first
applicant company had a trading licence (Gewerbeschein) issued by the
Mayor of Wels (Bürgermeister) which allowed wholesaling on an unlimited
selling area and retailing on a selling area of a maximum of 600 square
metres. Also the industrial plant permission (Betriebsanlagen-
genehmigung) and the building permit (Baugenehmigung) referred to a
wholesale market. According to the Upper Austrian Regional Planning
Act (Raumplanungsgesetz) retail markets with a selling area of more
than 600 square metres could only be constructed on land marked in the
Area Zoning Plan (Flächenwidmungsplan) as "area for commercial centres"
(Gebiet für Geschäftsbauten). The first applicant company's super
market, however, was situated on land marked in the Area Zoning Plan
as "industrial area" (Betriebsbaugebiet). According to Section 15
para. 1 of the Industrial Code (Gewerbeordnung), a trade must not be
exercised on a location where its exercise is forbidden by law. Thus,
the first applicant did not comply with Section 15 of the Industrial
Code and, by doing so, had gained an advantage contrary to public
policy vis-à-vis law abiding competitors which constituted unfair
competition contrary to Section 1 of the Unfair Competition Act.
On 1 October 1987, the Linz Court of Appeal (Oberlandesgericht)
upon the first applicant's appeal (Rekurs) quashed the decision of
14 August 1987 for procedural reasons. The Court of Appeal held that
in the meantime the plaintiff had amended its claim and no longer
alleged that the first applicant operated a wholesale market also
opened to consumers but that it now exclusively operated a retail
market. Therefore, the interim injunction requested by the plaintiff
no longer corresponded to its claim in the main proceedings.
On 23 February 1988 the Supreme Court (Oberster Gerichtshof),
upon the third plaintiff's appeal, quashed the Court of Appeal's
decision and granted the interim injunction. The Supreme Court found
that the plaintiff only had supplemented its pleadings but not amended
its claim. The Supreme Court furthermore confirmed the findings of the
Regional Court.
In the meantime, the Mayor (Bürgermeister) of Wels acting as
industrial authority (Gewerbebehörde) and the Wels City Council
(Stadtsenat) acting as building authority (Baubehörde), had conducted
administrative and criminal proceedings against the second applicant
as the person responsible for the first applicant company as regards
the Wels Super market.
In particular, on 19 October 1987 the Mayor of Wels issued a
penal order (Straferkenntnis), by which the second applicant was fined
for retailing to consumers although the industrial plant permission
only allowed it to operate a wholesale market. On 28 March 1988 the
Upper Austrian Regional Governor (Landeshauptmann) quashed this penal
order and found that the industrial plant permission did not contain
any such express condition and as an industrial plant permission was
independent from a trading licence it was irrelevant whether the
trading licence contained such a restriction.
On 12 August 1988 the Mayor of Wels accepted the notification
under the Industrial Code of the "familia" Handelsgesellschaft AG,
another company of the Zumtobel group, that it intended to operate on
the whole selling area of the Wels super market a retail market. The
Mayor found inter alia that the provisions of the Regional Planning Act
only concerned the regional and local planning authorities but did not
regulate the behaviour of citizens. Therefore, it did not contain any
prohibition against retailing on the premises of the Wels super market,
which the Mayor could take into account under Section 15 para. 1 of the
Industrial Code.
On 10 February 1989, in the unfair competition proceedings, the
Wels Regional Court found against the first applicant in the main
proceedings. It held that from the first applicant's trading licence,
issued by the Major of Wels on 25 July 1985, it appeared that the
company was not allowed to do retailing on a selling area larger than
600 square metres. The Regional Court further found that the Regional
Governor's decision of 28 March 1988, to which the first applicant had
referred, had no bearing on the present proceedings as the Regional
Governor, in his decision, had not examined whether there had been a
violation of the provisions of the Regional Planning Act and of Section
15 para. 1 of the Industrial Code. The Regional Court concluded that
the first applicant operated in Wels a retail market in a location
where, according to the Area Zoning Plan, only a wholesale market was
allowed, and hereby contravened Section 15 para. 1 of the Industrial
Code. The disregard of the relevant provisions of the Regional
Planning Act was imputable to the first applicant ("der Beklagten
subjektiv vorzuwerfen") and thus constituted unfair competition
contrary to Section 1 of the Unfair Competition Act.
On 14 January 1990 the Linz Court of Appeal dismissed the first
applicant's appeal. The Court of Appeal, having regard to various
decisions of the Supreme Court including the decision of
23 February 1988 in the interim injunction proceedings, confirmed the
findings of the Regional Court.
On 4 April 1990 the first applicant introduced a further appeal
with the Supreme Court. It also challenged the Supreme Court's
Chamber, which had decided on the interim injunction, for bias. The
first applicant submitted that the Court of Appeal was biased as it
found itself bound by the Supreme Court's decision in the interim
injunction proceedings. It further referred to the Wels Municipal
Authority's decision of 12 August 1988 and submitted that the Courts
had wrongly interpreted the provisions of the Regional Planning Act and
the Industrial Code.
On 12 July 1990 the Supreme Court rejected the challenge for
bias. It found in particular that the mere fact that members of the
Court had already decided on an interim injunction was not sufficient
to raise doubts as to their impartiality.
On 23 October 1990 the Supreme Court, in another composition than
in the interim proceedings, rejected the first applicant's appeal. The
Supreme Court found no indication in the judgment of the Court of
Appeal that the latter regarded itself bound by the Supreme Court's
decision on the interim injunction; it had only followed the legal
opinion of the Supreme Court as expressed in this decision. The
Supreme Court, referring to its case-law, held further that in deciding
whether the exercise of a trade was prohibited on a given location by
Section 15 para. 1 of the Industrial Code, also the Regional Planning
Acts had to be taken into account; the decision of the Mayor of Wels
of 12 August 1988 had no bearing on the present proceedings as it did
not concern the first applicant.
B. Relevant domestic law
Section 1 of the Unfair Competition Act (Bundesgesetz gegen den
unlauteren Wettbewerb) reads as follows:
"Any person who in the course of business commits, for purposes
of competition, acts contrary to honest practices, may be
enjoined from further engaging in those acts and held liable for
damages."
Section 15 para. 1 of the Industrial Code (Gewerbeordnung) reads
as follows:
"A trade or business must not be conducted
1. in a location where the exercise of this activity, at the time
of the notification of the trade or the decision on the request
for a licence, is prohibited by provisions of law, ..."
COMPLAINTS
1. The applicants complain under Article 6 para. 1 of the Convention
about the unfairness of the proceedings in that, in the interim
injunction proceedings, the Supreme Court decided without a public
hearing in the presence of the parties, and without taking evidence and
in that the Linz Court of Appeal considered in the main proceedings
that, for reasons of uniformity of law, it was bound by the Supreme
Court's decision in the interim injunction proceedings. Moreover, the
judges of the Court of Appeal, deciding on the first applicant's appeal
in the main proceedings, had already decided on the interim injunction.
2. The applicants further complain under Article 6 para. 2 of the
Convention about a violation of the principle of presumption of
innocence. They submit that in the proceedings regarding unfair
competition the Austrian courts found that a violation of provisions
of administrative law was imputable to the first applicant, and thus
made a statement on its guilt, although it was up to the administrative
authorities to make such a determination in administrative criminal
proceedings. Criminal responsibility was therefore determined by a
court which had no such jurisdiction.
THE LAW
1. The applicants complain that the unfair competition proceedings
were unfair and the Austrian courts biased. They rely on Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides that "in the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law".
a. As regards the applicants' complaints about the interim
injunction proceedings, the Commission finds that in these proceedings,
the first applicant's rights and obligations were not determined, but
only an interim decision taken pending the main proceedings. The
interim injunction proceedings therefore fall outside the scope of
Article 6 para. 1 (Art. 6-1) of the Convention (cf., mutatis mutandis,
No. 7990/77, Dec. 11.5.81, D.R. 24 pp. 57, 61 and No. 17200/91, Dec.
2.12.91, unpublished). The applicants' complaint is accordingly
incompatible ratione materiae with the provisions of the Convention and
must be rejected under Article 27 para. 2 (Art. 27-2) of the
Convention.
b. With regard to the applicants' complaints about the main
proceedings, the Commission finds no indication that the first
applicant, represented by counsel, could not properly argue its case,
or that the proceedings were otherwise unfairly conducted.
In particular, the Commission does not find it arbitrary that the
courts, in the main proceedings, did not deviate from the legal
approach previously taken by the Supreme Court (see No. 17200/91, Dec.
2.12.91, unpublished).
As regards the complaint that the judges of the Court of Appeal
were biased, the Commission, even assuming that the applicants had
exhausted domestic remedies in this respect, finds that the mere fact
that the judges of the Court of Appeal deciding upon the merits of the
action, had already been involved in the interim injunction
proceedings, is not in itself sufficient to give rise to legitimate
doubts as to their impartiality (cf. mutatis mutandis, Eur. Court H.R.,
Gillow judgment of 24 November 1986, Series A no. 109, p. 28, para.
73).
It follows that the applicants' complaints under Article 6
para. 1 (Art. 6-1) of the Convention concerning the main proceedings
are manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Under Article 6 para. 2 (Art. 6-2) of the Convention the
applicants complain about a violation of the principle of presumption
of innocence. They submit that in the proceedings regarding unfair
competition the Austrian courts found that a violation of provisions
of administrative law was imputable to the first applicant company, and
thus made a statement on its guilt, although it was up to the
administrative authorities to make such a determination in
administrative criminal proceedings.
The Commission recalls that despite the wording of Article 6
para. 2 (Art. 6-2), which secures the presumption of innocence to
"everyone charged with a criminal offence", this provision has been
consistently interpreted as also applying to situations where the
person concerned is not or no longer formally charged with a criminal
offence (cf. Eur. Court H.R., Lutz, Englert and Nölkenbockhoff
judgments of 25 August 1987, Series A no. 123, p. 23, para. 56; p. 54,
para. 35; p. 79, para. 35).
The Commission notes that the proceedings before the Austrian
courts were instituted by three associations for the protection of fair
competition as plaintiffs against the first applicant and that the
issue in these proceedings was whether the first applicant had engaged
in commercial practices which were to be considered as unfair
competition within the meaning of Section 1 of the Unfair Competition
Act. The Commission notes further that, in these proceedings, the
Austrian courts considered as a preliminary question whether the first
applicant had disregarded provisions of the Industrial Code and the
Regional Planning Act.
The Commission considers that, in deciding these issues, the
Austrian courts established the civil responsibility of the first
applicant company for its commercial practices. These findings do not
amount to a statement of guilt regarding criminal responsibility in
violation of Article 6 para. 2 (Art. 6-2) of the Convention (see No.
9295/81, X. v. Austria, Dec. 6.10.82, D.R. 30 p. 227).
It follows that this part of the application is also 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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy