AS TO THE ADMISSIBILITY OF
Application No. 21090/92
introduced on 15 0ctober 1992
by Karl Eckart HEINZ
against the Contracting States party to the
European Patent Convention insofar as they are High
Contracting Parties to the European Convention on
Human Rights, i.e. Austria, Belgium, Denmark,
France, Germany, Greece, Ireland, Italy,
Liechtenstein, Luxembourg, Netherlands, Norway,
Portugal, Spain, Sweden, Switzerland and the United
Kingdom
The European Commission of Human Rights sitting in private on
10 January 1994, the following members being present:
MM. A.S. GÖZÜBÜYÜK, Acting President
C.A. NØRGAARD
S. TRECHSEL
A. WEITZEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
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 October 1992 by
Karl Eckart HEINZ against Germany and registered on 16 December 1992
under file No. 21090/92;
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 German citizen, born in 1937 and residing in
Bonn, Germany.
The facts of the present case, as submitted by the applicant, may
be summarised as follows:
The applicant filed a European patent application with the European
Patent Office in Munich and paid the requested fees.
On 30 April 1992 the European Patent Office invited the applicant
to pay a renewal fee of 2.000 DM.
The applicant requested an extension of time for payment, invoking
his difficult financial situation.
On 15 June 1992 the European Patent Office informed the applicant
that, in accordance with Article 86 para. 2 of the European Patent
Convention, the renewal fee could be validly paid within six months of
the due date, provided that an additional fee was paid at the same time.
In his case the annual renewal fee amounted to 2.000 DM and the
additional fee to 200 DM. An extension of the time-limit was refused. The
European Patent Office referred to Article 86 para. 3 of the European
Patent Convention according to which:
"If the renewal fee and additional fee have not been paid in due
time the European patent application shall be deemed to be
withdrawn. The European Patent Office alone shall be competent to
decide this."
COMPLAINTS
The applicant considers that the High Contracting Parties to the
European Convention on Human Rights are responsible for a breach of his
property rights for having drawn up Article 86 of the European Patent
Convention. This provision, according to which a European patent
application shall be deemed to be withdrawn if the renewal fees have not
been paid, constitutes, in his opinion, an expropriation contrary to
Article 1 of Protocol N° 1.
THE LAW
The applicant complains under Article 1 of Protocol N° 1
(P1-1) that, in accordance with Article 86 para. 3 of the European Patent
Convention, his European patent application will be deemed to be withrawn
unless he pays the renewal and additional fees. According to him it is
incompatible with his right to the peaceful enjoyment of his possessions
that the Contracting States to the European Convention on Human Rights
draw up a patent convention providing that property rights are
automatically abolished for non-payment of certain fees.
Article 1 of Protocol N° 1 (P1-1) provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding paragraphs shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest or
to secure the payment of taxes or other contributions or
penalties."
The Commission must first consider whether it is competent to
examine complaints about the decisions of other European institutions,
whose membership is in whole or in part composed of High Contracting
Parties to the Convention. In this connection, it recalls its case-law
according to which it is not competent ratione personae to examine
proceedings before or decisions of organs of the European Communities,
the latter not being a Party to the European Convention on Human Rights
(see in particular N° 13258/87, M. & Co. v. the Federal Republic of
Germany, Dec. 9.2.90, D.R. 64 pp. 138, 144). The Commission finds that
this case-law also applies to the European Patent Office. The decisions
taken by the European Patent Office do not involve the exercise of
national jurisdiction within the meaning of Article 1 (Art. 1) of the
Convention.
The Commission notes that by drawing up the European Patent
Convention the Contracting States who are also High Contracting Parties
to the European Convention on Human Rights created a system of law common
to the Contracting States for the grant of European patents. The European
patent has, in each of the Contracting States for which it is granted,
the effect of and is subject to the same conditions as a national patent
granted by that State. To this extent these States have transferred their
powers in this area to the European Patent Office.
It has to be observed in this context that the Convention does not
prohibit a High Contracting Party from transferring powers to
international organisations. Nonetheless, the Commission recalls that "if
a State contracts treaty obligations and subsequently concludes another
international agreement which disables it from performing its obligations
under the first treaty it will be answerable for any resulting breach of
its obligations under the earlier treaty" (N° 235/56, Dec. 10.6.58,
Yearbook 2 pp. 256, 300). Thus the transfer of such powers does not
necessarily exclude a State's responsibility under the Convention with
regard to the exercise of those powers. Otherwise the guarantees of the
Convention could wantonly be limited or excluded and thus be deprived of
their peremptory character.
The object and purpose of the Convention as an instrument for the
protection of individual human beings requires that its provisions be
interpreted and applied so as to make its safegards practical and
effective (see Eur. Court H.R., Soering judgment of 7 July 1989, Series
A n° 161, p. 34, para. 87). Therefore the transfer of powers to an
international organisation is not incompatible with the Convention
provided that within that organisation fundamental rights will receive
an equivalent protection (see the above-mentioned N°13258/87, D.R. 64
p.145).
The Commission notes that the European Patent Convention contains
detailed provisions on substantive patent law covering patentability, the
persons entitled to apply, the term, the rights and equivalence of a
European patent and patent applications, the application as an item of
property, the procedure for grants, opposition procedures etc..
The Commission also notes various procedural safeguards contained
in the European Patent Convention. For example, Article 21 of that
Convention provides for an appeals procedure. Boards of appeal shall be
responsible for the examination of appeals and, in accordance with
Article 22, an Enlarged Board of Appeal shall be responsible in
particular for deciding points of law referred to it by Boards of Appeal.
These Boards are composed of legally qualified members and technically
qualified members. The members are independent (Article 23).
In the circumstances of the present case, the Commission
concludes that it is not competent to examine the applicant's complaints
under Article 1 of Protocol N° 1 (P1-1) concerning the fees imposed by
the European Patent Office in his case.
It follows that the application is incompatible ratione materiae
with the provisions of the Convention and must be rejected pursuant to
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (A.S. GÖZÜBÜYÜK)
Full & Egal Universal Law Academy