AS TO THE ADMISSIBILITY OF
Application No. 28977/95
by Krone-Verlag GmbH and
Mediaprint Anzeigen GmbH & Co KG
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, 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 23 August 1995 by
Krone-Verlag GmbH and Mediaprint Anzeigen GmbH & Co KG against Austria
and registered on 26 October 1995 under file No. 28977/95;
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 applicants are two companies which are both part of a large
media group publishing several newspapers and magazines. The first
applicant company (Krone-Verlag GmbH) is a limited company
(Gesellschaft mit beschränkter Haftung) registered under Austrian law.
It is the general partner (Komplementär) of a limited partnership
(Kommanditgesellschaft) which is the media owner (Medieninhaber) of an
Austrian newspaper, the "Neue Kronen Zeitung". The second applicant
company (Mediaprint Anzeigen GmbH & Co KG) is a limited partnership
(Kommanditgesellschaft) dealing with advertisement, in particular in
the "Neue Kronen Zeitung". Both applicant companies have their places
of business in Vienna. Before the Commission they are represented by
Mr. Höhne, a lawyer practising in Vienna.
A. Particular circumstances of the case
a. The proceedings for unfair competition
In October 1990 FZ GmbH, which is the publisher of newspapers and
magazines and a competitor of the media group to which the applicant
companies belong, brought an action for unfair competition with the
Vienna Commercial Court (Handelsgericht) against the first applicant
company and three other companies belonging to the same media group,
namely Krone-Verlag GmbH & Co KG, Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH and Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH & Co KG. The FZ GmbH requested an injunction
prohibiting the defendants from publishing against payment articles in
their newspapers which were not marked as "advertisement" (Anzeige),
"publicity" (Werbung) or "paid article" (entgeltliche Einschaltung) and
referred to several such articles which had appeared in the "Neue
Kronen Zeitung". Moreover, the FZ GmbH requested the Court to grant
the publication of the judgment given in the unfair competition
proceedings in several newspapers belonging to the defendant companies.
On 8 February 1990 the Vienna Commercial Court granted the
requested injunction.
On 17 May 1990 the Vienna Court of Appeal (Oberlandesgericht)
partly granted the first applicant company's and its co-defendants'
appeal. It confirmed the prohibition to publish paid articles without
explicit reference to this fact but dismissed the request for a
publication of the decision in several newspapers. Instead it ordered
the publication of the judgment in only one edition of the newspaper
in which the contested articles had appeared.
On 18 September 1990 the Supreme Court (Oberster Gerichtshof)
rejected as inadmissible the extraordinary appeal on a point of law
(außerordentliche Revision) lodged by the first applicant company and
its co-defendants.
b. Enforcement proceedings
On 10 January 1991 the FZ GmbH requested the Döbling District
Court to grant enforcement of the above judgment by means of a fine
under Section 355 of the Enforcement Act (Exekutionsordnung) against
the first applicant company, the Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH and Mediaprint Zeitungs- und
Zeitschriftenverlag GmbH & Co KG. The FZ GmbH requested that on each
of the firms a fine of AS 40,000 be imposed as they were responsible
for the publication of articles against payment under the heading
"living more consciously" (Bewußter Leben) without explicit reference
to this fact.
On 18 January 1991 the District Court granted the enforcement
and imposed the fines requested for failure to comply with the
injunction.
The first applicant company and the two other firms lodged an
appeal against the enforcement order with the Vienna Regional Court for
Civil Law Matters (Landesgericht für Zivilrechtssachen Wien). They
submitted in particular that the District Court had imposed a fine on
all three of them, although there was only one single breach of the
injunction and only one single request for enforcement. Moreover, the
fine for all three companies taken together exceeded the limit of
ATS 80,000 provided for in Section 359 of the Enforcement Act.
On 30 July 1991 the Vienna Regional Court dismissed the appeal
against the enforcement order and stated that no appeal lay against its
decision.
Subsequently, the first applicant company and the two other firms
affected by the enforcement order brought an action under Section 36
of the Enforcement Act for discontinuation of the enforcement
proceedings (Impugnationsklage) before the Döbling District Court.
They submitted, inter alia, that the first applicant company,
Krone-Verlag GmbH, could not be held liable for the contravention,
because the Krone-Verlag GmbH & Co [Vermögensverwaltung] KG, the
limited partnership of which it was the general partner, had
transferred its business in August 1990 to a new limited partnership,
the Krone-Verlag GmbH & Co KG, and was no longer the media owner.
Therefore it could not have disregarded the judgment. It was irrelevant
in this context that the first applicant company was also the general
partner of the limited partnership (Krone-Verlag GmbH & Co KG) owning
the media after August 1990. Moreover, the first applicant company was
not liable for the alleged contravention, because due to the internal
structure and distribution of functions between the limited partnership
acting as publisher (Mediaprint Zeitungs- und Zeitschriftenverlag GmbH
& Co KG) and the limited partnership acting as responsible media owner
(Krone-Verlag GmbH & Co KG), it had no control over the part of the
newspaper relating to advertisements.
On 31 August 1992 the Döbling District Court dismissed the
action. It found that it was not in dispute between the parties that
the articles at issue had been published against payment and that the
first applicant company was the liable partner (Komplementär) both of
the former and the present partnership acting as responsible media
owner. Since all the plaintiffs in the present proceedings were bound
by the injunction, the internal distribution of responsibilities among
the companies belonging to the media group was irrelevant.
On 1 December 1992 the Vienna Regional Court quashed the District
Court's decision insofar as it concerned the first applicant company
and confirmed the remainder of the decision. It directed the District
Court to take further evidence on the alleged lack of responsibility
of the first applicant company for the publications at issue.
On 8 June 1993 the Supreme Court rejected the extraordinary
appeal on points of law (außerordentliche Revision) lodged by the
Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co KG and
Mediaprint Zeitungs- und Zeitschriftenverlag GmbH against the Regional
Court's decision.
On 9 February 1994 the District Court, after having taken
supplementary evidence, declared the enforcement against the first
applicant company inadmissible.
The District Court, after having examined the structure of and
the interrelation between the different companies and firms of the
media group which publishes the "Neue Kronen Zeitung", found that the
limited partnership Krone-Verlag GmbH & Co KG, whose general partner
the first applicant company was, was only in charge of the editorial
part (redaktioneller Teil) of the newspaper. All matters relating to
the advertising in the newspaper were taken care of by a special
advertising company, the Mediaprint Anzeigen GmbH & Co KG. The
contested publications referred to in the enforcement order had been
published in the advertisement part of the newspaper and the first
applicant company by itself could not exercise any influence on the
advertisement company, because the latter was a contractor of the
Mediaprint Zeitungs- und Zeitschriftenverlag GmbH. It could only
exercise an influence on the basis of its position as partner of the
Krone-Verlag GmbH & Co KG, which, in turn, owned 50 % of the shares of
the Mediaprint Zeitungs- und Zeitschriftenverlag GmbH, which was the
general partner of the Mediaprint Zeitungs- und Zeitschriftenverlag
GmbH & Co KG, which acted as publisher of the newspaper. The first
applicant company had exercised this influence by means of urgent
requests during the shareholder meetings, but had no influence on the
concrete appearance of the advertisement pages of the newspaper.
On 5 July 1994 the Vienna Regional Court confirmed the District
Court's decision.
On 3 August 1994 the FZ GmbH filed an extraordinary appeal on
points of law. It submitted in particular that the mere fact that
responsibility for the publication of the newspaper was internally
distributed between different companies belonging to the media group
could not relieve the first applicant company from its obligation to
ensure that the injunction was not breached. If the contractual
obligations entered into by the first applicant company had the effect
that it was obliged to participate in acts which were in breach of the
law then the contract on which such an obligation was based would
itself be unlawful. The extraordinary appeal was served on the first
applicant company on 12 August 1994. The first applicant company does
not submit whether, and if so at which date, it replied.
On 25 January 1995 the Supreme Court granted the FZ GmbH's
extraordinary appeal on points of law and dismissed the first applicant
company's action for the discontinuation of the enforcement
proceedings. This judgment was served on the first applicant company
on 3 March 1995.
The Supreme Court found that according to the injunction the
first applicant company had the obligation to refrain from any acts of
unfair competition as specified therein. This obligation also included
the duty to abstain from any acts which could lead to a situation where
the first applicant company could no longer prevent acts in breach of
the injunction. If a party liable under an injunction voluntarily had
given up the possibility of preventing others from committing acts in
breach of it, this party would be liable even though it was no longer
capable of preventing such acts. The party's fault was then that it
had voluntarily given up the possibility of exercising influence.
In the present case the responsibilities of the Krone-Verlag GmbH
& Co KG of which the first applicant company was a general partner -
probably after the injunction in the unfair competition proceedings had
been granted - had been contractually confined to the editorial part.
The first applicant company had not argued that it had been impossible
to conclude the contract in such a way that it would still be in a
position to exercise its influence on the advertisement part or at
least to prevent the publication of advertisements that were not
sufficiently announced as such. To maintain such an influence was,
however, of particular importance as under to the Media Act
(Mediengesetz) the media owner was supposed to run the business on its
own account and to dispose of the power (Verfügungsgewalt) necessary
to run the business. The Supreme Court concluded that the first
applicant company had to bear the responsibility for the publication
of the advertisement which breached the injunction because it had
voluntarily given up its possibility to prevent this act.
B. Relevant Domestic Law
Section 26 of the Media Act (Mediengesetz) reads as follows:
"Ankündigungen, Empfehlungen sowie sonstige Beiträge und Berichte, für deren Veröffentlichung ein Entgelt geleistet wird, müßen in periodischen Medien als "Anzeige", "entgeltliche Einschaltung" oder "Werbung" gekennzeichnet sein, es sei denn, daß Zweifel über die Entgeltlichkeit durch Gestaltung oder Anordnung ausgeschlossen werden können." "Announcements, recommendations and other texts or articles which are published against payment have to be marked in periodicals as "advertisement", "paid article" or "publicity", unless any doubts that the announcements were published against payment can be excluded due to their appearance or lay-out." Section 355 of the Enforcement Act (Exekutionsordnung) reads as follows: "(1) Die Exekution gegen den zur Unterlassung oder zur Duldung der Vornahme einer Handlung Verpflichteten geschieht dadurch, daß wegen eines Zuwiderhandelns nach Eintritt der Vollstreckbarkeit des Exekutionstitels auf Antrag vom Exekutionsgericht anläßlich der Bewilligung der Exekution eine Geldstrafe verhängt wird. Wegen eines jeden weiteren Zuwiderhandelns hat das Exekutionsgericht auf Antrag eine weitere Geldstrafe oder eine Haft bis zur Gesamtdauer eines Jahres zu verhängen...." "(1) Enforcement against a person who is liable under a judgment to refrain from an act or to tolerate an act takes place in the following way. The enforcement court imposes a fine for a breach of the injunction if the injunction has become enforceable and the opposite party requests it to do so. For any further breach of the injunction the enforcement court, upon request, imposes a further fine or imprisonment up to one year ..." According to Section 502 of the Austrian Code of Civil Procedure (Zivilprozeßordnung) an appeal on points of law can only be lodged against an appellate court judgment if the decision of the case depends upon a question of substantive or procedural law which is of considerable importance in view of the uniformity of law, the stability of law or the development of law, or if the appellate court deviated from the jurisprudence of the Supreme Court or in the absence of any such jurisprudence. Moreover, the appeal on points of law can only be based on the specific grounds enumerated in S. 503, such as procedural failures, contradiction between the appellate court's factual findings and the contents of the files or incorrect application of the law. As regards the proceedings on an appeal on points of law, Section 509 para. 1 provides that the Supreme Court decides following a session in camera without an oral hearing. According to paragraph 2 of Section 509, a hearing may be ordered to be held on application by one of the parties or on the court's own motion, if such course appears necessary in the specific circumstances of the case. Section 510 para. 1 provides that the Supreme Court should generally decide the case. COMPLAINTS The applicant companies complain under Article 6 para. 1 of the Convention that the Chamber of the Supreme Court which on 25 January 1995 decided on the extraordinary appeal on points of law was biased. They submit that between 1989 and 1995 companies which belong to their media group had filed 41 ordinary and extraordinary appeals on points of law which had been dealt with by this Chamber (competent for enforcement matters) and the ratio of successful appeals had dropped continuously in the last years, a fact which, in their view, is attributable to changes in the composition of the Chamber. During the same time the competing media group had filed 29 appeals and their ratio of success had increased. Another Chamber of the Supreme Court (competent for matters of competition) had dealt during the same period with 52 appeals by the media group to which the applicant companies belong and there the ratio of success remained stable. The applicant companies further complain under Article 6 para. 1 of the Convention that the proceedings before the Supreme Court were unfair in that the Supreme Court carried out investigations of facts without giving them the possibility to comment thereon and to present their legal arguments. The contested part of the Supreme Court's judgment concerns the statement (underlined in the text) that "the responsibilities of the Krone-Verlag GmbH & Co KG of which the first applicant company was a general partner had been contractually confined to the editorial part- probably after the injunction in the unfair competition proceedings had been granted." The first applicant company complains under Article 6 para. 2 of the Convention about an infringement of the presumption of innocence in the enforcement proceedings because the enforcement court imposed a fine on it although it had not itself breached the injunction. The first applicant company, relying on Article 7 of the Convention, complains that its right not to be subjected to retroactive punishment has been violated in that the Supreme Court in its judgment extended the scope of Section 355 of the Enforcement Act in a way infringing the principle of "nullum crimen, nulla poena sine lege". The second applicant company complains under Article 1 of Protocol No. 1 that its right to peaceful enjoyment of its possession has been violated by the fines imposed in the enforcement proceedings, because, under the contractual relationships it had with the other companies of the media group, it was obliged to refund the fines imposed on the other companies and firms. Thus, it had to refund three fines for one single breach of the injunction. In this respect it also invokes Article 14 of the Convention and submits that the Austrian law was discriminatory in that partners of a partnership are all individually liable to pay fines under the Enforcement Act. THE LAW 1. The first applicant company complains under Article 6 para 1 (Art. 6-1) of the Convention about a lack of impartiality of the Chamber of the Supreme Court which handed down the judgment of 25 January 1995. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..." The Commission must first examine whether Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue, i.e. whether these proceedings involved the determination of the first applicant company's civil rights and obligations or of a criminal charge against it. The Commission observes that following proceedings for unfair competition in which the Austrian courts have issued an injunction against the first applicant company, the opposing party applied for enforcement of the injunction by imposing fines under Section 355 of the Enforcement Act. The enforcement of the injunction was granted and the fines imposed. Thereupon the first applicant company filed an action under Section 36 of the Enforcement Act for discontinuation of the enforcement proceedings on the ground that it had not been responsible for the breach of the injunction. On 25 January 1995 the Supreme Court dismissed the first applicant company's action and as a consequence there were no more legal obstacles to the enforcement of the injunction by means of imposing a fine. a. The Commission finds it appropriate to first examine whether the fine imposed under the Enforcement Act involved the determination of a criminal charge. The Commission recalls that for determining whether a sanction qualifies as "criminal" three elements have to be taken into account: whether or not the provision defining the offence belongs, in the legal system of the respondent State, to criminal law, the nature of the offence and the degree of severity of the penalty risked (Eur. Court HR, Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328-A, p. 13, para. 27 and mutatis mutandis Welch v. the United Kingdom judgment of 9 February 1995, Series A no. 307-A, p. 13, para. 27). In the present case the fine was a measure of enforcement of an injunction issued in civil proceedings. It was a sanction provided for in the Enforcement Act which is part of civil procedural law and not of criminal law. Furthermore the "offence" at issue, breach of a civil law injunction, cannot be considered criminal in nature. As regards the "degree of severity of the penalty risked" the Commission finds that the sanctions risked cannot be considered as negligible, as they involved the imposition of substantial fines and might even entail imprisonment. This element is not in itself sufficient to lead to the conclusion that the measure at issue is criminal. In this respect the Commission notes in particular that Article 5 para. 1 (Art. 5-1) of the Convention, which deals with several kinds of detention, mentions "the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law" (Article 5 para. 1 (b) (Art. 5-1-b)), as distinct from "lawful detention of a person after conviction by a competent court" (Article 5 para. 1 (a) (Art. 5-1-a)). The Commission has found that detention ordered by an enforcement court for non- compliance with an injunction issued in unfair competition proceedings, after the unsuccessful imposition of fines, falls to be considered under Article 5 para. 1 (b) (Art. 5-1-b)of the Convention (No. 12827/87, Dec. 4.7.88, unpublished). The measure at issue therefore did not involve the determination of a criminal charge against the first applicant company. b. The Commission has next to examine whether it involved the determination of the first applicant company's civil rights and obligations. The fine was imposed in the context of proceedings for the enforcement of an injunction issued under private law. The Commission recalls in this respect that, as a general rule, enforcement proceedings following a civil court judgment do not come within the scope of Article 6 para. 1 (Art. 6-1) of the Convention. They do not themselves determine a dispute ("contestation") relating to civil rights, but presuppose a prior determination of these rights by an independent court. However, in the context of enforcement proceedings questions might have to be determined which involve a decision on the civil rights of the parties, such as partition of property (No. 10757/84, Dec. 13.7.88, D.R. 56, p. 36). The Convention organs when examining whether the "reasonable time" requirement under Article 6 para. 1 (Art. 6-1) of the Convention has been complied with have repeatedly qualified enforcement proceedings as the second stage and natural extension of the proceedings in which a civil right had been determined and found that Article 6 para. 1 (Art. 6-1) applies to them (see Eur. Court HR, Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A, p. 13, para. 29; Scollo v. Italy judgment of 28 September 1995, Series A no. 315-C, p. 55, para. 44; Zappia v. Italy judgment of 26 September 1996, paras. 18-20, to be published in Reports 1996-I). In the present case the first applicant company brought an action for discontinuation of the enforcement proceedings in which it argued that it was not bound by the injunction issued and that the party seeking its enforcement was therefore not entitled to do so. These proceedings, differing from the normal course of enforcement proceedings, therefore involved a determination of the first applicant company's civil obligations. The civil limb of Article 6 para. 1 (Art. 6-1) of the Convention thus applies. c. As to the substance of the above complaint,the Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal convictions of a particular judge in a given case and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 28; Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, para. 25). Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (cf. Eur. Court HR, Bulut v. Austria judgment of 22 February 1996, para. 32, to be published in Reports 1996-I; and Padovani judgment, op. cit., p. 20, para. 26). As to the objective test it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality (Fey judgment op. cit., para. 30; Padovani judgment op. cit., para. 27). The first applicant company submits that the Chamber of the Supreme Court was biased against it, this being apparent from the drop of the rate of successful appeals after changes in the composition of the Chamber had taken place. The Commission observes that the first applicant company has not challenged for bias any of the individual judges of the Chamber of the Supreme Court or the whole Chamber. But even assuming that the first applicant company has exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention, the Commission finds that the first applicant company's submissions do not disclose any element to cast doubt on the impartiality of the judges of the Chamber in question under the subjective test. As regards the objective test the Commission observes that it does not jeopardise the impartiality of a judge if he has previously dealt with other cases brought against the same person (see No. 11831/85, Dec. 9.12.87, D.R. 54, p. 144). Further, the Commission notes that it is common in the Convention countries that higher courts deal with similar or related cases in turn and that the European Court has found this unobjectionable from the point of view of the right to a fair trial (Eur. Court HR, Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 28, para. 73). The mere fact that, as contended by the applicants, the same Chamber of the Supreme Court had in the past decided several cases against the first applicant company, does not objectively justify any fears as to a lack of impartiality on the part of the judges concerned. It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention 2. The first applicant company complains further under Article 6 para. 1 (Art. 6-1) of the Convention that the proceedings before the Supreme Court were unfair in that the Supreme Court carried out investigations of facts and assessed them differently from the lower courts, without giving the applicant company the possibility to comment thereon and to present its legal arguments. The contested part of the Supreme Court's judgment concerns the statement (underlined in the text) that "the responsibilities of the Krone-Verlag GmbH & Co KG of which the first applicant company was a general partner had been contractually confined to the editorial part - probably after the injunction in the unfair competition proceedings had been granted." The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (No. 458/59, Dec. 29.3.60, Yearbook 3, pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43, pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45; No. 21283/93, Dec. 5.4.94, D.R. 77-A, pp. 82, 88). It falls to the Commission to decide whether the contested proceedings considered as a whole were fair within the meaning of the Convention. The effect of Article 6 para. 1 (Art. 6-1) is, inter alia, to place the tribunal under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Eur. Court HR, Kraska v. Switzerland judgment of 19 April 1993, Series A no. 254-B, p. 49, para. 30). The Commission notes that the District Court stated in its decision of 9 February 1994 relating to the proceedings for discontinuation of the enforcement that "the plaintiff (first applicant company, Krone-Verlag GmbH) and the limited partnership, whose general partner the plaintiff was, were contractually confined to the editorial part". Furthermore the first applicant company itself alleged in the action for discontinuation of the enforcement proceedings that the business of this limited partnership had been transferred to a new company in 1990 - after the injunction had been granted. In its extraordinary appeal on points of law of 3 August 1994 the opposing party raised the issue whether the internal distribution of tasks in publishing the newspaper could relieve the first applicant company from its obligations to ensure compliance with the injunction granted and the first applicant company had the possibility to comment on this issue. The Commission considers that, while the Supreme Court drew different conclusions from the facts as established by the lower courts, the proceedings did not involve any question which could not be adequately resolved on the basis of the case-file. Moreover, in view of the extraordinary appeal on points of law filed by the opposing party and the arguments raised therein, the fact that the first applicant company's case could be open to a different legal qualification could not have come as a surprise. Considering the entirety of the proceedings before the Austrian courts and also the nature of issues relevant in the first applicant company's case, the Commission finds that there is no appearance of a violation of the first applicant company's right to a fair hearing. It follows that this part of the application is manifestly ill- founded within the meaning of Art 27 para 2 of the Convention. 3. The first applicant company complains about an infringement of the presumption of innocence in the enforcement proceedings because the enforcement court imposed a fine on it although it had not itself breached the injunction. It relies on Article 6 para. 2 (Art. 6-2) of the Convention, which provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". The Commission considers that in deciding in the enforcement proceedings whether the first applicant company was responsible for a breach of the injunction the 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, Dec. 6.10.82, D.R. 30, p. 227; No. 18411/91, Dec. 12.1.94, unpublished). Accordingly, there is no appearance of a violation of the first applicant company's rights under Article 6 para. 2 (Art. 6-2) of the Convention. It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para 2 (Art. 27-2) of the Convention. 4. The first applicant company complains that its right not to be subjected to retroactive punishment was violated in that the Supreme Court in its judgment extended the scope of Section 355 of the Enforcement Act in a way infringing the principle of "nullum crimen, nulla poena sine lege". It relies on Article 7 para. 1 (Art. 7-1) of the Convention, which reads as follows: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed." Having regard to its above finding that the imposition of fines on the first applicant company in the enforcement proceedings did not involve the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds that Article 7 para. 1 (Art. 7-1) of the Convention does not apply either. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 5. The second applicant company raises the same complaints under Articles 6 and 7 (Art. 6, 7) of the Convention as the first applicant company. The Commission observes, however, that the second applicant company was not a party to these proceedings and that no judgment has been rendered against it by the Austrian courts. In these circumstances, the second applicant company cannot claim to be a victim of an alleged violation of Articles 6 and 7 (Art. 6, 7) of the Convention in these proceedings. It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para 2 (Art. 27-2) of the Convention. 6. The second applicant company also complains under Article 1 of Protocol No. 1 (P1-1) that its property rights were infringed because of the imposition of fines on other companies of the media group it belongs to because under the contracts concluded between it and the other companies it had to refund these fines. It also invokes Article 14 (Art. 14) of the Convention in this respect. The Commission observes, however, that the basis for the obligation to refund the fines was a private contract which the second applicant company had freely concluded with other companies. There can therefore be no question of any State interference with the second applicant company's rights under the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention 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.F. BUQUICCHIO J. LIDDY Secretary President to the First Chamber of the First Chamber
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