EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19589/92
the B Company
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 19 May 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-40) . . . . . . . . . . . . . . . . . . . . .3
A. Particular circumstances of the case
(paras. 16-21). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 22-40). . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 41-77) . . . . . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 41). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 42). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 6 para. 1 of the Convention
(paras. 43-52). . . . . . . . . . . . . . . . . . .7
1. Applicability of Article 6 para. 1 of the
Convention
(paras. 45-52) . . . . . . . . . . . . . . . .7
2. Compliance with Article 6 para. 1 of
the Convention
(paras. 53-68) . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 69). . . . . . . . . . . . . . . . . . . . 11
D. As regards Article 1 of Protocol No. 1
(paras. 70-74). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 75). . . . . . . . . . . . . . . . . . . . 11
E. Recapitulation
(paras. 76-77). . . . . . . . . . . . . . . . . . 12
DISSENTING OPINION OF MR. B. CONFORTI . . . . . . . . . . . 13
APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . 15
APPENDIX II: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant company is a limited company and incorporated in
the United Kingdom. Before the Commission the applicant company is
represented by Mr. Inne G.F. Cath.
3. The application is directed against the Netherlands, whose
Government are represented by their Agent, Mr. Karel de Vey Mestdagh
of the Ministry of Foreign Affairs.
4. The application concerns the right of access to an independent
and impartial tribunal in the determination of a patent claim. Before
the Commission the applicant company complains of violations of
Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1.
B. The proceedings
5. The application was introduced on 27 February 1992 and registered
on 5 March 1992.
6. On 19 May 1992 the Commission (Second Chamber) decided to
communicate the application to the respondent Government and invite
them to submit written observations on the admissibility and merits of
the application.
7. After an extension of the time-limit, the Government submitted
their observations on 30 September 1992. The applicant company's
observations in reply were submitted on 29 April 1993, following three
extensions of the time-limit.
8. On 30 June 1993 the Second Chamber decided to refer the case to
the Plenary Commission.
9. On 15 October 1993 the Commission declared the application
admissible and the parties were invited, should they so desire, to
submit further observations on the merits of the application. No such
observations were submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
12. The text of this Report was adopted on 19 May 1994 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is :
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
16. On 14 May 1986 the applicant company filed an application with
the Application Division (Aanvraagafdeling) of the Netherlands Patent
Office (Octrooiraad) aimed at obtaining a patent for an invention
relating to the fabrication of tobacco products. On 16 December 1986
the application was laid open for inspection.
17. On 15 May 1987 the Patent Office informed the applicant company's
patent attorney of its preliminary findings as to the state of the art
and technical aspects of the invention and invited the applicant
company to file a final patent application. Subsequently the applicant
company filed such an application with split conclusions.
18. The applicant company was then informed by the Patent Office that
it could not grant a patent, especially because it was considered
inappropriate to split the patent conclusions. However, the Patent
Office would be prepared to reconsider its position if an acceptable
solution could be found to the problem of split conclusions raised by
that Office.
19. On 24 June 1988 the Patent Office indicated that it was willing
to publish the application - and thus grant the patent after interested
third parties had been given the opportunity to make objections -
provided the applicant company would accept a solution proposed by the
Patent Office as regards a single patent conclusion.
20. On 20 September 1988 the applicant company's patent attorney
declined this offer. On 13 October 1988 the Application Division of
the Patent Office decided that it would not publish the patent
application - and thus not grant the patent - under the split patent
conclusions proposed by the applicant company.
21. On 11 January 1989 the applicant company appealed to the Appeal
Division (Afdeling van Beroep) of the Patent Office. It submitted that
the case-law of the Appeal Division shows that split conclusions have
already been accepted in the past and that, although its application
could be formulated in a single conclusion, a single conclusion would
limit the scope of protection afforded by the patent legislation. The
Appeal Division, sitting with three members - one legally qualified and
two technically qualified -, held a hearing on 7 June 1989. On
29 August 1991 the Appeal Division annulled the decision of the
Application Division on the grounds invoked by the applicant company.
However, in the same decision the Appeal Division decided, ex officio
and without any motion to that effect by either the applicant company
or the Patent Office, to uphold the decision not to publish the patent
application, because it considered that the invention for which a
patent was requested lacked the required level of "inventive character"
(uitvindingshoogte).
B. Relevant domestic law
22. The grant and enforcement of patents in the Netherlands are
governed by the Patent Act (Rijksoctrooiwet) of 1910, as subsequently
amended (hereafter "the Patent Act"). A patent is granted for a new
product or process if the invention is not an obvious development,
given the current state of the art, and is capable of industrial
application.
23. A patent is deemed, subject to the provisions of the Patent Act,
to be personal property, assignable and otherwise transferable in full
or joint ownership (Article 37).
24. Subject to the provisions of the Patent Act, a patent confers on
its proprietor the sole right, inter alia, to make, use, market, hire
out or deliver the patented product or, when applicable, to apply the
patented process in aid for his business or to make, use, market,
resell, hire out or deliver the product obtained directly from the
application of the patented process (Article 30). The proprietor of
a patent may enforce his patent vis-à-vis any person who, without being
entitled to do so, performs any of the acts referred to in Article 30
(Article 43).
25. Pursuant to Article 33, the right to perform acts prohibited to
any other person than the proprietor of the patent may be acquired from
the proprietor by means of a licence.
26. The Patent Office (Octrooiraad) is empowered by the Patent Act
to grant patents (Article 13). It consists of a Central Division,
Application Divisions, Appeal Divisions and Special Divisions
(Article 14). Its organisation and procedure are regulated by Order
in Council (Article 15). From the administrative point of view, the
Patent Office forms part of the Industrial Property Office (Bureau voor
de Industriële Eigendom), which is a central government administrative
authority. The President of the Patent Office shall also be the
Director of the Industrial Property Office (Article 14 (4)). However,
the Patent Office consists of members who operate independently when
performing the functions entrusted to them by the Patent Act.
27. Pursuant to the Patent Rules (Octrooireglement) of 1921, as
subsequently amended, the Patent Office consists of a maximum of
90 ordinary members and deputy members, divided into legally qualified
and technically qualified members, and of at least 12 extraordinary
members.
28. The ordinary and deputy members are appointed by the Crown from
the ranks of officials working for the Industrial Property Office, who
are either legally or technically qualified. Their appointments remain
valid until retirement. The extraordinary members are appointed for
a five year period, which may be extended for five years at a time.
They are recruited on the basis of expertise in a particular field and,
in general, are university professors in one of the technical or
applied sciences. No member may take part in proceedings in which he
has a direct or indirect interest or in which he is in any way involved
(Rule 3 of the Patent Rules). On taking up their duties, members are
required to take a pledge of diligence, confidentiality and
impartiality (Article 14(3) of the Patent Act and Rule 4 of the Patent
Rules).
29. There are no specific rules protecting members of the Patent Office
from dismissal.
30. The Central Division of the Patent Office is responsible for the
ad hoc formation of the Divisions (Application Divisions, Special
Divisions and Appeal Divisions). The Central Division comprises five
members and five deputy members. The President of the Patent Office
is an ex officio member of the Central Division. The other members and
deputy members are appointed by the Minister of Economic Affairs from
among the ordinary members of the Patent Office, on the basis of a
wide-ranging knowledge of the various specialist fields (Rule 5 of the
Patent Rules).
31. Pursuant to Rules 6(1) and 7 of the Patent Rules, the Central
Division sets up an Application Division drawn from the ordinary,
extraordinary and deputy members of the Patent Office to deal with each
patent application. The Application Division consists of one or three
members. The single member will be a technically qualified member.
If the Application Division consists of three members, two shall be
technically qualified members of the Patent Office and one shall be
legally qualified. If, however, in the Central Division's opinion the
issue to be decided is mainly of a legal nature, the single member
shall be legally qualified, and if in such a case the Application
Division consists of three members, two shall be legally qualified
members of the Patent Office and one shall be technically qualified.
32. If the Application Division considers that a patent cannot be
granted, it will decide not to publish the application. In the
contrary case the application shall be published (Article 24 para. 1
of the Patent Act).
33. An appeal lies from the decision of an Application Division to
an Appeal Division. The Central Division shall form an Appeal Division
to deal with each appeal from among the ordinary and the extraordinary
members of the Patent Office (Rule 6 (1) of the Patent Rules). Members
involved in the examination of an application or in any of the
proceedings of an Application Division, which decides on whether a
patent should be granted, are not allowed to take part in proceedings
before the Appeal Division (Article 24 A para. 4).
34. The Appeal Division normally has three members, although the
number may be extended to five if this is justified by the nature of
the issue(Rule 8 para. 1 of the Patent Rules). When it is composed of
three members, two shall be technically qualified members of the Patent
Office and one shall be legally qualified. When it is composed of five
members, three shall be technically qualified members of the Patent
Office and two shall be legally qualified. If in the Central
Division's opinion the issue to be decided is mainly of a legal nature,
the proportion of technically and legally qualified members shall be
reversed (Rule 8 para. 2 of the Patent Rules). The President of the
Patent Office is an ex officio member of the Appeal Division (Rule 8
para. 3 of the Patent Rules) and presides over it.
35. Article 24 A of the Patent Act lays down the formal requirements
for the appeal procedure: the parties must be granted a hearing, a
written reasoned decision must be produced, and the members of the
Appeal Division must not have been previously involved in the case.
36. The Division does not arrive at a decision until the parties have
been heard, or at least summoned in the proper manner. The decision,
which is given in writing, sets out the reasons (Article 24 A of the
Patent Act).
37. Patent legislation does not provide for the proceedings before
the Patent Office to be open to the public. At no time has the public
been admitted. The reason for this established practice is that
arguments based upon confidential company matters and expertise which
must not be made public are often referred to in the proceedings. It
is for the same reason that the reports of the sessions held by the
Divisions of the Patent Office are not placed among the documents which
are open to inspection.
38. The Regional Court (Arrondissementsrechtbank) of The Hague has
exclusive jurisdiction with regard to all actions for annulment or
invalidation of a patent, as well as actions in respect of the fixing
of remuneration (Article 54 of the Patent Act). No appeal is provided
for against decisions of the Appeal Division to grant or refuse a
patent. In addition, the Administrative Decisions Appeals Act (Wet
Administratieve Rechtspraak Overheidsbeschikkingen) has explicitly
excluded decisions of the Appeal Division from administrative review
by the Litigation Division of the Council of State (Afdeling
Rechtspraak van de Raad van State).
39. Pursuant to the new Article 28 A of the Patent Act, which became
effective as from 1 January 1991, access to the case-file has been
considerably extended although, inter alia, internal notes and draft
decisions have been excluded from this provision.
40. The new Patent Bill, which is currently pending before the Dutch
Parliament, provides that the Patent Office will be abolished and that
applications for a patent will be decided by a body of the Industrial
Property Bureau. An appeal against decisions of the Industrial
Property Bureau will lie to the civil courts, since, under the new
Bill, patents will be granted following an administrative procedure in
which only compliance with formal requirements will be examined without
an assessment of the substance of the patent claim.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
41. The Commission has declared admissible the applicant company's
complaint that it had no fair hearing before an independent and
impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the
Convention, in the patent proceedings. The Commission also declared
admissible the applicant company's complaint under Article 1 of
Protocol No. 1 (P1-1) that it was deprived of its possessions without
an examination by an independent and impartial tribunal.
B. Points at issue
42. The following points are at issue in the present case:
- whether the patent proceedings involved 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, if so, whether
there has been a violation of the applicant company's right under
Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing before
an independent and impartial tribunal.
- whether there has been a violation of the applicant company's rights
under Article 1 of Protocol No 1 (P1-1).
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
43. 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
(...) everyone is entitled to a fair and public hearing
(...) by an independent and impartial tribunal(...)."
44. It is recalled that the proceedings concerned the patent claim
by the applicant company regarding an invention relating to the
fabrication of tobacco products.
1. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention
----------------------------------------------------
45. The applicant company submits that Article 6 para. 1 (Art. 6-1)
of the Convention applies to the proceedings at issue. The decision not
to grant a patent concerns the determination of a civil right, as the
proceedings were decisive for its intellectual property rights.
46. The Government do not dispute the applicability of Article 6
para. 1 (Art. 6-1) to the proceedings at issue.
47. The Commission recalls that it is sufficient for the
applicability of Article 6 para. 1 (Art. 6-1) of the Convention that
proceedings are "pecuniary" in nature and that the action is founded
on an alleged infringement of rights which are likewise pecuniary
rights (cf. Eur. Court H.R., Éditions Périscope judgment of
26 March 1992, Series A no. 234-B, p. 66 para. 40), or that the
outcome of the proceedings would be decisive for private rights and
obligations (cf Eur. Court H.R., H. v. France judgment of
24 October 1989, Series A no. 162-A, p. 20 para. 47).
48. The Commission notes that pursuant to the Patent Act the Patent
Office can grant patents. If it considers that a patent can be granted,
the patent application will be published. A patent is deemed to be
personal property, assignable and otherwise transferable in full or
joint ownership. Insofar as relevant for the present case, a patent
confers on its proprietor the sole right, inter alia, to make, use,
market, hire out or deliver the patented product in aid for his
business.
49. In the present case, there arose a dispute between the Patent
Office and the applicant company about an application for a patent. The
Appeal Division of the Patent Office annulled the decision of the
Application Division of the Patent Office not to publish the patent
application - and thus not to grant the patent - under the split patent
conclusions proposed by the applicant company. However, in the same
decision the Patent Office decided ex officio to uphold the decision
not to publish the patent application as the invention lacked the
required level of "inventive character".
50. It is true that in certain previous decisions (No. 7830/77,
Dec. 13.7.1978, D.R. 13, 200; No. 8000/77, Dec. 9.5.1978, D.R. 14, 81)
the Commission considered the registration of patents an essentially
administrative matter which was outside the scope of Article 6 (Art. 6)
of the Convention.
51. However, having regard to the more recent case-law of the
European Court of Human Rights (see para. 47 above), the Commission now
finds that the dispute in the present case was decisive for the
applicant company's right to a patent and that this right, which
represented a financial value, was of a pecuniary nature.
52. The Commission is therefore of the opinion that the proceedings
at issue involved a determination of civil rights within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention, which is thus
applicable to the present case.
2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
---------------------------------------------------
53. The applicant company submits that its appeal against the
decision of the Application Division of the Patent Office not to
publish the patent application was not determined by an independent and
impartial tribunal. The members of the Appeal Division and the
Application Division are part of the same administrative body, the
Patent Office, and are appointed on an interchangeable basis for each
individual case by the Central Division of the Patent Office. The
composition of the Appeal Division is entirely left to the discretion
of the Central Division, without any possibility for third parties to
object. There is no formal guarantee against dismissal or suspension.
In this respect the applicant company refers to a case in which a
member of the Patent Office, who refused to carry out an order by his
superior, was dismissed.
54. The applicant company further submits that under Dutch law there
is no appeal to a tribunal satisfying the requirements of Article 6
(Art. 6) of the Convention against a decision of the Appeal Division
and argues that the Government have failed to prove the existence of
available remedies which can be considered as sufficiently certain with
the requisite accessibility and effectiveness.
55. With regard to the proceedings before the Appeal Division the
applicant company argues that they were not fair. The applicant company
did not have access to some documents of the case-file. The principle
of equality of arms required that under these circumstances the Appeal
Division could not have regard to these documents. The applicant
company points out that the hearing before the Appeal Division was not
public and its decision was not pronounced in public.
56. Furthermore, the appeal to the Appeal Division was confined to
the question whether or not the Application Division's decision that
no split claim for a patent could be allowed was correct. However, the
Appeal Division considered in its final decision that the subject of
the patent application lacked the required level of "inventive
character" and dismissed the appeal on this ground. This ground had not
been raised by either party before the Appeal Division.
57. The Government submit that the Appeal Division is a tribunal
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,
notwithstanding the fact that it forms part of an administrative body,
the Patent Office. The structure of the Patent Office and its procedure
constitute sufficient safeguards for the independent and impartial
administration of justice by the Appeal Division. The independence of
its members is guaranteed by the oath they have to take when appointed.
Moreover, the Patent Rules stipulates that no members may take part in
proceedings in which they have a direct or indirect interest or in
which they are in any way involved.
58. The manner of appointment of the members of the Appeal Division
and the duration of their appointment safeguard their independence and
impartiality. The ordinary and deputy members are appointed by the
Crown from the rank of officials of the Industrial Property Office. The
appointments of the members remain valid until retirement. The
extraordinary members are appointed for a five year period, which may
be extended for five years at a time.
59. The Government further submit that if the Appeal Division is not
a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention, it would be possible for the applicant company to seize the
civil courts for a review of its decisions. The Government refer in
this respect to the Oerlemans judgment of the European Court (Eur.
Court H.R., judgment of 27 November 1991, Series A no. 219) and to
Dutch case-law, according to which a civil court is competent to deal
with a case if no remedy is available before a body satisfying the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
60. The Commission recalls that in order to establish whether a body
can be considered "independent", regard must be had, inter alia, to the
manner of appointment of its members and their term of office, to the
existence of guarantees against outside pressures and to the question
whether the body presents an appearance of independence. As to the
question of impartiality, a distinction must be drawn between the
subjective test, whereby it is sought to establish the personal
conviction of a given judge in a given case, and the objective test,
aimed at ascertaining whether the judge offered guarantees sufficient
to exclude any legitimate doubt in this respect (Eur. Court H.R.,
Langborger judgment of 22 June 1989, Series A no. 155, p. 16,
para. 32).
61. As in the Langborger case, the Commission is of the opinion that
in the present case the question of impartiality is difficult to
dissociate from that of independence. Therefore these two elements will
be taken together.
62. The Commission notes that the Appeal Division in the applicant
company's case was composed of one legally qualified member and two
technically qualified members. Although there is no precise information
about the three members of the Appeal Division which dealt with the
applicant company's case, it must be assumed that, in accordance with
the normal rules and practice, they had been appointed as members of
the Patent Office from the ranks of officials working for the
Industrial Property Office (see para. 28 above) and that the Central
Division of that Office had designated them to serve on the Appeal
Division for the applicant company's case (see para. 33 above).
64. There is no reason to doubt that the members of the Appeal
Division examined the applicant company's case without being influenced
by any external sources and without any personal bias.
65. However, when examining the independence and impartiality of a
tribunal, appearances must also be taken into account. In this respect,
it should first be noted that the status of a member of the Patent
Office cannot be assimilated to that of a judge as regards
irremovability from his office (see para. 29 above). Moreover, the fact
that the appeal body in patent matters belongs to the same
administrative entity as the body deciding in first instance, a result
of which is that members of the Patent Office review decisions taken
by another member of the same Office, can give rise to doubts as to the
independence and impartiality of the Appeal Division. It should also
be observed that nothing prevents the members of the Patent Office from
being called upon by the Central Division to serve at different times
on an Application Division and on an Appeal Division. The fact that a
member of the Appeal Division may not take part in proceedings in which
he has previously been involved could not be regarded as sufficient to
dissipate the legitimate doubts which may result from the institutional
structure of the appeal system in patent matters.
66. Having regard to these various elements, the Commission considers
that the applicant company's case was not heard by an independent and
impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention. In these circumstances it is not necessary to
examine whether the procedure before the Appeal Division complied with
the other requirements of Article 6 para. 1 (Art. 6-1).
67. It remains to be examined, however, whether the applicant company
could have brought its case before the civil courts, relying on the
Dutch case-law according to which the civil courts have competence to
examine disputes when there is no other remedy before a body satisfying
the requirements of Article 6 para. 1 (Art. 6-1). In this respect it
has not been shown that the Dutch civil courts have ever considered
themselves competent to review the decisions of an Appeal Division of
the Patent Office. Consequently, the Commission cannot base its
conclusion in the present case on the availability of a remedy before
the civil courts.
68. The Commission accordingly finds that the applicant company's
case was not heard by an independent and impartial tribunal and that
it has not been established that a remedy before such a tribunal was
available to the company.
Conclusion
69. The Commission concludes, by twenty-two votes to one, that there
has been a violation of the applicant company's right under Article 6
para. 1 (Art. 6-1) of the Convention to a hearing before an independent
and impartial tribunal.
D. As regards Article 1 of Protocol No. 1 (P1-1)
70. Article 1 of Protocol No. 1 (P1-1), insofar as relevant, reads
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."
71. The applicant company submits that the denial of access to an
independent and impartial tribunal in the determination of its patent
claim means that it was deprived of its possible possessions without
any court examination.
72. The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
applies only to existing possessions (Eur. Court H.R., Van der Mussele
judgment of 23 November 1983, Series A no. 70, p. 23 para. 48), and
that this provision does not guarantee any right to acquire property
(No. 11628/85, Dec. 9.5.86, D.R. 47 p. 271).
73. In the present case, the applicant company did not succeed in
obtaining an effective protection for its invention by means of a
patent. Consequently, the company was denied a protected intellectual
property right but was not deprived of its existing property.
74. The Commission, therefore, considers that in the present case there
has been no interference with the applicant company's rights under
Article 1 of Protocol No. 1 (P1-1).
Conclusion
75. The Commission concludes, unanimously, that there has been no
violation of Article 1 of Protocol No. 1 (P1-1).
E. Recapitulation
76. The Commission concludes, by twenty-two votes to one, that there
has been a violation of the applicant company's right under Article 6
para. 1 (Art. 6-1) of the Convention to a hearing before an independent
and impartial tribunal (para. 69).
77. The Commission concludes, unanimously, that there has been no
violation of Article 1 Protocol No. 1 (P1-1) (para. 75).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. français)
OPINION DISSIDENTE DE M. B. CONFORTI
A mon grand regret, je ne peux me rallier à l'opinion et aux
conclusions de la majorité en ce qui concerne la violation de
l'article 6 par. 1 de la Convention. A mon avis, beaucoup plus de poids
aurait dû être donné à l'argument du Gouvernement, tiré de la
jurisprudence néerlandaise, selon lequel les différends portés devant
des corps administratifs qui n'offrent pas les garanties requises par
l'article 6 par. 1 peuvent être soumis aux juridictions civiles.
Le Gouvernement s'était basé sur l'arrêt de la Cour suprême des
Pays-Bas du 6 février 1987 (NJ 1988, n° 926), arrêt qui, en matière de
recours à la Couronne, avait définitivement consacré une tendance déjà
suivie par la Cour suprême elle-même et par la doctrine néerlandaise
après l'arrêt Benthem de la Cour européenne des Droits de l'homme (voir
également pour cette tendance, Cour eur. D. H., arrêt Oerlemans du
27 novembre 1991, série A n° 219, p. 15, par. 32-35).
Dans cet arrêt de 1987, la Cour suprême, statuant sur un recours
à la Couronne en matière d'autorisation pour l'aménagement d'une
station-service, avait dit:
"En raison de l'arrêt Benthem...la règle [selon laquelle
les décisions de la Couronne lient les juridictions
civiles] souffre une exception et cesse de s'appliquer si
'le détenteur de l'autorisation ou celui qui exploite
l'installation' plaide que la Couronne ne constitue pas un
tribunal remplissant les conditions de l'article 6 par. 1
de la Convention... ; en pareil cas, il incombe au juge
civil de statuer aussi en pleine indépendance sur la
question déjà tranchée par la Couronne...".
Selon le Gouvernement, l'affirmation de la Cour suprême se
prêterait à être étendue à toute affaire tranchée par un corps
administratif et portant sur des droits de caractère civil. Elle
pourrait donc être étendue, dans le cas d'espèce, aux décisions de la
Division d'appel du Bureau des brevets, avec la conséquence que le
requérant, n'ayant pas dénoncé la violation de l'article 6 par. 1
devant les tribunaux civils internes, ne pourrait s'en plaindre devant
la Commission. Cela d'autant plus que cette extension a été confirmée
par les juridictions néerlandaises, notamment dans un jugement du
Président de la Cour de district de La Haye du 11 juillet 1989.
Je ne crois pas que l'on puisse rejeter l'argument du
Gouvernement en disant, comme le fait la majorité de la Commission, que
les tribunaux civils néerlandais ne se sont jamais considérés comme
compétents pour contrôler les décisions de la division d'appel du
Bureau des brevets (voir par. 67 du Rapport). Il me semble au contraire
que cet argument se révèle convaincant si l'on considère : que les
décisions de la Division d'appel s'inscrivent manifestement dans le
cadre d'une procédure administrative, cette Division faisant partie de
la structure du Bureau des brevets ; que la ratio du principe énoncé
par la Cour Suprême des Pays-Bas, et qui consiste à assurer par un
véritable contrôle judiciaire l'application de l'article 6 par. 1 aux
décisions définitives de caractère administratif, dépasse le domaine
des recours à la Couronne et peut par conséquent couvrir le cas
d'espèce, et qu'il ne serait pas audacieux de faire application en
pareil cas d'une sorte de principe de subsidiarité, selon lequel le
contrôle des organes de la Convention ne devrait pas intervenir lorsque
les moyens du droit interne suffiraient à assurer le respect de la
Convention.
D'un point de vue logique, l'argument du Gouvernement devrait
être considéré sous l'angle de la règle du non-épuisement des voies de
recours internes et c'est justement sous cet angle que le Gouvernement
l'avait présenté. Dans sa décision sur la recevabilité (Annexe II au
Rapport, Partie en droit, par. 2) la Commission a au contraire exprimé
l'opinion que, la plainte du requérant ayant pour objet le droit
d'accès à un tribunal, la prise de position du Gouvernement regardait
plutôt le fond de l'affaire. Dès lors, sans contester cette opinion de
la Commission, les raisons indiquées ci-dessus m'amènent à conclure que
le droit d'accès était, dans le cas d'espèce, garanti par l'ordre
juridique néerlandais.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
27 February 1992 Introduction of application
5 March 1992 Registration of application
Examination of admissibility
19 May 1992 Commission's decision (Second Chamber) to
communicate the case to the respondent
Government and to invite the parties to
submit observations on admissibility and
merits
30 September 1992 Government's observations
29 April 1993 Applicant's observations in reply
30 June 1993 Decision of the Second Chamber to refer the
case to the Plenary Commission
15 October 1993 Commission's decision to declare
application admissible
Examination of the merits
5 March 1994 Commission's consideration of state of
proceedings
10 May 1994 Commission's deliberations on the merits
and final vote
19 May 1994 Adoption of the Report
Full & Egal Universal Law Academy