AS TO THE ADMISSIBILITY OF
Application No. 18623/91
by ZENTRALSPARKASSE und KOMMERZIALBANK A.G.
against Austria
The European Commission of Human Rights sitting in private on
2 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 11 February 1991
by ZENTRALSPARKASSE und KOMMERZIALBANK A.G. against Austria and
registered on 1 August 1991 under file No. 18623/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
18263/91- 2 -
THE FACTS
The applicant company has its registered office in Vienna. It
is represented by Mr. W.-D. Arnold, a lawyer practising in Vienna.
On 23 March 1990 the applicant company, as a defendant in civil
proceedings, obtained a judgment given by the Vienna Regional Court
(Landesgericht) ordering the plaintiff to pay the costs of the
proceedings in question in the amount of 23,753.40 AS. According to
the findings of the Court the plaintiff's action originally aimed at
obtaining information from the defendant whether it had in its
possession personal data relating to him and, if so, what kind of
personal data. In the course of the proceedings the information
requested was given and the plaintiff declared the action to be without
object requesting only a decision on costs. The decision on costs was
based on the finding that the plaintiff had not complied with his
obligation to furnish the defendant company with copies of
advertisements he had received showing that the defendant company was
in possession of a computerised file with his address.
On appeal (Rekurs) the Vienna Court of Appeal (Oberlandesgericht)
amended the judgment of 23 March 1990 to the effect that the defendant
company had to reimburse the plaintiff's costs in the amount of 24,010
AS. The Court of Appeal considered that the plaintiff had substantiated
his request vis-à-vis the defendant company within a reasonable time.
In fact, prior to bringing the action he had informed the defendant of
the computer registration number used in the correspondence sent to him
and he had furthermore submitted the originals of the letters in
question, together with his first memorial of 18 August 1988. The
defendant had however not complied with the plaintiff's claim before
16 November 1989. Even though the defendant company had only rented
the computerised file containing the applicant's address, it had been
obliged under the Act on Data Protection (Datenschutzgesetz) to give
the information requested as soon as the plaintiff's memorial had been
filed.
The Court of Appeal also decided that the defendant company's
appeal on points of law (Revisionsrekurs) was inadmissible. This
judgment of 7 September 1990 was received by the applicant company's
counsel on 26 September 1990.
COMPLAINTS
The applicant company submits that the Court of Appeal's decision
was rendered without a hearing. It had not been given the possibility
to submit observations in reply to the plaintiff's appeal. The
applicant company considers that Article 6 of the Convention was
thereby violated.
- 3 -18623/91
THE LAW
The applicant company complains about proceedings related solely
to the question which of the parties to civil proceedings has to pay
the procedural costs including the costs of the opponent. However,
Article 6 (Art. 6) does not apply to proceedings in which the merits
of the case are not decided but only the subsidiary issue of which
party is to bear the costs (cf. No. 12446/86, Dec. 5.5.88 and No.
10757/84, Dec. 13.7.88). The application therefore has to be rejected
in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as
being incompatible with its provisions ratione materiae.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy