Lexploria

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 déjÃ

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

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THE B. COMPANY v. the NETHERLANDS

THE B. COMPANY v. the NETHERLANDS

LEXI