Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15269/89

Josef MÃœLLER AG

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 14 October 1991)

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 - 50) ....................................... 3

A. The particular circumstances of the case

(paras. 16 - 45) ............................... 3

a. Period between 1981 and 1982

(paras. 17 - 34) ........................... 3

b. Period between 1983 and 1987

(para. 35) ................................. 5

c. Period between 1988 and 1990

(paras. 36 - 45) ........................... 6

B. Relevant domestic law and practice

(paras. 46 - 50) ............................... 7

III. OPINION OF THE COMMISSION

(paras. 51 - 82) ....................................... 9

A. Complaint declared admissible

(para. 51) ..................................... 9

B. Point at issue

(para. 52) .................................... 9

C. Applicability of Article 6 para. 1 of the

Convention

(paras. 53 - 66) ............................... 9

D. Compliance with Article 6 para. 1 of the

Convention

(paras. 67 - 81) ............................... 11

a. Period to be considered

(paras. 68 - 72) ........................... 11

b. Reasonableness of the length

of the proceedings

(paras. 73 - 81) ........................... 12

E. Conclusion

(para. 82) ..................................... 13

DISSENTING OPINION OF MR. A. WEITZEL 14

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 15

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 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 stock corporation (Aktien-

gesellschaft) with its seat in Zurich. Before the Comission it is

represented by Mr. J. Müller, the President of the board (Verwaltungs-

rat) of the applicant company.

3. The application is directed against Switzerland. The

Government are represented by their Deputy Agent, Mr. Ph. Boillat,

Head of the European Law and International Affairs Section of the

Federal Office of Justice.

4. The case concerns the complaint of the applicant company under

Article 6 para. 1 of the Convention that court proceedings concerning

an authorisation to distribute and undertake wholesale commerce of an

ointment lasted too long.

B. The proceedings

5. The application was introduced on 14 July 1989 and registered

on 20 July 1989.

6. On 5 March 1990 the Commission decided to give notice of the

application to the respondent Government and to invite them to present

their observations in writing on the admissibility and merits of the

application limited to the issue under Article 6 para. 1 of the

Convention concerning the length of the proceedings.

7. The Government's observations were submitted on 8 May 1990. The

applicant company submitted its observations in reply on 11 June 1990.

8. On 7 November 1990 the Commission, having consulted the

parties, decided to refer the application to the Second Chamber.

9. On 5 December 1990 the Commission (Second Chamber) declared the

application admissible insofar as it related to the applicant company's

complaint under Article 6 para. 1 of the Convention about the length

of the proceedings. The remainder of the application was declared

inadmissible.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. Consultations with the parties took place

between 20 December 1990 and 4 April 1991. 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 (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. G. SPERDUTI, Acting President of the Second Chamber

S. TRECHSEL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

12. The text of this Report was adopted on 14 October 1991 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. The particular circumstances of the case

16. On 25 May 1976 the Direction of Health (Gesundheitsdirektion)

of Canton Zurich granted the applicant company the authorisation to

"produce as a salaried commission, and to undertake wholesale commerce

(agency) in respect of the product 'Less Rheuma ointment'" ("das

Präparat 'Less Rheuma-Heilsalbe' im Lohnauftrag herstellen zu lassen

und Grosshandel [Vermittlung] damit zu betreiben"; see below, Relevant

domestic law and practice). The authorisation of 25 May 1976 which was

granted under various conditions expired on 31 December 1980. The

ointment was supervised by and registered with, the Intercantonal

Control Office for medicaments (Interkantonale Kontrollstelle für

Heilmittel) for a period lasting until 31 December 1979.

a. Period between 1981 and 1982

17. On 3 February 1981 an inspector of the Cantonal Pharmacy

(Kantonsapotheke) inspected a storage room of the applicant company

where he found defect tubes of the "Less Rheuma ointment".

18. On 13 February 1981 the Zurich Cantonal Pharmacist informed the

applicant company that the authorisation granted on 25 May 1976 had

expired. The company was requested to provide information inter alia

as to certain defects in the package material of the ointment.

19. On 20 February 1981 the applicant company filed a request for

a prolongation of the expired authorisation. It thereby stated that

it undertook the marketing (Vertrieb) of the product and was neither

the producer nor the manufacturer of the product which was prepared and

packed elsewhere.

20. On 11 March 1981 the Cantonal Pharmacist again requested

information until 27 March 1981 from the applicant company as to the

production, control, packing, storing and delivery of the ointment and

the measures undertaken to protect its quality.

21. On 28 and 30 March 1981 the applicant company replied that it

was registered in Canton Zurich as a wholesale pharmaceutical commerce

(Pharma-Grossist). It neither produced the ointment nor did it

maintain a production plant, and it was not in a position to give

details about production. The Cantonal Pharmacist was also not

competent to request information as to the registration of medicaments

as this fell solely to the Intercantonal Control Office.

22. On 24 April 1981 the Zurich Direction of Health issued an order

(Verfügung) in which it refused the applicant company's request for a

prolongation of the authorisation for wholesale commerce (agency) of

the ointment. The Direction considered in particular that details

would have to be supplied as to the exact circumstances of production

and marketing of the ointment. In the present case the conditions for

granting a marketing authorisation (Vertriebs- bewilligung) had not

been met. The Direction of Health also imposed costs of 100 SFr. on

the applicant company. 23. On 19 June 1981 the applicant company

filed an appeal (Rekurs) against this decision with the Zurich Council

of State (Regierungsrat) in which it requested inter alia the

prolongation of the authorisation for the wholesale commerce

(Grosshandel) of the ointment. Therein it referred to its position as

a marketing company.

24. On 26 August 1981 the Council of State dismissed the appeal.

It noted that since 1 January 1980 the ointment was not longer validly

registered with the Intercantonal Control Office and that a renewed

registration now seemed improbable as the circumstances of production

were unknown. An authorisation for the marketing (Vertrieb) of the

ointment through a wholesale distributor (Verteiler-Grossist) was

therefore inadmissible. The Council of State concluded that for this

reason even during the appeal proceedings the marketing of the ointment

was prohibited. The Council of State also imposed costs of 500 SFr.

on the applicant company.

25. Against this decision the applicant company filed on 4 October

1981 an appeal (Beschwerde) with the Zurich Administrative Court

(Verwaltungsgericht).

26. On 22 June 1982 the Administrative Court partly upheld the

applicant company's appeal. It referred the case-file for further

investigation and for renewed decision along the lines of its decision

back to the Council of State.

27. In its decision the Court observed that the Council of State

had mainly considered that the applicant company had applied for an

authorisation as a wholesale distributor (Verteiler-Grossist) within

the meaning of No. 3 para. 4 of the 1976 Guidelines (see below,

Relevant domestic law and practice). In this case the Council of State

could have justifiably refused the authorisation.

28. However, it was not clear whether the applicant company had

only applied for an authorisation as a wholesale distributor. The

authorisation of 25 May 1976 had entitled the applicant company until

31 December 1980 to produce as a salaried commission, and to undertake

wholesale commerce in respect of the ointment concerned. The applicant

company thus had the authorisation of a marketing firm according to No.

3 para. 5 of the 1976 Guidelines which entitled it to register the

ointment with the Intercantonal Control Office. In its reply of 28 and

30 March 1981 the applicant company had told the Cantonal Pharmacist

that it was a marketing rather than a production company (eine

Vertriebs- und nicht eine Herstellerfirma). The Zurich Direction of

Health had also concluded on 24 April 1981 that the conditions for a

marketing authorisation had not been met. In his appeal of 19 June

1981 the applicant company had again referred to itself as a marketing

company (Vertriebsfirma).

29. The Court concluded that the Council of State should have

granted the applicant company the opportunity to clarify its request.

It therefore partly upheld the appeal of the applicant company. In

referring the case-file back to the Council of State, the Court

considered that if the applicant company no longer wanted a renewal of

the authorisation as a wholesale marketing company, the proceedings

would become irrelevant. On the other hand, if the applicant company

insisted on such an authorisation, the Council of State would have to

examine whether the conditions were met. The Court could not prejudice

such a decision.

30. The applicant company filed a request for review (Revision) of

this decision of the Administrative Court which the latter dismissed

on 7 June 1983.

31. On 10 November 1982, the applicant company filed a public law

appeal (staatsrechtliche Beschwerde) which was declared inadmissible

by the Federal Court (Bundesgericht) on 10 January 1984. In its public

law appeal the applicant company stated that it had not applied for the

authorisation as a marketing firm within the meaning of No. 3 paras.

4 and 5 of the 1972 guidelines.

32. Meanwhile, as a result of the decision of the Zurich

Administrative Court, the Zurich Council of State requested the

applicant company on 26 October 1982 to file within ten days the

necessary further information for its appeal. The request was served

on the applicant company on 19 November 1982.

33. The Council of State informed the applicant company in

particular as follows:

"Sollte sie nicht innert Frist einen unmissverständlichen Antrag auf

Erteilung einer Bewilligung für den Grosshandel als Vertriebsfirma

stellen, wäre bei der weiteren Rekursbehandlung davon auszugehen, es

sei ein Gesuch um Erteilung der Bewilligung zum Grosshandel als

Verteiler- Grossist gestellt worden."

"If (the applicant company) does not file within the time-limit an

unambiguous request to be granted an authorisation for the wholesale

commerce as a marketing firm, it would have to be assumed when further

dealing with the appeal that a request had been filed to be granted an

authorisation as a wholesale distributor."

34. On 24 November 1982 the applicant company replied that it

requested "the authorisation for the wholesale commerce as a marketing

firm to be prolonged" ("die Grosshandelsbewilligung als Vertriebsfirma

zu verlängern").

b. Period between 1983 and 1987

35. There were no developments during this period.

c. Period between 1988 and 1990

36. In a letter of 17 March 1988 to the Intercantonal Control

Office, the applicant company complained that for five and a half years

it had been waiting to be granted the authorisation for a marketing

firm; if the authorisation was not granted very soon, the applicant

company would complain to the Federal Court about the delay.

37. On 20 June 1988 the Cantonal Pharmacist wrote to the

Intercantonal Control Office explaining, inter alia, that it appeared

from the letter of 17 March 1988 that the applicant company was

awaiting the renewal of the authorisation and that the Cantonal

Pharmacist was willing to grant this authorisation if the applicant

company complied with the necessary conditions. The Intercantonal

Control Office was requested to undertake the necessary inspections.

38. On 9 September 1988 the applicant company filed a public law

appeal with the Federal Court in which it complained of the delay in

the proceedings. The applicant company referred therein to the letter

of the Cantonal Pharmacy of 20 June 1988 as showing the Zurich

authorities knew that the applicant company was waiting for the

authorisation. The applicant company complained inter alia that the

delay of six years breached the right to a fair and public hearing

within a reasonable time within the meaning of Article 6 of the

Convention.

39. On 28 October 1988 the Zurich Direction of Health informed the

Federal Court that while on 24 November 1982 the applicant company had

indeed asked the Council of State for the authorisation as a marketing

company, two weeks earlier in its public law appeal to the Federal

Court of 10 November 1982 it had stated that it had never asked for an

authorisation as a marketing company within the meaning of No. 3 paras.

4 and 5 of the 1972 Guidelines. The Direction of Health observed that

in view of this about-change (Kehrtwendung) the Council of State did

not for the time being pursue the proceedings. Meanwhile, the matter

had been taken over by the Intercantonal Control Office which had

arranged an inspection with the applicant company on 8 November 1988.

40. On 19 December 1988 the Federal Court declared the applicant

company's public law appeal inadmissible. The Court, which noted that

the applicant company had continued to act as a marketing firm for the

ointment, regarded in principle the public law appeal against the

inactivity of the Council of State as admissible. However, according

to its case-law the applicant company could no longer claim a practical

interest in its public law appeal since the Cantonal Pharmacy with its

letter of 20 June 1988 had again taken up the procedure for the Council

of State (see below, Relevant domestic law and practice).

41. According to a subsequent letter of 30 May 1990 of the Federal

Court to the applicant company, the decision of 19 December 1988 was

served on the applicant on 19 January 1989. The Federal Court further

confirmed "that before this date no operative part of the decision had

separately been served (on the applicant company)" ("dass Ihnen vor

diesem Datum kein Urteilsdispositiv separat eröffnet worden ist"). 42.

Meanwhile, on 16 May 1989 the Zurich Direction of Health issued an

order according to which the applicant company was granted, until 31

December 1993, the authorisation to "produce as a salaried commission,

and to undertake wholesale commerce (agency) in respect of ... the

'Less Rheuma ointment'" ("im Lohnauftrag herstellen zu lassen und

Grosshandel damit zu betreiben").

43. On 11 April 1990 the Zurich Council of State decided to strike

the appeal of the applicant company of 19 June 1981 off its list of

cases (gegenstandlos geworden), as the applicant company had been

granted the authorisation for a marketing firm. The Council of State

further cancelled the imposition of costs of its decision of 26 August

1981 and of the order of the Zurich Direction of Health on 24 April

1981.

44. On 21 May 1990 the applicant company appealed against this

decision to the Zurich Administrative Court, claiming inter alia that

it should be granted compensation for the expenses of the proceedings.

45. On 13 July 1990 the Zurich Administrative Court dismissed the

appeal stating that it could only grant compensation if the authority

concerned had acted arbitrarily or negligently. This could not be said

of the order of the Zurich Direction of Health of 24 April 1981.

B. Relevant domestic law and practice

46. The preparation and sale of medicaments falls under the

constitutional right to freedom of commerce (Handels- und

Gewerbefreiheit) as enshrined in Article 31 of the Swiss Federal

Constitution (Bundesverfassung). This provision protects any private

activity directed towards gain (Erwerb), in particular commerce with

medicaments (see Arrêts du Tribunal Fédéral [ATF] 111 Ia 186). The

Cantons may restrict this right on police grounds (polizeiliche

Gründe), namely for the protection of public health and security (see

e.g. ATF 106 Ia 267). These police restrictions must also respect the

principle of proportionality and the equality of the persons engaged

in the commerce.

47. If a commercial activity requires for police reasons a police

authorisation (Polizeibewilligung), the police authority will state,

upon application, whether there are obstacles to the activity.

48. In the Canton of Zurich the Direction of Health authorises the

preparation and sale of the medicaments. As regards the health police

restrictions, the applicant must offer guarantees as to the

preparation, storing, control and sale of the medicament.

49. According to Article 8bis of the 1972 Regulative Order on the

Execution of the Intercantonal Agreement on the Control of Medicaments

(Regulativ über die Ausführung der interkantonalen Vereinbarung über

die Kontrolle der Heilmittel) and No. 3 para. 1 of the 1976 Guidelines

of the Intercantonal Control Office for the Wholesale Commerce of

Medicaments (Richtlinien betreffend den Grosshandel mit Arzneimitteln),

wholesale commerce is to be understood as the agency (Vermittlung) of

medicaments towards firms and persons who are entitled to store the

medicaments, further to sell them or professionaly to apply them.

According to No. 3 para. 4 of the Guidelines, wholesale dealers

(Grosshändler) whose activities are confined to distributional

functions are considered as wholesale distributors

(Verteiler-Grossisten), whereas according to No. 3 para. 5 wholesale

dealers, who have registered medicaments with the International Control

Office, are considered as marketing companies (Vertriebsfirmen).

50. Article 4 of the Swiss Federal Constitution, which enshrines

the principle of equality, has been interpreted by the Federal Court

as prohibiting the denial of justice as well as delays in proceedings

(Verbot der Rechtsverweigerung und Rechtsverzögerung, see ATF 103 V

190). However, the Federal Court will not deal with such a complaint

if, during its proceedings, the authority concerned has given its

decision or resumed the proceedings; the Federal Court then considers

that the applicant no longer has a practical interest in his case (see

ATF 110 Ia 141).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

51. The Commission has declared admissible the applicant company's

complaint under Article 6 para. 1 (Art. 6-1) of the Convention

concerning the length of the proceedings.

B. Point at issue

52. Accordingly, the issue to be determined is whether there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

53. The first issue to be decided is whether Article 6 para. 1

(Art. 6-1) of the Convention applies to the proceedings at issue.

54. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations ..., everyone

is entitled to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law."

55. With regard to the existence of a "civil right" within the

meaning of of Article 6 para. 1 (Art. 6-1) of the Convention the

applicant company considers that, except if there had been good reasons

to the contrary, the authorisation concerned should have been renewed

automatically. However, in the present case the Direction of Health

unilaterally and unfairly refused to renew the authorisation. Moreover,

following the decision of the Zurich Administrative Court of 22 June

1982, the Zurich Council of State was obliged to grant the

authorisation.

56. The respondent Government submit, with reference to the Benthem

case (see Eur. Court H.R., judgment of 23 October 1985, Series A no.

97, p. 14 et seq., paras. 30 et seq.), that, for Article 6 para. 1

(Art. 6-1) of the Convention to apply, there must be a dispute

concerning a right which must also be of a civil character. In the

present case, the authorisation concerned was a police authorisation

(see above Relevant domestic law and practice) which has a

predominantly public law character. Moreover, the applicant company's

previous authorisation expired on 31 December 1980. The present

application concerns the applicant company's new request of 20 February

1981, rather than a modification of the previous one. There was,

therefore, also no right involved.

57. In the examination of whether Article 6 para. 1 (Art. 6-1) of

the Convention is applicable in the case, the Commission has first

considered whether there was a dispute ("contestation") over a right.

58. The Commission is not called upon to rule on the general

question of a right in Switzerland to obtain an authorisation to deal

with products such as the medical ointment at issue. On the other

hand, the applicability of Article 6 para. 1 (Art. 6-1) is not excluded

solely by the fact that the dispute at issue concerned the applicant

company's request for the prolongation of an authorisation which had

previously expired.

59. The Commission recalls that the "rights" referred to in Article

6 para. 1 (Art. 6-1) are those which can be said, at least on arguable

grounds, to be recognised under domestic law. This provision does not

in itself guarantee a particular content of the substantive rights

recognised in the laws of the Contracting States (see Eur. Court H.R.,

Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70,

para. 192). Furthermore, the dispute ("contestation") concerning a

right within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention may relate not only to the actual existence of a right but

also to its scope or the manner in which it may be authorised. The

dispute will moreover cover all proceedings the result of which is

directly decisive for the applicant's rights and obligations (see Eur.

Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, pp.

14-15, para. 32).

60. In the present case the applicant company's authorisation to

deal with the ointment concerned expired on 31 December 1980. On 20

February 1981 the applicant company filed a request for prolongation

of the authorisation. Following the decision of the Zurich

Administrative Court of 22 June 1982, the Zurich Council of State was

called upon to determine whether the applicant company had filed a

request for an authorisation for the wholesale commerce as a marketing

firm, or merely as a wholesale distributor (see above, para. 33).

61. The Commission further considers that there is a constitutional

right under Swiss law, derived from Article 31 of the Federal

Constitution, to freedom of commerce. This provision protects any

private activity directed towards gain (see above, para. 45). Moreover,

the applicant company could arguably claim that the conditions were met

to prolong the authorisation which had previously enabled it to deal

with the ointment. Finally, as a consequence of the proceedings, the

applicant company was indeed granted the authorisation requested (see

above, paras. 36, 41).

62. In the proceedings at issue the Swiss authorities therefore had

to determine a dispute ("contestation") concerning a right of the

applicant company within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

63. The next issue is whether the disputed right was a "civil" one

within the meaning of this provision.

64. According to the Convention organs' case-law, "the concept of

civil rights and obligations" cannot be interpreted solely by reference

to the domestic law of the respondent state" (see Eur. Court H.R.,

König judgment of 28 June 1978, Series A no. 27, p. 29, para. 88).

Moreover, Article 6 (Art. 6) does not only cover private-law disputes

in the traditional sense, that is disputes between individuals or

between an individual and the State to the extent that the latter has

been acting as a private person, subject to private law (loc. cit., p.

30, para. 90). Rather, "only the character of the right at issue is

relevant" (loc. cit.).

65. In the present case the Commission notes that the authorisation

to which the applicant company claimed to be entitled was one of the

conditions for the exercise of part of its commercial activities. It

was closely associated with the right to use its possessions in

conformity with the law's requirements (see mutatis mutandis, Eur.

Court H.R., Benthem judgment, loc. cit., p. 16, para. 36).

66. In consequence, what was at stake for the applicant company was

a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention. The provision was therefore applicable to the

proceedings at issue before the Swiss authorities.

D. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

67. The Commission must therefore examine whether the proceedings

in which the applicant company was involved were concluded "within a

reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.

a. Period to be considered

68. The Government submit that the period to be examined commenced

on 22 June 1982, when the Zurich Administrative Court gave its

decision, and lasted until 16 May 1989 when the authorisation was

granted. The applicant company contends that the period commenced

before the Administrative Court gave its decision.

69. The Commission recalls the judgment in the König case according

to which that applicant "could not seise the competent court before

having the lawfulness and the expediency of the impugned administrative

acts examined in preliminary proceedings ... before the administrative

authority ... Consequently ... the reasonable time stipulated by

Article 6 para. 1 (Art. 6-1) starts to run on the day on which (the

applicant) lodged an objection against the withdrawals of his

authorisations" (Eur. Court H.R., König judgment, loc. cit., p. 33,

para. 98).

70. In the present case, after the Zurich Direction of Health had

rejected the request of the applicant company for the prolonged

authorisation, the latter filed an appeal on 19 June 1981 to the Zurich

Council of State (see above, para. 23). The Commission finds that on

this date the period to be examined under Article 6 para. 1 (Art. 6-1)

commenced.

71. The Commission further considers that the proceedings ended

with the "determination" of the dispute concerning the applicant

company's civil rights and obligations (see Eur. Court H.R., König

judgment, loc. cit., pp. 33-34, para. 98). In the present case the

period ended on 16 May 1989 when the applicant company was granted the

authorisation.

72. The period to be considered under Article 6 para. 1 (Art. 6-1)

of the Convention thus lasted from 19 June 1981 until 16 May 1989, i.e.

seven years, ten months and 27 days.

b. Reasonableness of the length of the proceedings

73. The Government explain the delays in the proceedings with the

applicant company's contradictory conduct. Thus, while on 24 November

1982 the applicant company stated that it requested the prolongation

of the authorisation for the wholesale commerce as a marketing firm,

it had stated previously, on 10 November 1982, that it had not applied

for such an authorisation. In view thereof, the Council of State did

not find it necessary to pursue the case. The Government further

contend that the applicant company itself was inactive. It has not

been shown that it regularly asked for the proceedings to be resumed.

On the other hand, the Swiss authorities were active in that, on 26

October 1982, the Council of State wrote to the applicant company.

74. The applicant company submits that, after the Zurich

Administrative Court had given its decision on 22 June 1982, it was

active, as its statement of 24 November 1982 to the Council of State

demonstrates.

75. The Commission recalls that the reasonableness of the length

of proceedings has to be assessed according to the particular

circumstances of each case, having regard, in particular, to the

complexity of the case, the conduct of the applicant and of the

competent authorities, and to what is at stake for the former. In the

present case, which concerns civil proceedings, account must also be

taken of whether the applicant has shown due diligence by taking the

necessary steps to expedite the proceedings and whether delays occurred

for which the applicant cannot be held responsible (see Bock v. the

Federal Republic of Germany, Comm. Report 13.11.87, Eur. Court H.R.,

Series A no. 150, p. 28, para. 78).

76. The Commission has applied these criteria to the present case.

It considers at the outset that the proceedings, which concerned the

authorisation to deal with an ointment, could not be regarded as

complex.

77. As regards the conduct of the parties, the Commission considers

that no issue arises as to the length of the proceedings leading up to

the decision of the Zurich Administrative Court of 22 June 1982.

Rather, the issue in the present case concerns the parties' conduct

during the period thereafter.

78. Thus, on 22 June 1982, the Zurich Administrative Court referred

the case-file back to the Zurich Council of State for further

clarification as to whether the applicant company wanted the

authorisation for the wholesale commerce as a marketing firm, or for

wholesale distribution. On 26 October 1982 the latter requested the

applicant company to file the necessary information. On 24 November

1982 the applicant company replied that it requested the authorisation

for the wholesale commerce as a marketing company. Previously, on 10

November 1982, however, the applicant company had stated in its public

law appeal to the Federal Court that it had not applied for the

authorisation as a marketing firm. Nothing happened thereafter until

17 March 1988 when the applicant company filed a complaint to the

Intercantonal Control Office that it had not yet been granted the

authorisation.

79. The Commission thus notes that the applicant company, having

made contradictory statements as to its intention regarding the

authorisation, remained inactive from 24 November 1982 until 17 March

1988: it filed no requests for information as to the state of the

proceedings; it did not urge the authorities to pursue the case; and

it did not even attempt to clarify its previous contradictory

statements of 10 and 24 November 1982, respectively.

80. In the Commission's opinion, it cannot therefore be said that

the applicant company showed the necessary due diligence required by

Article 6 (Art. 6) of the Convention by taking the necessary steps to

expedite the proceedings. In fact, by waiting from 24 November 1982

until 17 March 1988, when it filed a complaint, the applicant company

demonstrated that it did not regard the granting of the authorisation

as being urgent.

81. It follows that the applicant company was mainly responsible

for the delays in the length of the proceedings, which are not

therefore attributable to the authorities concerned.

E. Conclusion

82. The Commission concludes, by 9 votes to 1, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G. SPERDUTI)

DISSENTING OPINION OF MR. A. WEITZEL

I find myself unable to agree with the opinion of the majority

of the Commission that there has not been a violation of Article 6

para. 1 of the Convention.

In my opinion, after the decision of the Zurich Administrative

Court on 22 June 1982, the applicant company in fact did not make

contradictory statements to the relevant authority concerned, namely

the Zurich Council of State. Thus, on 26 October 1982 the Council of

State put a question to the applicant company, to which the latter

clearly replied on 24 November 1982, namely that it wanted a marketing

authorisation. The statement of 10 November 1982 was addressed to a

different authority, namely the Federal Court.

Moreover, the right enshrined in Article 6 para. 1 of the

Convention expressly envisages the "determination" by the authorities

of the applicant company's "civil" rights. In the present case, the

applicant company, after clearly expressing its wish to the Zurich

Council of State, could not be expected further to urge the Zurich

authorities to pursue its case, since the Zurich Administrative Court

itself, when partly upholding the applicant company's appeal on 22 June

1982, had instructed the authorities as to the further course of the

proceedings.

Consequently, there were good reasons for the Zurich authorities

to expedite and conclude the proceedings. In view of their prolonged

inactivity, the resulting delay must be attributed to the authorities

which did not therefore conclude the proceedings "within a reasonable

time" as required by Article 6 para. 1 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

14 July 1989 Introduction of the application

20 July 1989 Registration of the application

Examination of the Admissibility

5 March 1990 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

limited to the issue under

Article 6 para. 1 of the

Convention concerning the length

of the proceedings

8 May 1990 Government's observations

11 June 1990 Applicant company's observations

in reply

7 November 1990 Commission's decision to refer the

application to the Second Chamber

5 December 1990 Commission's decision to declare the

application partly admissible

Examination of the Merits

10 April 1991 Commission's consideration of the

state of proceedings

14 October 1991 Commission's deliberations on the

merits, final vote and adoption

of the Report

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JOSEF MÜLLER AG v. SWITZERLAND

JOSEF MÜLLER AG v. SWITZERLAND

LEXI