Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32601/96

by EVORA B.V.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 April 1996 by

Evora B.V. against the Netherlands and registered on 13 August 1996

under file No. 32601/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a company with limited liability having its

registered seat in Renswoude, the Netherlands. In the proceedings

before the Commission the applicant company is represented by Mr D.W.F.

Verkade, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant company, may

be summarised as follows.

a. Particular circumstances of the present case

The applicant company owns a chain of pharmacies in the

Netherlands which offer low priced articles including perfumes and

other cosmetic products of well-known brands. These pharmacies' offer

includes certain Dior products which are advertised in the pharmacies'

habitual manner. The applicant company is not a retail trader in the

exclusive distribution system of Dior products.

As it was considered that the applicant company's manner of

advertising Dior products affected the prestige and image of Dior

products, the French company Parfums Christian Dior SA and the Dutch

company Parfums Christian Dior BV instituted summary proceedings (kort

geding) against the applicant company before the President of the

Regional Court (Arrondissementsrechtbank) of Haarlem, seeking an

injunction against all use of the Dior logo or Dior products in the

applicant company's advertising activities. It was not alleged that the

applicant company had unlawfully obtained the Dior products it had

offered in its advertisements.

On 29 December 1993, following adversarial proceedings, the

President of the Regional Court found against the applicant company and

granted the injunction.

As the injunction granted entailed important consequences for the

applicant company, it chose to file an urgent appeal (spoed appel) with

the Court of Appeal (Gerechtshof) of Amsterdam.

In its judgment of 19 May 1994, following adversarial

proceedings, the Court of Appeal of Amsterdam quashed the decision of

29 December 1993 and rejected the request for an injunction. The Dior

companies filed an appeal in cassation with the Supreme Court (Hoge

Raad).

In its interlocutory judgment of 20 October 1995, the Supreme

Court rejected the argument submitted by the applicant company that the

injunction sought by the Dior companies would be contrary to Article

10 of the Convention. It held on this point that the right to freedom

of expression may be subject to lawful limitations necessary in a

democratic society for the protection of, inter alia, the rights of

others. The Supreme Court found these rights to include trade mark and

copyrights. The Supreme Court found that the applicant company's

arguments on this point did not prompt the conclusion that the

applicant company's right to freedom of expression should outweigh the

Dior companies' interest in respect for their trade mark and

copyrights.

However, since questions arose under the Uniform Benelux Act on

Trade Marks (Eenvormige Beneluxwet op de merken) and EC rules, the

Supreme Court decided to seek a preliminary ruling from the Benelux

Court of Justice (Benelux Gerechtshof) on five questions under the

Uniform Benelux Act on Trade Marks and a preliminary ruling from the

EC Court of Justice (Hof van Justitie van de Europese Gemeenschappen)

on six questions under EC rules. It adjourned any further decision

pending the outcome of the proceedings before the Benelux Court of

Justice and the EC Court of Justice. These proceedings are currently

still pending.

b. Relevant domestic law

In disputes falling within the competence of the civil courts and

where an urgent decision is called for, it is possible to institute

summary proceedings (kort geding) before the President of the Regional

Court seeking an interim measure pending the outcome of the regular

proceedings on the merits (bodemprocedure). After one hearing, the

President decides whether or not to issue the interim measure

requested. Such an interim measure remains in force pending the outcome

of the regular proceedings on the merits. The judicial authorities

deciding on the merits are not bound by this interim measure in their

decision.

As in many cases the summary proceedings are not followed by

regular proceedings on the merits, the outcome of the summary

proceedings often constitutes the sole judicial decision on a dispute.

It is possible to file an appeal against a decision taken in

summary proceedings before the Court of Appeal. Such an appeal must be

lodged within two weeks. These appeal proceedings are dealt with in a

regular manner although generally speaking the Court of Appeal will

deal with such appeals expeditiously.

An urgent appeal (spoed appel) in interim injunction proceedings,

which has no statutory basis and which can only be lodged with the

Court of Appeal of Amsterdam, obliges an appellant to formulate all

objections in the appeal summons which must be served within a time-

limit of two weeks. No further objections can be raised subsequently.

In the oral proceedings every party is allowed twenty minutes for

pleadings. If these requirements are met, the Court of Appeal of

Amsterdam grants precedence to the case and will issue its decision

within a period of about four months.

COMPLAINTS

1. The applicant company complains under Article 6 paras. 1 and

3 (b) of the Convention that its defence rights were too restricted in

the proceedings at issue. It submits that the complexity of the case

is illustrated by the fact that the Supreme Court considered it

necessary to seek preliminary rulings from the Benelux Court of Justice

and the EC Court of Justice on issues related to trade marks and

copyrights which the applicant company had raised in the proceedings

on appeal. The applicant company complains in particular that in the

urgent appeal procedure before the Court of Appeal of Amsterdam, it had

to formulate all its objections within a time-limit of two weeks

without having the possibility to make any subsequent changes and only

had twenty minutes for making its oral submissions. As a result it

could not make any elaborate submissions on a number of arguments

including that relating to Article 10 of the Convention.

2. The applicant company further complains that the Supreme Court

unjustly rejected the argument that the prohibition against including

Dior products in its advertisement activities constitutes an

unjustified interference with its rights under Article 10 of the

Convention.

THE LAW

1. The applicant company complains under Article 6 paras. 1 and

3 (b) (Art. 6-1, 6-3-b) of the Convention that its defence rights were

too restricted in the proceedings at issue.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair ... hearing ... by a ... tribunal established by law. ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

b. to have adequate time and facilities for the

preparation of his defence;

..."

As the proceedings at issue cannot be considered as constituting

a determination of a "criminal charge" within the meaning of Article

6 (Art. 6) of the Convention, the Commission is of the opinion that

these proceedings fall outside the scope of Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention and cannot, therefore, be examined under

this provision.

Insofar as the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention, the Commission finds that the proceedings

at issue can be regarded as constituting 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 can thus be examined

under this provision.

As to the question whether these proceedings are in conformity

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

as to the fairness of proceedings, the Commission recalls that as a

rule this can only be determined by examining the proceedings as a

whole, that is to say only after they have been concluded (cf. No.

12952/87, Dec. 6.11.90, D.R. 67, p. 175). However, it is not impossible

that a particular procedural element could be so decisive that the

fairness of the proceedings could be determined at an earlier stage

(cf. No. 9938/82, Dec. 15.7.86, D.R. 48, p. 21).

The Commission, noting that in its interlocutory judgment of

20 October 1995 the Supreme Court adjourned its final decision in the

present case pending the outcome of the proceedings before the Benelux

Court of Justice and the EC Court of Justice, finds that the applicant

company's submissions do not disclose any elements in view of which the

fairness of the present proceedings could be determined before a final

decision within the meaning of Article 26 (Art. 26) of the Convention

has been taken.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant company further complains that the Supreme Court

unjustly rejected the argument that the prohibition against including

Dior products in its advertisement activities constitutes an

unjustified interference with its rights under Article 10 (Art. 10) of

the Convention.

Article 10 (Art. 10) of the Convention provides as follows:

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers. This Article shall not prevent

States from requiring the licensing of broadcasting, television

or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Commission notes that the Supreme Court, in its interlocutory

judgment of 20 October 1995, rejected the applicant company's argument

that the injunction sought by the Dior companies would be contrary to

Article 10 (Art. 10) of the Convention.

However, the Commission further notes that, following the

judgment of 19 May 1994 of the Court of Appeal of Amsterdam, the

injunction at issue has been quashed and, consequently, is no longer

in force. Whether the Supreme Court will uphold this judgment cannot

be answered for the time being as the Supreme Court has adjourned its

decision on the Dior companies' appeal in cassation against the Court

of Appeal's decision pending the replies to the preliminary questions

put by the Supreme Court to the Benelux Court of Justice and the EC

Court of Justice.

The Commission considers that the final outcome of the

proceedings before the Supreme Court will be decisive for whether or

not the applicant company will be directly affected by the Supreme

Court's rejection of the applicant company's arguments under Article

10 (Art. 10) of the Convention and thus for whether or not it may claim

to be a victim within the meaning of Article 25 (Art. 25) of the

Convention (cf. No. 15404/89, Dec. 16.4.91, D.R. 70, p. 262).

Consequently, the question of the applicant company's capacity as a

victim of an alleged violation of Article 10 (Art. 10) cannot be

determined until there is a final judgment in the domestic proceedings.

A consequence of this reasoning is of course that the six months

time-limit laid down in Article 26 (Art. 26) of the Convention did not,

as regards the applicant company's complaint under Article 10 (Art. 10)

of the Convention, begin to run from 20 October 1995, i.e. the date of

the Supreme Court's interlocutory judgment, but will only be calculated

from the date on which the final decision in the proceedings between

the Dior companies and the applicant company will be given on whether

or not an injunction should be granted against the applicant company.

It follows that this part of the application is also premature

and, consequently, must be rejected as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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EVORA B.V. v. THE NETHERLANDS

EVORA B.V. v. THE NETHERLANDS

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