AS TO THE ADMISSIBILITY OF

                      Application No. 23749/94

                      by BROWN & WILLIAMSON TOBACCO CORPORATION

                      against Finland

      The European Commission of Human Rights sitting in private on

3 December 1996, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           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 8 March 1994 by

Brown & Williamson Tobacco Corporation against Finland and registered

on 23 March 1994 under file No. 23749/94;

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

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 15 February 1996 and the observations in reply submitted

by the applicant on 9 May 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant company is a limited liability company incorporated

in Louisville, Kentucky, the United States of America. Before the

Commission it is represented by Mr. Kari Lautjärvi, a lawyer practising

in Helsinki, Finland.

      The facts of the case, as submitted by the parties, may be

summarised as follows.

A.    Particular circumstances of the case

      On 19 May 1986 company B filed an application with the Finnish

Board of Patents and Registers (patentti- ja rekisterihallitus, patent-

och registerstyrelsen) aimed at obtaining a patent for an invention

relating to the fabrication of tobacco products. In case of doubt as

to the patentability of the invention the company wished that an oral

hearing be held. The application was accepted for publication and

published on 31 August 1990 in order to afford third parties an

opportunity to lodge objections.

      On 30 November 1990 another tobacco company, F, lodged an

opposition, referring to five publications on the subject. Its

opposition was withdrawn on 31 December 1990.

      On 28 March 1991 the rights pertaining to the patent application

were transferred to the applicant company which, on 14 June 1991,

submitted observations to the Board of Patents and Registers on the

publications referred to in company F's opposition.

      On 8 August 1991 the Board of Patents and Registers rejected the

application, considering that the invention lacked the required

inventive character. The Board based its decision on the five

publications referred to by company F. The decision was made by S and

R, senior research engineers of the Board's Technical Office no. II.

      The applicant company appealed to the then Appeals Division

(valitusosasto, besvärsavdelningen) of the Board of Patents and

Registers, requesting, inter alia, an oral hearing.

      On 20 December 1991 company F's representative sent the Appeals

Division "for information" a translation of a decision of the Board of

Appeal of the Dutch Patent Office refusing an allegedly similar patent

application lodged by the applicant company. The representative's cover

letter referred to the applicant company's patent application pending

before the Appeals Division.

      The Appeals Division did not communicate the translation of the

Dutch patent refusal to the applicant company. Its representative in

the proceedings before the Appeals Division was informed of the Dutch

refusal only after she had submitted the company's appeal to the

Appeals Division.

      In its decision of 27 May 1992 the Appeals Division first

summarised the proceedings, noting, inter alia, the following:

      "On 20 December 1991 the opponent lodged submissions

      relating to the matter."   The Appeals Division then

      rejected the applicant company's request for an oral

      hearing, considering that the invention had been

      sufficiently presented in its written submissions. The

      Appeals Division furthermore upheld the decision of the

      Board of Patents and Registers, basing itself on four of

      the five publications referred to therein. The Appeals

      Division concluded that the subject-matter of the patent

      application did not concern a new invention but rather an

      application of an already known technique.

      The Appeals Division was chaired by the Chief Director of the

Board of Patents and Registers. The other two members were J, Chief

Engineer and Head of Technical Office no. II of the Board, and K, Chief

Engineer of the Appeals Division. The Appeals Division's decision was

sent to company F's representative for information.

      The applicant company appealed to the Supreme Administrative

Court (korkein hallinto-oikeus, högsta förvaltningsdomtolen),

submitting, inter alia, that the refusal of its patent application in

the Netherlands was not yet final; that its application to the Finnish

authorities was in any case different; that the Appeals Division had

taken into account material submitted by company F after it had

withdrawn its opposition; and that the applicant company had not been

given any opportunity to comment on that material. Should the court be

unable to grant its appeal on the basis of the company's written

submissions, it also requested an oral hearing for the purpose of

hearing experts in the field. In the alternative, the company requested

that the matter be referred back to the Appeals Division for the

purpose of holding such a hearing.

      Due to new legislation entering into force on 1 September 1992

the Appeals Division was reorganised and renamed the Appeals Board

(valituslautakunta, besvärsnämnden).

      The Supreme Administrative Court requested the Appeals Board to

submit its opinion in respect of the applicant company's appeal. On

24 September 1992 the Appeals Board stated, on the one hand, that

company F's submissions of 20 December 1991 had not had any impact on

its refusal of the applicant company's appeal. The Appeals Board

stressed that the submissions had not given rise to any change of the

decision of the Board of Patents and Registers and had been mentioned

merely for information purposes. On the other hand, the Appeals Board

noted that the applicant company had not on its own initiative informed

the then Appeals Division in Finland of the refusal of its patent

application in the Netherlands. In any case, from the moment the

company had been informed of that refusal it had had ample time to

comment thereon in the proceedings before the then Appeals Division.

      On 6 November 1992 the applicant company commented on the Appeals

Board's opinion. It argued, inter alia, that if the manner in which the

Appeals Division had processed the company's appeal were to become

practice, an opponent to a patent application could phrase a de facto

opposition as a document sent for information only and thereby prevent

the patent applicant from commenting thereon. In particular, since

company F's submissions of 20 December 1991 supported the refusal of

the Board of Patents and Registers, there had been all the more reason

to afford the applicant company an opportunity to comment thereon.

Finally, the applicant company had been under no obligation to draw the

Appeals Division's attention to the refusal of its patent application

in the Netherlands which in any case had not yet become final.    In

its decision of 10 September 1993 the Supreme Administrative Court

rejected the request for an oral hearing, having found the matter

sufficiently clarified. It found no indication of any procedural

errors. It finally upheld the Appeals Division's decision, finding that

the invention did not differ essentially from what had already become

known through the publications cited in the decision of the Appeals

Division. The Supreme Administrative Court's decision does not mention

that the Appeals Division was heard in respect of the applicant

company's appeal. Nor does it mention that the company was afforded an

opportunity to reply.

B.    Relevant domestic law

      The granting of patents is governed by the 1967 Patent Act

(patenttilaki, patentlag 550/67) and a related 1980 Decree (669/80).

At the relevant time the proceedings before the Board of Patents and

Registers were governed by a 1965 Act (749/65) and a related 1982

Decree (213/82). As of 1 September 1992 the 1965 Act and the 1982

Decree were replaced by a 1992 Act (575/92) and Decree (799/92). On the

same date a further Act (576/92) and Decree (800/92) entered into force

concerning the new Appeals Board's examination of appeals against

decisions of the Board of Patents and Registers.

      If a patent application does not comply with the formal

requirements of the 1967 Act or if the Board of Patents and Registers

finds any other obstacle to the granting of the application, the

applicant shall be afforded an opportunity to comment thereon or

correct the application within a certain period (section 15 of the

1967 Act). If an obstacle remains after the expiry of that period, the

application shall normally be refused (section 16). If an application

is formally correct and no obstacle to the granting of the patent has

been found, the application shall be accepted for publication

(section 19).

      After a patent application has been published anyone may oppose

the granting of the patent within three months (section 21 of the 1967

Act). After the expiry of that period the examination of the

application shall be continued and it shall be determined whether it

can be granted. The applicant shall be informed of any opposition and

be given an opportunity to comment thereon (section 23). All

submissions of an opponent shall be communicated to the applicant

(section 35 of the 1980 Decree). The applicant shall also be notified

of any material submitted at a time other than that reserved for the

lodging of oppositions, provided that this material is significant for

the examination of the application. Further instructions as to the

processing of applications may be issued by the Board of Patents and

Registers (section 36).

      According to the 1982 Act on Administrative Procedure (hallinto-

menettelylaki 598/82, lag om förvaltningsförfarande 598/82), an

authority shall hear a party in respect of any claims presented by

others as well as any other material which could affect the authority's

decision (section 15). If a party wishes to present a matter orally,

this opportunity shall as far as possible be afforded (section 18). The

Act on Administrative Procedure does not govern proceedings before

administrative courts or other bodies with judicial functions

(section 1).     When examining the conditions for granting a patent,

the Board of Patents and Registers shall have regard to all evidence

of which it obtains knowledge (section 26 of the 1980 Decree). If

deemed necessary, it may request the assistance of external experts

(section 27). On certain conditions a patent applicant may be obliged

to inform the Board of the position taken by foreign patent authorities

in relation to similar requests lodged by the applicant. The Board may

in an interim decision order a patent applicant to present such

information (section 29).

      At the relevant time a decision made on behalf of the Board of

Patents and Registers upon a patent application could be appealed

against to its Appeals Division (section 4 of the 1965 Act). The

Appeals Division consisted of three members and was chaired by the

Director-General or the Chief Director of the Board. When dealing with

patent cases, the other two members of the Appeals Division could be

a senior engineer acting as head or deputy head of the Patents

Division; a senior engineer acting as head of one of the six technical

offices; or a senior engineer of the Appeals Division. If possible, one

of these two members should be head of the technical office which had

previously dealt with the matter. The Chairman decided on the

composition of the Appeals Division in a particular case (sections 17

and 35 of the 1982 Decree). The Appeals Division was to follow "the

legal code of court procedure ("laillista oikeudenkäyntijärjestystä";

"laga rättegångsordning") and could hold oral hearings (sections 6 and

8 of the 1965 Act).

      An appeal against a decision of the Appeals Division lay with the

Supreme Administrative Court (section 9 of the Act). When the Court is

dealing with a patent matter two chief engineers appointed by the

President of the Republic for a three-year period participate as

justices (section 10 of the 1965 Act and section 9 of the 1992 Act).

      According to the 1918 Act on the Supreme Administrative Court

(no. 74/18), as in force at the relevant time, it could hold oral

hearings and carry out inspections (section 15, subsection 1). The 1996

Act on Judicial Procedure in Administrative Matters (hallinto-

lainkäyttölaki, förvaltningsprocesslag 588/96) entered into force on

1 December 1996. It stipulates, inter alia, that the Supreme

Administrative Court shall, if so requested by a private party, hold

an oral hearing when dealing with an appeal against the decision of an

administrative body. In certain circumstances an oral hearing may

nevertheless be refused (section 38, subsection 1).

COMPLAINTS

1.    The applicant company complains that its right to a fair hearing

by an independent and impartial tribunal within the meaning of Article

6 of the Convention was violated due to the non-existence of a proper

code of procedure governing the overall proceedings in question. More

particularly, the Appeals Division was not an independent and impartial

tribunal within the meaning of Article 6 para. 1. Reference is also

made to the unsubstantiated refusals of the company's requests for an

oral hearing for the purpose of, inter alia, hearing experts. Nor was

the principle of equality of arms respected, as the applicant company

was not given an opportunity to comment on company F's submissions to

the Appeals Division of 20 December 1991. This non-communication also

affected the outcome of the patent proceedings, since decisions

in patent proceedings are rarely quashed by the Supreme Administrative

Court and the company could comment on company F's submissions only in

the proceedings before that court without there being any further right

of appeal.

2.    The applicant company also complains that the allegedly unfair

proceedings also resulted in a violation of its right to the peaceful

enjoyment of its possessions. Article 1 of Protocol No. 1 is invoked.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 8 March 1994 and registered on

23 March 1994.

      On 29 November 1995 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on

15 February 1996. The applicant replied on 9 May 1996.

      On 26 November 1996 the application was transferred from the

First Chamber to the Plenary Commission, by decision of the latter.

THE LAW

1.    The applicant company complains that its right to a fair hearing

by an independent and impartial tribunal within the meaning of Article

6 (Art. 6) of the Convention was violated. More particularly, the

Appeals Division was not an independent and impartial tribunal within

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

Reference is also made to the unsubstantiated refusals of the company's

requests for an oral hearing for the purpose of, inter alia, hearing

experts. Nor was the principle of equality of arms respected, as the

applicant company was not given an opportunity to comment on company

F's submissions to the Appeals Division of 20 December 1991. This non-

communication allegedly affected the outcome of the patent proceedings.

      Article 6 para. 1 (Art. 6-1) of the Convention reads, as far as

relevant, as follows:

      "In the determination of his civil rights ..., everyone is

      entitled to a fair and public hearing within a reasonable

      time by an independent and impartial tribunal established

      by law. ..."

      The Government do not dispute the applicability of Article 6

para. 1 (Art. 6-1) but consider that it has not been violated. The

respondent State was not required to submit the dispute in question to

a procedure which at every stage met the requirements of Article 6

para. 1 (Art. 6-1), as the dispute was eventually determined by a body

which did fulfil those conditions. It is therefore unnecessary to

determine whether the proceedings before the Appeals Division complied

with Article 6 para. 1 (Art. 6-1). The applicant company was able to

put to the Supreme Administrative Court all the arguments it wished to

make and also to have them considered. The dispute did not give rise

to any questions of public interest making an oral hearing necessary.

The written material was also sufficiently extensive and accurate and

included, inter alia,  experts' writings. The dispute was therefore

better dealt with in writing. Oral hearings also contribute to the

length of proceedings and significantly increase the costs of the

procedure.

      Were the Commission to find that the applicant company was

entitled to an oral hearing before the Supreme Administrative Court,

the Government refer to its reservation to Article 6 (Art. 6),

according to which Finland cannot for the time being guarantee a right

to an oral hearing in so far as the current Finnish laws do not provide

for such a right. This applies, inter alia, to proceedings governed by

section 15 of the Supreme Administrative Court Act.

      Finally, as regards the alleged lack of equality of arms, the

Government submit that nothing would have prevented the company from

consulting the Supreme Administrative Court's case file so as to verify

whether any further observations were required. In any case, since

company F had withdrawn its opposition prior to lodging its submissions

of 20 December 1991, this material was not submitted by an opponent

within the meaning of the Patent Act. Domestic law only required that

submissions of significant importance to the outcome of the proceedings

be sent to a patent applicant for possible comments. Company F's

submissions did not form any basis for the Appeals Division's

examination of the applicant company's patent application and were

therefore not sent to it for possible comments.

      The applicant company contends that Article 6 para. 1 (Art. 6-1)

has been violated. The proceedings before the Supreme Administrative

Court did not cure the defects in the proceedings at the lower levels,

particularly as no oral hearing was held. Precisely because of

Finland's reservation to Article 6 (Art. 6) the proceedings before the

Supreme Administrative Court did not provide all the safeguards

required by that provision. Accordingly, those guarantees should have

been afforded at the earlier stages of the proceedings.

      The applicant company finds no substantiation of the Government's

assertion that an oral hearing, including the hearing of witnesses, was

unnecessary in the case. It would be contrary to the principle of

"equality of arms" if the courts were to heed only the "public

interest" when assessing the need for an oral hearing. The "public

interest" may be taken into account only and in so far as the right to

request an oral hearing has been waived. Reference is made to the

Court's Zumtobel v. Austria judgment (Eur. Court HR, Series A

no. 268-A).

      In the applicant company's view it transpires from the lower

authorities' decisions that these were to a great extent based on the

expert writings submitted by company F in its opposition of

30 November 1990 which was later withdrawn. This also holds true as

regards the Supreme Administrative Court's examination and the

Government have indeed indicated so. It cannot be verified whether the

Government are right in asserting that company F's further submissions

of 20 December 1991 had no impact on the Appeals Division's

examination. Nor can it be excluded that those submissions were of

significant importance within the meaning of section 36 of the 1980

Decree, since they were referred to in the decision of the Appeals

Division which, moreover, still considered company F an opponent and

notified it of its decision. Whether or not company F had the status

of an objector within the meaning of the Patent Act is irrelevant,

given that the material which it submitted greatly influenced the

outcome of the proceedings. The authorities were under a duty to hear

the applicant company in respect of all potentially relevant material.

It should have been for the applicant company to assess whether or not

company F' submissions deserved a reaction. The applicant company was

not obliged to verify what information the Supreme Administrative Court

had at its disposal when examining its appeal, nor did the company have

the means to do so.

      The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and of fact under the Convention, including questions concerning the

Finnish reservation to Article 6 (Art. 6), the determination of which

should depend on an examination of the merits of the application. The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring the

complaint inadmissible have been established.

2.    The applicant company also complains that the allegedly unfair

proceedings resulted in a violation of its right to the peaceful

enjoyment of its possessions. It invokes Article 1 of Protocol No. 1

(P1-1) which 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.

      The preceding provisions shall not, however, in any way

      impair the right of a State to enforce such laws as it

      deems necessary to control the use of property in

      accordance with the general interest or to secure the

      payment of taxes or other contributions or penalties."

      The Government submit that this provision has not been violated

either. They consider that this complaint is in substance identical to

that which refers to Article 6 para. 1 (Art. 6-1) of the Convention.

No separate issue therefore arises under Article 1 of Protocol No. 1

(P1-1). Alternatively, the Government consider that, although the

applicant company did not obtain the requested patent, it was not

deprived of any existing property. Accordingly, there has been no

interference with the company's rights under Article 1 of Protocol No.

1 (P1-1).

      The Commission recalls that neither the Convention nor any of its

Protocols protects a right to obtain possessions. Article 1 of Protocol

No. 1 (P1-1) is limited to enshrining the right of everyone to the

peaceful enjoyment of already existing possessions (see, e.g., Eur.

Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A No. 31,

p. 23, para. 50; Van der Mussele v. Belgium judgment of 29 September

1983, Series A No. 70, p. 23, para. 48). The patent to which the

applicant company considered itself entitled cannot therefore be

considered "possessions" within the meaning of Article 1 of Protocol

No. 1 (P1-1), even assuming that a separate issue were to arise under

that provision. Accordingly, the Commission finds no appearance of any

violation of Article 1 of Protocol No. 1 (P1-1).

      It follows that this complaint must be rejected as being

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

(Art. 27-2) of the Convention.

      For these reasons, the Commission,

      by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the applicant company's complaint that it did not receive a fair

      and oral hearing by an independent and impartial tribunal

      established by law; and

      unanimously,

      DECLARES INADMISSIBLE the remainder of the application.

           H.C. KRÜGER                         S. TRECHSEL

             Secretary                          President

         to the Commission                  of the Commission