AS TO THE ADMISSIBILITY OF

                      Application No. 18874/91

                      by X.

                      against Switzerland

      The European Commission of Human Rights (First Chamber) sitting in

private on 12 January 1994, the following members being present:

           MM.   A. WEITZEL, President

                 S. TRECHSEL

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

           Mrs.  M.F. BUQUICCHIO, 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 6 September 1991 by

X. against Switzerland and registered on 27 September 1991 under file No.

18874/91;

      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 facts of the case, as they have been submitted by the applicant

association, may be summarised as follows:

      The applicant association has its seat in St. Gallen.  It is not

registered, its registration being the issue of this application.  Before

the Commission it is represented by Mr. R. Spaar, a lawyer practising in

St. Gallen.

Particular circumstances of the case

                                   I.

      On 7 June 1990, the applicant association filed a request with the

Federal Commercial Register Office (Eidgenössisches Handels-registeramt)

to be registered in the commercial register (Handels-register) under the

name: "X.".  A similar request was filed at the same time by another

association, the "Australian Swiss Chamber of Commerce and Industry".

      As the applicant association proposed a name with a national

description the Federal Office consulted the Managing Board of the Swiss

Association for Trade and Industry (Vorort des Schweizerischen Handels-

und Industrievereins) according to Section 45 of the Commercial Register

Ordonnance (Handelsregisterverordnung; see below, Relevant domestic law).

      The Managing Board submitted its opinion on 29 June 1990, finding

inter alia that the applicant association was not representative of the

Swiss-Australian economic relations.  This was rather the case with the

"Australian Swiss Chamber of Commerce and Industry" which furthermore

cooperated with the Swiss Australian Chamber of Commerce and Industry,

itself a member of the "Union of Swiss Chambers of Commerce Abroad"

("Union schweizerischer Handelskammern im Ausland").

      On 10 July 1990 the Federal Office dismissed the applicant

association's request as its members were not representative of the

economic relations between Switzerland and Australia.  On the other hand,

the association "Australian Swiss Chamber of Commerce and Industry" was

part of an official network of bilateral trade relations.  The decision

concluded that "the terms 'Switzerland' and 'Australia' cannot be

authorised as they deceive the public and have an advertising character"

("können die Bezeichnungen 'Schweiz' und 'Australien' vorliegend nicht

bewilligt werden, da sie das Publikum täuschen und auch rein reklamenhaft

wirken").

      On 17 July 1990 the applicant association obtained a copy of the

opinion of the Managing Board of 29 June 1990.

                                   II.

      On 10 September 1990 the applicant association lodged an

administrative law appeal (Verwaltungsgerichtsbeschwerde) with the

Federal Court (Bundesgericht).  The Federal Office then filed a reply and

the applicant association a further statement on 8 November 1990.

      The Federal Court dismissed the administrative law appeal

on 26 November 1990, the decision being served on 6 March 1991.

      In its decision the Federal Court first explained why it had not

considered the applicant association's statement of 8 November 1990.

Thus, a new round of observations would have been necessary if the

opposing party, in its reply, had made new factual statements relevant

for the decision.  The Court found that the further grounds suggested by

the Federal Office for dismissing the appeal were not essential for the

decision (für die Entscheidung nicht von wesentlicher Bedeutung).

      The Court noted that in its decision the Federal Office had mainly

relied on the opinion of the Managing Board which had been known to the

applicant association when preparing its administrative law appeal.  As

no further documents were necessary for the Court's examination, it was

unnecessary to authorise the applicant association to comment on further

documents submitted by the Federal Office.  It was also unnecessary to

decide whether the applicant association should have been able to consult

documents concerning the other association.

      Insofar as the applicant association complained that in the

proceedings before the Federal Office it had not been able to comment on

the opinion of the Managing Board, the Federal Court found that the

applicant association had at least been able to comment thereupon in its

administrative law appeal, and the Federal Court was free to examine the

conclusions of the Federal Office as to the facts.

      As to the merits of the appeal the Federal Court observed that the

applicant association called itself "X." ("Chamber of Economy

Switzerland-Australia") rather than "Chamber of Commerce"

("Handelskammer");  a third person would confuse the two terms.  It

further referred to the conclusion of the Federal Office, not contested

by the applicant association, according to which the "Swiss Australian

Chamber of Commerce and Industry" was responsible for bilateral trade

relations between Switzerland and Australia and was a member of the

"Union of Swiss Chambers of Commerce Abroad".  The applicant association

lacked the necessary integration into the national foreign trade policy,

and registration had correctly been refused.  In its decision the Federal

Court relied inter alia on  Section 944 of the Contract Code and Section

45 of the Commercial Register Act (see below, Relevant domestic law).

Relevant domestic law

      According to Section 61 of the Swiss Civil Code (Zivilgesetz-buch),

any association constituted according to the law may request its

registration in the commercial register (Handelsregister).

      Section 944 of Swiss Contract Code (Obligationenrecht) concerns the

name of a company.  Para. 2 of this provision states that the Federal

Council may enact provisions as to the use of national or territorial

names.

      Section 45 para. 1 of the Commercial Register Ordonnance

(Handelsregisterverordnung) states that a company may not use national

descriptions (nationale Bezeichnungen) in its name.  Exceptions are

possible if they are warranted under the circumstances.  Para. 2 states

that an association wishing to bear a national description as a name must

obtain authorization from the Federal Commercial Register Office

(Eidgenössisches Handelsregisteramt).  The latter may only grant

permission after having consulted the competent authorities or

representatives of commerce.  The registration into the commercial

register may only occur after the Office has granted permission.

COMPLAINTS

1.    Under Article 6 para. 1 of the Convention the applicant association

complains that in the proceedings before the Federal Court it could not

comment upon certain documents, in particular a file, which were at the

Court's disposal.  The applicant association complains that "the Swiss

Federal Court had considered this particular file in its decision" ("hat

das schweizerische Bundesgericht gerade dieses genannte Dossier in seinem

Entscheid ... verwertet").

      The applicant association further complains that before the Federal

Office it could not comment on the Managing Board's opinion.  While the

Court could freely examine the conclusions of the Federal Office as to

the facts, it could not itself establish the facts.

      The applicant association complains that the Federal Court in its

decision for the first time stated that the applicant association

belonged neither to a bilateral chamber of commerce nor to the "Union of

Swiss Chambers of Commerce Abroad".  The applicant association previously

never had the opportunity to comment on this point.

2.    Under Article 11 of the Convention the applicant association

complains that it was refused registration in the commercial register.

3.    Under Article 14 of the Convention the applicant association

complains that different standards were applied to another association

in respect of its request for registration in the commercial register.

THE LAW

1.    The applicant association complains under Article 6 (Art. 6) of the

Convention of the proceedings before the Federal Commercial Register

Office and the Federal Court.  Assuming that Article 6 para. 1 (Art. 6-1)

of the Convention is applicable to the proceedings at issue, it states,

insofar as relevant, that "in the determination of his civil rights and

obligations ... everyone is entitled to a fair and public hearing ... by

an independent and impartial tribunal ..."

a)    The applicant association complains first that in the proceedings

before the Federal Office it could not comment on the Managing Board's

opinion.  However, the Commission considers that the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention, applying to proceedings

before a court, were satisfied in that the applicant association could

comment on this opinion in its administrative law appeal to the Federal

Court.

b)    The applicant association may be understood as complaining that it

had no access to a court with full jurisdiction as required by Article

6 para. 1 (Art. 6-1) of the Convention.  In particular, the Federal Court

could not itself establish the facts.

      The Commission recalls the case-law of the Convention organs

according to which it suffices if a jurisdictional organ, which does not

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

Convention, "is subject to subsequent control by a judicial body that has

full jurisdiction and does provide the guarantees of Article 6 para. 1

(Art. 6-1)" (see Eur. Court of H.R., Albert and Le Compte judgment of 10

February 1983, Series A no. 58, p. 16,  para. 29 and Zumtobel judgment

of 21 September 1993, Series A no. 268-A, p. 10, para. 29).

      In the present case, the requirements of Article 6 para. 1

(Art. 6-1) of the Convention were met in that the Federal Court stated

in its decision of 26 November 1990 that it could freely examine the

conclusions of the Federal Commercial Register Office as to the facts of

the case.

c)    The applicant association complains that before the Federal Court

it could comment neither upon the observations of the Federal Commercial

Register Office nor on certain documents, namely a file, which were at

that Court's disposal.

      The Commission notes that the applicant association has not

sufficiently demonstrated in what respect the Federal Court relied in its

decision on conclusions in the Federal Office's observations or other

documents on which the applicant association had not been able to

comment.  The Federal Court itself expressly stated that the observations

of the Federal Office had not contained any new relevant grounds for

rejecting the appeal for which reason a further round of observations was

unnecessary;  and that, as the Court did not have to rely on further

documents for its decision, it was also unnecessary to permit the

applicant association to comment thereupon.

      In this respect the applicant association claims that the Federal

Court in its decision for the first time stated that the applicant

association was not a bilateral chamber of commerce and did not belong

to the "Union of Swiss Chambers of Commerce Abroad".  However, the

Commission notes that the criterion of adherence to the "Union of Swiss

Chambers of Commerce Abroad" was already mentioned in the opinion of the

Managing Board of 29 June 1990, and the criterion of bilateral trade

relations in the decision of the Federal Office of 10 July 1990.  The

applicant was thus free to comment on these issues in its administrative

law appeal to the Federal Court.

d)    This part of the application is therefore manifestly ill-founded

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

2.    Under Article 11 (Art. 11) of the Convention the applicant

association complains that it was refused registration in the commercial

register.  This provision states, insofar as relevant:

      "1.  Everyone has the right to freedom of ... association with

      others ...

      2.   No restrictions shall be placed on the exercise of these

      rights other than such as are prescribed by law and are necessary

      in a democratic society in the interests of national security or

      public safety, for the prevention of disorder or crime, for the

      protection of health or morals or for the protection of the rights

      and freedoms of others ..."

      The Commission notes that the applicant association, while being

refused registration in the commercial register, has not shown that it

cannot exercise its functions as an association.  It need nevertheless

not resolve whether there has been an interference with the rights under

Article 11 para. 1 (Art. 11-1) of the Convention, since this part of the

application is in any event manifestly ill-founded for the following

reasons.

      The authorities' refusal to register the applicant association in

the commercial register was based on Section 944 of Swiss Contract Code

and Section 45 of the Commercial Register Act.  The measure was therefore

"prescribed by law" within the meaning of Article 11 para. 2 (Art. 11-2)

of the Convention.

      In its decision of 26 November 1990 the Federal Court moreover

upheld the refusal to register the application association, as a third

person could confuse the name of the application association with that

of a Chamber of Commerce; that another Chamber of Commerce was already

responsible for the bilateral trade relations between Switzerland and

Australia;  and that the applicant association lacked the necessary

integration into the national foreign trade policy.  Thus, the measure

could also be regarded as "necessary in a democratic society ... for the

prevention of disorder (and) for the protection of the rights and

freedoms of others ..." within the meaning of Article 11 para. 2

(Art. 11-2) of the Convention.

      This part of the application is therefore manifestly ill-founded

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

3.    Insofar as the applicant association complains under Article 14

(Art. 14) of a difference of treatment in respect of another association,

the Commission finds for the reasons described above, that no issue

arises under this provision.  The remainder of the application is

therefore also manifestly ill-founded within the meaning of Article 27

par. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

     Secretary to the                          President of the

       First Chamber                             First Chamber

     (M.F. BUQUICCHIO)                           (A. WEITZEL)