AS TO THE ADMISSIBILITY OF

                      Application No. 19589/92

                      by the T. Company Limited

                      against the Netherlands

      The European Commission of Human Rights sitting in private on

15 October 1993, the following members being present:

      MM.  C.A. NØRGAARD, President

           S. TRECHSEL

           A. WEITZEL

           F. ERMACORA

           E. BUSUTTIL

           G. JÖRUNDSSON

           A.S. GÖZÜBÜYÜK

           J.-C. SOYER

           H.G. SCHERMERS

           H. DANELIUS

      Mrs. G.H. THUNE

      MM.  F. MARTINEZ

           C.L. ROZAKIS

      Mrs. J. LIDDY

      MM.  L. LOUCAIDES

           J.-C. GEUS

           M.P. PELLONPÄÄ

           B. MARXER

           G.B. REFFI

           M.A. NOWICKI

           I. CABRAL BARRETO

           B. CONFORTI

           N. BRATZA

      Mr.  M. de SALVIA, Deputy 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 27 February 1992

by the T. Company Limited against the Netherlands and registered on 5

March 1992 under file No. 19589/92;

      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, the T. Company Limited, is a company incorporated

in the United Kingdom.  It is represented before the Commission by Mr.

I.G.F. Cath, a lawyer practising in The Hague.

      The facts as submitted by the parties may be summarised as

follows:

      A.   Particular circumstances of the case

      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.

      On 15 May 1987, the Patent Office informed the applicant

company's patent attorney of its preliminary findings as to the state

of 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.

      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.

      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.

      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.

      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 held a hearing on 7 June 1989.  On 29 August 1991, the

Appeal Division annulled the decision of the Patent Office 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 patent application lacked the required level of

"inventive character" (uitvindingshoogte).

      B. Relevant domestic law and practice

      The grant and enforcement of patents in the Netherlands is

governed by the Patent Act of 1910 (Rijksoctrooiwet), as amended by the

Act of 13 December 1978 (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.

      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).

      Subject to the provisions of the 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).

      By 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.

      The Patent Office (Octrooiraad) is empowered by the Patent Act

to grant patents (Article 13).  It consists of a Central Division,

Application Division, Appeal Division and Special Division (Article

14).  Its organisation and procedure are regulated by Order in Council

(Article 15).

      Pursuant to the Patent Rules of 1921 (Octrooireglement), as

amended by Order in Council of 6 January 1979, the Patent Office

consists of a maximum of 90 ordinary and deputy members, divided into

legally qualified and technically qualified members, and of at least

12 extraordinary members appointed for five year periods.  There are

no rules governing the dismissal of ordinary members before completion

of their five year period in office, except for the internal

departmental guidelines, pursuant to which the Patent Office does not

recommend the appointment or reappointment of persons over 67, and the

Central Division of the Patent Office does not nominate persons of 69

or over as extraordinary members of Divisions.  Members are appointed

by the Crown from the rank of officials of the Industrial Property

Office (Bureau voor de Industriële Eigendom).  The ordinary and deputy

members are appointed from among the technical and legal staff of the

Patent Office.  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 members may

take part in proceedings in which they have a direct or indirect

interest or in which they are 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 (Rule 4 of the

Patent Rules and Article 14 of the Patent Act).

      The Central Division of the Patent Office is responsible for the

ad hoc formation of the Divisions (Application Division, Special

Division and Appeal Division).  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.

      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.  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 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 the Application

Division consists of three members, two shall be legally qualified

members of the Patent Office and one shall be technically qualified.

      If the Application Division refuses to grant a patent, it will

decide not to publish the application.  If a patent is granted, the

application shall be published (Article 24 para. 1 of the Patent Act).

      Appeal lies from the decision of an Application Division to an

Appeal Division.  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).

      Article 24 A lays down the formal requirements for the appeal

procedure:  the parties must be given 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.

      Pursuant to Rules 6(1) and 8 of the Patent Rules, the Central

Division sets up an Appeal Division drawn from the ordinary and

extraordinary members of the Patent Office.  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.  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.

      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).

      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 used to convince the Division of a

particular point of view.  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.

      The District 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 available

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 administrative courts.

      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.

      The new Patent Bill, which is at present before the Lower House,

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 application.

COMPLAINTS

1.    The applicant company complains that it could not appeal to an

independent and impartial tribunal, as required by Article 6 para. 1

of the Convention, against the decision of the Application Division of

the Patent Office not to publish the patent application.  In its

opinion, the Appeal Division of the Patent Office cannot be regarded

as independent and impartial, since it is part of the same

administrative body as the Application Division, the Patent Office, and

is staffed by employees of that Office.  Moreover, an appeal to a court

against a decision not to publish a patent application is not possible

under Dutch law.

2.    The applicant company also complains of a violation of Article

1 of Protocol No. 1 to the Convention in that the denial of access to

an impartial and independent tribunal in the determination of its civil

right to a patent means that the applicant is deprived of its possible

possessions without any court examination.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 27 February 1992 and registered

on 5 March 1992.

      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 case.

      After an extension of the time-limit, the Government submitted

their observations on 30 September 1992.  The applicant company's

observations were received on 29 April 1993, following three extensions

of the time-limit.

      On 30 June 1993 the Second Chamber decided to refer the case to

the Plenary Commission.

THE LAW

1.    The applicant company alleges a breach of Article 6 para. 1

(Art. 6-1) of the Convention in that the Appeal Division of the Patent

Office is allegedly not an independent and impartial tribunal.  It

further complains under Article 1 of Protocol No. 1 (P1-1) that under

these circumstances it is deprived of its possible possessions without

any court examination.

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

as relevant, as follows:

      "1.  In the determination of his civil rights and

      obligations ..., everyone is entitled to a fair and public

      hearing ... by an independent and impartial tribunal ..."

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

2.    The respondent Government contend that the applicant company has

not exhausted domestic remedies in respect of its complaints since it

has failed to seize the civil courts.  They refer in this respect to

a decision of the Supreme Court according to which an appeal lies to

the civil courts against a decision by the Crown which does not comply

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

(Hoge Raad, 6 February 1986, no. 12860, Administratiefrechtelijke

Beslissingen 1987, No. 272).  According to the Government, this finding

would be equally applicable to bodies other than the Crown should they

not fulfil the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention.

      The Government also refer to a decision of 11 July 1989 of the

President of the Regional Court of The Hague in injunction proceedings

to the effect that, should the European Commission of Human Rights or

the European Court of Human Rights find that the Patent Office is not

an independent and impartial tribunal within the meaning of Article 6

(Art. 6) of the Convention, an appeal would lie to the civil courts

regarding the question whether the decision to grant a licence was

correct (published in Bijblad Industriële Eigendom, 1990, no. 9, p.

246).  The respondent Government finally refer to the Oerlemans

judgment (Eur. Court H.R., judgment of 27 November 1991, Series A no.

219, p. 21, para. 53).  They contend that, although that case concerned

an administrative appeal, it is relevant to the present application

since, according to the case-law of the Supreme Court referred to, the

decisive factor is whether the body at issue meets the requirements of

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

      The applicant company submits that the control by the civil

courts of administrative appeals to an administrative body is limited

to a "marginal discretion" test.  Consequently, the civil courts must

accept the final decision in the administrative proceedings as res

judicata and declare the appeal inadmissible.  It points out in this

respect that Mr. Benthem (cf. Eur. Court H.R., Benthem judgment of 23

October 1985, Series A no. 97) did not seize the civil courts against

the decision of the Litigation Division of the Council of State since

this appeal would have been declared inadmissible.

      The applicant company further argues that the "post Benthem"

case-law of the Supreme Court is constituted by specific decisions

given in specific cases and cannot be applied by analogy to cases not

involving the Litigation Division of the Council of State.  It follows

that the Oerlemans judgment is of no relevance to the present case.

      The applicant company further submits that the Appeal Division

acts as a judicial body in first and last instance in view of its

exclusive competence as to techno-economical or legal questions

relating to the grant or denial of patent applications, declarations

as to earlier use and compulsory licences.  There is no appeal

available under Dutch law against a decision of the Appeal Division.

In this respect, the applicant company argues that the Government, on

whom the burden of proof lies, have failed to prove the existence of

relevant remedies pursuant to the requirements established by the

European Court of Human Rights in the De Jong, Baljet and Van den Brink

judgment (Eur. Court H.R., judgment of 22 May 1984, Series A no. 77).

In particular, the Government have not shown what remedies exist in the

present case and the decision of the President of the Regional Court

of The Hague referred to concerns injunction proceedings.  Moreover,

should such a remedy exist, it has not been submitted that it is

available, sufficiently certain and that it has the requisite

accessibility and effectiveness.

      The Commission notes that the present case concerns the right of

access to a tribunal.  The question whether or not it was possible to

submit the request for a patent to the civil courts is therefore not

a question of exhaustion of domestic remedies but a question regarding

the substance of the complaint.

      In these circumstances, the Commission finds that the application

cannot be declared inadmissible, under Article 27 para. 3 (Art. 27-3)

in conjunction with Article 26 (Art. 26) of the Convention, for non-

exhaustion of domestic remedies.

3.    The Government further submit that the application is manifestly

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

Convention.  They argue 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, as laid down in the Patent Act and the Patent Rules,

constitute sufficient safeguards for the independent and impartial

administration of justice by the Patent Office.

      The members of the Patent Office are appointed by the Crown from

the rank of officials of the Industrial Property Office.  Their

independence is furthermore guaranteed by the oath they have to take

when appointed.  This oath must also be taken by the extraordinary

members, engineers or experts in applied sciences, who are appointed

for a renewable period of five years.  Moreover, Article 3 (Art. 3) of

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.

      With regard to the composition of the Divisions of the Patent

Office, the Government point out that the manner of appointment of the

members and the duration of their appointment safeguard their

independence and impartiality.  In addition, the European Court of

Human Rights has found that the presence of technical experts in a

judicial body is not at variance with the requirements of Article 6

para. 1 (Art. 6-1) of the Convention provided that legally qualified

persons also form part of that body and that the way of appointing the

technical experts is impartial (see Eur. Court H.R, Le Compte, Van

Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25,

para. 58).

      The Government further point out that the Dutch legislator

excluded the possibility of appealing against decisions of the Appeal

Division to the Litigation Division of the Council of State under the

Administrative Decisions Appeals Act because the Appeal Division offers

sufficient guarantees as to the impartial administration of justice.

      The new Patent Bill, which is at present before the Lower House,

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 application.

      The applicant company submits that it could not appeal to an

independent and impartial tribunal, as required by Article 6 para. 1

(Art. 6-1) of the Convention, against the decision of the Application

Division of the Patent Office not to publish the patent application.

In its opinion, the Appeal Division of the Patent Office cannot be

regarded as independent and impartial, since it is part of the same

administrative body, the Patent Office, as the Application Division and

is staffed by employees of the Patent Office who work on an

interchangeable basis.  Moreover, an appeal to a court against a

decision not to publish a patent application is not possible under

Dutch law.

      Although the members of the Patent Office, except for the

substitute members, are appointed by the Crown, there is, the applicant

company submits, no guarantee against dismissal or suspension.  Their

status is therefore that of civil servants without any specific

guarantees as to their personal independence.  The applicant company

contends that the oath members of the Patent Office have to take cannot

set aside the absence of formal guarantees as to independence and

impartiality.

      The applicant company further submits that the composition of the

Appeal Division is entirely left to the Central Division's discretion

without any possibility for third parties to object.

      As to the proceedings before the Appeal Division, the applicant

company points out that the hearing before the Division is not public

and that its decisions are not pronounced in public.  In addition, the

parties only have limited access to the case-file.

      The applicant company further submits that the Application

Division merely objected to the splitting of the patent and at no time

expressed any doubts as to the patentability of the invention or as to

its level of "inventive character".  The appeal to the Appeal Division

was therefore confined to the question whether or not the Application

Division's decision that no split claim could be allowed was correct.

However, in its final decision the Appeal Division considered that the

application lacked "inventive character" and was thus not patentable.

This decision shows the Appeal Division's partiality since this point,

which was not in dispute between the parties, had not been raised

before.

      The applicant company concludes that the Appeal Division, both

by its structure and by the way it dealt with the applicant company's

case, does not meet the requirements of Article 6 para. 1 (Art. 6-1)

of the Convention.

      The Commission finds that the first issue to be decided in this

case is 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.  If this

were so, the question arises whether the applicant company had, or

could have obtained, a fair hearing by an independent and impartial

tribunal as required by that provision.

      After examination of these issues in the light of the parties'

submissions, including the question whether or not it was possible to

submit the request for a patent to the civil courts, the Commission

considers that they raise questions of fact and law of such complexity

that their determination requires an examination on the merits.  This

complaint cannot, therefore, be declared inadmissible as being

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

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

having been established, this complaint should accordingly be declared

admissible.

4.    The applicant company also complains of a violation of Article

1 of Protocol No. 1 (P1-1) in that the alleged denial of a

determination of its civil right to a patent by an independent and

impartial tribunal means that the applicant company is deprived of its

possible possessions without any court examination.

      The Commission considers that this question is so closely related

to the admissible complaint raised under Article 6 para. 1 (Art. 6-1)

of the Convention that they cannot be dissociated at this stage.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case.

Deputy Secretary to the Commission      President of the Commission

     (M. de SALVIA)                          (C.A. NØRGAARD)