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ZENTRALSPARKASSE und KOMMERZIALBANK A.G. v. AUSTRIA

Doc ref: 18623/91 • ECHR ID: 001-1253

Document date: December 2, 1991

Inbound citations: 2
•
Cited paragraphs: 0
•
Outbound citations: 1

ZENTRALSPARKASSE und KOMMERZIALBANK A.G. v. AUSTRIA

Doc ref: 18623/91 • ECHR ID: 001-1253

Document date: December 2, 1991

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 18623/91

by ZENTRALSPARKASSE und KOMMERZIALBANK A.G.

against Austria

The European Commission of Human Rights sitting in private on

2 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 11 February 1991

by ZENTRALSPARKASSE und KOMMERZIALBANK A.G. against Austria and

registered on 1 August 1991 under file No. 18623/91;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

18263/91- 2 -

THE FACTS

The applicant company has its registered office in Vienna. It

is represented by Mr. W.-D. Arnold, a lawyer practising in Vienna.

On 23 March 1990 the applicant company, as a defendant in civil

proceedings, obtained a judgment given by the Vienna Regional Court

(Landesgericht) ordering the plaintiff to pay the costs of the

proceedings in question in the amount of 23,753.40 AS. According to

the findings of the Court the plaintiff's action originally aimed at

obtaining information from the defendant whether it had in its

possession personal data relating to him and, if so, what kind of

personal data. In the course of the proceedings the information

requested was given and the plaintiff declared the action to be without

object requesting only a decision on costs. The decision on costs was

based on the finding that the plaintiff had not complied with his

obligation to furnish the defendant company with copies of

advertisements he had received showing that the defendant company was

in possession of a computerised file with his address.

On appeal (Rekurs) the Vienna Court of Appeal (Oberlandesgericht)

amended the judgment of 23 March 1990 to the effect that the defendant

company had to reimburse the plaintiff's costs in the amount of 24,010

AS. The Court of Appeal considered that the plaintiff had substantiated

his request vis-à-vis the defendant company within a reasonable time.

In fact, prior to bringing the action he had informed the defendant of

the computer registration number used in the correspondence sent to him

and he had furthermore submitted the originals of the letters in

question, together with his first memorial of 18 August 1988. The

defendant had however not complied with the plaintiff's claim before

16 November 1989. Even though the defendant company had only rented

the computerised file containing the applicant's address, it had been

obliged under the Act on Data Protection (Datenschutzgesetz) to give

the information requested as soon as the plaintiff's memorial had been

filed.

The Court of Appeal also decided that the defendant company's

appeal on points of law (Revisionsrekurs) was inadmissible. This

judgment of 7 September 1990 was received by the applicant company's

counsel on 26 September 1990.

COMPLAINTS

The applicant company submits that the Court of Appeal's decision

was rendered without a hearing. It had not been given the possibility

to submit observations in reply to the plaintiff's appeal. The

applicant company considers that Article 6 of the Convention was

thereby violated.

- 3 -18623/91

THE LAW

The applicant company complains about proceedings related solely

to the question which of the parties to civil proceedings has to pay

the procedural costs including the costs of the opponent. However,

Article 6 (Art. 6) does not apply to proceedings in which the merits

of the case are not decided but only the subsidiary issue of which

party is to bear the costs (cf. No. 12446/86, Dec. 5.5.88 and No.

10757/84, Dec. 13.7.88). The application therefore has to be rejected

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as

being incompatible with its provisions ratione materiae.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

LEXI

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