AS TO THE ADMISSIBILITY OF

                      Application No. 13258/87

                      by M. & Co.

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 9 February 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  J. CAMPINOS

                  H. VANDENBERGHE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             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 3 September 1987

by M & Co. against the Federal Republic of Germany and registered on 2

October 1987 under file No. 13258/87;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to the Commission's decision of 15 December 1988

to bring the application to the notice of the respondent Government

and invite them to submit written observations on the admissibility

and merits of the application;

        Having regard to the observations submitted by the respondent

Government on 6 April 1989 and the observations in reply submitted by

the applicant on 8 May 1989;

        Having regard to the parties' submissions at the oral hearing

on 9 February 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a limited partnership (Kommanditgesellschaft)

seated in Bremen.  Its object is the import and export of goods;

inter alia, it imported hi-fi equipment manufactured by the Japanese

firm Pioneer Electronic Corporation until the end of 1977.  The

applicant is represented by its active partners (Komplementäre)

Messrs.  Jürgen Dettmers and Henning Melchers, both living in Bremen.

        The facts not disputed between the parties may be summarised

as follows.

        On 14 December 1979 the Commission of the European

Communities (EC Commission) imposed a fine of 1,450,000 European Units

of Account (i.e. 3,596,667 DM) on the applicant for having violated

Article 85 (1) of the EC Treaty.  A Belgian, a British and a French

undertaking dealing with Pioneer equipment were likewise fined.

According to the findings of the EC Commission there existed - from

the latter part of 1975 until the latter part of 1977 - a concerted

practice between the applicant and the other Pioneer importers for the

prevention of parallel imports from the Federal Republic of Germany to

France of Pioneer hi-fi equipment so that the relatively high prices

on the French market would be protected against foreign competition.

In accordance with this concerted practice the applicant had, after

having accepted an order from a German dealer, company G., refused to

deliver to this dealer the Pioneer equipment ordered by it, having, in

the meantime, received information concerning the destination of the

goods ordered.  The refusal caused substantial losses to a French firm

and, as the EC Commission pointed out, prevented French consumers from

buying a considerable amount of Pioneer equipment at more advantageous

prices.

        As to the applicant's defence that it never accepted G.'s

order, the acceptance having allegedly been declared without proper

instructions by a temporary employee, the EC Commission noted that at

the time the applicant did not invoke vis-à-vis company G. that the

order had been accepted by mistake.  Furthermore, with regard to the

argument that the refusal to sell was the consequence of normal

business considerations and contractual necessities, the EC Commission

noted that, even if the applicant did not have sufficient goods in

stock, it did not try to obtain the balance of the order from Pioneer,

where plenty of goods were available, or start negotiations for a

reduced order.

        The applicant and the co-accused companies took the case to

the EC Court of Justice requesting this Court to set aside the

EC Commission's decision of 14 December 1979.  In the proceedings

before the Court of Justice the applicant was represented by Messrs.

Bellis and van Bael, lawyers in Brussels.  After a hearing of

witnesses on 18 September 1981 and an oral hearing on 30 November 1982,

the Court of Justice on 7 June 1983 annulled the EC Commission's

decision insofar as it stated that the concerted practice exceeded the

period of end of January / beginning of February 1976.  It reduced the

applicant's fine to 400,000 European Units of Account (= 992,892 DM)

and dismissed the remainder of the action.

        Before the European Court of Justice the plaintiff companies

had inter alia alleged:

        a) that the EC Commission acted both as a prosecuting and

decision-making authority;

        b) that they had not been informed about all charges which

were determined in the EC Commission's decision;

        c) that the EC Commission had not made available for

examination all documents on which it later based its decision;

        d) that the observations of the Advisory Committee (on

Restrictive Practices and Monopolies) had not been communicated to

them.

        As to complaint a) the Court of Justice stated that the EC

Commission was not a 'court' within the meaning of Article 6 of the

European Convention on Human Rights.  Nevertheless, in the

administrative proceedings which it carried out the EC Commission

did have to respect certain procedural principles inherent in the

Community law.  Consequently, before taking a decision the EC

Commission had, in accordance with Article 19 (1) of EC Regulation

No. 17, to give the parties concerned the opportunity to submit their

observations on the charges raised against them.  Also, according to

Article 4 of Regulation No. 99/63 the EC Commission could determine

only those charges with regard to which the undertaking concerned had

the opportunity to defend itself.  The provisions mentioned reflected

the fundamental principle in Community law according to which in all

proceedings, including administrative proceedings, the parties had to

be heard and be given the opportunity to state their observations on

the facts and the law.

        As regards complaint b) the Court of Justice found that the

EC Commission had not informed the plaintiff companies adequately

about the period in which the contravention had allegedly been

committed.  Initially the Commission had indicated it would examine

whether contraventions had been committed during the period end of

January / beginning of February 1976, while in its decision it found

that the concerted practice already began towards the end of 1975.

        As regards complaint c) the Court of Justice noted that some

of the documents relied on by the EC Commission had not been made

available to the plaintiffs.  These documents, however, related to

circumstances of little importance for the determination of the

charges.  The Court added that, in any event, it did not take these

documents into consideration when examining whether or not the EC

Commission's decision was well founded.

        As regards complaint d) the Court of Justice found that

Article 10 (6) of EC Regulation No. 17, which provides that the

Advisory Committee's opinions are not published, cannot be interpreted

as allowing a confidential communication of such opinions to the

undertakings concerned.

        As to the applicant's substantive complaints, the Court of

Justice found that the EC Commission's decision did not disclose any

error of law or facts, and that there was sufficient evidence that the

applicant company refused to sell goods ordered for the French market.

        As to the calculation of the fine, the Court of Justice

considered that the EC Commission wrongly took into consideration

only the applicant's total turnover and no other factors such as

quantity and value of the goods which were the object of the

contravention, size and economic power of the contravening

undertaking.  The fine was therefore reduced by the Court of Justice,

inter alia, in view of the fact that the period of the concerted

practice was shorter than that indicated in the EC Commission's

decision.

        Insofar as the applicant had alleged that its managing

partners were not aware of the incriminating practice and the refusal

to sell, the Court of Justice pointed out that an undertaking is

liable for all persons who are authorised to act on its behalf and

that there was nothing to show that the applicant's representatives

had acted ultra vires.

        Subsequent to the pronouncement of the Court of Justice's

judgment the applicant tried to prevent the Federal Minister of

Justice from issuing a writ of execution.  Its efforts, i.e. various

court actions, were, however, to no avail and eventually, on 22

January 1985, a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) dismissed a constitutional complaint

as partly offering no prospects of success and partly being

inadmissible.  Insofar as the applicant had requested the Federal

Constitutional Court to declare that the issuing of a writ of

execution would violate constitutional rights, the Constitutional

Court considered the complaint to be inadmissible for non-exhaustion

of ordinary remedies as the applicant had only sought injunctive

relief preventing the (future) issue of a writ of execution whilst

an action against such a writ, once it was issued, was an

adequate and effective remedy allowing the applicant to have the

German courts determine the question whether the issue was lawful and

in accordance with Article 192 (2) second sentence of the Treaty of

Rome.

        Meanwhile, on 4 January 1985 the writ of execution was

issued.

        The applicant then brought an action for damages against the

Federal Republic of Germany represented by the Federal Minister of

Justice.  It argued that the Minister had wrongly issued a writ of

execution because the judgment of the European Court of Justice

violated constitutional rights in that

        - it based its decision on pre-trial statements of a witness

which that witness revoked when heard by the Court.  This violated the

principle in dubio pro reo;

        - it fined the applicant on the basis of faults committed by

employees but not the managing partners.  This violated the principle

nulla poena sine culpa;

        - the managing partners were not heard personally.  This was

contrary to Article 103 (1) of the Basic Law (Grundgesetz) and

Article 6 para. 3 (c) of the Convention;

        - the amount of the fine was disproportionate and excessive.

        On 2 October 1985 the Bonn Regional Court (Landgericht)

dismissed the action.  The Regional Court pointed out that it followed

from the jurisprudence of the European Court of Justice that this

Court applied as an inherent part of Community law those fundamental

rights that are generally recognised in the legal orders of the member

States of the EC.  Nevertheless, the Regional Court considered that

the issuing of a writ of execution in accordance with Article 192 (1)

of the Treaty of Rome had to be denied by the competent German

authorities if the judgment which was to be executed violated the very

essence (Wesensgehalt) of German constitutional law.  However, there

was no such violation in the applicant's case.

        Insofar as the applicant invoked the principle in dubio pro

reo, its arguments simply questioned the Court of Justice's

appreciation of the evidence and were therefore irrelevant as German

authorities were not competent to examine whether or not the Court of

Justice had committed errors of law or fact.

        Insofar as the applicant complained that its managers were not

heard personally, the Regional Court considered that the applicant's

right to be heard had been complied with in that it had every

opportunity to defend its case via its counsel.

        Insofar as the applicant had invoked the principle nulla poena

sine culpa, the Regional Court stated that a fine on account of a

violation of anti-trust legislation was justified only if the person

fined was responsible for the violation in question.  As for legal

persons, he who acts on their behalf is of necessity responsible for

them.  Therefore, a legal person could be held responsible not only

for acts or omissions of its partners and managing directors but also

of other employees in a leading position.  Finally, the Regional Court

found no violation of the principle of proportionality.

        The applicant's appeal on points of law (Sprungrevision)

against the Regional Court's judgment was rejected by the Federal

Court (Bundesgerichtshof) on 25 September 1986 as being inadmissible.

The Court considered that the case did not raise an issue of general

importance as the judgment of the European Court of Justice did not

violate any of the applicant's constitutional rights.  Therefore the

applicant's argument was irrelevant that the Minister of Justice,

before issuing a writ of execution in accordance with Article 192 (2)

of the Treaty of Rome, had to examine whether or not the Court of

Justice's judgment conformed with domestic constitutional law.

        On 10 April 1987 a group of three judges of the Federal

Constitutional Court rejected as offering no prospects of success the

applicant's constitutional complaint against the Federal Court's

decision and against the writ of execution.  It is pointed out in the

decision that the Court of Justice's jurisprudence adequately

implements the guarantee of fundamental rights and that therefore

there is no obligation for German authorities to examine whether or

not a judgment of this Court conforms with German constitutional law

before issuing a writ of execution.

COMPLAINTS

        The applicant repeats the complaints already raised in the

domestic proceedings.  It considers that convicting or fining an

employer for a wrong committed by an employee violates the principle

nulla poena sine culpa.  To assume until proven to the contrary that

a fault was committed by the employee(s) in the course of his/their

operational tasks, would violate the presumption of innocence.

        Furthermore, the applicant alleges a violation of the

principle in dubio pro reo, in that the Court of Justice did not take

into account that the principal witness, who had initially

incriminated the applicant, later revoked his statements and declared

under oath that he had made them to protect his own interests.

        Finally, the applicant complains that its managing partners

were not allowed to participate in the proceedings before the Court of

Justice, to put questions to the witnesses and to defend themselves

personally.

        The applicant invokes Articles 1 and 6 paras. 2 and 3 (c) of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 3 September 1987 and

registered on 2 October 1987.

        On 15 December 1988 the Commission decided to invite the

respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of

Procedure, to submit written observations on the application before

3 March 1989.  At the respondent Government's request the time-limit

was extended to 19 April 1989.  The Government's observations were

submitted on 12 April 1989.

        The applicant company was invited to submit observations in

reply before 2 April 1989.  Following an extension of the time-limit

the applicant company's observations were submitted on 17 May 1989.

        On 7 September 1989 the Commission decided to hold a hearing.

At the hearing on 9 February 1990 the parties were represented as

follows:

For the Government

Mr.  J. Meyer-Ladewig, Agent, Federal Ministry of Justice

MM. Teske and Stöcker, Advisers, both of the Federal Ministry of Justice

For the applicant

Mr.  Jürgen Dettmers, lawyer and partner of the applicant company

THE LAW

        The applicant company complains that the German authorities

issued a writ for the execution of a judgment of the European Court of

Justice according to which it has to pay a heavy fine for having

violated Article 85 of the EC Treaty.  The applicant company mainly

submits that in its case the Court of Justice violated the principle

of presumption of innocence as guaranteed by Article 6 para. 2

(Art. 6-2) of the Convention by fining its associates for a wrong

committed without their knowledge by an employee.  Furthermore the

applicant company considers the right of every accused to defend

himself in person as guaranteed by Article 6 para. 3 (c) (Art. 6-3-c)

of the Convention as being  violated.

        According to the applicant company the respondent

State's obligation to secure the rights guaranteed by the

Convention has absolute priority over any other treaty obligations.

Therefore the competent Minister, before issuing a writ of execution,

should examine whether or not the judgment of the European Court of

Justice had been given in proceedings respecting the guarantees set

out in Article 6 (Art. 6) of the Convention.  As this was not the case

the granting of the writ of execution, so the applicant company

argues, gave effect to the violations complained of and therefore

violated  the provisions invoked.

        The respondent Government argue that the Federal Republic of

Germany is not responsible under the Convention for acts and decisions

of the European Communities.  The Federal Minister of Justice, in

granting a writ of execution for a judgment of the European Court of

Justice, did not have to examine whether the judgment in question had

been reached in proceedings compatible with fundamental rights

guaranteed by the European Convention on Human Rights or the German

Basic Law.  He only had to examine whether the judgment was authentic.

Therefore he neither had to determine a civil right, nor a criminal

charge within the meaning of Article 6 (Art. 6) of the Convention.

        Furthermore, the Federal Republic's responsibility under the

Convention could not be derived from the fact that it transferred part

of its powers to the European Communities.  Otherwise all Community

acts would indirectly be subject to control by the Convention organs.

However, such a result would not be compatible with the generally

accepted principle that the Convention did not apply to the European

Communities and would become binding for them only if they formally

adhered to it.  In this context the respondent Government also point

out that, in any event, observance of fundamental rights is secured by

the European Court of Justice.  Even if it should be found that

national authorities nevertheless also remained bound to control

Community acts as to manifest and flagrant violations of fundamental

rights, such a control had, in the present case, been effected by the

German civil courts which had found no appearance of such a violation.

        The Commission first recalls that it is in fact not competent

ratione personae to examine proceedings before or decisions of organs

of the European Communities, the latter not being a Party to the

European Convention on Human Rights (see No. 8030/77, CFDT v. European

Communities, Dec. 10.7.78, DR 13 p. 231; No 13539/88, Dufay v.

European Communities, Dec. 19.1.89).  This does not mean, however, that

by granting executory power to a judgment of the European Court of

Justice the competent German authorities acted quasi as Community

organs and are to that extent beyond the scope of control exercised by

the Convention organs.  Under Article 1 (Art. 1) of the Convention the

Member States are responsible for all acts and omissions of their

domestic organs allegedly violating the Convention regardless of

whether the act or omission in question is a consequence of domestic

law or regulations or of the necessity to comply with international

obligations (cf. mutatis mutandis No. 6231/73, Ilse Hess v. United

Kingdom, Dec. 28.5.75, D.R. 2 p. 72 [74]).

        The question therefore is whether by giving effect to a

judgment reached in proceedings that allegedly violated Article 6

(Art. 6) the Federal Republic of Germany incurred responsibility under

the Convention on account of the fact that these proceedings against

a German company were possible only because the Federal Republic has

transferred its powers in this sphere to the European Communities.

        For the purpose of the examination of this question it can be

assumed that the anti-trust proceedings in question would fall under

Article 6 (Art. 6) had they been conducted by German and not by European

judicial authorities (cf. Eur. Court H.R., Öztürk judgment of

8 December 1983, Series A no. 73, paras. 46-56; No. 11598/85, Dec.

11.7.89).

        It has next to be observed that the Convention does not

prohibit a Member State from transferring powers to international

organisations.  Nonetheless, The Commission recalls that "if a State

contracts treaty obligations and subsequently concludes another

international agreement which disables it from performing its

obligations under the first treaty it will be answerable for any

resulting breach of its obligations under the earlier treaty" (cf.

N° 235/56, Dec. 10.6.58, Yearbook 2 p. 256 (300)).  The Commission

considers that a transfer of powers does not necessarily exclude a

State's responsibility under the Convention with regard to the

exercise of the transferred powers.  Otherwise the guarantees of the

Convention could wantonly be limited or excluded and thus be deprived

of their peremptory character.  The object and purpose of the

Convention as an instrument for the protection of individual human

beings requires that its provisions be interpreted and applied so as

to make its safeguards practical and effective (cf. Eur. Court H.R.,

Soering judgment of 7 July 1989, Series A no. 161, para. 87).

Therefore the transfer of powers to an international organisation is

not incompatible with the Convention provided that within that

organisation fundamental rights will receive an equivalent protection.

        The Commission notes that the legal system of the

European Communities not only secures fundamental rights but also

provides for control of their observance.  It is true that the

constituent treaties of the European Communities did not contain a

catalogue of such rights.  However, the Parliament, the Council and

the Commission of the European Communities have stressed in a joint

declaration of 5 April 1977 that they attach prime importance to the

protection of fundamental rights, as derived in particular from the

Constitution of the Member States and the European Convention for the

Protection of Human Rights and Fundamental Freedoms.  They pledged

that, in the exercise of their powers and in pursuance of the aims of

the European Communities, they would respect and continue to respect

these human rights (Official Journal of the European Communities, XX,

1977, Information and Notices, No. C 103/I).  In addition the Court of

Justice of the European Communities has developed a case-law according

to which it is called upon to control Community acts on the basis of

fundamental rights, including those enshrined in the European

Convention on Human Rights.  In accordance with this reasoning the

Court of Justice underlined in the present case that the right to a

fair hearing is a fundamental principle of Community law.  It stated

that Community law contained all criteria which are prerequisites not

only to examine but, if necessary, to remedy the applicant company's

complaint that its right to a fair hearing was violated (see p. 76 of

the judgment).  However, it came to the conclusion that this complaint

was unfounded.

        The Commission has also taken into consideration that it

would be contrary to the very idea of transferring powers to an

international organisation to hold the member States responsible for

examining, in each individual case before issuing a writ of execution

for a judgment of the European Court of Justice, whether Article 6

(Art. 6) of the Convention was respected in the underlying proceedings.

        It follows that the application is incompatible with the

provisions of the Convention ratione materiae and must be rejected in

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

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

      (H.C. KRÜGER)                             (C.A. NØRGAARD)