CEDH · CASELAW;REPORTS;ENG — 14 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }      EUROPEAN COMMISSION OF HUMAN RIGHTS   SECOND CHAMBER   Application No. 15269/89   Josef MÜLLER AG   against   SWITZERLAND   REPORT OF THE COMMISSION   (adopted on 14 October 1991)   TABLE OF CONTENTS                                               PAGE   I.       INTRODUCTION       (paras. 1 - 15) ........................................     1         A.       The application            (paras. 2 - 4) .................................     1         B.       The proceedings            (paras. 5 - 10) ................................     1         C.       The present Report            (paras. 11 - 15) ...............................     2     II.      ESTABLISHMENT OF THE FACTS       (paras. 16 - 50) .......................................     3         A.       The particular circumstances of the case            (paras. 16 - 45) ...............................     3              a.   Period between 1981 and 1982                (paras. 17 - 34) ...........................     3              b.   Period between 1983 and 1987                (para. 35) .................................     5              c.   Period between 1988 and 1990                (paras. 36 - 45) ...........................     6         B.       Relevant domestic law and practice            (paras. 46 - 50) ...............................     7     III.     OPINION OF THE COMMISSION       (paras. 51 - 82) .......................................     9         A.       Complaint declared admissible            (para. 51) .....................................     9         B.       Point at issue            (para. 52) ....................................      9         C.       Applicability of Article 6 para. 1 of the            Convention            (paras. 53 - 66) ...............................     9         D.       Compliance with Article 6 para. 1 of the            Convention            (paras. 67 - 81) ...............................    11              a.   Period to be considered                (paras. 68 - 72) ...........................    11              b.   Reasonableness of the length                of the proceedings                (paras. 73 - 81) ...........................    12          E.      Conclusion            (para. 82) .....................................    13     DISSENTING OPINION OF MR. A. WEITZEL                      14     APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................    15     APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............    16   I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant company is a stock corporation (Aktien- gesellschaft) with its seat in Zurich.   Before the Comission it is represented by Mr.   J. Müller, the President of the board (Verwaltungs- rat) of the applicant company.   3.       The application is directed against Switzerland.   The Government are represented by their Deputy Agent, Mr.   Ph.   Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice.   4.       The case concerns the complaint of the applicant company under Article 6 para. 1 of the Convention that court proceedings concerning an authorisation to distribute and undertake wholesale commerce of an ointment lasted too long.     B.       The proceedings   5.       The application was introduced on 14 July 1989 and registered on 20 July 1989.   6.       On 5 March 1990 the Commission decided to give notice of the application to the respondent Government and to invite them to present their observations in writing on the admissibility and merits of the application limited to the issue under Article 6 para. 1 of the Convention concerning the length of the proceedings.   7.       The Government's observations were submitted on 8 May 1990. The applicant company submitted its observations in reply on 11 June 1990.   8.       On 7 November 1990 the Commission, having consulted the parties, decided to refer the application to the Second Chamber.   9.       On 5 December 1990 the Commission (Second Chamber) declared the application admissible insofar as it related to the applicant company's complaint under Article 6 para. 1 of the Convention about the length of the proceedings.   The remainder of the application was declared inadmissible.   10.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 20 December 1990 and 4 April 1991.   The Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   11.      The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   G. SPERDUTI, Acting President of the Second Chamber              S. TRECHSEL              G. JÖRUNDSSON              A. WEITZEL              H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.   F. MARTINEZ            Mrs.   J. LIDDY            MM.   J.-C. GEUS              M.P. PELLONPÄÄ   12.      The text of this Report was adopted on 14 October 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found disclose       a breach by the State concerned of its obligations under       the Convention.   14.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the Application as Appendix II.   15.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   16.      On 25 May 1976 the Direction of Health (Gesundheitsdirektion) of Canton Zurich granted the applicant company the authorisation to "produce as a salaried commission, and to undertake wholesale commerce (agency) in respect of the product 'Less Rheuma ointment'" ("das Präparat 'Less Rheuma-Heilsalbe' im Lohnauftrag herstellen zu lassen und Grosshandel [Vermittlung] damit zu betreiben"; see below, Relevant domestic law and practice).   The authorisation of 25 May 1976 which was granted under various conditions expired on 31 December 1980.   The ointment was supervised by and registered with, the Intercantonal Control Office for medicaments (Interkantonale Kontrollstelle für Heilmittel) for a period lasting until 31 December 1979.         a.   Period between 1981 and 1982   17.      On 3 February 1981 an inspector of the Cantonal Pharmacy (Kantonsapotheke) inspected a storage room of the applicant company where he found defect tubes of the "Less Rheuma ointment".   18.      On 13 February 1981 the Zurich Cantonal Pharmacist informed the applicant company that the authorisation granted on 25 May 1976 had expired.   The company was requested to provide information inter alia as to certain defects in the package material of the ointment.   19.      On 20 February 1981 the applicant company filed a request for a prolongation of the expired authorisation.   It thereby stated that it undertook the marketing (Vertrieb) of the product and was neither the producer nor the manufacturer of the product which was prepared and packed elsewhere.   20.      On 11 March 1981 the Cantonal Pharmacist again requested information until 27 March 1981 from the applicant company as to the production, control, packing, storing and delivery of the ointment and the measures undertaken to protect its quality.   21.      On 28 and 30 March 1981 the applicant company replied that it was registered in Canton Zurich as a wholesale pharmaceutical commerce (Pharma-Grossist).   It neither produced the ointment nor did it maintain a production plant, and it was not in a position to give details about production.   The Cantonal Pharmacist was also not competent to request information as to the registration of medicaments as this fell solely to the Intercantonal Control Office.   22.      On 24 April 1981 the Zurich Direction of Health issued an order (Verfügung) in which it refused the applicant company's request for a prolongation of the authorisation for wholesale commerce (agency) of the ointment.   The Direction considered in particular that details would have to be supplied as to the exact circumstances of production and marketing of the ointment.   In the present case the conditions for granting a marketing authorisation (Vertriebs- bewilligung) had not been met.   The Direction of Health also imposed costs of 100 SFr. on the applicant company. 23.      On 19 June 1981 the applicant company filed an appeal (Rekurs) against this decision with the Zurich Council of State (Regierungsrat) in which it requested inter alia the prolongation of the authorisation for the wholesale commerce (Grosshandel) of the ointment.   Therein it referred to its position as a marketing company.   24.      On 26 August 1981 the Council of State dismissed the appeal. It noted that since 1 January 1980 the ointment was not longer validly registered with the Intercantonal Control Office and that a renewed registration now seemed improbable as the circumstances of production were unknown.   An authorisation for the marketing (Vertrieb) of the ointment through a wholesale distributor (Verteiler-Grossist) was therefore inadmissible.   The Council of State concluded that for this reason even during the appeal proceedings the marketing of the ointment was prohibited.   The Council of State also imposed costs of 500 SFr. on the applicant company.   25.      Against this decision the applicant company filed on 4 October 1981 an appeal (Beschwerde) with the Zurich Administrative Court (Verwaltungsgericht).   26.      On 22 June 1982 the Administrative Court partly upheld the applicant company's appeal.   It referred the case-file for further investigation and for renewed decision along the lines of its decision back to the Council of State.   27.      In its decision the Court observed that the Council of State had mainly considered that the applicant company had applied for an authorisation as a wholesale distributor (Verteiler-Grossist) within the meaning of No. 3 para. 4 of the 1976 Guidelines (see below, Relevant domestic law and practice).   In this case the Council of State could have justifiably refused the authorisation.   28.      However, it was not clear whether the applicant company had only applied for an authorisation as a wholesale distributor.   The authorisation of 25 May 1976 had entitled the applicant company until 31 December 1980 to produce as a salaried commission, and to undertake wholesale commerce in respect of the ointment concerned.   The applicant company thus had the authorisation of a marketing firm according to No. 3 para. 5 of the 1976 Guidelines which entitled it to register the ointment with the Intercantonal Control Office.   In its reply of 28 and 30 March 1981 the applicant company had told the Cantonal Pharmacist that it was a marketing rather than a production company (eine Vertriebs- und nicht eine Herstellerfirma).   The Zurich Direction of Health had also concluded on 24 April 1981 that the conditions for a marketing authorisation had not been met.   In his appeal of 19 June 1981 the applicant company had again referred to itself as a marketing company (Vertriebsfirma).   29.      The Court concluded that the Council of State should have granted the applicant company the opportunity to clarify its request. It therefore partly upheld the appeal of the applicant company.   In referring the case-file back to the Council of State, the Court considered that if the applicant company no longer wanted a renewal of the authorisation as a wholesale marketing company, the proceedings would become irrelevant.   On the other hand, if the applicant company insisted on such an authorisation, the Council of State would have to examine whether the conditions were met.   The Court could not prejudice such a decision.   30.      The applicant company filed a request for review (Revision) of this decision of the Administrative Court which the latter dismissed on 7 June 1983.   31.      On 10 November 1982, the applicant company filed a public law appeal (staatsrechtliche Beschwerde) which was declared inadmissible by the Federal Court (Bundesgericht) on 10 January 1984.   In its public law appeal the applicant company stated that it had not applied for the authorisation as a marketing firm within the meaning of No. 3 paras. 4 and 5 of the 1972 guidelines.   32.      Meanwhile, as a result of the decision of the Zurich Administrative Court, the Zurich Council of State requested the applicant company on 26 October 1982 to file within ten days the necessary further information for its appeal.   The request was served on the applicant company on 19 November 1982.   33.      The Council of State informed the applicant company in particular as follows:   <German>   "Sollte sie nicht innert Frist einen unmissverständlichen Antrag auf Erteilung einer Bewilligung für den Grosshandel als Vertriebsfirma stellen, wäre bei der weiteren Rekursbehandlung davon auszugehen, es sei ein Gesuch um Erteilung der Bewilligung zum Grosshandel als Verteiler- Grossist gestellt worden."   <Translation>   "If (the applicant company) does not file within the time-limit an unambiguous request to be granted an authorisation for the wholesale commerce as a marketing firm, it would have to be assumed when further dealing with the appeal that a request had been filed to be granted an authorisation as a wholesale distributor."   34.      On 24 November 1982 the applicant company replied that it requested "the authorisation for the wholesale commerce as a marketing firm to be prolonged" ("die Grosshandelsbewilligung als Vertriebsfirma zu verlängern").         b.   Period between 1983 and 1987   35.      There were no developments during this period.         c.   Period between 1988 and 1990   36.      In a letter of 17 March 1988 to the Intercantonal Control Office, the applicant company complained that for five and a half years it had been waiting to be granted the authorisation for a marketing firm;   if the authorisation was not granted very soon, the applicant company would complain to the Federal Court about the delay.   37.      On 20 June 1988 the Cantonal Pharmacist wrote to the Intercantonal Control Office explaining, inter alia, that it appeared from the letter of 17 March 1988 that the applicant company was awaiting the renewal of the authorisation and that the Cantonal Pharmacist was willing to grant this authorisation if the applicant company complied with the necessary conditions.   The Intercantonal Control Office was requested to undertake the necessary inspections.   38.      On 9 September 1988 the applicant company filed a public law appeal with the Federal Court in which it complained of the delay in the proceedings.   The applicant company referred therein to the letter of the Cantonal Pharmacy of 20 June 1988 as showing the Zurich authorities knew that the applicant company was waiting for the authorisation.   The applicant company complained inter alia that the delay of six years breached the right to a fair and public hearing within a reasonable time within the meaning of Article 6 of the Convention.   39.      On 28 October 1988 the Zurich Direction of Health informed the Federal Court that while on 24 November 1982 the applicant company had indeed asked the Council of State for the authorisation as a marketing company, two weeks earlier in its public law appeal to the Federal Court of 10 November 1982 it had stated that it had never asked for an authorisation as a marketing company within the meaning of No. 3 paras. 4 and 5 of the 1972 Guidelines.   The Direction of Health observed that in view of this about-change (Kehrtwendung) the Council of State did not for the time being pursue the proceedings.   Meanwhile, the matter had been taken over by the Intercantonal Control Office which had arranged an inspection with the applicant company on 8 November 1988.   40.      On 19 December 1988 the Federal Court declared the applicant company's public law appeal inadmissible.   The Court, which noted that the applicant company had continued to act as a marketing firm for the ointment, regarded in principle the public law appeal against the inactivity of the Council of State as admissible.   However, according to its case-law the applicant company could no longer claim a practical interest in its public law appeal since the Cantonal Pharmacy with its letter of 20 June 1988 had again taken up the procedure for the Council of State (see below, Relevant domestic law and practice).   41.      According to a subsequent letter of 30 May 1990 of the Federal Court to the applicant company, the decision of 19 December 1988 was served on the applicant on 19 January 1989.   The Federal Court further confirmed "that before this date no operative part of the decision had separately been served (on the applicant company)" ("dass Ihnen vor diesem Datum kein Urteilsdispositiv separat eröffnet worden ist"). 42.    Meanwhile, on 16 May 1989 the Zurich Direction of Health issued an order according to which the applicant company was granted, until 31 December 1993, the authorisation to "produce as a salaried commission, and to undertake wholesale commerce (agency) in respect of   ... the 'Less Rheuma ointment'" ("im Lohnauftrag herstellen zu lassen und Grosshandel <Vermittlung> damit zu betreiben").   43.      On 11 April 1990 the Zurich Council of State decided to strike the appeal of the applicant company of 19 June 1981 off its list of cases (gegenstandlos geworden), as the applicant company had been granted the authorisation for a marketing firm.   The Council of State further cancelled the imposition of costs of its decision of 26 August 1981 and of the order of the Zurich Direction of Health on 24 April 1981.   44.      On 21 May 1990 the applicant company appealed against this decision to the Zurich Administrative Court, claiming inter alia that it should be granted compensation for the expenses of the proceedings.   45.      On 13 July 1990 the Zurich Administrative Court dismissed the appeal stating that it could only grant compensation if the authority concerned had acted arbitrarily or negligently.   This could not be said of the order of the Zurich Direction of Health of 24 April 1981.     B.       Relevant domestic law and practice   46.      The preparation and sale of medicaments falls under the constitutional right to freedom of commerce (Handels- und Gewerbefreiheit) as enshrined in Article 31 of the Swiss Federal Constitution (Bundesverfassung).   This provision protects any private activity directed towards gain (Erwerb), in particular commerce with medicaments (see Arrêts du Tribunal Fédéral [ATF] 111 Ia 186).   The Cantons may restrict this right on police grounds (polizeiliche Gründe), namely for the protection of public health and security (see e.g.   ATF 106 Ia 267).   These police restrictions must also respect the principle of proportionality and the equality of the persons engaged in the commerce.   47.      If a commercial activity requires for police reasons a police authorisation (Polizeibewilligung), the police authority will state, upon application, whether there are obstacles to the activity.   48.      In the Canton of Zurich the Direction of Health authorises the preparation and sale of the medicaments.   As regards the health police restrictions, the applicant must offer guarantees as to the preparation, storing, control and sale of the medicament.   49.      According to Article 8bis of the 1972 Regulative Order on the Execution of the Intercantonal Agreement on the Control of Medicaments (Regulativ über die Ausführung der interkantonalen Vereinbarung über die Kontrolle der Heilmittel) and No. 3 para. 1 of the 1976 Guidelines of the Intercantonal Control Office for the Wholesale Commerce of Medicaments (Richtlinien betreffend den Grosshandel mit Arzneimitteln), wholesale commerce is to be understood as the agency (Vermittlung) of   medicaments towards firms and persons who are entitled to store the medicaments, further to sell them or professionaly to apply them. According to No. 3 para. 4 of the Guidelines, wholesale dealers (Grosshändler) whose activities are confined to distributional functions are considered as wholesale distributors (Verteiler-Grossisten), whereas according to No. 3 para. 5 wholesale dealers, who have registered medicaments with the International Control Office, are considered as marketing companies (Vertriebsfirmen).   50.      Article 4 of the Swiss Federal Constitution, which enshrines the principle of equality, has been interpreted by the Federal Court as prohibiting the denial of justice as well as delays in proceedings (Verbot der Rechtsverweigerung und Rechtsverzögerung, see ATF 103 V 190).   However, the Federal Court will not deal with such a complaint if, during its proceedings, the authority concerned has given its decision or resumed the proceedings;   the Federal Court then considers that the applicant no longer has a practical interest in his case (see ATF 110 Ia 141).   III.   OPINION OF THE COMMISSION     A.       Complaint declared admissible   51.      The Commission has declared admissible the applicant company's complaint under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the proceedings.     B.       Point at issue   52.      Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     C.       Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   53.      The first issue to be decided is whether Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue.   54.      Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant:   "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."   55.      With regard to the existence of a "civil right" within the meaning of of Article 6 para. 1 (Art. 6-1) of the Convention the applicant company considers that, except if there had been good reasons to the contrary, the authorisation concerned should have been renewed automatically.   However, in the present case the Direction of Health unilaterally and unfairly refused to renew the authorisation. Moreover, following the decision of the Zurich Administrative Court of 22 June 1982, the Zurich Council of State was obliged to grant the authorisation.   56.      The respondent Government submit, with reference to the Benthem case (see Eur.   Court H.R., judgment of 23 October 1985, Series A no. 97, p. 14 et seq., paras. 30 et seq.), that, for Article 6 para. 1 (Art. 6-1) of the Convention to apply, there must be a dispute concerning a right which must also be of a civil character.   In the present case, the authorisation concerned was a police authorisation (see above Relevant domestic law and practice) which has a predominantly public law character.   Moreover, the applicant company's previous authorisation expired on 31 December 1980.   The present application concerns the applicant company's new request of 20 February 1981, rather than a modification of the previous one.   There was, therefore, also no right involved.     57.      In the examination of whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable in the case, the Commission has first considered whether there was a dispute ("contestation") over a right.   58.      The Commission is not called upon to rule on the general question of a right in Switzerland to obtain an authorisation to deal with products such as the medical ointment at issue.   On the other hand, the applicability of Article 6 para. 1 (Art. 6-1) is not excluded solely by the fact that the dispute at issue concerned the applicant company's request for the prolongation of an authorisation which had previously expired.   59.      The Commission recalls that the "rights" referred to in Article 6 para. 1 (Art. 6-1) are those which can be said, at least on arguable grounds, to be recognised under domestic law.   This provision does not in itself guarantee a particular content of the substantive rights recognised in the laws of the Contracting States (see Eur.   Court H.R., Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). Furthermore, the dispute ("contestation") concerning a right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention may relate not only to the actual existence of a right but also to its scope or the manner in which it may be authorised.   The dispute will moreover cover all proceedings the result of which is directly decisive for the applicant's rights and obligations (see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, pp. 14-15, para. 32).   60.      In the present case the applicant company's authorisation to deal with the ointment concerned expired on 31 December 1980.   On 20 February 1981 the applicant company filed a request for prolongation of the authorisation.   Following the decision of the Zurich Administrative Court of 22 June 1982, the Zurich Council of State was called upon to determine whether the applicant company had filed a request for an authorisation for the wholesale commerce as a marketing firm, or merely as a wholesale distributor (see above, para. 33).   61.      The Commission further considers that there is a constitutional right under Swiss law, derived from Article 31 of the Federal Constitution, to freedom of commerce.   This provision protects any private activity directed towards gain (see above, para. 45). Moreover, the applicant company could arguably claim that the conditions were met to prolong the authorisation which had previously enabled it to deal with the ointment.   Finally, as a consequence of the proceedings, the applicant company was indeed granted the authorisation requested (see above, paras. 36, 41).   62.      In the proceedings at issue the Swiss authorities therefore had to determine a dispute ("contestation") concerning a right of the applicant company within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   63.      The next issue is whether the disputed right was a "civil" one within the meaning of this provision.   64.      According to the Convention organs' case-law, "the concept of civil rights and obligations" cannot be interpreted solely by reference to the domestic law of the respondent state" (see Eur.   Court H.R., König judgment of 28 June 1978, Series A no. 27, p. 29, para. 88). Moreover, Article 6 (Art. 6) does not only cover private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter has been acting as a private person, subject to private law (loc. cit., p. 30, para. 90).   Rather, "only the character of the right at issue is relevant" (loc. cit.).   65.      In the present case the Commission notes that the authorisation to which the applicant company claimed to be entitled was one of the conditions for the exercise of part of its commercial activities.   It was closely associated with the right to use its possessions in conformity with the law's requirements (see mutatis mutandis, Eur. Court H.R., Benthem judgment, loc. cit., p. 16, para. 36).   66.      In consequence, what was at stake for the applicant company was a "civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The provision was therefore applicable to the proceedings at issue before the Swiss authorities.     D.       Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   67.      The Commission must therefore examine whether the proceedings in which the applicant company was involved were concluded "within a reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.     a.       Period to be considered   68.      The Government submit that the period to be examined commenced on 22 June 1982, when the Zurich Administrative Court gave its decision, and lasted until 16 May 1989 when the authorisation was granted.   The applicant company contends that the period commenced before the Administrative Court gave its decision.   69.      The Commission recalls the judgment in the König case according to which that applicant "could not seise the competent court before having the lawfulness and the expediency of the impugned administrative acts examined in preliminary proceedings ... before the administrative authority ...   Consequently ... the reasonable time stipulated by Article 6 para. 1 (Art. 6-1) starts to run on the day on which (the applicant) lodged an objection against the withdrawals of his authorisations" (Eur.   Court H.R., König judgment, loc. cit., p. 33, para. 98).   70.      In the present case, after the Zurich Direction of Health had rejected the request of the applicant company for the prolonged authorisation, the latter filed an appeal on 19 June 1981 to the Zurich Council of State (see above, para. 23).   The Commission finds that on this date the period to be examined under Article 6 para. 1 (Art. 6-1) commenced.   71.      The Commission further considers that the proceedings ended with the "determination" of the dispute concerning the applicant company's civil rights and obligations (see Eur.   Court H.R., König judgment, loc. cit., pp. 33-34, para. 98).   In the present case the period ended on 16 May 1989 when the applicant company was granted the authorisation.   72.      The period to be considered under Article 6 para. 1 (Art. 6-1) of the Convention thus lasted from 19 June 1981 until 16 May 1989, i.e. seven years, ten months and 27 days.     b.       Reasonableness of the length of the proceedings   73.      The Government explain the delays in the proceedings with the applicant company's contradictory conduct.   Thus, while on 24 November 1982 the applicant company stated that it requested the prolongation of the authorisation for the wholesale commerce as a marketing firm, it had stated previously, on 10 November 1982, that it had not applied for such an authorisation.   In view thereof, the Council of State did not find it necessary to pursue the case.   The Government further contend that the applicant company itself was inactive.   It has not been shown that it regularly asked for the proceedings to be resumed. On the other hand, the Swiss authorities were active in that, on 26 October 1982, the Council of State wrote to the applicant company.   74.      The applicant company submits that, after the Zurich Administrative Court had given its decision on 22 June 1982, it was active, as its statement of 24 November 1982 to the Council of State demonstrates.   75.      The Commission recalls that the reasonableness of the length of proceedings has to be assessed according to the particular circumstances of each case, having regard, in particular, to the complexity of the case, the conduct of the applicant and of the competent authorities, and to what is at stake for the former.   In the present case, which concerns civil proceedings, account must also be taken of whether the applicant has shown due diligence by taking the necessary steps to expedite the proceedings and whether delays occurred for which the applicant cannot be held responsible (see Bock v. the Federal Republic of Germany, Comm.   Report 13.11.87, Eur.   Court H.R., Series A no. 150, p. 28, para. 78).   76.      The Commission has applied these criteria to the present case. It considers at the outset that the proceedings, which concerned the authorisation to deal with an ointment, could not be regarded as complex.   77.      As regards the conduct of the parties, the Commission considers that no issue arises as to the length of the proceedings leading up to the decision of the Zurich Administrative Court of 22 June 1982. Rather, the issue in the present case concerns the parties' conduct during the period thereafter.   78.      Thus, on 22 June 1982, the Zurich Administrative Court referred the case-file back to the Zurich Council of State for further clarification as to whether the applicant company wanted the authorisation for the wholesale commerce as a marketing firm, or for wholesale distribution.   On 26 October 1982 the latter requested the applicant company to file the necessary information.   On 24 November 1982 the applicant company replied that it requested the authorisation for the wholesale commerce as a marketing company.   Previously, on 10 November 1982, however, the applicant company had stated in its public law appeal to the Federal Court that it had not applied for the authorisation as a marketing firm.   Nothing happened thereafter until 17 March 1988 when the applicant company filed a complaint to the Intercantonal Control Office that it had not yet been granted the authorisation.   79.      The Commission thus notes that the applicant company, having made contradictory statements as to its intention regarding the authorisation, remained inactive from 24 November 1982 until 17 March 1988: it filed no requests for information as to the state of the proceedings; it did not urge the authorities to pursue the case; and it did not even attempt to clarify its previous contradictory statements of 10 and 24 November 1982, respectively.   80.      In the Commission's opinion, it cannot therefore be said that the applicant company showed the necessary due diligence required by Article 6 (Art. 6) of the Convention by taking the necessary steps to expedite the proceedings.   In fact, by waiting from 24 November 1982 until 17 March 1988, when it filed a complaint, the applicant company demonstrated that it did not regard the granting of the authorisation as being urgent.   81.      It follows that the applicant company was mainly responsible for the delays in the length of the proceedings, which are not therefore attributable to the authorities concerned.     E.       Conclusion   82.      The Commission concludes, by 9 votes to 1, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Second Chamber   Acting President of the Second Chamber         (K. ROGGE)                           (G. SPERDUTI)     DISSENTING OPINION OF MR. A. WEITZEL           I find myself unable to agree with the opinion of the majority of the Commission that there has not been a violation of Article 6 para. 1 of the Convention.         In my opinion, after the decision of the Zurich Administrative Court on 22 June 1982, the applicant company in fact did not make contradictory statements to the relevant authority concerned, namely the Zurich Council of State.   Thus, on 26 October 1982 the Council of State put a question to the applicant company, to which the latter clearly replied on 24 November 1982, namely that it wanted a marketing authorisation.   The statement of 10 November 1982 was addressed to a different authority, namely the Federal Court.         Moreover, the right enshrined in Article 6 para. 1 of the Convention expressly envisages the "determination" by the authorities of the applicant company's "civil" rights.   In the present case, the applicant company, after clearly expressing its wish to the Zurich Council of State, could not be expected further to urge the Zurich authorities to pursue its case, since the Zurich Administrative Court itself, when partly upholding the applicant company's appeal on 22 June 1982, had instructed the authorities as to the further course of the proceedings.         Consequently, there were good reasons for the Zurich authorities to expedite and conclude the proceedings.   In view of their prolonged inactivity, the resulting delay must be attributed to the authorities which did not therefore conclude the proceedings "within a reasonable time" as required by Article 6 para. 1 of the Convention.   APPENDIX   I       HISTORY OF THE PROCEEDINGS   Date                  Item ______________________________________________________________________     14 July 1989               Introduction of the application   20 July 1989               Registration of the application       Examination of the Admissibility   5 March 1990               Commission's decision to invite                       the Government to submit                       observations on the admissibility                       and merits of the application                       limited to the issue under                       Article 6 para. 1 of the                       Convention concerning the length                       of the proceedings   8 May 1990                   Government's observations   11 June 1990               Applicant company's observations                       in reply   7 November 1990         Commission's decision to refer the                       application to the Second Chamber   5 December 1990         Commission's decision to declare the                       application partly admissible       Examination of the Merits   10 April 1991             Commission's consideration of the                       state of proceedings   14 October 1991         Commission's deliberations on the                       merits, final vote and adoption                       of the Report