CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1994

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 18411/91                       by F.M. Z. Gesellschaft mbH & Co. KG                       F.M. Z.                       against Austria         The European Commission of Human Rights sitting in private on 12 January 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 June 1991 by F.M. Z. mbH & Co. KG and F.M. Z. against Austria and registered on 24 June 1991 under file No. 18411/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicants, may be summarised as follows.         The first applicant is a commercial firm at Dornbirn in Austria established as a limited partnership (Kommanditgesellschaft) under Austrian law.   The second applicant, an Austrian citizen, resides at Dornbirn and is the owner of the first applicant.   Before the Commission both applicants are represented by Mr. W. L. Weh, a lawyer practising in Bregenz.   A.     Particular circumstances of the case         Since 1985 the first applicant company has operated a food stuff super market in Wels (Austria), organised principally as a wholesale market selling to retailers and on 600 square metres of the whole selling area of 7.200 square metres as a retail market selling to consumers.   In spring 1987 the selling area reserved to retailers was opened up to consumers.         In July 1987 three associations for the protection of fair competition, the "VSW-Verein für sauberen Wettbewerb", the "WSV- Wettbewerbsschutzverband" and the "Schutzverband gegen den unlauteren Wettbewerb", instituted civil proceedings under Section 1 of the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb) against the first applicant.   The last mentioned association also requested an interim injunction (einstweilige Verfügung) against the first applicant.         On 14 August 1987 the Wels Regional Court (Kreisgericht) issued an interim injunction against the first applicant ordering it to refrain from granting access to consumers at its premises on a selling area exceeding 600 square metres while the main proceedings were pending.   The Regional Court held that the first applicant operated a retail market on premises where this was not allowed.   The first applicant company had a trading licence (Gewerbeschein) issued by the Mayor of Wels (Bürgermeister) which allowed wholesaling on an unlimited selling area and retailing on a selling area of a maximum of 600 square metres.   Also the industrial plant permission (Betriebsanlagen- genehmigung) and the building permit (Baugenehmigung) referred to a wholesale market.   According to the Upper Austrian Regional Planning Act (Raumplanungsgesetz) retail markets with a selling area of more than 600 square metres could only be constructed on land marked in the Area Zoning Plan (Flächenwidmungsplan) as "area for commercial centres" (Gebiet für Geschäftsbauten).   The first applicant company's super market, however, was situated on land marked in the Area Zoning Plan as "industrial area" (Betriebsbaugebiet).   According to Section 15 para. 1 of the Industrial Code (Gewerbeordnung), a trade must not be exercised on a location where its exercise is forbidden by law.   Thus, the first applicant did not comply with Section 15 of the Industrial Code and, by doing so, had gained an advantage contrary to public policy vis-à-vis law abiding competitors which constituted unfair competition contrary to Section 1 of the Unfair Competition Act.         On 1 October 1987, the Linz Court of Appeal (Oberlandesgericht) upon the first applicant's appeal (Rekurs) quashed the decision of 14 August 1987 for procedural reasons.   The Court of Appeal held that in the meantime the plaintiff had amended its claim and no longer alleged that the first applicant operated a wholesale market also opened to consumers but that it now exclusively operated a retail market.   Therefore, the interim injunction requested by the plaintiff no longer corresponded to its claim in the main proceedings.         On 23 February 1988 the Supreme Court (Oberster Gerichtshof), upon the third plaintiff's appeal, quashed the Court of Appeal's decision and granted the interim injunction. The Supreme Court found that the plaintiff only had supplemented its pleadings but not amended its claim.   The Supreme Court furthermore confirmed the findings of the Regional Court.         In the meantime, the Mayor (Bürgermeister) of Wels acting as industrial authority (Gewerbebehörde) and the Wels City Council (Stadtsenat) acting as building authority (Baubehörde), had conducted administrative and criminal proceedings against the second applicant as the person responsible for the first applicant company as regards the Wels Super market.         In particular, on 19 October 1987 the Mayor of Wels issued a penal order (Straferkenntnis), by which the second applicant was fined for retailing to consumers although the industrial plant permission only allowed it to operate a wholesale market.   On 28 March 1988 the Upper Austrian Regional Governor (Landeshauptmann) quashed this penal order and found that the industrial plant permission did not contain any such express condition and as an industrial plant permission was independent from a trading licence it was irrelevant whether the trading licence contained such a restriction.         On 12 August 1988 the Mayor of Wels accepted the notification under the Industrial Code of the "familia" Handelsgesellschaft AG, another company of the Zumtobel group, that it intended to operate on the whole selling area of the Wels super market a retail market.   The Mayor found inter alia that the provisions of the Regional Planning Act only concerned the regional and local planning authorities but did not regulate the behaviour of citizens.   Therefore, it did not contain any prohibition against retailing on the premises of the Wels super market, which the Mayor could take into account under Section 15 para. 1 of the Industrial Code.         On 10 February 1989, in the unfair competition proceedings, the Wels Regional Court found against the first applicant in the main proceedings.   It held that from the first applicant's trading licence, issued by the Major of Wels on 25 July 1985, it appeared that the company was not allowed to do retailing on a selling area larger than 600 square metres.   The Regional Court further found that the Regional Governor's decision of 28 March 1988, to which the first applicant had referred, had no bearing on the present proceedings as the Regional Governor, in his decision, had not examined whether there had been a violation of the provisions of the Regional Planning Act and of Section 15 para. 1 of the Industrial Code.   The Regional Court concluded that the first applicant operated in Wels a retail market in a location where, according to the Area Zoning Plan, only a wholesale market was allowed, and hereby contravened Section 15 para. 1 of the Industrial Code.   The disregard of the relevant provisions of the Regional Planning Act was imputable to the first applicant ("der Beklagten subjektiv vorzuwerfen") and thus constituted unfair competition contrary to Section 1 of the Unfair Competition Act.         On 14 January 1990 the Linz Court of Appeal dismissed the first applicant's appeal.   The Court of Appeal, having regard to various decisions of the Supreme Court including the decision of 23 February 1988 in the interim injunction proceedings, confirmed the findings of the Regional Court.         On 4 April 1990 the first applicant introduced a further appeal with the Supreme Court.   It also challenged the Supreme Court's Chamber, which had decided on the interim injunction, for bias.   The first applicant submitted that the Court of Appeal was biased as it found itself bound by the Supreme Court's decision in the interim injunction proceedings.   It further referred to the Wels Municipal Authority's decision of 12 August 1988 and submitted that the Courts had wrongly interpreted the provisions of the Regional Planning Act and the Industrial Code.         On 12 July 1990 the Supreme Court rejected the challenge for bias.   It found in particular that the mere fact that members of the Court had already decided on an interim injunction was not sufficient to raise doubts as to their impartiality.         On 23 October 1990 the Supreme Court, in another composition than in the interim proceedings, rejected the first applicant's appeal.   The Supreme Court found no indication in the judgment of the Court of Appeal that the latter regarded itself bound by the Supreme Court's decision on the interim injunction; it had only followed the legal opinion of the Supreme Court as expressed in this decision.   The Supreme Court, referring to its case-law, held further that in deciding whether the exercise of a trade was prohibited on a given location by Section 15 para. 1 of the Industrial Code, also the Regional Planning Acts had to be taken into account; the decision of the Mayor of Wels of 12 August 1988 had no bearing on the present proceedings as it did not concern the first applicant.   B.     Relevant domestic law   Section 1 of the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb) reads as follows:         "Any person who in the course of business commits, for purposes       of competition, acts contrary to honest practices, may be       enjoined from further engaging in those acts and held liable for       damages."         Section 15 para. 1 of the Industrial Code (Gewerbeordnung) reads as follows:         "A trade or business must not be conducted         1. in a location where the exercise of this activity, at the time       of the notification of the trade or the decision on the request       for a licence, is prohibited by provisions of law, ..."   COMPLAINTS   1.     The applicants complain under Article 6 para. 1 of the Convention about the unfairness of the proceedings in that, in the interim injunction proceedings, the Supreme Court decided without a public hearing in the presence of the parties, and without taking evidence and in that the Linz Court of Appeal considered in the main proceedings that, for reasons of uniformity of law, it was bound by the Supreme Court's decision in the interim injunction proceedings.    Moreover, the judges of the Court of Appeal, deciding on the first applicant's appeal in the main proceedings, had already decided on the interim injunction.   2.     The applicants further complain under Article 6 para. 2 of the Convention   about a violation of the principle of presumption of innocence.   They submit that in the proceedings regarding unfair competition the Austrian courts found that a violation of provisions of administrative law was imputable to the first applicant, and thus made a statement on its guilt, although it was up to the administrative authorities to make such a determination in administrative criminal proceedings.   Criminal responsibility was therefore determined by a court which had no such jurisdiction.   THE LAW   1.     The applicants complain that the unfair competition proceedings were unfair and the Austrian courts biased.   They rely on Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides that "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".   a.     As regards the applicants' complaints about the interim injunction proceedings, the Commission finds that in these proceedings, the first applicant's rights and obligations were not determined, but only an interim decision taken pending the main proceedings.   The interim injunction proceedings therefore fall outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention (cf., mutatis mutandis, No. 7990/77, Dec. 11.5.81, D.R. 24 pp. 57, 61 and No. 17200/91, Dec. 2.12.91, unpublished).   The applicants' complaint is accordingly incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   b.     With regard to the applicants' complaints about the main proceedings, the Commission finds no indication that the first applicant, represented by counsel, could not properly argue its case, or that the proceedings were otherwise unfairly conducted.         In particular, the Commission does not find it arbitrary that the courts, in the main proceedings, did not deviate from the legal approach previously taken by the Supreme Court (see No. 17200/91, Dec. 2.12.91, unpublished).         As regards the complaint that the judges of the Court of Appeal were biased, the Commission, even assuming that the applicants had exhausted domestic remedies in this respect, finds that the mere fact that the judges of the Court of Appeal deciding upon the merits of the action, had already been involved in the interim injunction proceedings, is not in itself sufficient to give rise to legitimate doubts as to their impartiality (cf. mutatis mutandis, Eur. Court H.R., Gillow judgment of 24 November 1986, Series A no. 109, p. 28, para. 73).         It follows that the applicants' complaints under Article 6 para. 1 (Art. 6-1) of the Convention concerning the main proceedings are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Under Article 6 para. 2 (Art. 6-2) of the Convention the applicants complain about a violation of the principle of presumption of innocence.   They submit that in the proceedings regarding unfair competition the Austrian courts found that a violation of provisions of administrative law was imputable to the first applicant company, and thus made a statement on its guilt, although it was up to the administrative authorities to make such a determination in administrative criminal proceedings.         The Commission recalls that despite the wording of Article 6 para. 2 (Art. 6-2), which secures the presumption of innocence to "everyone charged with a criminal offence", this provision has been consistently interpreted as also applying to situations where the person concerned is not or no longer formally charged with a criminal offence (cf. Eur. Court H.R., Lutz, Englert and Nölkenbockhoff judgments of 25 August 1987, Series A no. 123, p. 23, para. 56; p. 54, para. 35; p. 79, para. 35).         The Commission notes that the proceedings before the Austrian courts were instituted by three associations for the protection of fair competition as plaintiffs against the first applicant and that the issue in these proceedings was whether the first applicant had engaged in commercial practices which were to be considered as unfair competition within the meaning of Section 1 of the Unfair Competition Act.   The Commission notes further that, in these proceedings, the Austrian courts considered as a preliminary question whether the first applicant had disregarded provisions of the Industrial Code and the Regional Planning Act.         The Commission considers that, in deciding these issues, the Austrian courts established the civil responsibility of the first applicant company for its commercial practices.   These findings do not amount to a statement of guilt regarding criminal responsibility in violation of Article 6 para. 2 (Art. 6-2) of the Convention (see No. 9295/81, X. v. Austria, Dec. 6.10.82, D.R. 30 p. 227).         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)