CEDH · CASELAW;REPORTS;ENG — 19 mai 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 19589/92                            the B Company                               against                           the NETHERLANDS                      REPORT OF THE COMMISSION                      (adopted on 19 May 1994)                          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. 16-40) . . . . . . . . . . . . . . . . . . . . .3        A.    Particular circumstances of the case           (paras. 16-21). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 22-40). . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 41-77) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaints declared admissible           (para. 41). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 42). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 6 para. 1 of the Convention           (paras. 43-52). . . . . . . . . . . . . . . . . . .7             1.    Applicability of Article 6 para. 1 of the                Convention                (paras. 45-52) . . . . . . . . . . . . . . . .7             2.    Compliance with Article 6 para. 1 of                the Convention                (paras. 53-68) . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 69). . . . . . . . . . . . . . . . . . . . 11        D.    As regards Article 1 of Protocol No. 1           (paras. 70-74). . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 75). . . . . . . . . . . . . . . . . . . . 11        E.    Recapitulation           (paras. 76-77). . . . . . . . . . . . . . . . . . 12   DISSENTING OPINION OF MR. B. CONFORTI . . . . . . . . . . . 13   APPENDIX I:     HISTORY OF THE PROCEEDINGS . . . . . . . . . 15   APPENDIX II:    DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 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 limited company and incorporated in the United Kingdom. Before the Commission the applicant company is represented by Mr. Inne G.F. Cath.   3.    The application is directed against the Netherlands, whose Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Ministry of Foreign Affairs.   4.    The application concerns the right of access to an independent and impartial tribunal in the determination of a patent claim. Before the Commission the applicant company complains of violations of Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1.   B.    The proceedings   5.    The application was introduced on 27 February 1992 and registered on 5 March 1992.   6.    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 application.   7.    After an extension of the time-limit, the Government submitted their observations on 30 September 1992.   The applicant company's observations in reply were submitted on 29 April 1993, following three extensions of the time-limit.   8.    On 30 June 1993 the Second Chamber decided to refer the case to the Plenary Commission.   9.    On 15 October 1993 the Commission declared the application admissible and the parties were invited, should they so desire, to submit further observations on the merits of the application. No such observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, 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 in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present :        MM.   C.A. NØRGAARD, President           S. TRECHSEL           A. WEITZEL           G. JÖRUNDSSON           A.S. GÖZÜBÜYÜK           J.-C. SOYER           H.G. SCHERMERS           H. DANELIUS           F. MARTINEZ           C.L. ROZAKIS      Mrs. J. LIDDY      MM.   L. LOUCAIDES           J.-C. GEUS           M.P. PELLONPÄÄ           G.B. REFFI           M.A. NOWICKI           I. CABRAL BARRETO           B. CONFORTI           N. BRATZA           I. BÉKÉS           J. MUCHA           E. KONSTANTINOV           D. SVÁBY   12.   The text of this Report was adopted on 19 May 1994 by the Commission 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.    Particular circumstances of the case   16.   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.   17.   On 15 May 1987 the Patent Office informed the applicant company's patent attorney of its preliminary findings as to the state of the 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.   18.   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.   19.   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.   20.   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.   21.   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, sitting with three members - one legally qualified and two technically qualified -,   held a hearing on 7 June 1989.   On 29 August 1991 the Appeal Division annulled the decision of the Application Division 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 invention for which a patent was requested lacked the required level of "inventive character" (uitvindingshoogte).   B.    Relevant domestic law   22.   The grant and enforcement of patents in the Netherlands are governed by the Patent Act (Rijksoctrooiwet) of 1910, as subsequently amended (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.   23.   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).   24.   Subject to the provisions of the Patent 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).   25.   Pursuant to 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.   26.   The Patent Office (Octrooiraad) is empowered by the Patent Act to grant patents (Article 13).   It consists of a Central Division, Application Divisions, Appeal Divisions and Special Divisions (Article 14).   Its organisation and procedure are regulated by Order in Council (Article 15). From the administrative point of view, the Patent Office forms part of the Industrial Property Office (Bureau voor de Industriële Eigendom), which is a central government administrative authority. The President of the Patent Office shall also be the Director of the Industrial Property Office (Article 14 (4)). However, the Patent Office consists of members who operate independently when performing the functions entrusted to them by the Patent Act.   27.   Pursuant to the Patent Rules (Octrooireglement) of 1921, as subsequently amended, the Patent Office consists of a maximum of 90 ordinary members and deputy members, divided into legally qualified and technically qualified members, and of at least 12 extraordinary members.   28.   The ordinary and deputy members are appointed by the Crown from the ranks of officials working for the Industrial Property Office, who are either legally or technically qualified.   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 member may take part in proceedings in which he has a direct or indirect interest or in which he is 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 (Article 14(3) of the Patent Act and Rule 4 of the Patent Rules).   29. There are no specific rules protecting members of the Patent Office from dismissal.   30.   The Central Division of the Patent Office is responsible for the ad hoc formation of the Divisions (Application Divisions, Special Divisions and Appeal Divisions).   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 (Rule 5 of the Patent Rules).   31.   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 to deal with each patent application.   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, however, 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 in such a case the Application Division consists of three members, two shall be legally qualified members of the Patent Office and one shall be technically qualified.   32.   If the Application Division considers that a patent cannot be granted, it will decide not to publish the application.   In the contrary case the application shall be published (Article 24 para. 1 of the Patent Act).   33.   An appeal lies from the decision of an Application Division to an Appeal Division. The Central Division shall form an Appeal Division to deal with each appeal from among the ordinary and the extraordinary members of the Patent Office (Rule 6 (1) of the Patent Rules).   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).   34.   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(Rule 8 para. 1 of the Patent Rules).   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.   35. Article 24 A of the Patent Act lays down the formal requirements for the appeal procedure: the parties must be granted 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.   36.    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).   37.   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 referred to in the proceedings.   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.   38.   The Regional 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 provided for 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 the Litigation Division of the Council of State (Afdeling Rechtspraak van de Raad van State).   39.   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.   40.   The new Patent Bill, which is currently pending before the Dutch Parliament, 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 patent claim.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   41.   The Commission has declared admissible the applicant company's complaint that it had no fair hearing before an independent and impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the Convention, in the patent proceedings.   The Commission also declared admissible the applicant company's complaint under Article 1 of Protocol No. 1 (P1-1) that it was deprived of its possessions without an examination by an independent and impartial tribunal.   B.    Points at issue   42.   The following points are at issue in the present case:   - 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, and, if so, whether there has been a violation of the applicant company's right under Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing before an independent and impartial tribunal.   - whether there has been a violation of the applicant company's rights under Article 1 of Protocol No 1 (P1-1).   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   43.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "In the determination of his civil rights and obligations      (...) everyone is entitled to a fair and public hearing      (...) by an independent and impartial tribunal(...)."   44.   It is recalled that the proceedings concerned the patent claim by the applicant company regarding an invention relating to the fabrication of tobacco products.   1.    Applicability of Article 6 para. 1 (Art. 6-1) of the Convention      ----------------------------------------------------   45.   The applicant company submits that Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue. The decision not to grant a patent concerns the determination of a civil right, as the proceedings were decisive for its intellectual property rights.   46.   The Government do not dispute the applicability of Article 6 para. 1 (Art. 6-1) to the proceedings at issue.   47.   The Commission recalls that it is sufficient for the applicability of Article 6 para. 1 (Art. 6-1) of the Convention that proceedings are "pecuniary" in nature and that the action is founded on an alleged infringement of rights which are likewise pecuniary rights (cf. Eur. Court H.R., Éditions Périscope judgment of 26 March 1992, Series   A no. 234-B, p. 66 para. 40), or that the outcome of the proceedings would be decisive for private rights and obligations (cf Eur. Court H.R., H. v. France judgment of 24 October 1989, Series A no. 162-A, p. 20 para. 47).   48.   The Commission notes that pursuant to the Patent Act the Patent Office can grant patents. If it considers that a patent can be granted, the patent application will be published. A patent is deemed to be personal property, assignable and otherwise transferable in full or joint ownership. Insofar as relevant for the present case, a patent confers on its proprietor the sole right, inter alia, to make, use, market, hire out or deliver the patented product in aid for his business.   49.   In the present case, there arose a dispute between the Patent Office and the applicant company about an application for a patent. The Appeal Division of the Patent Office annulled the decision of the Application Division of the Patent Office not to publish the patent application - and thus not to grant the patent - under the split patent conclusions proposed by the applicant company. However, in the same decision the Patent Office decided ex officio to uphold the decision not to publish the patent application as the invention lacked the required level of "inventive character".   50.   It is true that in certain previous decisions (No. 7830/77, Dec. 13.7.1978, D.R. 13, 200; No. 8000/77, Dec. 9.5.1978, D.R. 14, 81) the Commission considered the registration of patents an essentially administrative matter which was outside the scope of Article 6 (Art. 6) of the Convention.   51.   However, having regard to the more recent case-law of the European Court of Human Rights (see para. 47 above), the Commission now finds that the dispute in the present case was decisive for the applicant company's right to a patent and that this right, which represented a financial value, was of a pecuniary nature.   52.   The Commission is therefore of the opinion that the proceedings at issue involved a determination of civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which is thus applicable to the present case.   2.    Compliance with Article 6 para. 1 (Art. 6-1) of the Convention      ---------------------------------------------------   53.   The applicant company submits that its appeal against the decision of the Application Division of the Patent Office not to publish the patent application was not determined by an independent and impartial tribunal. The members of the Appeal Division and the Application Division are part of the same administrative body, the Patent Office, and are appointed on an interchangeable basis for each individual case by the Central Division of the Patent Office. The composition of the Appeal Division is entirely left to the discretion of the Central Division, without any possibility for third parties to object. There is no formal guarantee against dismissal or suspension. In this respect the applicant company refers to a case in which a member of the Patent Office, who refused to carry out an order by his superior, was dismissed.   54.   The applicant company further submits that under Dutch law there is no appeal to a tribunal satisfying the requirements of Article 6 (Art. 6) of the Convention against a decision of the Appeal Division and argues that the Government have failed to prove the existence of available remedies which can be considered as sufficiently certain with the requisite accessibility and effectiveness.   55.   With regard to the proceedings before the Appeal Division the applicant company argues that they were not fair. The applicant company did not have access to some documents of the case-file. The principle of equality of arms required that under these circumstances the Appeal Division could not have regard to these documents. The applicant company points out that the hearing before the Appeal Division was not public and its decision was not pronounced in public.   56.   Furthermore, the appeal to the Appeal Division was confined to the question whether or not the Application Division's decision that no split claim for a patent could be allowed was correct. However, the Appeal Division considered in its final decision that the subject of the patent application lacked the required level of "inventive character" and dismissed the appeal on this ground. This ground had not been raised by either party before the Appeal Division.   57.   The Government submit 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 constitute sufficient safeguards for the independent and impartial administration of justice by the Appeal Division. The independence of its members is guaranteed by the oath they have to take when appointed. Moreover, 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.   58.   The manner of appointment of the members of the Appeal Division and the duration of their appointment safeguard their independence and impartiality. The ordinary and deputy members are appointed by the Crown from the rank of officials of the Industrial Property Office. The appointments of the members remain valid until retirement. The extraordinary members are appointed for a five year period, which may be extended for five years at a time.   59.   The Government further submit that if the Appeal Division is not a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, it would be possible for the applicant company to seize the civil courts for a review of its decisions. The Government refer in this respect to the Oerlemans judgment of the European Court (Eur. Court H.R., judgment of 27 November 1991, Series A no. 219) and to Dutch case-law, according to which a civil court is competent to deal with a case if no remedy is available before a body satisfying the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   60.   The Commission recalls that in order to establish whether a body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.   As to the question of impartiality, a distinction must be drawn between the subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and the objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32).   61.   As in the Langborger case, the Commission is of the opinion that in the present case the question of impartiality is difficult to dissociate from that of independence. Therefore these two elements will be taken together.   62.   The Commission notes that the Appeal Division in the applicant company's case was composed of one legally qualified member and two technically qualified members. Although there is no precise information about the three members of the Appeal Division which dealt with the applicant company's case, it must be assumed that, in accordance with the normal rules and practice, they had been appointed as members of the Patent Office from the ranks of officials working for the Industrial Property Office (see para. 28 above) and that the Central Division of that Office had designated them to serve on the Appeal Division for the applicant company's case (see para. 33 above).   64.    There is no reason to doubt that the members of the Appeal Division examined the applicant company's case without being influenced by any external sources and without any personal bias.   65.    However, when examining the independence and impartiality of a tribunal, appearances must also be taken into account. In this respect, it should first be noted that the status of a member of the Patent Office cannot be assimilated to that of a judge as regards irremovability from his office (see para. 29 above). Moreover, the fact that the appeal body in patent matters belongs to the same administrative entity as the body deciding in first instance, a result of which is that members of the Patent Office review decisions taken by another member of the same Office, can give rise to doubts as to the independence and impartiality of the Appeal Division. It should also be observed that nothing prevents the members of the Patent Office from being called upon by the Central Division to serve at different times on an Application Division and on an Appeal Division. The fact that a member of the Appeal Division may not take part in proceedings in which he has previously been involved could not be regarded as sufficient to dissipate the legitimate doubts which may result from the institutional structure of the appeal system in patent matters.   66.    Having regard to these various elements, the Commission considers that the applicant company's case was not heard by an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. In these circumstances it is not necessary to examine whether the procedure before the Appeal Division complied with the other requirements of Article 6 para. 1 (Art. 6-1).   67.    It remains to be examined, however, whether the applicant company could have brought its case before the civil courts, relying on the Dutch case-law according to which the civil courts have competence to examine disputes when there is no other remedy before a body satisfying the requirements of Article 6 para. 1 (Art. 6-1). In this respect it has not been shown that the Dutch civil courts have ever considered themselves competent to review the decisions of an Appeal Division of the Patent Office. Consequently, the Commission cannot base its conclusion in the present case on the availability of a remedy before the civil courts.   68.   The Commission accordingly finds that the applicant company's case was not heard by an independent and impartial tribunal and that it has not been established that a remedy before such a tribunal was available to the company.        Conclusion   69.    The Commission concludes, by twenty-two votes to one, that there has been a violation of the applicant company's right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing before an independent and impartial tribunal.   D.    As regards Article 1 of Protocol No. 1 (P1-1)   70.   Article 1 of Protocol No. 1 (P1-1), insofar as relevant, 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."   71.   The applicant company submits that the denial of access to an independent and impartial tribunal in the determination of its patent claim means that it was deprived of its possible possessions without any court examination.   72.   The Commission recalls that Article 1 of Protocol No. 1 (P1-1) applies only to existing possessions (Eur. Court H.R., Van der Mussele judgment of 23 November 1983, Series A no. 70, p. 23 para. 48), and that this provision does not guarantee any right to acquire property (No. 11628/85, Dec. 9.5.86, D.R. 47 p. 271).   73.   In the present case, the applicant company did not succeed in obtaining an effective protection for its invention by means of a patent. Consequently, the company was denied a protected intellectual property right but was not deprived of its existing property.   74. The Commission, therefore, considers that in the present case there has been no interference with the applicant company's rights under Article 1 of Protocol No. 1 (P1-1).        Conclusion   75. The Commission concludes, unanimously, that there has been no violation of Article 1 of Protocol No. 1 (P1-1).   E.    Recapitulation   76. The Commission concludes, by twenty-two votes to one, that there has been a violation of the applicant company's right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing before an independent and impartial tribunal (para. 69).   77. The Commission concludes, unanimously, that there has been no violation of Article 1 Protocol No. 1 (P1-1) (para. 75).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                   (Or. français)                OPINION DISSIDENTE DE M. B. CONFORTI       A mon grand regret, je ne peux me rallier à l'opinion et aux conclusions de la majorité en ce qui concerne la violation de l'article 6 par. 1 de la Convention. A mon avis, beaucoup plus de poids aurait dû être donné à l'argument du Gouvernement, tiré de la jurisprudence néerlandaise, selon lequel les différends portés devant des corps administratifs qui n'offrent pas les garanties requises par l'article 6 par. 1 peuvent être soumis aux juridictions civiles.       Le Gouvernement s'était basé sur l'arrêt de la Cour suprême des Pays-Bas du 6 février 1987 (NJ 1988, n° 926), arrêt qui, en matière de recours à la Couronne, avait définitivement consacré une tendance déjà suivie par la Cour suprême elle-même et par la doctrine néerlandaise après l'arrêt Benthem de la Cour européenne des Droits de l'homme (voir également pour cette tendance, Cour eur. D. H., arrêt Oerlemans du 27 novembre 1991, série A n° 219, p. 15, par. 32-35).       Dans cet arrêt de 1987, la Cour suprême, statuant sur un recours à la Couronne en matière d'autorisation pour l'aménagement d'une station-service, avait dit:        "En raison de l'arrêt Benthem...la règle [selon laquelle      les décisions de la Couronne lient les juridictions      civiles] souffre une exception et cesse de s'appliquer si      'le détenteur de l'autorisation ou celui qui exploite      l'installation' plaide que la Couronne ne constitue pas un      tribunal remplissant les conditions de l'article 6 par. 1      de la Convention... ; en pareil cas, il incombe au juge      civil de statuer aussi en pleine indépendance sur la      question déjà tranchée par la Couronne...".        Selon le Gouvernement, l'affirmation de la Cour suprême se prêterait à être étendue à toute affaire tranchée par un corps administratif et portant sur des droits de caractère civil. Elle pourrait donc être étendue, dans le cas d'espèce, aux décisions de la Division d'appel du Bureau des brevets, avec la conséquence que le requérant, n'ayant pas dénoncé la violation de l'article 6 par. 1 devant les tribunaux civils internes, ne pourrait s'en plaindre devant la Commission. Cela d'autant plus que cette extension a été confirmée par les juridictions néerlandaises, notamment dans un jugement du Président de la Cour de district de La Haye du 11 juillet 1989.        Je ne crois pas que l'on puisse rejeter l'argument du Gouvernement en disant, comme le fait la majorité de la Commission, que les tribunaux civils néerlandais ne se sont jamais considérés comme compétents pour contrôler les décisions de la division d'appel du Bureau des brevets (voir par. 67 du Rapport). Il me semble au contraire que cet argument se révèle convaincant si l'on considère :   que les décisions de la Division d'appel s'inscrivent manifestement dans le cadre d'une procédure administrative, cette Division faisant partie de la structure du Bureau des brevets ; que la ratio du principe énoncé par la Cour Suprême des Pays-Bas, et qui consiste à assurer par un véritable contrôle judiciaire l'application de l'article 6 par. 1 aux décisions définitives de caractère administratif, dépasse le domaine des recours à la Couronne et peut par conséquent couvrir le cas d'espèce, et qu'il ne serait pas audacieux de faire application en pareil cas d'une sorte de principe de subsidiarité, selon lequel le contrôle des organes de la Convention ne devrait pas intervenir lorsque les moyens du droit interne suffiraient à assurer le respect de la Convention.        D'un point de vue logique, l'argument du Gouvernement devrait être considéré sous l'angle de la règle du non-épuisement des voies de recours internes et c'est justement sous cet angle que le Gouvernement l'avait présenté. Dans sa décision sur la recevabilité (Annexe II au Rapport, Partie en droit, par. 2) la Commission a au contraire exprimé l'opinion que, la plainte du requérant ayant pour objet le droit d'accès à un tribunal, la prise de position du Gouvernement regardait plutôt le fond de l'affaire. Dès lors, sans contester cette opinion de la Commission, les raisons indiquées ci-dessus m'amènent à conclure que le droit d'accès était, dans le cas d'espèce, garanti par l'ordre juridique néerlandais.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   27 February 1992          Introduction of application   5 March 1992              Registration of application   Examination of admissibility   19 May 1992               Commission's decision (Second Chamber) to                          communicate the case to the respondent                          Government and to invite the parties to                          submit observations on admissibility and                          merits   30 September 1992         Government's observations   29 April 1993             Applicant's observations in reply   30 June 1993              Decision of the Second Chamber to refer the                          case to the Plenary Commission   15 October 1993           Commission's decision to declare                          application admissible   Examination of the merits   5 March 1994              Commission's consideration of state of                          proceedings   10 May 1994               Commission's deliberations on the merits                          and final vote   19 May 1994               Adoption of the Report