CEDH · CASELAW;REPORTS;ENG — 3 mars 1995

.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. 20915/92                         Familiapress Zeitungs-GmbH                                   against                                   Austria                            REPORT OF THE COMMISSION                          (adopted on 3 March 1995)                              TABLE OF CONTENTS                                                                    Page   I.     THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . 1       (paras. 1-3)   II.    SUMMARY OF THE FACTS. . . . . . . . . . . . . . . . . . . . . 2       (paras. 4-5)   III.   THE PROCEEDINGS BEFORE THE COMMISSION . . . . . . . . . . . . 3       (paras. 6-13)   IV.    THE DECISION OF THE COMMISSION. . . . . . . . . . . . . . . . 5       (paras. 14-17)   ANNEX:      DECISION ON THE ADMISSIBILITY. . . . . . . . . . . . . . 6   I.     THE PARTIES   1.     This Report, which is drawn up by the Commission in accordance with Article 30 para. 1 of the Convention, concerns the application brought by Familiapress Zeitungs-Gmbh against Austria. The applicant is a limited company registered in Vienna which is publishing a weekly newspaper.   2.     In the proceedings before the Commission the applicant was represented by Mr. M. Graff, a lawyer practising in Vienna.   3.     The respondent Government were represented by their Agent, Mr. C. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   II.     SUMMARY OF THE FACTS   4.     The facts of the case are set out in the Commission's decision on admissibility of 30 November 1994, attached hereto as an appendix and can be summarised as follows:   5.     The case concerns an injunction under the Unfair Competition Act prohibiting the applicant from publishing parts of a cartoon which had insulted the "Krone", the largest Austrian daily newspaper. The applicant complained to the Commission under Article 10 of the Convention.   III.   THE PROCEEDINGS BEFORE THE COMMISSION   6.     The application was introduced on 21 July 1992 and registered on 6 November 1992.   7.     On 1 December 1993 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.   8.     On 24 February 1994 the Government submitted their observations. The observations in reply by the applicant were submitted on 21 April 1994.   9.     On 30 November 1994 the Commission declared the application admissible and took a provisional vote on the question of a violation of Article 10 (Art. 10) of the Convention.   10.    By letter of 24 January 1995 the editing company Mediaprint, owner of the "Krone", informed the Commission that, in his request for leave to appeal to the Supreme Court, concerning further proceedings under the Unfair Competition Act, Mr. Graff, acting as counsel of Familiapress, had disclosed the Commission's decision to declare the application admissible and also the provisional opinion of the Commission on the question of violation. The Commission's admissibility decision as well as the letter informing him on a strictly confidential basis about the above provisional opinion were attached to the said request.   11.    Subsequently, the parties were requested to comment on this matter before 17 February 1995. By letter of 10 February 1995 the representative of the applicant company replied that the facts as submitted by Mediaprint were correct. However, he pointed out that he had asked for confidential treatment of the Commission's letter and had not expected the other party to denounce him before the Commission. The Government did not make any comments.   12.    On 2 March 1995 the Commission decided to strike the present application out of its list of cases, pursuant to Article 30 para. 1 (c) (Art. 30-1-c) of the Convention.   13.    It adopted the present Report and decided to transmit it to the Committee of Ministers and the Parties for information and to publish it. The following members were present when the Report was adopted:              MM. C.A. NØRGAARD, President                  H. DANELIUS                  C.L. ROZAKIS                  G. JÖRUNDSSON                  S. TRECHSEL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  E. KONSTANTINOV                  G. RESS   IV.    THE DECISION OF THE COMMISSION   14.    The Commission notes that the applicant company used confidential information as an argument for obtaining leave to appeal in domestic court proceedings. In particular it disclosed the Commission's provisional opinion on the question of a violation of Article 10 (Art. 10) and even attached the letter informing it on a strictly confidential basis of the said provisional opinion. The domestic proceedings at issue were similar to the proceedings which gave rise to the present application, in that they related to a dispute under the Unfair Competition Act between the same parties, i.e. Mediaprint, the editor of the "Krone", and the applicant company. The submissions were addressed to the Supreme Court and the applicant company must have been aware of the fact that they would be brought to the attention of the opposite party, in accordance with the relevant procedural rules.   15.    The Commission considers that the parties are obliged to respect the confidentiality of its proceedings. In this respect, the Commission refers to Article 33 (Art. 33) of the Convention which provides that the "Commission shall meet in camera" and to Rule 17 of its Rules of Procedure. In the present case, the applicant company disclosed the Commission's provisional opinion on the question of a violation of the Convention for the purposes of pleading in domestic court proceedings. According to the Commission's practice, information on its provisional opinion is provided to the parties with a view to facilitating friendly settlement negotiations. At this stage, the applicant is reminded of the strictly confidential nature of this information. The Commission finds that the applicant company's conduct constitutes a serious breach of confidentiality. Furthermore, the explanations given by the applicant company do not disclose any justification for its conduct.   16.    In these circumstances, the Commission considers that it is no longer justified to continue the examination of the application, within the meaning of Article 30 para. 1 (c) (Art. 30-1-c) of the Convention.   17.    Moreover, as regards the issues raised in the present case, the Commission finds no reasons of a general character affecting respect for Human Rights, as defined in the Convention, which require the further examination of the application by virtue of Article 30 para. 1 (Art. 30-1) in fine of the Convention.         For these reasons, the Commission by a majority   DECIDES TO STRIKE APPLICATION No. 20915/92 OFF ITS LIST OF CASES;   ADOPTS   THE PRESENT REPORT;   DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers for information, to send it also to the parties' representatives, and to publish it.   Secretary to the Commission              President of the Commission         (H.C. KRÜGER)                          (C.A. NØRGAARD)