CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 avril 1996

.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. 27410/95                       by Hans REBER, REBER SYSTEMATIK GmbH and                       Ulrich KINKEL                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 12 April 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, 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 31 January 1995 by Hans REBER, REBER SYSTEMATIK GmbH and Ulrich KINKEL against Germany and registered on 25 May 1995 under file No. 27410/95;        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 they have been presented by the applicants, may be summarised as follows.        The first applicant, born in 1938, is a German national and resident in Reutlingen.   He is the manager of the second applicant, a limited company with seat in Reutlingen.   The third applicant, born in 1928, is a German national and resident in Sindelfingen.   He is a patent attorney by profession.   In the proceedings before the Commission they are represented by Mr. P. Kragler, a lawyer practising in Munich.         On 29 January 1985 the first applicant, represented by the third applicant, applied to the European Patent Office for the registration of a patent which concerned a filtering apparatus.   The decision of the European Patent Office to grant the patent, with five claims, was published on 19 September 1990.        In 1991 opposition was filed against the first applicant's patent, alleging that the object of the patent did not result from an invention and that the specification was insufficient.        On 29 April 1992 the Opposition Division of the European Patent Office, following an oral hearing, revoked the patent in question.   In the reasons of this decision, finalised on 10 June 1992, the Opposition Division referred to the second applicant (company) as owner of the patent.        On 21 August 1992 the first applicant, represented by the third applicant, submitted an application for the reinstatement of the proceedings against the decision of 29 April 1992 and an appeal against the said decision.   On 5 October 1992 the European Patent Office granted the first applicant's application to have the proceedings reinstated.        By letter of 16 December 1992 the first applicant, represented by the third applicant, again submitted an application for the reinstatement of the proceedings, namely regarding the time-limit for filing the reasons for the appeal, and at the same time submitted the said reasons.        On 22 November 1993 the European Patent Office dismissed the first applicant's second application to have the proceedings reinstated and declared his appeal against the decision of 29 April 1992 inadmissible.        In its decision, the European Patent Office found that the first applicant's application to file the reasons for his appeal out of time was admissible, i.e. lodged in time, and that he had also meanwhile filed the said reasons.   However, the Office considered that the application was unfounded as he had failed to show that he had been hindered from filing the said reasons in time through no fault of his own.   The submissions of his representative, the third applicant, and the affidavit of his secretary had not clarified the reasons for his failure to keep the deadline.   The appeal was accordingly inadmissible.          On 30 September 1994 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicants' constitutional complaint (Verfassungsbeschwerde) about the decision of the European Patent Office of 22 November 1993.   The decision was served on 11 October 1994.        On 4 October 1994 the European Patent Office informed Mr. Kragler, the applicants' representative in the proceedings before the Commission, that there was no legal basis to have the proceedings regarding the above case reopened.   COMPLAINTS   1.    The applicants complain about the decision of the European Patent Office of 22 November 1993.   They consider that the proceedings before the European Patent Office were unfair, in particular that the Office arbitrarily dismissed the second request for a reinstatement of the proceedings.   They also complain about the refusal of the Patent Office to reopen the proceedings.   The first and second applicants state that the patent was of major importance for their economic situation.   The third applicant adds that the European Patent Office did not duly consider the general labour market situation and the particularly strained situation of his office at the relevant time.   The third applicant regards himself affected by the above decisions as he was the patent attorney responsible in the patent proceedings.   They invoke Article 6 of the Convention and Article 1 of Protocol No. 1.   2.    The applicants further complain under Article 6 of the Convention and Article 1 of Protocol No. 1 that the Federal Constitutional Court, in its decision of 30 September 1994 refused to admit their constitutional complaint.   THE LAW   1.    The applicants complain under Article 6 (Art. 6) of the Convention and Article 1 of Protocol No. 1 about the decision of the European Patent Office of November 1993 not to grant the first applicant's application to file the reasons of his appeal out of time, and also about the alleged unfairness of the proceedings concerned.         The Commission must first consider whether it is competent to examine complaints about the decisions of other European institutions, whose membership is in whole or in part composed of High Contracting Parties to the Convention. In this connection, it recalls its case-law according to which it is not competent ratione personae to examine proceedings before or decisions of organs of the European Communities, or of the European Patent Office, which are not a Party to the European Convention on Human Rights.   Their decisions do not involve the exercise of national jurisdiction within the meaning of Article 1 (Art. 1) of the Convention (cf. No. 13258/87, Dec. 9.2.90, D.R. 64 p. 138; No. 21090/92, Dec. 10.1.94, D.R. 76-A p. 125).         The Commission based its decision in the previous case (No. 21090/92, loc. cit.) on the following considerations:        "The Commission notes that by drawing up the European Patent      Convention the Contracting States who are also High Contracting      Parties to the European Convention on Human Rights created a      system of law common to the Contracting States for the grant of      European patents.            The European patent has, in each of the Contracting States for      which it is granted, the effect of and is subject to the same      conditions as a national patent granted by that State.   To this      extent these States have transferred their powers in this area      to the European Patent Office.            It has to be observed in this context that the Convention      does not prohibit a High Contracting Party from transferring      powers to international organisations. Nonetheless, the      Commission recalls that 'if a State contracts treaty obligations      and subsequently concludes another international agreement which      disables it from performing its obligations under the first      treaty it will be answerable for any resulting breach of its      obligations under the earlier treaty' (No. 235/56, Dec. 10.6.58,      Yearbook 2 pp. 256, 300).   Thus the transfer of such powers does      not necessarily exclude a State's responsibility under the      Convention with regard to the exercise of those powers. Otherwise      the guarantees of the Convention could wantonly be limited or      excluded and thus be deprived of their peremptory character.              The object and purpose of the Convention as an instrument      for the protection of individual human beings requires that its      provisions be interpreted and applied so as to make its      safeguards practical and effective (see Eur. Court H.R., Soering      judgment of 7 July 1989, Series A no. 161, p. 34, para. 87).      Therefore the transfer of powers to an international organisation      is not incompatible with the Convention provided that within that      organisation fundamental rights will receive an equivalent      protection (see the above-mentioned No. 13258/87, D.R. 64      p. 145).              The Commission notes that the European Patent Convention      contains detailed provisions on substantive patent law covering      patentability, the persons entitled to apply, the term, the      rights and equivalence of a European patent and patent      applications, the application as an item of property, the      procedure for grants, opposition procedures etc..              The Commission also notes various procedural safeguards      contained in the European Patent Convention. For example,      Article 21 of that Convention provides for an appeals procedure.      ... "        The Commission finds no reason to depart from this jurisprudence. In the circumstances of the present case, the Commission, having considered the arguments forwarded by the applicants, concludes that it is not competent to examine their complaints under Article 6 (Art. 6) of the Convention and Article 1 of Protocol N° 1 concerning the appeal proceedings before the European Patent Office in respect of the revocation of the first applicant's patent.         It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The Commission further finds that, insofar as the applicants' complaint about the decision of the Federal Constitutional Court of 30 September 1994 has been substantiated and is within its competence, their submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must also be rejected in accordance with Article 27 (Art. 27) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)