CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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. 23749/94                       by BROWN & WILLIAMSON TOBACCO CORPORATION                       against Finland           The European Commission of Human Rights sitting in private on 3 December 1996, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ                Mr.    H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 8 March 1994 by Brown & Williamson Tobacco Corporation against Finland and registered on 23 March 1994 under file No. 23749/94;       Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 15 February 1996 and the observations in reply submitted by the applicant on 9 May 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant company is a limited liability company incorporated in Louisville, Kentucky, the United States of America. Before the Commission it is represented by Mr. Kari Lautjärvi, a lawyer practising in Helsinki, Finland.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         On 19 May 1986 company B filed an application with the Finnish Board of Patents and Registers (patentti- ja rekisterihallitus, patent- och registerstyrelsen) aimed at obtaining a patent for an invention relating to the fabrication of tobacco products. In case of doubt as to the patentability of the invention the company wished that an oral hearing be held. The application was accepted for publication and published on 31 August 1990 in order to afford third parties an opportunity to lodge objections.         On 30 November 1990 another tobacco company, F, lodged an opposition, referring to five publications on the subject. Its opposition was withdrawn on 31 December 1990.         On 28 March 1991 the rights pertaining to the patent application were transferred to the applicant company which, on 14 June 1991, submitted observations to the Board of Patents and Registers on the publications referred to in company F's opposition.         On 8 August 1991 the Board of Patents and Registers rejected the application, considering that the invention lacked the required inventive character. The Board based its decision on the five publications referred to by company F. The decision was made by S and R, senior research engineers of the Board's Technical Office no. II.         The applicant company appealed to the then Appeals Division (valitusosasto, besvärsavdelningen) of the Board of Patents and Registers, requesting, inter alia, an oral hearing.         On 20 December 1991 company F's representative sent the Appeals Division "for information" a translation of a decision of the Board of Appeal of the Dutch Patent Office refusing an allegedly similar patent application lodged by the applicant company. The representative's cover letter referred to the applicant company's patent application pending before the Appeals Division.         The Appeals Division did not communicate the translation of the Dutch patent refusal to the applicant company. Its representative in the proceedings before the Appeals Division was informed of the Dutch refusal only after she had submitted the company's appeal to the Appeals Division.         In its decision of 27 May 1992 the Appeals Division first summarised the proceedings, noting, inter alia, the following:         "On 20 December 1991 the opponent lodged submissions       relating to the matter."    The Appeals Division then       rejected the applicant company's request for an oral       hearing, considering that the invention had been       sufficiently presented in its written submissions. The       Appeals Division furthermore upheld the decision of the       Board of Patents and Registers, basing itself on four of       the five publications referred to therein. The Appeals       Division concluded that the subject-matter of the patent       application did not concern a new invention but rather an       application of an already known technique.         The Appeals Division was chaired by the Chief Director of the Board of Patents and Registers. The other two members were J, Chief Engineer and Head of Technical Office no. II of the Board, and K, Chief Engineer of the Appeals Division. The Appeals Division's decision was sent to company F's representative for information.         The applicant company appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomtolen), submitting, inter alia, that the refusal of its patent application in the Netherlands was not yet final; that its application to the Finnish authorities was in any case different; that the Appeals Division had taken into account material submitted by company F after it had withdrawn its opposition; and that the applicant company had not been given any opportunity to comment on that material. Should the court be unable to grant its appeal on the basis of the company's written submissions, it also requested an oral hearing for the purpose of hearing experts in the field. In the alternative, the company requested that the matter be referred back to the Appeals Division for the purpose of holding such a hearing.         Due to new legislation entering into force on 1 September 1992 the Appeals Division was reorganised and renamed the Appeals Board (valituslautakunta, besvärsnämnden).         The Supreme Administrative Court requested the Appeals Board to submit its opinion in respect of the applicant company's appeal. On 24 September 1992 the Appeals Board stated, on the one hand, that company F's submissions of 20 December 1991 had not had any impact on its refusal of the applicant company's appeal. The Appeals Board stressed that the submissions had not given rise to any change of the decision of the Board of Patents and Registers and had been mentioned merely for information purposes. On the other hand, the Appeals Board noted that the applicant company had not on its own initiative informed the then Appeals Division in Finland of the refusal of its patent application in the Netherlands. In any case, from the moment the company had been informed of that refusal it had had ample time to comment thereon in the proceedings before the then Appeals Division.         On 6 November 1992 the applicant company commented on the Appeals Board's opinion. It argued, inter alia, that if the manner in which the Appeals Division had processed the company's appeal were to become practice, an opponent to a patent application could phrase a de facto opposition as a document sent for information only and thereby prevent the patent applicant from commenting thereon. In particular, since company F's submissions of 20 December 1991 supported the refusal of the Board of Patents and Registers, there had been all the more reason to afford the applicant company an opportunity to comment thereon. Finally, the applicant company had been under no obligation to draw the Appeals Division's attention to the refusal of its patent application in the Netherlands which in any case had not yet become final.     In its decision of 10 September 1993 the Supreme Administrative Court rejected the request for an oral hearing, having found the matter sufficiently clarified. It found no indication of any procedural errors. It finally upheld the Appeals Division's decision, finding that the invention did not differ essentially from what had already become known through the publications cited in the decision of the Appeals Division. The Supreme Administrative Court's decision does not mention that the Appeals Division was heard in respect of the applicant company's appeal. Nor does it mention that the company was afforded an opportunity to reply.   B.     Relevant domestic law         The granting of patents is governed by the 1967 Patent Act (patenttilaki, patentlag 550/67) and a related 1980 Decree (669/80). At the relevant time the proceedings before the Board of Patents and Registers were governed by a 1965 Act (749/65) and a related 1982 Decree (213/82). As of 1 September 1992 the 1965 Act and the 1982 Decree were replaced by a 1992 Act (575/92) and Decree (799/92). On the same date a further Act (576/92) and Decree (800/92) entered into force concerning the new Appeals Board's examination of appeals against decisions of the Board of Patents and Registers.         If a patent application does not comply with the formal requirements of the 1967 Act or if the Board of Patents and Registers finds any other obstacle to the granting of the application, the applicant shall be afforded an opportunity to comment thereon or correct the application within a certain period (section 15 of the 1967 Act). If an obstacle remains after the expiry of that period, the application shall normally be refused (section 16). If an application is formally correct and no obstacle to the granting of the patent has been found, the application shall be accepted for publication (section 19).         After a patent application has been published anyone may oppose the granting of the patent within three months (section 21 of the 1967 Act). After the expiry of that period the examination of the application shall be continued and it shall be determined whether it can be granted. The applicant shall be informed of any opposition and be given an opportunity to comment thereon (section 23). All submissions of an opponent shall be communicated to the applicant (section 35 of the 1980 Decree). The applicant shall also be notified of any material submitted at a time other than that reserved for the lodging of oppositions, provided that this material is significant for the examination of the application. Further instructions as to the processing of applications may be issued by the Board of Patents and Registers (section 36).         According to the 1982 Act on Administrative Procedure (hallinto- menettelylaki 598/82, lag om förvaltningsförfarande 598/82), an authority shall hear a party in respect of any claims presented by others as well as any other material which could affect the authority's decision (section 15). If a party wishes to present a matter orally, this opportunity shall as far as possible be afforded (section 18). The Act on Administrative Procedure does not govern proceedings before administrative courts or other bodies with judicial functions (section 1).      When examining the conditions for granting a patent, the Board of Patents and Registers shall have regard to all evidence of which it obtains knowledge (section 26 of the 1980 Decree). If deemed necessary, it may request the assistance of external experts (section 27). On certain conditions a patent applicant may be obliged to inform the Board of the position taken by foreign patent authorities in relation to similar requests lodged by the applicant. The Board may in an interim decision order a patent applicant to present such information (section 29).         At the relevant time a decision made on behalf of the Board of Patents and Registers upon a patent application could be appealed against to its Appeals Division (section 4 of the 1965 Act). The Appeals Division consisted of three members and was chaired by the Director-General or the Chief Director of the Board. When dealing with patent cases, the other two members of the Appeals Division could be a senior engineer acting as head or deputy head of the Patents Division; a senior engineer acting as head of one of the six technical offices; or a senior engineer of the Appeals Division. If possible, one of these two members should be head of the technical office which had previously dealt with the matter. The Chairman decided on the composition of the Appeals Division in a particular case (sections 17 and 35 of the 1982 Decree). The Appeals Division was to follow "the legal code of court procedure ("laillista oikeudenkäyntijärjestystä"; "laga rättegångsordning") and could hold oral hearings (sections 6 and 8 of the 1965 Act).         An appeal against a decision of the Appeals Division lay with the Supreme Administrative Court (section 9 of the Act). When the Court is dealing with a patent matter two chief engineers appointed by the President of the Republic for a three-year period participate as justices (section 10 of the 1965 Act and section 9 of the 1992 Act).         According to the 1918 Act on the Supreme Administrative Court (no. 74/18), as in force at the relevant time, it could hold oral hearings and carry out inspections (section 15, subsection 1). The 1996 Act on Judicial Procedure in Administrative Matters (hallinto- lainkäyttölaki, förvaltningsprocesslag 588/96) entered into force on 1 December 1996. It stipulates, inter alia, that the Supreme Administrative Court shall, if so requested by a private party, hold an oral hearing when dealing with an appeal against the decision of an administrative body. In certain circumstances an oral hearing may nevertheless be refused (section 38, subsection 1).   COMPLAINTS   1.     The applicant company complains that its right to a fair hearing by an independent and impartial tribunal within the meaning of Article 6 of the Convention was violated due to the non-existence of a proper code of procedure governing the overall proceedings in question. More particularly, the Appeals Division was not an independent and impartial tribunal within the meaning of Article 6 para. 1. Reference is also made to the unsubstantiated refusals of the company's requests for an oral hearing for the purpose of, inter alia, hearing experts. Nor was the principle of equality of arms respected, as the applicant company was not given an opportunity to comment on company F's submissions to the Appeals Division of 20 December 1991. This non-communication also affected the outcome of the patent proceedings, since decisions in patent proceedings are rarely quashed by the Supreme Administrative Court and the company could comment on company F's submissions only in the proceedings before that court without there being any further right of appeal.   2.     The applicant company also complains that the allegedly unfair proceedings also resulted in a violation of its right to the peaceful enjoyment of its possessions. Article 1 of Protocol No. 1 is invoked.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 8 March 1994 and registered on 23 March 1994.         On 29 November 1995 the Commission (First Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 15 February 1996. The applicant replied on 9 May 1996.         On 26 November 1996 the application was transferred from the First Chamber to the Plenary Commission, by decision of the latter.   THE LAW   1.     The applicant company complains that its right to a fair hearing by an independent and impartial tribunal within the meaning of Article 6 (Art. 6) of the Convention was violated. More particularly, the Appeals Division was not an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Reference is also made to the unsubstantiated refusals of the company's requests for an oral hearing for the purpose of, inter alia, hearing experts. Nor was the principle of equality of arms respected, as the applicant company was not given an opportunity to comment on company F's submissions to the Appeals Division of 20 December 1991. This non- communication allegedly affected the outcome of the patent proceedings.         Article 6 para. 1 (Art. 6-1) of the Convention reads, as far as relevant, as follows:         "In the determination of his civil rights ..., everyone is       entitled to a fair and public hearing within a reasonable       time by an independent and impartial tribunal established       by law. ..."         The Government do not dispute the applicability of Article 6 para. 1 (Art. 6-1) but consider that it has not been violated. The respondent State was not required to submit the dispute in question to a procedure which at every stage met the requirements of Article 6 para. 1 (Art. 6-1), as the dispute was eventually determined by a body which did fulfil those conditions. It is therefore unnecessary to determine whether the proceedings before the Appeals Division complied with Article 6 para. 1 (Art. 6-1). The applicant company was able to put to the Supreme Administrative Court all the arguments it wished to make and also to have them considered. The dispute did not give rise to any questions of public interest making an oral hearing necessary. The written material was also sufficiently extensive and accurate and included, inter alia,   experts' writings. The dispute was therefore better dealt with in writing. Oral hearings also contribute to the length of proceedings and significantly increase the costs of the procedure.         Were the Commission to find that the applicant company was entitled to an oral hearing before the Supreme Administrative Court, the Government refer to its reservation to Article 6 (Art. 6), according to which Finland cannot for the time being guarantee a right to an oral hearing in so far as the current Finnish laws do not provide for such a right. This applies, inter alia, to proceedings governed by section 15 of the Supreme Administrative Court Act.         Finally, as regards the alleged lack of equality of arms, the Government submit that nothing would have prevented the company from consulting the Supreme Administrative Court's case file so as to verify whether any further observations were required. In any case, since company F had withdrawn its opposition prior to lodging its submissions of 20 December 1991, this material was not submitted by an opponent within the meaning of the Patent Act. Domestic law only required that submissions of significant importance to the outcome of the proceedings be sent to a patent applicant for possible comments. Company F's submissions did not form any basis for the Appeals Division's examination of the applicant company's patent application and were therefore not sent to it for possible comments.         The applicant company contends that Article 6 para. 1 (Art. 6-1) has been violated. The proceedings before the Supreme Administrative Court did not cure the defects in the proceedings at the lower levels, particularly as no oral hearing was held. Precisely because of Finland's reservation to Article 6 (Art. 6) the proceedings before the Supreme Administrative Court did not provide all the safeguards required by that provision. Accordingly, those guarantees should have been afforded at the earlier stages of the proceedings.         The applicant company finds no substantiation of the Government's assertion that an oral hearing, including the hearing of witnesses, was unnecessary in the case. It would be contrary to the principle of "equality of arms" if the courts were to heed only the "public interest" when assessing the need for an oral hearing. The "public interest" may be taken into account only and in so far as the right to request an oral hearing has been waived. Reference is made to the Court's Zumtobel v. Austria judgment (Eur. Court HR, Series A no. 268-A).         In the applicant company's view it transpires from the lower authorities' decisions that these were to a great extent based on the expert writings submitted by company F in its opposition of 30 November 1990 which was later withdrawn. This also holds true as regards the Supreme Administrative Court's examination and the Government have indeed indicated so. It cannot be verified whether the Government are right in asserting that company F's further submissions of 20 December 1991 had no impact on the Appeals Division's examination. Nor can it be excluded that those submissions were of significant importance within the meaning of section 36 of the 1980 Decree, since they were referred to in the decision of the Appeals Division which, moreover, still considered company F an opponent and notified it of its decision. Whether or not company F had the status of an objector within the meaning of the Patent Act is irrelevant, given that the material which it submitted greatly influenced the outcome of the proceedings. The authorities were under a duty to hear the applicant company in respect of all potentially relevant material. It should have been for the applicant company to assess whether or not company F' submissions deserved a reaction. The applicant company was not obliged to verify what information the Supreme Administrative Court had at its disposal when examining its appeal, nor did the company have the means to do so.         The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and of fact under the Convention, including questions concerning the Finnish reservation to Article 6 (Art. 6), the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring the complaint inadmissible have been established.   2.     The applicant company also complains that the allegedly unfair proceedings resulted in a violation of its right to the peaceful enjoyment of its possessions. It invokes Article 1 of Protocol No. 1 (P1-1) which 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.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         The Government submit that this provision has not been violated either. They consider that this complaint is in substance identical to that which refers to Article 6 para. 1 (Art. 6-1) of the Convention. No separate issue therefore arises under Article 1 of Protocol No. 1 (P1-1). Alternatively, the Government consider that, although the applicant company did not obtain the requested patent, it was not deprived of any existing property. Accordingly, there has been no interference with the company's rights under Article 1 of Protocol No. 1 (P1-1).         The Commission recalls that neither the Convention nor any of its Protocols protects a right to obtain possessions. Article 1 of Protocol No. 1 (P1-1) is limited to enshrining the right of everyone to the peaceful enjoyment of already existing possessions (see, e.g., Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A No. 31, p. 23, para. 50; Van der Mussele v. Belgium judgment of 29 September 1983, Series A No. 70, p. 23, para. 48). The patent to which the applicant company considered itself entitled cannot therefore be considered "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1), even assuming that a separate issue were to arise under that provision. Accordingly, the Commission finds no appearance of any violation of Article 1 of Protocol No. 1 (P1-1).         It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission,         by a majority,       DECLARES ADMISSIBLE, without prejudging the merits of the case,       the applicant company's complaint that it did not receive a fair       and oral hearing by an independent and impartial tribunal       established by law; and         unanimously,       DECLARES INADMISSIBLE the remainder of the application.              H.C. KRÜGER                          S. TRECHSEL              Secretary                           President          to the Commission                   of the Commission