CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 32601/96                       by EVORA B.V.                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, 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 15 April 1996 by Evora B.V. against the Netherlands and registered on 13 August 1996 under file No. 32601/96;        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 applicant is a company with limited liability having its registered seat in Renswoude, the Netherlands. In the proceedings before the Commission the applicant company is represented by Mr D.W.F. Verkade, a lawyer practising in Amsterdam.        The facts of the case, as submitted by the applicant company, may be summarised as follows.   a.    Particular circumstances of the present case        The applicant company owns a chain of pharmacies in the Netherlands which offer low priced articles including perfumes and other cosmetic products of well-known brands. These pharmacies' offer includes certain Dior products which are advertised in the pharmacies' habitual manner. The applicant company is not a retail trader in the exclusive distribution system of Dior products.        As it was considered that the applicant company's manner of advertising Dior products affected the prestige and image of Dior products, the French company Parfums Christian Dior SA and the Dutch company Parfums Christian Dior BV instituted summary proceedings (kort geding) against the applicant company before the President of the Regional Court (Arrondissementsrechtbank) of Haarlem, seeking an injunction against all use of the Dior logo or Dior products in the applicant company's advertising activities. It was not alleged that the applicant company had unlawfully obtained the Dior products it had offered in its advertisements.        On 29 December 1993, following adversarial proceedings, the President of the Regional Court found against the applicant company and granted the injunction.        As the injunction granted entailed important consequences for the applicant company, it chose to file an urgent appeal (spoed appel) with the Court of Appeal (Gerechtshof) of Amsterdam.        In its judgment of 19 May 1994, following adversarial proceedings, the Court of Appeal of Amsterdam quashed the decision of 29 December 1993 and rejected the request for an injunction. The Dior companies filed an appeal in cassation with the Supreme Court (Hoge Raad).        In its interlocutory judgment of 20 October 1995, the Supreme Court rejected the argument submitted by the applicant company that the injunction sought by the Dior companies would be contrary to Article 10 of the Convention. It held on this point that the right to freedom of expression may be subject to lawful limitations necessary in a democratic society for the protection of, inter alia, the rights of others. The Supreme Court found these rights to include trade mark and copyrights. The Supreme Court found that the applicant company's arguments on this point did not prompt the conclusion that the applicant company's right to freedom of expression should outweigh the Dior companies' interest in respect for their trade mark and copyrights.        However, since questions arose under the Uniform Benelux Act on Trade Marks (Eenvormige Beneluxwet op de merken) and EC rules, the Supreme Court decided to seek a preliminary ruling from the Benelux Court of Justice (Benelux Gerechtshof) on five questions under the Uniform Benelux Act on Trade Marks and a preliminary ruling from the EC Court of Justice (Hof van Justitie van de Europese Gemeenschappen) on six questions under EC rules. It adjourned any further decision pending the outcome of the proceedings before the Benelux Court of Justice and the EC Court of Justice. These proceedings are currently still pending.   b.    Relevant domestic law        In disputes falling within the competence of the civil courts and where an urgent decision is called for, it is possible to institute summary proceedings (kort geding) before the President of the Regional Court seeking an interim measure pending the outcome of the regular proceedings on the merits (bodemprocedure). After one hearing, the President decides whether or not to issue the interim measure requested. Such an interim measure remains in force pending the outcome of the regular proceedings on the merits. The judicial authorities deciding on the merits are not bound by this interim measure in their decision.        As in many cases the summary proceedings are not followed by regular proceedings on the merits, the outcome of the summary proceedings often constitutes the sole judicial decision on a dispute.        It is possible to file an appeal against a decision taken in summary proceedings before the Court of Appeal. Such an appeal must be lodged within two weeks. These appeal proceedings are dealt with in a regular manner although generally speaking the Court of Appeal will deal with such appeals expeditiously.        An urgent appeal (spoed appel) in interim injunction proceedings, which has no statutory basis and which can only be lodged with the Court of Appeal of Amsterdam, obliges an appellant to formulate all objections in the appeal summons which must be served within a time- limit of two weeks. No further objections can be raised subsequently. In the oral proceedings every party is allowed twenty minutes for pleadings. If these requirements are met, the Court of Appeal of Amsterdam grants precedence to the case and will issue its decision within a period of about four months.     COMPLAINTS   1.    The applicant company complains under Article 6 paras. 1 and 3 (b) of the Convention that its defence rights were too restricted in the proceedings at issue. It submits that the complexity of the case is illustrated by the fact that the Supreme Court considered it necessary to seek preliminary rulings from the Benelux Court of Justice and the EC Court of Justice on issues related to trade marks and copyrights which the applicant company had raised in the proceedings on appeal. The applicant company complains in particular that in the urgent appeal procedure before the Court of Appeal of Amsterdam, it had to formulate all its objections within a time-limit of two weeks without having the possibility to make any subsequent changes and only had twenty minutes for making its oral submissions. As a result it could not make any elaborate submissions on a number of arguments including that relating to Article 10 of the Convention.   2.    The applicant company further complains that the Supreme Court unjustly rejected the argument that the prohibition against including Dior products in its advertisement activities constitutes an unjustified interference with its rights under Article 10 of the Convention.     THE LAW   1.    The applicant company complains under Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) of the Convention that its defence rights were too restricted in the proceedings at issue.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair ... hearing ... by a ... tribunal established by law. ...      ...      3.     Everyone charged with a criminal offence has the following      minimum rights:      ...            b.     to have adequate time and facilities for the      preparation of his defence;      ..."        As the proceedings at issue cannot be considered as constituting a determination of a "criminal charge" within the meaning of Article 6 (Art. 6) of the Convention, the Commission is of the opinion that these proceedings fall outside the scope of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention and cannot, therefore, be examined under this provision.        Insofar as the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds that the proceedings at issue can be regarded as constituting 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 can thus be examined under this provision.        As to the question whether these proceedings are in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention as to the fairness of proceedings, the Commission recalls that as a rule this can only be determined by examining the proceedings as a whole, that is to say only after they have been concluded (cf. No. 12952/87, Dec. 6.11.90, D.R. 67, p. 175). However, it is not impossible that a particular procedural element could be so decisive that the fairness of the proceedings could be determined at an earlier stage (cf. No. 9938/82, Dec. 15.7.86, D.R. 48, p. 21).        The Commission, noting that in its interlocutory judgment of 20 October 1995 the Supreme Court adjourned its final decision in the present case pending the outcome of the proceedings before the Benelux Court of Justice and the EC Court of Justice, finds that the applicant company's submissions do not disclose any elements in view of which the fairness of the present proceedings could be determined before a final decision within the meaning of Article 26 (Art. 26) of the Convention has been taken.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant company further complains that the Supreme Court unjustly rejected the argument that the prohibition against including Dior products in its advertisement activities constitutes an unjustified interference with its rights under Article 10 (Art. 10) of the Convention.        Article 10 (Art. 10) of the Convention provides as follows:        "1.    Everyone has the right to freedom of expression. This right      shall include freedom to hold opinions and to receive and impart      information and ideas without interference by public authority      and regardless of frontiers. This Article shall not prevent      States from requiring the licensing of broadcasting, television      or cinema enterprises.        2.     The exercise of these freedoms, since it carries with it      duties and responsibilities, may be subject to such formalities,      conditions, restrictions or penalties as are prescribed by law      and are necessary in a democratic society, in the interests of      national security, territorial integrity or public safety, for      the prevention of disorder or crime, for the protection of health      or morals, for the protection of the reputation or rights of      others, for preventing the disclosure of information received in      confidence, or for maintaining the authority and impartiality of      the judiciary."        The Commission notes that the Supreme Court, in its interlocutory judgment of 20 October 1995, rejected the applicant company's argument that the injunction sought by the Dior companies would be contrary to Article 10 (Art. 10) of the Convention.        However, the Commission further notes that, following the judgment of 19 May 1994 of the Court of Appeal of Amsterdam, the injunction at issue has been quashed and, consequently, is no longer in force. Whether the Supreme Court will uphold this judgment cannot be answered for the time being as the Supreme Court has adjourned its decision on the Dior companies' appeal in cassation against the Court of Appeal's decision pending the replies to the preliminary questions put by the Supreme Court to the Benelux Court of Justice and the EC Court of Justice.        The Commission considers that the final outcome of the proceedings before the Supreme Court will be decisive for whether or not the applicant company will be directly affected by the Supreme Court's rejection of the applicant company's arguments under Article 10 (Art. 10) of the Convention and thus for whether or not it may claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention (cf. No. 15404/89, Dec. 16.4.91, D.R. 70, p. 262). Consequently, the question of the applicant company's capacity as a victim of an alleged   violation of Article 10 (Art. 10) cannot be determined until there is a final judgment in the domestic proceedings.        A consequence of this reasoning is of course that the six months time-limit laid down in Article 26 (Art. 26) of the Convention did not, as regards the applicant company's complaint under Article 10 (Art. 10) of the Convention, begin to run from 20 October 1995, i.e. the date of the Supreme Court's interlocutory judgment, but will only be calculated from the date on which the final decision in the proceedings between the Dior companies and the applicant company will be given on whether or not an injunction should be granted against the applicant company.        It follows that this part of the application is also premature and, consequently, must be rejected as 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.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber