18874/91

 AS TO THE ADMISSIBILITY OF Application No. 18874/91 by X. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 12 January 1994, the following members being present: MM. A. WEITZEL, President S. TRECHSEL C.L. ROZAKIS F. ERMACORA E. BUSUTTIL A.S. GÖZÜBÜYÜK Mrs. J. LIDDY MM. M.P. PELLONPÄÄ B. MARXER G.B. REFFI B. CONFORTI N. BRATZA I. BÉKÉS E. KONSTANTINOV 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 6 September 1991 by X. against Switzerland and registered on 27 September 1991 under file No. 18874/91; 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 submitted by the applicant association, may be summarised as follows: The applicant association has its seat in St. Gallen. It is not registered, its registration being the issue of this application. Before the Commission it is represented by Mr. R. Spaar, a lawyer practising in St. Gallen. Particular circumstances of the case I. On 7 June 1990, the applicant association filed a request with the Federal Commercial Register Office (Eidgenössisches Handels-registeramt) to be registered in the commercial register (Handels-register) under the name: "X.". A similar request was filed at the same time by another association, the "Australian Swiss Chamber of Commerce and Industry". As the applicant association proposed a name with a national description the Federal Office consulted the Managing Board of the Swiss Association for Trade and Industry (Vorort des Schweizerischen Handels- und Industrievereins) according to Section 45 of the Commercial Register Ordonnance (Handelsregisterverordnung; see below, Relevant domestic law). The Managing Board submitted its opinion on 29 June 1990, finding inter alia that the applicant association was not representative of the Swiss-Australian economic relations. This was rather the case with the "Australian Swiss Chamber of Commerce and Industry" which furthermore cooperated with the Swiss Australian Chamber of Commerce and Industry, itself a member of the "Union of Swiss Chambers of Commerce Abroad" ("Union schweizerischer Handelskammern im Ausland"). On 10 July 1990 the Federal Office dismissed the applicant association's request as its members were not representative of the economic relations between Switzerland and Australia. On the other hand, the association "Australian Swiss Chamber of Commerce and Industry" was part of an official network of bilateral trade relations. The decision concluded that "the terms 'Switzerland' and 'Australia' cannot be authorised as they deceive the public and have an advertising character" ("können die Bezeichnungen 'Schweiz' und 'Australien' vorliegend nicht bewilligt werden, da sie das Publikum täuschen und auch rein reklamenhaft wirken"). On 17 July 1990 the applicant association obtained a copy of the opinion of the Managing Board of 29 June 1990. II. On 10 September 1990 the applicant association lodged an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht). The Federal Office then filed a reply and the applicant association a further statement on 8 November 1990. The Federal Court dismissed the administrative law appeal on 26 November 1990, the decision being served on 6 March 1991. In its decision the Federal Court first explained why it had not considered the applicant association's statement of 8 November 1990. Thus, a new round of observations would have been necessary if the opposing party, in its reply, had made new factual statements relevant for the decision. The Court found that the further grounds suggested by the Federal Office for dismissing the appeal were not essential for the decision (für die Entscheidung nicht von wesentlicher Bedeutung). The Court noted that in its decision the Federal Office had mainly relied on the opinion of the Managing Board which had been known to the applicant association when preparing its administrative law appeal. As no further documents were necessary for the Court's examination, it was unnecessary to authorise the applicant association to comment on further documents submitted by the Federal Office. It was also unnecessary to decide whether the applicant association should have been able to consult documents concerning the other association. Insofar as the applicant association complained that in the proceedings before the Federal Office it had not been able to comment on the opinion of the Managing Board, the Federal Court found that the applicant association had at least been able to comment thereupon in its administrative law appeal, and the Federal Court was free to examine the conclusions of the Federal Office as to the facts. As to the merits of the appeal the Federal Court observed that the applicant association called itself "X." ("Chamber of Economy Switzerland-Australia") rather than "Chamber of Commerce" ("Handelskammer"); a third person would confuse the two terms. It further referred to the conclusion of the Federal Office, not contested by the applicant association, according to which the "Swiss Australian Chamber of Commerce and Industry" was responsible for bilateral trade relations between Switzerland and Australia and was a member of the "Union of Swiss Chambers of Commerce Abroad". The applicant association lacked the necessary integration into the national foreign trade policy, and registration had correctly been refused. In its decision the Federal Court relied inter alia on Section 944 of the Contract Code and Section 45 of the Commercial Register Act (see below, Relevant domestic law). Relevant domestic law According to Section 61 of the Swiss Civil Code (Zivilgesetz-buch), any association constituted according to the law may request its registration in the commercial register (Handelsregister). Section 944 of Swiss Contract Code (Obligationenrecht) concerns the name of a company. Para. 2 of this provision states that the Federal Council may enact provisions as to the use of national or territorial names. Section 45 para. 1 of the Commercial Register Ordonnance (Handelsregisterverordnung) states that a company may not use national descriptions (nationale Bezeichnungen) in its name. Exceptions are possible if they are warranted under the circumstances. Para. 2 states that an association wishing to bear a national description as a name must obtain authorization from the Federal Commercial Register Office (Eidgenössisches Handelsregisteramt). The latter may only grant permission after having consulted the competent authorities or representatives of commerce. The registration into the commercial register may only occur after the Office has granted permission. COMPLAINTS 1. Under Article 6 para. 1 of the Convention the applicant association complains that in the proceedings before the Federal Court it could not comment upon certain documents, in particular a file, which were at the Court's disposal. The applicant association complains that "the Swiss Federal Court had considered this particular file in its decision" ("hat das schweizerische Bundesgericht gerade dieses genannte Dossier in seinem Entscheid ... verwertet"). The applicant association further complains that before the Federal Office it could not comment on the Managing Board's opinion. While the Court could freely examine the conclusions of the Federal Office as to the facts, it could not itself establish the facts. The applicant association complains that the Federal Court in its decision for the first time stated that the applicant association belonged neither to a bilateral chamber of commerce nor to the "Union of Swiss Chambers of Commerce Abroad". The applicant association previously never had the opportunity to comment on this point. 2. Under Article 11 of the Convention the applicant association complains that it was refused registration in the commercial register. 3. Under Article 14 of the Convention the applicant association complains that different standards were applied to another association in respect of its request for registration in the commercial register. THE LAW 1. The applicant association complains under Article 6 (Art. 6) of the Convention of the proceedings before the Federal Commercial Register Office and the Federal Court. Assuming that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue, it states, insofar as relevant, that "in the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..." a) The applicant association complains first that in the proceedings before the Federal Office it could not comment on the Managing Board's opinion. However, the Commission considers that the requirements of Article 6 para. 1 (Art. 6-1) of the Convention, applying to proceedings before a court, were satisfied in that the applicant association could comment on this opinion in its administrative law appeal to the Federal Court. b) The applicant association may be understood as complaining that it had no access to a court with full jurisdiction as required by Article 6 para. 1 (Art. 6-1) of the Convention. In particular, the Federal Court could not itself establish the facts. The Commission recalls the case-law of the Convention organs according to which it suffices if a jurisdictional organ, which does not comply with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention, "is subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1 (Art. 6-1)" (see Eur. Court of H.R., Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 16, para. 29 and Zumtobel judgment of 21 September 1993, Series A no. 268-A, p. 10, para. 29). In the present case, the requirements of Article 6 para. 1 (Art. 6-1) of the Convention were met in that the Federal Court stated in its decision of 26 November 1990 that it could freely examine the conclusions of the Federal Commercial Register Office as to the facts of the case. c) The applicant association complains that before the Federal Court it could comment neither upon the observations of the Federal Commercial Register Office nor on certain documents, namely a file, which were at that Court's disposal. The Commission notes that the applicant association has not sufficiently demonstrated in what respect the Federal Court relied in its decision on conclusions in the Federal Office's observations or other documents on which the applicant association had not been able to comment. The Federal Court itself expressly stated that the observations of the Federal Office had not contained any new relevant grounds for rejecting the appeal for which reason a further round of observations was unnecessary; and that, as the Court did not have to rely on further documents for its decision, it was also unnecessary to permit the applicant association to comment thereupon. In this respect the applicant association claims that the Federal Court in its decision for the first time stated that the applicant association was not a bilateral chamber of commerce and did not belong to the "Union of Swiss Chambers of Commerce Abroad". However, the Commission notes that the criterion of adherence to the "Union of Swiss Chambers of Commerce Abroad" was already mentioned in the opinion of the Managing Board of 29 June 1990, and the criterion of bilateral trade relations in the decision of the Federal Office of 10 July 1990. The applicant was thus free to comment on these issues in its administrative law appeal to the Federal Court. d) This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. Under Article 11 (Art. 11) of the Convention the applicant association complains that it was refused registration in the commercial register. This provision states, insofar as relevant: "1. Everyone has the right to freedom of ... association with others ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ..." The Commission notes that the applicant association, while being refused registration in the commercial register, has not shown that it cannot exercise its functions as an association. It need nevertheless not resolve whether there has been an interference with the rights under Article 11 para. 1 (Art. 11-1) of the Convention, since this part of the application is in any event manifestly ill-founded for the following reasons. The authorities' refusal to register the applicant association in the commercial register was based on Section 944 of Swiss Contract Code and Section 45 of the Commercial Register Act. The measure was therefore "prescribed by law" within the meaning of Article 11 para. 2 (Art. 11-2) of the Convention. In its decision of 26 November 1990 the Federal Court moreover upheld the refusal to register the application association, as a third person could confuse the name of the application association with that of a Chamber of Commerce; that another Chamber of Commerce was already responsible for the bilateral trade relations between Switzerland and Australia; and that the applicant association lacked the necessary integration into the national foreign trade policy. Thus, the measure could also be regarded as "necessary in a democratic society ... for the prevention of disorder (and) for the protection of the rights and freedoms of others ..." within the meaning of Article 11 para. 2 (Art. 11-2) of the Convention. This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. Insofar as the applicant association complains under Article 14 (Art. 14) of a difference of treatment in respect of another association, the Commission finds for the reasons described above, that no issue arises under this provision. The remainder of the application is therefore also manifestly ill-founded within the meaning of Article 27 par. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the President of the First Chamber First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)