FIRST SECTION
CASE OF
KRISTIANSEN AND TYVIK AS v. NORWAY
(Application no.
25498/08)
JUDGMENT
STRASBOURG
2 May 2013
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Kristiansen and Tyvik As v. Norway,
The European Court of Human Rights (First Section), sitting as
a Committee composed of:
Isabelle Berro-Lefèvre, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 9 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 25498/08) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr
Arne Kristiansen, a Norwegian national who was born in 1931, and Tyvik A/S, a
limited liability company established under Norwegian law.
The applicants were
represented by Mr H. Berge, a jurist residing in Luxembourg. The Norwegian Government (“the Government”) were
represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney-general’s
Office (Civil Matters), assisted by Mr E. Bratterud, Attorney.
On 7 June 2010 the application was communicated to
the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Patent application to NIPO
On 30 November 1990 the first applicant submitted
a patent application for a particular method of propulsion of aircrafts and sea
vessels to the Norwegian Industrial Property Office (Patentstyrets første
avdeling - hereinafter referred to as “NIPO”). Ranging under the Ministry
of Trade and Industry, NIPO is a government authority, responsible for
processing and deciding on applications for patent protection in Norway. The application was allotted no. 19905214.
In a letter of 21 March 1991, NIPO presented a
preliminary opinion stating that the application in its present form was not
patentable because it did not reveal a concrete solution to achieve the desired
effect. It also questioned whether the invention had any effect at all.
Therefore, under former section 28 (currently section 32) of the Regulation (forskrift)
to the Patents Act 1967 (patentloven), NIPO required the first applicant
to perform a test (“praktiske forsøk”) at an independent research
institute and to submit the necessary test documentation. The first applicant
replied on 30 September 1991 that he disputed the need for a test and referred
to the high costs for such tests. However, he informed NIPO that prototypes
were under construction and could be tested in the presence of representatives
from NIPO.
In the period from 6 May 1992 to 10 May 1994,
there was correspondence between the first applicant and NIPO as to the
existence of any need to protect the confidentiality of the application. In
February 1993 NIPO asked the Military Supreme Command whether the application
should be kept secret on national security grounds, which the latter answered
in the negative in March 1993. The first applicant was informed in June 1993.
On 9 May 1994 the first applicant provided NIPO
with further information on the subject-matter of the application. On 24
February 1995, NIPO reiterated its request of 21 March 1991 that the first
applicant provide evidence from tests showing the technical effect and concrete
features of the invention. In his reply of 23 May 1995 the first applicant
submitted theoretical views on the subject-matter of the application with
reference to a research report of 1965 which, according to him, described tests
and results that proved the technical effect of his invention. The required
tests were therefore superfluous, in his view.
The first applicant on 27 November 1996
complained about the delays in the processing of his application. The NIPO’s
Director General on 9 December 1996 apologised for the delay and said the
matter would be given priority.
On 16 December 1996 NIPO maintained its earlier
requirement of independent tests, to which a series of exchanges ensued between
the applicant and NIPO on the need for tests, including a protest by the
applicant questioning NIPO’s technical competence and the submission by him of
statements by two academics, dated 14 March and 18 December 1997, respectively.
Whilst apologising for the delay, NIPO
maintained its position on the need for testing in a communication to the first
applicant of 5 May 1999 and gave him until 5 November 1999 to comply.
By a registered letter of 26 October 1999,
received on 11 November 1999, the first applicant again characterised NIPO’s processing
as late and technically incompetent without making any new arguments concerning
the requirements for granting a patent.
On the ground of the first applicant’s failure
to comply with the time-limit of 5 November 1999, NIPO decided to discontinue (henlegge)
its examination of his application under section 15(2) of the Patents Act
(according to which, in the event of an omission by a patent seeker to provide
a statement or to take measures to rectify a notified deficiency, the
application shall be shelved). Upon reconsideration of the matter, NIPO
informed the first applicant on 18 February 2000 that, although the application
had been received on time, it maintained its decision to shelve the application
because he had not met the substantive requirements indicated to him on 5 May
1999.
The first applicant then lodged a petition with
the Parliamentary Ombudsman for Civil Matters on 8 March 2001.
B. Resumption of examination by NIPO
Following an inquiry by the Parliamentary Ombudsman
for Civil Matters, NIPO informed the first applicant on 30 August 2001 that it
had annulled its decision to discontinue the matter and gave him until 28 February
2002 to respond to its letter of 5 May 1999. He replied on 24 September
2001 but without presenting any new arguments or material.
On 2 October 2001 NIPO refused the application
on the ground that the applicant had not made it probable that the subject-matter
of the application had the alleged technical effect.
On 23 January 2002 the Parliamentary Ombudsman
informed NIPO that he found no grounds for continuing the investigation of the
petition.
C. Appeal to NIPO’s Board of Appeals
On 27 November 2001 the first applicant appealed
to the Board of Appeals (Patentstyrets annen avdeling) against NIPO’s
decision of 2 October 2001.
Following a period of circulation of the case
files among the members of the Board of Appeals, the first meeting on the case
was held on 13 September 2004. The Board of Appeals took a different view than
NIPO and indicated a new formulation of the patent claims which might lead to a
patent, but only for sea vessels. The applicant was informed correspondingly in
a letter of 29 September 2004.
During the period from 12 November 2004 to 13
January 2005, there was correspondence between the Board of Appeals and the
first applicant in order to arrange a meeting, which was held on 2 February
2005. The subject-matter of the appeal was discussed together with the further
process.
On 14 February 2005, NIPO was informed that 50%
of the ownership to the application had been transferred to the second
applicant Tyvik AS. Thereafter, mostly both applicants, occasionally only the
first applicant, acted as claimants in the relevant proceedings (to simplify
“applicants” is used in the following).
In the period from 2 May 2005 to 17 October
2005, the Board of Appeals and the applicants exchanged various communications regarding
the patentability of the original patent claims.
By a decision of 14 November 2005, the Board of Appeals
concluded that the invention in application no. 19905214 had a technical
effect, but the Board did not consider whether other patent requirements had
been fulfilled. The applicants had received information on how to change the
claims into a patentable invention but had been unwilling to do so.
Consequently, the Board did not find any grounds to continue processing of the
application. Accordingly, NIPO’s decision was set aside and the application was
referred back to NIPO for further consideration.
D. Reconsideration by NIPO
Following the return of the application to NIPO,
it concluded in its letter of 29 November 2005 that the subject-matter of NO
19905214 could not be considered novel.
The applicants, represented by Mr. H. Berge, filed
a new complaint to the Parliamentary Ombudsman on 13 March 2006 concerning the
proceedings before NIPO. In particular they claimed that the executive officer
of NIPO had been prejudiced as he was responsible for considerable parts of the
previous processing and the refusal of the application prior to the appeal to
the Board of Appeals. The Parliamentary Ombudsman replied on 22 March 2006 and
29 June 2006 that he could not decide on complaints until the processing of the
application had been completed, but assumed that the case would now be examined
with due diligence (“tilbørlig hurtighet”).
Exchanges of correspondence between NIPO and the
applicants continued between 31 May 2006 and 11 June 2006. NIPO provided
guidance and suggested that specific changes be made to the patent claims in
order to render the subject-matter of the application patentable. The applicants
disagreed.
On 20 June 2007, the application was formally
refused due to lack of novelty (see paragraph 35 below).
E. Second appeal to Board of Appeals
On 20 August 2007 the applicants appealed to the
Board of Appeals. On 29 November 2007, they were informed that the Board, after
having examined the case (on 12 November 2007) had found it clear that the
conditions for granting a patent had not been fulfilled in so far as concerned
aircrafts. However, the application might succeed in respect of a more limited
field of sea vessels. It was proposed that the patent requirements be
formulated in a similar manner as proposed in the Board of Appeals’ letter of
29 September 2004 (see paragraph 18 above).
The communication of 29 November 2007 further
warned the applicants that if the patent requirements were not defined in
accordance with the indications given, the Office’s rejection might be
confirmed. In the alternative, the part of the application that related to air
transport might be disjoined from that which related to sea transport, in which
case it might be expected that the former part would be rejected. As an
alternative to delimiting against the requirements to aircrafts, dividing the
application into two parts, one concerning aircrafts, another concerning sea
vessels, could be considered, in accordance with section 11 of the Patents Act.
In that case, a rejection of the separate part relating to air crafts ought to
be expected.
The applicants were given until 29 January 2008
to comment and were warned that the case might be determined on the basis of
the case-file as it stood as at that date.
In a letter to the Board of Appeals of 28
January 2008, the applicants submitted their observations to the communication
of 29 November 2007 and altered the definition of patent requirements.
On 22 September 2008 the Board of Appeals
confirmed NIPO’s refusal of the patent requested (see paragraph 25 above),
albeit on a different reasoning. Whilst NIPO had been sceptical about whether
the patent requested could serve according to its purpose, the Board of Appeals
had no doubt that the results could be achieved with the invention that could
be exploited industrially and that the application could not be rejected on
this ground. Both NIPO and the Board of Appeals found that the application did
not involve any novelty in respect of aviation, though the reasoning differed.
Unlike NIPO, the Board of Appeals found that the application could have
succeeded in a limited area of sea transport. The applicants had been advised
that in order to succeed, the patent requirements would have to be defined so
as to exclude aviation but had not been willing to do so. The application as
presented did therefore not fulfil the conditions for grant of patent.
The applicants have apparently not challenged
the Board of Appeals’ decision of 22 September 2008 before the Norwegian
courts.
F. Subsequent developments
According to the applicants, the patent
applications they had filed in 2003, made in light of the patent application of
30 November 1990 (no. 19905214), had been granted in the United States of
America, Russia, China and Singapore and “through the EPO [European Patent
Office] as well”.
The Government submitted that according to Espacenet
(a database provided by EPO), the applicants had not claimed priority with
respect to no. 19905214 in any of the above mentioned countries or in EPO. The
granted EPO patent had claimed priority in relation to another and separate
application by the applicants, namely no. 20015844, which had been based on
knowledge from no. 19905214. When comparing the EPO patent claims with no.
19905214, one would observe that the former had been based on additional
features that had made the invention patentable.
II. RELEVANT DOMESTIC LAW
Section 1 (1) of the Patent Act 1967 (patentloven),
provides:
“Within any technical field, any person who has made an
invention which is susceptible of industrial application, or his successor in
title, shall, in accordance with this Act, have the right on application to be
granted a patent for the invention and thereby obtain the exclusive right to
exploit the invention commercially or operationally.”
The expression “industrial application” requires that the
innovation has “technical effect”.
Pursuant to section 2, patents shall be granted
only for inventions which are new in relation to what was known before the
filing date of the patent application, and which also differ essentially
therefrom.
Section 15 provides:
“If the applicant has not complied with the prescribed
requirements with respect to the application, or if NIPO finds other obstacles
to the acceptance of the application, the applicant shall be notified to that
effect and be invited to submit observations or to correct the application
within a specified time limit. However, NIPO may make such amendments in the
abstract as found necessary without consulting the applicant.
If the applicant fails, within the time limit, to submit
observations or to take steps to correct a defect which has been pointed out,
the application shall be shelved. Information to that effect shall be given in
the notification from NIPO referred to in the first paragraph.”
Section 27 (1) to (3) of the Patents Act reads:
“An appeal must be received by NIPO within two months from the
date on which notification of the decision was sent to the party concerned. ...
If these provisions are not complied with, the appeal shall not be submitted
for consideration.
Even if the opponent withdraws his appeal, it may be examined
if special circumstances make it desirable.
A decision by the Board of Appeals refusing a patent
application, revoking a patent, or maintaining a decision by NIPO to revoke a
patent may not be brought before the courts of law later than two months from
the date on which the applicant or patent holder was notified of the decision.
Information with respect to the time limit for instituting proceedings shall be
given in the notification.”
According to section 40 of the Patents Act, a
granted patent may be maintained for up to twenty years from the date of filing
of the patent application. It is undisputed in this case that, had a patent
been granted in Norway, this would have meant that the patent protection would
have expired on 30 November 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants maintained that, as a result of
the excessive length of the proceedings before the national patent authorities
and the twenty years’ limitation on patent protection under section 40 of the Patents
Act, their right of access to a court had become illusory. This entailed a
violation of Article 6 § 1, which in so far as relevant reads:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
The applicants also invoked the right to an
effective remedy under Article 13 but the Court finds it more appropriate to
deal with the matter under Article 6 § 1.
A. Admissibility
The Government requested the Court to declare
the applicants’ complaints inadmissible under Article 35 §§ 1 and 4 of the
Convention on the ground that the applicants had failed to exhaust domestic
remedies. The applicants had not raised or taken any step to raise before the Norwegian
courts (or any other domestic instance) the complaints or the substance of the
complaints made before the Court. The Norwegian courts had full jurisdiction to
review the lawfulness of the decisions and procedure of administrative
authorities such as NIPO, for example.
Whilst it was true that judicial review of the
lawfulness of NIPO’s decisions could be sought only after an appeal to the
Board of Appeals (section 27 of the Patents Act), no such limitation applied to
disputes regarding the lawfulness of the procedure under national law or its
compatibility with the requirements of the Convention. Such complaints could be
raised as soon as the applicants had an arguable claim that their Convention
rights were violated. No particular time-limits applied. Reference was made to
the judgment of the Norwegian Supreme Court, cited in Norsk Retstidende
2003 page 301.
In any event, the Government argued that the
applicants’ complaints were manifestly ill-founded and had to be declared
inadmissible under Article 35 § 3 of the Convention.
The Court observes that the Supreme Court ruling
on which the Government relied appears to be the one related to and cited by
the Court in K.T. v. Norway, no. 26664/03, §§ 36 and 37, 25 September
2008. However, the afore-mentioned ruling related to an issue of access to a
court (in respect of a complaint of investigations carried out by the child
welfare services) that does not appear in any way comparable to the one at
issue in the case at hand. The Court considers that, in the absence of any domestic
case-law or particulars on how a remedy as that invoked by the Government would
operate in practice with respect to a complaint such as here, they have not
established that an effective remedy existed. Their plea of non-exhaustion must
therefore be rejected (see A. and E. Riis v. Norway, no. 9042/04, §§ 41
and 43, 31 May 2007; Rotaru v. Romania [GC], no. 28341/95, § 70, ECHR 2000-V).
Against this background, the Court finds that
the applicants’ complaint under Article 6 § 1 cannot be declared inadmissible
under Article 35 §§ 1 and 4 on the grounds of failure to exhaust domestic
remedies. Nor is the complaint manifestly ill-founded within the meaning
Article 35 § 3 or inadmissible on any other grounds. The application must
therefore be declared admissible.
B. Merits
1. The applicants’ arguments
The applicants complained that, as a
result of the NIPO’s protraction of the administrative proceedings relating to
their patent application, they had been denied the right to the determination
of their civil rights by an impartial tribunal within a reasonable time, in
breach of Article 6 § 1 of the Convention. The case-officer handling their
application to the NIPO had displayed bias and hence a lack of impartiality.
The applicants further complained that pending a final decision by the Board of
Appeals it would have served no purpose for them to exercise a remedy in
respect of the above. In a situation of administrative delay such as that in
the present instance, the rule whereby patent rights were protected for twenty
years from the date of the filing of the patent application had the effect of
undermining the possibility of having such rights established through the use
of legal remedies.
Contrary to what the Government suggested, NIPO had
not carried out either a novelty search or an examination of the merits of the
application during the first fifteen years of the proceedings that lapsed from
1990 to 29 November 2005. Nor had there, as alleged by the Government, been
any process of negotiation. At best, only during the three years after November
2005 had such search been carried out and such communications taken place. The
Government’s contention that the applicants were responsible for most of the
time that had elapsed was therefore erroneous and misleading, as was their
suggestion that the applicants had been passive.
2. The Government’s arguments
The Government pointed out that, in any patent
office that performed pre-grant novelty research and patentability examination,
the processing of a patent application was comprehensive and time-consuming. While
NIPO’s average processing time was two to three years for applications without
priority, the general complexity of the search and patentability examination had
accounted for a significant part of the total period in question. The case had
been made complex by the applicants’ repeated contestation of NIPO’s demand for
evidence and their refusals to change the claims as suggested by NIPO. Although
given ample opportunity and advice, first at producing the requested evidence,
then at changing the claims in order to make them patentable, they had
repeatedly failed to produce the required evidence and had refused to change
the claims. The applicants are themselves responsible for the greater part of
the total period to be taken into consideration.
On the other hand, the Government acknowledged
that NIPO were responsible for certain delays during the eighteen years’
processing of the application, in particular the periods from May 1995 to December
1996 and from December 1997 to May 1999. Periodic delays were unavoidable due
to the varying flow of applications within the different technical fields, the
limited access to examiners specialized in the relevant field. The applicants had
also remained passive during these periods.
The Government further conceded that NIPO had
been responsible for a certain delay during the period from November 2001 to
September 2004. For organisational reasons, case files had circulated between the
Board of Appeals’ five members for approximately thirty months before the case had
been deemed sufficiently prepared. Such a long preparation had not been
strictly necessary.
3. The Court’s assessment
The Court sees no reason to doubt that the
dispute before the Board of Appeals which the applicants would have wished to
pursue therafter before the domestic courts was one that concerned an arguable
claim pertaining to a right that was recognised under Norwegian law and that
the right in question was civil in character (see, mutatis mutandis, Vrábel
and Ďurica v. the Czech Republic, no. 65291/01, §§ 5 and 38-40, 13
September 2005, and Zorc v. Slovenia, no. 2792/02, §§ 6 and 22-24, 2
November 2006, both cases relating to patent proceedings). The dispute
therefore concerned a subject-matter to which the guarantees of Article 6 § 1 would
apply, including the right of access to a court and the right to a fair hearing
within a reasonable time.
As to the right of access to a court, the Court held
as follows in Stanev v. Bulgaria [GC] (no. 36760/06, §§ 229-231, ECHR 2012):
“229. The Court reiterates that Article 6 § 1
secures to everyone the right to have any claim relating to his or her civil
rights and obligations brought before a court or tribunal (see Golder v. the
United Kingdom, 21 February 1975, § 36, Series A no. 18). This ‘right
to a court’, of which the right of access is an aspect, may be relied on by
anyone who considers on arguable grounds that an interference with the exercise
of his or her civil rights is unlawful and complains that no possibility was
afforded to submit that claim to a court meeting the requirements of Article 6
§ 1 (see, inter alia, Roche v. the United Kingdom [GC], no.
32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak v. Serbia, no.
36500/05, § 132, 13 October 2009).
230. The right of access to the courts is not
absolute but may be subject to limitations; these are permitted by implication
since the right of access ‘by its very nature calls for regulation by the
State, regulation which may vary in time and in place according to the needs
and resources of the community and of individuals’ (see Ashingdane, cited
above, § 57). In laying down such regulation, the Contracting States
enjoy a certain margin of appreciation. Whilst the final decision as to
observance of the Convention’s requirements rests with the Court, it is no part
of the Court’s function to substitute for the assessment of the national
authorities any other assessment of what might be the best policy in this field.
Nonetheless, the limitations applied must not restrict the access left to the
individual in such a way or to such an extent that the very essence of the
right is impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be achieved (ibid.; see also, among many other authorities, Cordova v.
Italy (no. 1), no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of
the relevant principles in Fayed v. the United Kingdom, 21 September
1994, § 65, Series A no. 294-B).
231. Furthermore, the Convention is intended to
guarantee not rights that are theoretical or illusory but rights that are
practical and effective. This is particularly true for the guarantees enshrined
in Article 6, in view of the prominent place held in a democratic society by
the right to a fair trial with all the guarantees under that Article (see Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR
2001-VIII).”
In the present case, only on 22 September 2008,
when the Board of Appeals had given its final decision rejecting the
application (see paragraph 30 above), were the applicants in a position to
institute proceedings to have the patent matter reviewed by the courts. Two
years later, the twenty years’ protection under section 40 of the Patents Act that
would have applied had the patent been granted, expired. Against this
background the Court accepts the applicants’ argument that in practical terms
the length of the administrative proceedings before the patent authorities in
effect rendered meaningless any exercise by them of their right of access to a
court. In considering whether this situation entailed a limitation on the
applicants’ right of access to a court that was disproportionate or otherwise
arbitrary, the Court cannot but note that the relevant patent application had
been submitted as far back as in November 1990.
The Court sees no reason to question the
Government’s argument that by reason of the very nature of the subject-matter,
administrative patent proceedings could be time-consuming and delays might be
inevitable when, for instance, there was a need to test patentability and to
search and assess the novelty of an idea. However, whilst average processing
time was two to three years, in the present case it took eighteen years to have
the matter processed by the competent bodies. This exceptionally long period
was largely attributable to a dispute between NIPO and the first applicant as
to the need to carry out testing, to which he objected. Although the first
applicant contributed to the length of the proceedings, this was for the reasons
stated below not solely his responsibility.
The Board of Appeals acknowledged on 29 November
2007 that the applicants’ idea was patentable with respect to certain sea vessels
albeit not for aircrafts and could be examined separately from the latter (see
paragraph 26 above). Without pronouncing any view on the merits of the
applicants’ patent claim, the Court is not convinced that the patent
authorities could not have finally determined the patent application earlier
(see for instance paragraph 18 above).
The Government admitted that the patent
authorities were responsible for delays from May 1995 to December 1996, from
December 1997 to May 1999 and then between November 2001 and September 2004, in
respect of periods totalling nearly six years. The Court also considers that
NIPO had a certain responsibility for the duration of the proceedings up until
May 1995, even though the applicant showed an intransigent attitude by
persistently refusing to perform the tests required by NIPO and disregarding
alternative options to have his inventions registered (see for instance
paragraph 6 above).
In this connection, the Court reiterates that in
civil length cases examined under Article 6 § 1, the period to be taken into
consideration does not necessarily start when the competent tribunal was seized
but may also encompass the prior administrative phase (see, for instance, Rambauske
v. Austria, no. 45369/07, § 16, 28
January 2010; Wurzer v. Austria, no. 5335/07, § 45, 6 March 2012; Schouten
and Meldrum v. the Netherlands, 9 December 1994, § 62, Series A
no. 304; and Paulsen-Medalen and Svensson v. Sweden, 19 February
1998, § 42, Reports of Judgments and Decisions 1998-I). Having regard
to its case-law on the subject (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII), there can be
little doubt that the length of the administrative proceedings could be viewed
as excessive. As already indicated above, due to the considerable lapse of time
and the twenty years’ limitation on the protection offered by section 40 of the
Patents Act, the applicants’ exercise of their right of access to a court had
become illusory. In the Court’s view, this state of affairs resulted in a
limitation on their right of access to a court that was not only arbitrary for
the purposes of the Article 6 § 1 guarantee but was also impairing the very essence
of that right. There has accordingly been a breach of Article 6 § 1.
Having reached this conclusion, the Court does
not find that any separate issue arises in relation to the requirement under
Article 6 § 1 of the Convention that national proceedings be concluded “within
a reasonable time”.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicants requested the Court to order the
respondent Government to pay by way of just satisfaction various sums: (a) The
Government should set up a world wide funds of EUR 150,000,000 each for the
development methods for respectively ships- and aeroplane propulsion leading to
energy saving. (b) Until the said funds were established, the second applicant
should be funded by a recompense of EUR 3 million per annum. (c) The Government
should further be ordered to compensate NOK 20,000,000 (approximately EUR
2,700,000) in regards to unpaid work invested into the company. (d) Finally,
the applicants sought punitive damages in the amount of NOK 700,000,000
(approximately EUR 94,430,000).
The Government disputed the above-mentioned
claims. Item (a) fell outside the scope of Article 41. Items (b) and (c) were
unsubstantiated and, in any event, unfounded. Since, as it turned out in the
end, the patent claim in question had not been found patentable, no loss could
be demonstrated. Item (d) was clearly unreasonable and out of line with the
Court’s case-law.
The Court observes that an award of just
satisfaction can only be based on the fact that the applicants did not have the
benefit of all the guarantees of Article 6 § 1. It cannot speculate as to the
outcome of any judicial review proceedings that they could have pursued had the
position been otherwise. On the other hand, the first applicant must have
suffered anguish and distress from the violation which this finding cannot
adequately compensate. Deciding on an equitable basis, the Court awards the first
applicant a total amount of EUR 15,000 under this head.
B. Costs and expenses
The applicants also claimed EUR 12,000 for the
costs and expenses incurred before the Court.
The Government contested the claim pointing out
that it had not been itemised nor supported by documents. Moreover,
considerable time appeared to have been spent on issues unrelated to the alleged
violation.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of his costs and expenses only in so far as it
has been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court has received no
vouchers or particulars regarding the costs claimed. It is therefore unable to
make any award under this heading.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the
application admissible;
2. Holds that there has been a violation of the
right of access to a court under Article 6 § 1 of the Convention;
3. Holds that no separate issue arises as to
whether there has been a violation of the “entitle[ment] to a ... hearing
within a reasonable time” under Article 6 § 1 of the Convention and that it is
not necessary to examine this matter under this provision;
4. Holds that it is not necessary to examine
the case under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the first applicant,
within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may
be chargeable, in respect of damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 2 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
