CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1991

.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. 18623/91 by ZENTRALSPARKASSE und KOMMERZIALBANK A.G. against Austria     The European Commission of Human Rights sitting in private on 2 December 1991, the following members being present:   MM.C.A. NØRGAARD, President J.A. FROWEIN E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS Mrs.G. H. THUNE SirBasil HALL MM.F. MARTINEZ RUIZ Mrs.J. LIDDY MM.L. LOUCAIDES J.-C. GEUS A.V. ALMEIDA RIBEIRO M.P. PELLONPÄÄ B. MARXER   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 11 February 1991 by ZENTRALSPARKASSE und KOMMERZIALBANK A.G. against Austria and registered on 1 August 1991 under file No. 18623/91;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:       18263/91- 2 -     THE FACTS   The applicant company has its registered office in Vienna.   It is represented by Mr. W.-D. Arnold, a lawyer practising in Vienna.   On 23 March 1990 the applicant company, as a defendant in civil proceedings, obtained a judgment given by the Vienna Regional Court (Landesgericht) ordering the plaintiff to pay the costs of the proceedings in question in the amount of 23,753.40 AS.   According to the findings of the Court the plaintiff's action originally aimed at obtaining information from the defendant whether it had in its possession personal data relating to him and, if so, what kind of personal data.   In the course of the proceedings the information requested was given and the plaintiff declared the action to be without object requesting only a decision on costs.   The decision on costs was based on the finding that the plaintiff had not complied with his obligation to furnish the defendant company with copies of advertisements he had received showing that the defendant company was in possession of a computerised file with his address.   On appeal (Rekurs) the Vienna Court of Appeal (Oberlandesgericht) amended the judgment of 23 March 1990 to the effect that the defendant company had to reimburse the plaintiff's costs in the amount of 24,010 AS. The Court of Appeal considered that the plaintiff had substantiated his request vis-à-vis the defendant company within a reasonable time. In fact, prior to bringing the action he had informed the defendant of the computer registration number used in the correspondence sent to him and he had furthermore submitted the originals of the letters in question, together with his first memorial of 18 August 1988.   The defendant had however not complied with the plaintiff's claim before 16 November 1989.   Even though the defendant company had only rented the computerised file containing the applicant's address, it had been obliged under the Act on Data Protection (Datenschutzgesetz) to give the information requested as soon as the plaintiff's memorial had been filed.   The Court of Appeal also decided that the defendant company's appeal on points of law (Revisionsrekurs) was inadmissible.   This judgment of 7 September 1990 was received by the applicant company's counsel on 26 September 1990.     COMPLAINTS   The applicant company submits that the Court of Appeal's decision was rendered without a hearing.   It had not been given the possibility to submit observations in reply to the plaintiff's appeal. The applicant company considers that Article 6 of the Convention was thereby violated. - 3 -18623/91     THE LAW   The applicant company complains about proceedings related solely to the question which of the parties to civil proceedings has to pay the procedural costs including the costs of the opponent. However, Article 6 (Art. 6) does not apply to proceedings in which the merits of the case are not decided but only the subsidiary issue of which party is to bear the costs (cf. No. 12446/86, Dec. 5.5.88 and No. 10757/84, Dec. 13.7.88).   The application therefore has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being incompatible with its provisions ratione materiae.     For these reasons, the Commission, by a majority,   DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission      President of the Commission         (H.C. KRÜGER)    (C.A. NØRGAARD)