FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 7969/04
by Ines BRZANK
against Germany
The European Court of Human Rights (Fifth Section), sitting on 23 October 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 18 February 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Ines Brzank, is a German national who was born in 1969 and lives in Oschatz.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a practising lawyer who specialises, inter alia, in sports law. She distributed a leaflet containing her curriculum vitae, which mentioned her career as an athlete in the national team of the German Democratic Republic and that she had won several international tournaments. Also, the applicant listed in the leaflet her fees for a first legal consultation, depending on the value in dispute, in matters concerning private litigation and, depending on the duration of the consultation, in matters concerning family law, labour law and criminal law. Her highest fee was 333 German marks (DEM). At the bottom of the list, she put an asterisked footnote that the highest fee for a first consultation permitted under the applicable law, then the Federal Scale of Fees for Lawyers (Bundesrechtsanwaltsgebührenordnung), was DEM 350. The latter fee was therefore higher than any of the fees the applicant had listed.
Another lawyer who practised in the same town as the applicant lodged an application for interim measures, and as a result the Leipzig Regional Court provisionally ordered, in a judgment of 7 November 2001, the applicant to refrain from referring to her former sports career in her advertising and from listing her fees for first legal consultations on matters of family and labour law with the above-mentioned footnote. An appeal by the applicant was dismissed by the Dresden Court of Appeal on 5 February 2002.
In the main proceedings, by judgment of 17 April 2002, the Leipzig Regional Court repeated the above order and included an order to refrain from listing in the footnote to the leaflet the fees for all first legal consultations, subject to a fine of 250,000 euros (EUR) for non-observance of the order. It based the claimant’s request for an injunction (Unterlassungsanspruch) on sections 1 and 3 of the Unfair Competition Act in conjunction with section 43b of the Federal Lawyers Act (see relevant domestic law section). The Leipzig Regional Court reasoned that lawyers were only allowed to use factual information whose form and content was connected with the profession in their advertising. It reasoned that the reference to her former sports career lacked any such connection with her profession as a lawyer.
As to the list of her legal fees containing the asterisked footnote, it noted that the applicant had made a comparison between her fees for a first legal consultation and the fees permitted under the applicable law. Ordinary citizens however would not be aware that the applicable law gave lawyers the discretion to charge a fee for a first consultation ranging between a tenth of that fee and the full amount, and that the fees varied according to the value in dispute. After comparing the applicant’s fees with the amount mentioned in the footnote, an ordinary citizen would assume that any other lawyer might charge DEM 350 for a first legal consultation, whereas the maximum fee the applicant charged was DEM 333. Therefore, the leaflet might give the impression that the applicant’s fees were normally lower than the fees of those lawyers who used the full discretion permitted under the applicable law. The Leipzig Regional Court noted however that this was not the case, pointing out that some of the applicant’s fees for lower values in dispute were considerably higher than the fees permitted under the applicable law. It also pointed out that the footnote referred to a fee of
DEM 350 without mentioning that this was the full fee for consultations only for disputes with a value above DEM 10,000. Therefore, ordinary clients could be misled into assuming that the fee of DEM 350 applied to all values in dispute and that the applicant’s fees were normally lower than the fees permitted under the applicable law. Therefore, the list with the footnote had to be considered “misleading advertising” within the meaning of section 3 of the Unfair Competition Act.
On 27 September 2002, the Dresden Court of Appeal dismissed an appeal lodged by the applicant. It reasoned that, contrary to the applicant’s submission, she had not generally been prohibited from mentioning her fees in her advertising. It was the specific form of the advertisement in conjunction with the footnote that had been regarded as misleading by the Leipzig Regional Court.
On 4 August 2003 the Federal Constitutional Court partly quashed the judgments of the Leipzig Regional Court of 29 May 2002 and of the Dresden Court of Appeal of 27 August 2002 in so far as they concerned the prohibition on referring to the applicant’s sports career in the leaflet. It took the view that, because the applicant partly specialised in legal disputes concerning sports, the reference did have a direct connection to her profession. Therefore, the prohibition violated the applicant’s freedom to choose a profession under Article 12 of the German Basic Law. With regard to the prohibition on listing her fees in the asterisked footnote, the Federal Constitutional Court refused to admit the constitutional complaint for adjudication. It found that Article 12 of the Basic Law included advertising for professional services, and that the professions were allowed to advertise as long as they provided factual information which was not misleading.
It was not objectionable from a constitutional point of view that the domestic courts had regarded the list with the asterisked footnote as misleading and that they had interpreted that list in context and from the perspective of an ordinary citizen. By using the footnote, the applicant had made a comparison between her “prices” and the highest fees permitted under the applicable law. It could not be regarded as erroneous that the domestic courts had found that an ordinary citizen (who would not make complicated calculations) would assume by mistake that the applicant was normally less expensive. The Unfair Competition Act protected not only other competitors, but also the general public, from unfair competition.
It was not decisive that there had not been malpractice on the part of the applicant.
The applicant received the decision of the Federal Constitutional Court on 20 August 2003.
B. Relevant domestic law
Relevant provisions of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb):
Section 1 - General Clause
“Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from performing these acts and held liable for damages.”
Section 3 – Misleading Advertising
“Any person who, in the course of business activity and for purposes of competition, makes misleading statements concerning business matters, in particular concerning the nature, the origin, or the manner of manufacture, or the pricing of individual goods or commercial services or of the offer as a whole, concerning price lists, the manner or the source of acquisition of goods, concerning the possession of awards, concerning the occasion or purpose of sale, or concerning the size of the available stock, may be enjoined from making such statements.”
Relevant provision of the Federal Lawyers Act (Bundesrechtsanwalts-ordnung):
Section 43b –Advertising
“A lawyer is only permitted to advertise his/her services in as far as the advertising in question provides factual information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief.”
COMPLAINT
The applicant complained under Article 10 of the Convention about the order to refrain from advertising with the list of her fees for first legal consultations including the asterisked footnote referring to the highest fee permitted under the applicable law.
THE LAW
The applicant complained that the order of the domestic courts with regard to the list of her legal fees violated her right to freedom of expression. Article 10 of the Convention provides:
“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 applicant submitted that she was aware that advertising for lawyers could be restricted, but that the German courts had exceeded their margin of appreciation in the present case and had erroneously restricted her right to freedom of expression. Her leaflet gave objective information about her fees. The fees were within the discretion permitted under the applicable law and hence negotiable. Her clients had a legitimate interest in the information given in the leaflet, which was not misleading as the information about her fees and the reference in the footnote to the highest fee permitted under the law were true. The domestic courts were preventing her from delivering legitimate information to her clients. It was therefore discriminatory that the prohibition of advertising had taken priority over her fundamental rights. Moreover, she submitted that the fine of EUR 250,000 for non-compliance with the order was disproportionate.
The Court finds that the prohibition on advertising her fees in her leaflet as she did amounted to an interference with the exercise of her right to freedom of expression.
An interference contravenes Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and is “necessary in a democratic society” for achieving such an aim or aims.
The Court notes that the domestic courts based their decisions on section 3 of the Unfair Competition Act in conjunction with section 43b of the Federal Lawyers’ Act. These legal provisions lay down rules for the professional conduct of lawyers, in particular as regards advertising. Therefore, the interference complained of was “prescribed by law”.
The above provisions also pursued a legitimate aim for the purposes of Article 10 § 2, namely the protection of the rights of others, who risked being adversely affected by misleading advertising in the context of unfair competition.
As to whether the interference in question was “necessary in a democratic society”, the Court reiterates that, for the citizen, advertising is a means of discovering the characteristics of services and goods offered to him. Nevertheless, it may sometimes be restricted, especially to prevent unfair competition and untruthful or misleading advertising. In some contexts, the publication of even objective, truthful advertisements might be restricted in order to ensure respect for the rights of others or owing to the special circumstances of particular business activities and professions
(see Stambuk v. Germany, no. 37928/97, § 39, 17 October 2002). Any such restrictions must, however, be closely scrutinised by the Court, which must weigh the requirements of those particular features against the advertising in question; to this end, the Court must look at the impugned penalty in the light of the case as a whole (see Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285-A, p. 20, § 51).
In the case of lawyers, the Court has held that their central position in the administration of justice as intermediaries between the public and the courts explains the usual restrictions on the conduct of members of the Bar
(see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, p. 1052, § 29, with reference to the above-mentioned Casado Coca v. Spain judgment, p. 21, § 54; and, as a recent authority, Nikula v. Finland, no. 31611/96, § 45, 22 March 2002). Considering the wide range of regulations and the changes occurring in the Council of Europe’s Member States, the bar authorities and the domestic courts, because of their direct, continuous contact, are in a better position than an international court to determine how, at a given time, the right balance can be struck between the various interests involved
(see Casado Coca, judgment cited above, p. 21, §§ 54-55).
While the Court takes note of recent attempts within the European Union to remove all total prohibitions on commercial communications (Article 24 of Directive 2006/123/EC of the European Parliament and the Council of 12 December 2006 on services in the internal market), it also finds it important to point out that the present proceedings concerned the area of unfair competition, a field which the Court has regarded as complex and fluctuating and in which thus a certain margin of appreciation appears essential (Jacubowski v. Germany (no. 15088/89), judgment of 23 June 1994, Series A 291-A, p. 14, § 26; markt intern Verlag GmbH and Klaus Beermann v. Germany (no. 10573/83), judgment of 20 November 1989, Series A no. 165, pp. 17-19, § 33).
In the present case the domestic courts regarded the manner in which the applicant advertised her fees as “misleading advertising” because she included an asterisked footnote which referred to the highest fee permitted under the applicable law, without however mentioning that that fee only applied to values in dispute above DEM 10,000 and that lawyers had discretion to charge between a tenth of and the full fee. The domestic courts found that, when studying the leaflet, an ordinary citizen (who would not make complicated calculations) could assume mistakenly that the applicant was generally less expensive than other lawyers, even though some of the applicant’s fees for lower values in dispute were considerably higher than the fees permitted under the law. In this regard, the Court agrees with the Dresden Court of Appeal that, contrary to the applicant’s submission, she was not prohibited from advertising her fees at all. It was rather the specific form of the advertisement in conjunction with the asterisked footnote that was misleading. This measure can therefore reasonably be regarded as necessary in a democratic society within the meaning of Article 10 § 2 of the Convention.
Having regard to the above, the Court cannot find that the domestic courts exceeded their margin of appreciation by interpreting the list in the leaflet as misleading, especially from the perspective of an ordinary citizen, or by imposing a threat of a fine.
It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy