AS TO THE ADMISSIBILITY OF
Application No. 29818/96
by G.D. & M.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 20 May 1998, the following members being present:
MM N. BRATZA, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 5 October 1995 by
G.D. & M. against Germany and registered on 16 January 1996 under file
No. 29818/96;
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 first applicant is a German citizen, born in 1943. He resides
in Haiterbach (Germany) and is the owner of legally protected
industrial property and construction secrets. The second applicant is
a company registered in Haiterbach of which the first applicant is the
owner and managing director.
In the proceedings before the Commission the applicants are
represented by Mr Peter Kragler, a lawyer practising in Munich
(München).
The facts of the case as submitted by the applicants may be
summarised as follows.
By a licensing contract of 16 January and 2 February 1984 the
applicants conveyed to a company registered in Valdaora-Olang (Italy)
the right to make use of applied techniques for forming concrete
structures.
In January 1985 the applicants brought a civil claim against the
Italian company before the Munich Regional Court (Landgericht
München I) for breach of contract. The plaintiffs submitted that with
their assistance the defendant had obtained a leading position in the
field of concrete constructions in Italy without respecting the terms
of the licensing contract. The applicants requested the payment of
336,000 DM for damages, including the profits which they could have
received for the use of their techniques. They also requested that the
defendant be ordered to give information about the use of the
transferred knowledge and disclosed trade secrets.
The defendant contested the applicants' claim and requested to
set the contract aside for intentional deception (arglistige
Täuschung). According to the defendant, the applicants had granted a
licence without any effective legal protection in Italy and
consequently without any commercial value.
By a judgment of 25 November 1986 the Munich Regional Court
(Landgericht München I) dismissed the applicants' claim. According to
the court, it appeared from the documents submitted by the parties
that the contract had effectively been set aside for intentional
deception.
On the applicants' appeal the Munich Court of Appeal
(Oberlandesgericht) quashed the judgment on 19 May 1988 and referred
the case back to the Munich Regional Court. The Court of Appeal
considered that the Regional Court had failed to examine evidence
presented by the applicants, in particular with regard to the question
of prescription and to the extent to which trade secrets had been
disclosed to the defendant.
By a judgment of 22 December 1992 the Munich Regional Court
dismissed the claim again. Referring to its judgment of
25 November 1986, the court confirmed that effective legal protection
of the plaintiffs' technology was an essential aspect of the contract.
Since the plaintiffs had been aware of the fact that they were not able
to afford such a protection in Italy, they had intentionally deceived
the defendant. The court based its findings on further evidence,
including a written expert opinion on Italian licensing law and the
declarations made on 25 October 1990 by the witness S.-N. The court
observed that this witness was again present at the hearing of
12 November 1992, but that the parties had not formally requested that
he be heard again. As to the alleged transfer of trade secrets to the
defendant, the court stated that the applicants had failed to submit
substantiated evidence on this issue.
By a judgment of 20 January 1994 the Munich Court of Appeal
dismissed the applicants' appeal against the above judgment as being
ill-founded.
On 20 January 1995 the Federal Court of Justice
(Bundesgerichtshof) decided not to accept the applicants' appeal on
points of law (Revision) on the grounds that the case did not raise
questions of principle and that the appeal had no prospects of success.
On 22 February 1995 the applicants lodged a constitutional
complaint (Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht).
By a decision of 29 March 1995, notified to the applicants on
6 April 1995, a panel of three judges of the Federal Constitutional
Court declined to accept the constitutional appeal for adjudication.
COMPLAINTS
1. Invoking Article 6 para. 1 of the Convention, the applicants
complain of the judgments and the proceedings concerned. They maintain
that the courts have not correctly evaluated the evidence, erroneously
applied the legal provisions on intentional deception and have failed
to discuss their submissions in detail.
The applicants complain in particular that the Munich Regional
Court in its judgment of 22 December 1992 referred to its first
judgment of 25 November 1986, including the declarations of a witness,
although this judgment had been quashed by the Munich Court of Appeal
on 19 May 1988 and this witness had never personally been heard by this
court.
As to the appeal proceedings the applicants complain that two of
the three judges of the Munich Court of Appeal cannot be considered as
being impartial, since they have taken part twice in the proceedings,
the first time when giving the judgment of 25 November 1986 and the
second time when giving the judgment of 20 January 1994.
The applicants also complain that the Federal Court of Justice
has not given any detailed reasons in its decision of 17 January 1995
and that the Federal Constitutional Court declined to accept his
constitutional appeal for adjudication without giving any reasons at
all.
2. The applicants finally complain under Article 1 of Protocol No. 1
that the judgments given by the German courts are in breach of their
property rights. They submit that secret knowledge of a high commercial
value had been transferred to the defendant.
THE LAW
The applicants complain that the proceedings concerning their
claim for damages were not fair and that the judicial decisions on this
claim were arbitrary. They allege a violation of Article 6 para. 1
(Art. 6-1) of the Convention which provides, insofar as relevant, as
follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (see eg. No. 25062/94, Dec. 18.10.95, D.R. 83-A, pp. 77,
86).
Furthermore, in the Commission's opinion, nothing in the file
suggests that the proceedings have been unfair and thus contrary to the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
Insofar as the applicants complain that the Regional Court and
the Court of Appeal did not correctly apply the legal provisions on
intentional deception, based their judgments on an erroneous
appreciation of the facts and evidence and failed to discuss their
submissions in detail, the Commission recalls that it is primarily for
the national authorities, notably the courts, to resolve problems of
interpretation of domestic legislation (see, mutatis mutandis,
Eur. Court HR, Casado Coca v. Spain judgment of 24 February 1994,
Series A no. 285-A, p. 18, para. 43; Bulut v. Austria judgment of
22 February 1996, Reports of Judgments and Decisions 1996-II, pp. 356,
357, para. 29). Moreover, as general rule, the assessment of the facts
and the taking of evidence and its evaluation is a matter which
necessarily comes within the appreciation of the national courts and
cannot be reviewed by the Commission unless there is an indication that
the judges have drawn grossly unfair or arbitrary conclusions from the
facts before them (see No. 7987/77, Dec. 13.12.79, D.R. 18, p. 31; Eur.
Court HR Van de Hurk v. the Netherlands judgment of 19 April 1994,
Series A no. 288, p. 19, para. 60). The Commission further recalls that
a court's failure to discuss every detail of a party's arguments is not
in itself inconsistent with the requirements of a fair hearing. It is,
however, essential that the party's right to be heard is not
disregarded and that his or her pleadings are considered by the court
even if this is not reflected in explicit terms in the eventual
decision (see No. 10153/82, Dec. 13.10.86, D.R. 49, pp. 67, 74).
In the instant case the Commission observes that both the Munich
Regional Court and the Munich Court of Appeal interpreted the law as
meaning that the contract was lawfully be set aside for intentional
deception. The Commission sees no reason to call into question the
resolution of this issue by the German courts. Furthermore, the
Commission cannot, in the circumstances of the present case, find that
the applicants were prevented from arguing their case in an effective
manner. The reasons on which the courts based their decisions are
sufficient to exclude the assumption that the evaluation had been
arbitrary. Insofar as the applicants complain that the Regional Court
referred to its first judgment including to the declarations of a
witness, the Commission notes that the Regional Court also based its
findings in its second judgment on new evidence.
Insofar as the applicants complain that two of the judges of the
Court of Appeal had participated in the first proceedings before the
Regional Court and could therefore not be considered as being
impartial, the Commission notes that the applicants had the opportunity
to challenge these judges at the beginning of the appeal proceedings,
but nonetheless did not pursue any objection. In the light of these
circumstances, the Commission finds that this complaint discloses no
appearance of a violation of article 6 para. 1 (Art. 6-1) of the
Convention.
Insofar as the applicants complain that the Federal Court of
Justice and the Federal Constitutional Court did not give proper
reasons for their decisions, the Commission recalls that under specific
circumstances the absence of reasons might raise an issue as to the
fairness of the procedure. However, if the domestic law subjects the
acceptance of the appeal to a decision by the competent court as to
whether the appeal raises a legal issue of fundamental importance and
as to whether it has any chances of success, it may be sufficient for
this court simply to refer to the provision authorising this procedure
(see No. 8469/79, Dec. 16.7.81, D.R. 25, p. 240; No. 29417/95,
Dec. 16.5.96, not published). This has been done in the present case
and the applicants were therefore given to understand that the Federal
Court of Justice and the Federal Constitutional Court found no
objection with the impugned court decisions.
It follows that this part of the application is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants finally complain under Article 1 of Protocol No. 1
(P1-1) of a violation of their right to the peaceful enjoyment of their
possessions.
However, the Commission recalls that a person complaining of an
interference with his right to possessions must show that such a right
existed (No. 12164/86, Dec. 12.10.88, D.R. 58, p. 63). In the present
case, the decisions by which the German courts dismissed the
applicants' claim could not have the effect of depriving them of a
possession which they owned. The Commission therefore finds that the
applicants have not shown that they have the right referred to.
It follows that this part of the application is also manifestly
ill-founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy