FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2357/05
by Marko HEIMANN
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, SectionRegistrar,
Having regard to the above application lodged on 13 January 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Marko Heimann, is a German national who lives in Cham.
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 and member of the Nuremberg Bar Association (Rechtsanwaltskammer). His professional letterhead used to refer to him as a “specialised lawyer in labour and criminal law” (Fachanwalt für Arbeitsrecht und Strafrecht) and “specialist in traffic law” (“Verkehrsrechtsspezialist”). In a footnote annexed to the latter reference, the applicant stated that he was a certified graduate of a specialisation course run by the German Lawyers’ Academy (Deutsche Anwalts-akademie). On a complaint from a fellow lawyer, the Bar Association requested the applicant to refrain from using the term “specialist in traffic law”. When the applicant refused, the Bar Association brought a claim against the applicant under the Unfair Competition Act (see Relevant domestic law and practice part, below).
On 19 September 2003 the Regensburg Regional Court ordered the applicant to refrain from using the term “specialist in traffic law” on his letterhead failing which he would be liable to a fine of 250,000 euros (EUR). It found that the term “specialist in traffic law” amounted to unfair and misleading advertising within the meaning of sections 1 and 3 of the Unfair Competition Act. The Regional Court noted that German law provided for different categories of specialisation. A lawyer could refer on his professional letterhead to a “main focus of interest” if he or she had gathered particular knowledge in a particular field of law. A lawyer could refer to a “main focus of practice” if he or she had extensively worked in a particular field of law for at least two years. Moreover, a lawyer could be granted the right to call himself or herself a “specialised lawyer” (Fachanwalt) if he had special expertise and experience in a particular field of law, which required inter alia participation in special training courses with exams and several years of practice with a minimum number of relevant cases. The Regional Court stressed that a lawyer had to overcome high hurdles before being granted the right to call himself or herself a “specialised lawyer”. From the perspective of an ordinary client, the term “specialist” would suggest an even higher degree of specialisation than a “specialised lawyer”. This would however be a mistake in view of the high requirements to obtain the right to refer to oneself as a “specialised lawyer”. If a lawyer were to refer to himself or herself as “specialist”, he or she would therefore mislead ordinary clients by creating an erroneous impression. This would lead to a competitive advantage as against those lawyers who complied with the hierarchy of specialisation as provided for by German law.
The applicant’s appeal was dismissed by the Nuremberg Court of Appeal on 30 March 2004. It referred to the reasoning of the Regional Court and found that mere participation on a course on traffic law was not sufficient to justify the reference as a “specialist in traffic law”. The applicant had failed to demonstrate that he had worked on an above-average number of cases. He had submitted a list of cases without any indication that these cases required particular knowledge of traffic law. The list was therefore not apt to demonstrate that the applicant indeed specialised in traffic law.
The applicant bore the burden of proof in this respect.
On 7 July 2004, the Federal Constitutional Court refused, without giving any reasons, to admit the applicant’s constitutional complaint because it was inadmissible.
B. Relevant domestic law and practice
1. 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 those 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.”
2. According to Section 7 of the Rules for Lawyers’ Professional Conduct (Berufsordnung für Rechtsanwälte), a lawyer may refer in his professional letterhead to a “main focus of interest” (Interessen-schwerpunkt) if he or she has gathered particular knowledge in a particular field of law through studies, publications or former professional work. If the lawyer has extensively worked in a particular field of law for at least two years, he or she may refer to that field as a “main focus of practice” (Tätigkeitsschwerpunkt). Moreover, if a lawyer has special expertise and experience in a particular field of law, he or she may be granted the right to call himself or herself a “specialised lawyer” (Fachanwalt) by the Bar to which he or she belongs (Section 43c of the Federal Lawyers Act, Bundesrechtsanwaltsordnung). According to the Specialised Lawyers Act (Fachanwaltsordnung), such special expertise and experience requires inter alia participation in special training courses with exams and several years of practice with a minimum number of relevant cases.
3. On 28 July 2004, the Federal Constitutional Court found in a different case that the decision of the Lower-Saxony Court for the Legal Profession (Anwaltsgerichtshof) not to permit a lawyer in Lower-Saxony to use the term “specialist in traffic law” in his letterhead violated that lawyer’s freedom to choose an occupation (Berufsfreiheit) under Article 12 of the Basic Law (1 BvR 159/04; EuGRZ 2004, pp. 529 et seq.). In that case, the lawyer had been working in the field of traffic law in several practical and theoretical functions for decades and wanted to refer to that expertise in his letter head. The Federal Constitutional Court took the view that it was doubtful whether the Rules for Lawyers’ Professional Conduct sufficiently satisfied the interests of both lawyers and their clients. The sequence of “main focus of interest”, “main focus of practice” and “specialised lawyer” could be justified in fields of law that recognised “specialised lawyers”.
The term “specialised lawyer in traffic law” did however not exist under German law and could consequently not be confused with the term “specialist in traffic law”. The danger of misleading clients would therefore exist only if the lawyer was not in fact a specialist in the general meaning of the word.
COMPLAINTS
The applicant complained under Articles 6 § 1 and 10 of the Convention about the order to refrain from using the term “specialist in traffic law” and the subsequent court decisions confirming that order.
THE LAW
1. The applicant complained that the order of the domestic courts to refrain from referring to himself as a “specialist in traffic law” in his professional letterhead violated his 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 his letterhead only referred to information that was true and accurate because he had successfully followed a traffic law course run by the German Lawyers’ Academy. Self-assessment of lawyers was permitted in other countries such as the United Kingdom, Ireland, Liechtenstein, Italy, Iceland, the Netherlands and Scandinavia.
As he was practising in a town 20 kilometres from the Czech Republic in which country he also practices, the applicant submitted that the orders by the German courts also contravene European Union law. He added that the Federal Constitutional Court, in a case decided only three weeks after the applicant’s constitutional complaint had been declared inadmissible, found that a refusal to permit a lawyer to use the term “specialised lawyer in traffic law” violated the right to chose one’s profession under Article 12 of the Basic Law. Lastly, the applicant complained that the Nuremberg Court of Appeal did not accept his list of cases as proof of his experience, even though he had listed 243 private law cases and 193 cases concerning fines for traffic-related offences for the period 2001-2002.
The Court finds that the prohibition on the applicant using the phrase “specialist in traffic law” in his professional letterhead amounted to an interference with the exercise of the applicant’s 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 sections 1 and 3 of the Unfair Competition Act. These legal provisions lay down rules which regulated misleading advertising generally, which includes advertising by lawyers. 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 Regional Court regarded the manner in which the applicant advertised himself as a “specialist in traffic law” as misleading because the applicable German law did not recognise the term “specialist”, but instead provided for a series of specialisations, the most advanced being the term “specialised lawyer” (Fachanwalt). The courts took the view that an ordinary citizen might wrongly consider the term “specialist” to present an even higher degree of expertise than the term “specialised lawyer” and therefore prefer the former to the latter when choosing a lawyer. This could lead to a competitive advantage as against those lawyers who complied with the hierarchy of specialisation provided for by German law.
The Court considers that the reasons given by the Regional Court cannot be said to be arbitrary, and could furnish a justification for the interference with the applicant’s freedom of expression.
According to the decision of the Federal Constitutional Court of 28 July 2004 (referred to above), it appears that the German law does not know the term “specialised lawyer” in the field of traffic law. Although that decision was not given under the Unfair Competition Act, it would thus appear that there is no danger of members of the public being confused by the difference between the terms “specialised lawyer in traffic law” (Fachanwalt) and “specialist in traffic law” (Verkehrsrechtspezialist).
However, the applicant was ordered to refrain from using the term “specialist” not solely because of possible confusion in his use of terms, but also on the ground that he had failed to substantiate that he had the experience or expertise in traffic law that would justify calling himself a “specialised lawyer in traffic law”. The applicant’s submissions to the Court of Appeal had only contained a list of cases, without any indication that these cases required particular knowledge of traffic law. The Court of Appeal found that the list was not apt to demonstrate that the applicant indeed specialised in traffic law, and the applicant has not submitted to the Court either the list itself or any material which could suggest that the Court of Appeal wrongly assessed the list to be insufficient proof of the applicant’s experience.
As to the applicant’s expertise, the Court notes that the applicant has not shown that he had any particular expertise apart from his participation in a course run by the German Lawyers’ Academy. Therefore, the present case is distinguishable from the case being the subject of the decision of the Federal Constitutional Court of 28 July 2004 (see ”Relevant domestic law and practice”).
Having regard to the above, given that States may restrict untruthful or misleading advertising, and given further the central position of members of the Bar which explains the usual restrictions on their conduct, the Court finds that the domestic courts cannot be said to have exceeded their margin of appreciation.
It follows that this complaint must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complained under Article 6 § 1 of the Convention about the decisions of the domestic courts. The relevant part of Article 6 § provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The applicant complained that the Nuremberg Court of Appeal had disregarded his list of cases as insufficient for reasons that were lapidary and meaningless. Moreover, the Federal Constitutional Court had declared his constitutional complaint as inadmissible although he had satisfied the necessary requirements and although the Federal Constitutional Court allowed a constitutional complaint in a parallel case three weeks later.
The Court notes that the Nuremberg Court of Appeal’s reasoning concerned the fact that the list submitted by the applicant was insufficient because he failed to indicate in what way the cases required particular knowledge of traffic law. Therefore, the Court cannot find that the reasoning of the Nuremberg Court of Appeal was arbitrary.
As regards the applicant’s complaint that the Federal Constitutional Court refused to admit his constitutional complaint without having given reasons other than that the complaint was inadmissible, the Court recalls that it is acceptable under Article 6 § 1 for a supreme court to dismiss a complaint by mere reference to the relevant legal provisions governing the admissibility of such complaints if the matter raises no fundamentally important legal issue (Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001). The lack of reasons in the Federal Constitutional Court’s decision thus did not raise an issue under Article 6 § 1.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to 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