AS TO THE ADMISSIBILITY OF
Application No. 13258/87
by M. & Co.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 3 September 1987
by M & Co. against the Federal Republic of Germany and registered on 2
October 1987 under file No. 13258/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the Commission's decision of 15 December 1988
to bring the application to the notice of the respondent Government
and invite them to submit written observations on the admissibility
and merits of the application;
Having regard to the observations submitted by the respondent
Government on 6 April 1989 and the observations in reply submitted by
the applicant on 8 May 1989;
Having regard to the parties' submissions at the oral hearing
on 9 February 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a limited partnership (Kommanditgesellschaft)
seated in Bremen. Its object is the import and export of goods;
inter alia, it imported hi-fi equipment manufactured by the Japanese
firm Pioneer Electronic Corporation until the end of 1977. The
applicant is represented by its active partners (Komplementäre)
Messrs. Jürgen Dettmers and Henning Melchers, both living in Bremen.
The facts not disputed between the parties may be summarised
as follows.
On 14 December 1979 the Commission of the European
Communities (EC Commission) imposed a fine of 1,450,000 European Units
of Account (i.e. 3,596,667 DM) on the applicant for having violated
Article 85 (1) of the EC Treaty. A Belgian, a British and a French
undertaking dealing with Pioneer equipment were likewise fined.
According to the findings of the EC Commission there existed - from
the latter part of 1975 until the latter part of 1977 - a concerted
practice between the applicant and the other Pioneer importers for the
prevention of parallel imports from the Federal Republic of Germany to
France of Pioneer hi-fi equipment so that the relatively high prices
on the French market would be protected against foreign competition.
In accordance with this concerted practice the applicant had, after
having accepted an order from a German dealer, company G., refused to
deliver to this dealer the Pioneer equipment ordered by it, having, in
the meantime, received information concerning the destination of the
goods ordered. The refusal caused substantial losses to a French firm
and, as the EC Commission pointed out, prevented French consumers from
buying a considerable amount of Pioneer equipment at more advantageous
prices.
As to the applicant's defence that it never accepted G.'s
order, the acceptance having allegedly been declared without proper
instructions by a temporary employee, the EC Commission noted that at
the time the applicant did not invoke vis-à-vis company G. that the
order had been accepted by mistake. Furthermore, with regard to the
argument that the refusal to sell was the consequence of normal
business considerations and contractual necessities, the EC Commission
noted that, even if the applicant did not have sufficient goods in
stock, it did not try to obtain the balance of the order from Pioneer,
where plenty of goods were available, or start negotiations for a
reduced order.
The applicant and the co-accused companies took the case to
the EC Court of Justice requesting this Court to set aside the
EC Commission's decision of 14 December 1979. In the proceedings
before the Court of Justice the applicant was represented by Messrs.
Bellis and van Bael, lawyers in Brussels. After a hearing of
witnesses on 18 September 1981 and an oral hearing on 30 November 1982,
the Court of Justice on 7 June 1983 annulled the EC Commission's
decision insofar as it stated that the concerted practice exceeded the
period of end of January / beginning of February 1976. It reduced the
applicant's fine to 400,000 European Units of Account (= 992,892 DM)
and dismissed the remainder of the action.
Before the European Court of Justice the plaintiff companies
had inter alia alleged:
a) that the EC Commission acted both as a prosecuting and
decision-making authority;
b) that they had not been informed about all charges which
were determined in the EC Commission's decision;
c) that the EC Commission had not made available for
examination all documents on which it later based its decision;
d) that the observations of the Advisory Committee (on
Restrictive Practices and Monopolies) had not been communicated to
them.
As to complaint a) the Court of Justice stated that the EC
Commission was not a 'court' within the meaning of Article 6 of the
European Convention on Human Rights. Nevertheless, in the
administrative proceedings which it carried out the EC Commission
did have to respect certain procedural principles inherent in the
Community law. Consequently, before taking a decision the EC
Commission had, in accordance with Article 19 (1) of EC Regulation
No. 17, to give the parties concerned the opportunity to submit their
observations on the charges raised against them. Also, according to
Article 4 of Regulation No. 99/63 the EC Commission could determine
only those charges with regard to which the undertaking concerned had
the opportunity to defend itself. The provisions mentioned reflected
the fundamental principle in Community law according to which in all
proceedings, including administrative proceedings, the parties had to
be heard and be given the opportunity to state their observations on
the facts and the law.
As regards complaint b) the Court of Justice found that the
EC Commission had not informed the plaintiff companies adequately
about the period in which the contravention had allegedly been
committed. Initially the Commission had indicated it would examine
whether contraventions had been committed during the period end of
January / beginning of February 1976, while in its decision it found
that the concerted practice already began towards the end of 1975.
As regards complaint c) the Court of Justice noted that some
of the documents relied on by the EC Commission had not been made
available to the plaintiffs. These documents, however, related to
circumstances of little importance for the determination of the
charges. The Court added that, in any event, it did not take these
documents into consideration when examining whether or not the EC
Commission's decision was well founded.
As regards complaint d) the Court of Justice found that
Article 10 (6) of EC Regulation No. 17, which provides that the
Advisory Committee's opinions are not published, cannot be interpreted
as allowing a confidential communication of such opinions to the
undertakings concerned.
As to the applicant's substantive complaints, the Court of
Justice found that the EC Commission's decision did not disclose any
error of law or facts, and that there was sufficient evidence that the
applicant company refused to sell goods ordered for the French market.
As to the calculation of the fine, the Court of Justice
considered that the EC Commission wrongly took into consideration
only the applicant's total turnover and no other factors such as
quantity and value of the goods which were the object of the
contravention, size and economic power of the contravening
undertaking. The fine was therefore reduced by the Court of Justice,
inter alia, in view of the fact that the period of the concerted
practice was shorter than that indicated in the EC Commission's
decision.
Insofar as the applicant had alleged that its managing
partners were not aware of the incriminating practice and the refusal
to sell, the Court of Justice pointed out that an undertaking is
liable for all persons who are authorised to act on its behalf and
that there was nothing to show that the applicant's representatives
had acted ultra vires.
Subsequent to the pronouncement of the Court of Justice's
judgment the applicant tried to prevent the Federal Minister of
Justice from issuing a writ of execution. Its efforts, i.e. various
court actions, were, however, to no avail and eventually, on 22
January 1985, a group of three judges of the Federal Constitutional
Court (Bundesverfassungsgericht) dismissed a constitutional complaint
as partly offering no prospects of success and partly being
inadmissible. Insofar as the applicant had requested the Federal
Constitutional Court to declare that the issuing of a writ of
execution would violate constitutional rights, the Constitutional
Court considered the complaint to be inadmissible for non-exhaustion
of ordinary remedies as the applicant had only sought injunctive
relief preventing the (future) issue of a writ of execution whilst
an action against such a writ, once it was issued, was an
adequate and effective remedy allowing the applicant to have the
German courts determine the question whether the issue was lawful and
in accordance with Article 192 (2) second sentence of the Treaty of
Rome.
Meanwhile, on 4 January 1985 the writ of execution was
issued.
The applicant then brought an action for damages against the
Federal Republic of Germany represented by the Federal Minister of
Justice. It argued that the Minister had wrongly issued a writ of
execution because the judgment of the European Court of Justice
violated constitutional rights in that
- it based its decision on pre-trial statements of a witness
which that witness revoked when heard by the Court. This violated the
principle in dubio pro reo;
- it fined the applicant on the basis of faults committed by
employees but not the managing partners. This violated the principle
nulla poena sine culpa;
- the managing partners were not heard personally. This was
contrary to Article 103 (1) of the Basic Law (Grundgesetz) and
Article 6 para. 3 (c) of the Convention;
- the amount of the fine was disproportionate and excessive.
On 2 October 1985 the Bonn Regional Court (Landgericht)
dismissed the action. The Regional Court pointed out that it followed
from the jurisprudence of the European Court of Justice that this
Court applied as an inherent part of Community law those fundamental
rights that are generally recognised in the legal orders of the member
States of the EC. Nevertheless, the Regional Court considered that
the issuing of a writ of execution in accordance with Article 192 (1)
of the Treaty of Rome had to be denied by the competent German
authorities if the judgment which was to be executed violated the very
essence (Wesensgehalt) of German constitutional law. However, there
was no such violation in the applicant's case.
Insofar as the applicant invoked the principle in dubio pro
reo, its arguments simply questioned the Court of Justice's
appreciation of the evidence and were therefore irrelevant as German
authorities were not competent to examine whether or not the Court of
Justice had committed errors of law or fact.
Insofar as the applicant complained that its managers were not
heard personally, the Regional Court considered that the applicant's
right to be heard had been complied with in that it had every
opportunity to defend its case via its counsel.
Insofar as the applicant had invoked the principle nulla poena
sine culpa, the Regional Court stated that a fine on account of a
violation of anti-trust legislation was justified only if the person
fined was responsible for the violation in question. As for legal
persons, he who acts on their behalf is of necessity responsible for
them. Therefore, a legal person could be held responsible not only
for acts or omissions of its partners and managing directors but also
of other employees in a leading position. Finally, the Regional Court
found no violation of the principle of proportionality.
The applicant's appeal on points of law (Sprungrevision)
against the Regional Court's judgment was rejected by the Federal
Court (Bundesgerichtshof) on 25 September 1986 as being inadmissible.
The Court considered that the case did not raise an issue of general
importance as the judgment of the European Court of Justice did not
violate any of the applicant's constitutional rights. Therefore the
applicant's argument was irrelevant that the Minister of Justice,
before issuing a writ of execution in accordance with Article 192 (2)
of the Treaty of Rome, had to examine whether or not the Court of
Justice's judgment conformed with domestic constitutional law.
On 10 April 1987 a group of three judges of the Federal
Constitutional Court rejected as offering no prospects of success the
applicant's constitutional complaint against the Federal Court's
decision and against the writ of execution. It is pointed out in the
decision that the Court of Justice's jurisprudence adequately
implements the guarantee of fundamental rights and that therefore
there is no obligation for German authorities to examine whether or
not a judgment of this Court conforms with German constitutional law
before issuing a writ of execution.
COMPLAINTS
The applicant repeats the complaints already raised in the
domestic proceedings. It considers that convicting or fining an
employer for a wrong committed by an employee violates the principle
nulla poena sine culpa. To assume until proven to the contrary that
a fault was committed by the employee(s) in the course of his/their
operational tasks, would violate the presumption of innocence.
Furthermore, the applicant alleges a violation of the
principle in dubio pro reo, in that the Court of Justice did not take
into account that the principal witness, who had initially
incriminated the applicant, later revoked his statements and declared
under oath that he had made them to protect his own interests.
Finally, the applicant complains that its managing partners
were not allowed to participate in the proceedings before the Court of
Justice, to put questions to the witnesses and to defend themselves
personally.
The applicant invokes Articles 1 and 6 paras. 2 and 3 (c) of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 September 1987 and
registered on 2 October 1987.
On 15 December 1988 the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of
Procedure, to submit written observations on the application before
3 March 1989. At the respondent Government's request the time-limit
was extended to 19 April 1989. The Government's observations were
submitted on 12 April 1989.
The applicant company was invited to submit observations in
reply before 2 April 1989. Following an extension of the time-limit
the applicant company's observations were submitted on 17 May 1989.
On 7 September 1989 the Commission decided to hold a hearing.
At the hearing on 9 February 1990 the parties were represented as
follows:
For the Government
Mr. J. Meyer-Ladewig, Agent, Federal Ministry of Justice
MM. Teske and Stöcker, Advisers, both of the Federal Ministry of Justice
For the applicant
Mr. Jürgen Dettmers, lawyer and partner of the applicant company
THE LAW
The applicant company complains that the German authorities
issued a writ for the execution of a judgment of the European Court of
Justice according to which it has to pay a heavy fine for having
violated Article 85 of the EC Treaty. The applicant company mainly
submits that in its case the Court of Justice violated the principle
of presumption of innocence as guaranteed by Article 6 para. 2
(Art. 6-2) of the Convention by fining its associates for a wrong
committed without their knowledge by an employee. Furthermore the
applicant company considers the right of every accused to defend
himself in person as guaranteed by Article 6 para. 3 (c) (Art. 6-3-c)
of the Convention as being violated.
According to the applicant company the respondent
State's obligation to secure the rights guaranteed by the
Convention has absolute priority over any other treaty obligations.
Therefore the competent Minister, before issuing a writ of execution,
should examine whether or not the judgment of the European Court of
Justice had been given in proceedings respecting the guarantees set
out in Article 6 (Art. 6) of the Convention. As this was not the case
the granting of the writ of execution, so the applicant company
argues, gave effect to the violations complained of and therefore
violated the provisions invoked.
The respondent Government argue that the Federal Republic of
Germany is not responsible under the Convention for acts and decisions
of the European Communities. The Federal Minister of Justice, in
granting a writ of execution for a judgment of the European Court of
Justice, did not have to examine whether the judgment in question had
been reached in proceedings compatible with fundamental rights
guaranteed by the European Convention on Human Rights or the German
Basic Law. He only had to examine whether the judgment was authentic.
Therefore he neither had to determine a civil right, nor a criminal
charge within the meaning of Article 6 (Art. 6) of the Convention.
Furthermore, the Federal Republic's responsibility under the
Convention could not be derived from the fact that it transferred part
of its powers to the European Communities. Otherwise all Community
acts would indirectly be subject to control by the Convention organs.
However, such a result would not be compatible with the generally
accepted principle that the Convention did not apply to the European
Communities and would become binding for them only if they formally
adhered to it. In this context the respondent Government also point
out that, in any event, observance of fundamental rights is secured by
the European Court of Justice. Even if it should be found that
national authorities nevertheless also remained bound to control
Community acts as to manifest and flagrant violations of fundamental
rights, such a control had, in the present case, been effected by the
German civil courts which had found no appearance of such a violation.
The Commission first recalls that it is in fact not competent
ratione personae to examine proceedings before or decisions of organs
of the European Communities, the latter not being a Party to the
European Convention on Human Rights (see No. 8030/77, CFDT v. European
Communities, Dec. 10.7.78, DR 13 p. 231; No 13539/88, Dufay v.
European Communities, Dec. 19.1.89). This does not mean, however, that
by granting executory power to a judgment of the European Court of
Justice the competent German authorities acted quasi as Community
organs and are to that extent beyond the scope of control exercised by
the Convention organs. Under Article 1 (Art. 1) of the Convention the
Member States are responsible for all acts and omissions of their
domestic organs allegedly violating the Convention regardless of
whether the act or omission in question is a consequence of domestic
law or regulations or of the necessity to comply with international
obligations (cf. mutatis mutandis No. 6231/73, Ilse Hess v. United
Kingdom, Dec. 28.5.75, D.R. 2 p. 72 [74]).
The question therefore is whether by giving effect to a
judgment reached in proceedings that allegedly violated Article 6
(Art. 6) the Federal Republic of Germany incurred responsibility under
the Convention on account of the fact that these proceedings against
a German company were possible only because the Federal Republic has
transferred its powers in this sphere to the European Communities.
For the purpose of the examination of this question it can be
assumed that the anti-trust proceedings in question would fall under
Article 6 (Art. 6) had they been conducted by German and not by European
judicial authorities (cf. Eur. Court H.R., Öztürk judgment of
8 December 1983, Series A no. 73, paras. 46-56; No. 11598/85, Dec.
11.7.89).
It has next to be observed that the Convention does not
prohibit a Member State from transferring powers to international
organisations. Nonetheless, The Commission recalls that "if a State
contracts treaty obligations and subsequently concludes another
international agreement which disables it from performing its
obligations under the first treaty it will be answerable for any
resulting breach of its obligations under the earlier treaty" (cf.
N° 235/56, Dec. 10.6.58, Yearbook 2 p. 256 (300)). The Commission
considers that a transfer of powers does not necessarily exclude a
State's responsibility under the Convention with regard to the
exercise of the transferred powers. Otherwise the guarantees of the
Convention could wantonly be limited or excluded and thus be deprived
of their peremptory character. The object and purpose of the
Convention as an instrument for the protection of individual human
beings requires that its provisions be interpreted and applied so as
to make its safeguards practical and effective (cf. Eur. Court H.R.,
Soering judgment of 7 July 1989, Series A no. 161, para. 87).
Therefore the transfer of powers to an international organisation is
not incompatible with the Convention provided that within that
organisation fundamental rights will receive an equivalent protection.
The Commission notes that the legal system of the
European Communities not only secures fundamental rights but also
provides for control of their observance. It is true that the
constituent treaties of the European Communities did not contain a
catalogue of such rights. However, the Parliament, the Council and
the Commission of the European Communities have stressed in a joint
declaration of 5 April 1977 that they attach prime importance to the
protection of fundamental rights, as derived in particular from the
Constitution of the Member States and the European Convention for the
Protection of Human Rights and Fundamental Freedoms. They pledged
that, in the exercise of their powers and in pursuance of the aims of
the European Communities, they would respect and continue to respect
these human rights (Official Journal of the European Communities, XX,
1977, Information and Notices, No. C 103/I). In addition the Court of
Justice of the European Communities has developed a case-law according
to which it is called upon to control Community acts on the basis of
fundamental rights, including those enshrined in the European
Convention on Human Rights. In accordance with this reasoning the
Court of Justice underlined in the present case that the right to a
fair hearing is a fundamental principle of Community law. It stated
that Community law contained all criteria which are prerequisites not
only to examine but, if necessary, to remedy the applicant company's
complaint that its right to a fair hearing was violated (see p. 76 of
the judgment). However, it came to the conclusion that this complaint
was unfounded.
The Commission has also taken into consideration that it
would be contrary to the very idea of transferring powers to an
international organisation to hold the member States responsible for
examining, in each individual case before issuing a writ of execution
for a judgment of the European Court of Justice, whether Article 6
(Art. 6) of the Convention was respected in the underlying proceedings.
It follows that the application is incompatible with the
provisions of the Convention ratione materiae and must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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