Wendenburg and Others v. Germany (dec.)

Information Note on the Court’s case-law 50

February 2003

Wendenburg and Others v. Germany (dec.) - 71630/01

Decision 6.2.2003 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Abolition of exclusive rights of audience before higher courts: inadmissible

The applicants are barristers who enjoyed exclusive rights of audience before appeal courts by virtue of section 25 of the Federal Barristers Act of 1959. They derived more than 90% of their income from appeal cases. The provision, which applied in seven of the sixteen Länder, was declared incompatible with Article 12 § 1 of the Basic Law by the Federal Constitutional Court in December 2000. The court, considering that a transitional period was warranted, ordered that its ruling should not take effect until July 2002: barristers who had enjoyed rights of audience in the appeal courts would be able to acquire rights of audience before the lower courts as of 1 January 2002, while barristers who had previously had rights of audience before the lower courts would be entitled to appear before the appeal courts as of 1 July 2002. New legislation was adopted in July 2002, enabling barristers to appear before any court of appeal in the country.

Inadmissible under Article 1 of Protocol No. 1: The right to the peaceful enjoyment of possessions does not extend to future income but does apply to law practices and their clientele. It was immaterial whether the applicants acquired these possessions by taking advantage of a favourable position or solely through their own activities. Assuming there had been an interference, it was lawful, as it was based on decisions of the Federal Constitutional Court, which have the force of law. That court had considered that exclusive rights of audience were no longer necessary, in the light of technological advances and other changes. There had been no negative consequences in the Länder that did not operate the exclusionary rule, and barristers there were at a disadvantage vis-à-vis those who enjoyed exclusive rights of audience in the appellate courts. Even in the Länder where the rule applied, 85-90% of barristers worked in partnership with lawyers who had rights of audience before the lower courts. The decision of the Federal Constitutional Court therefore served the general interest. Moreover, it could not be regarded as arbitrary or unreasonable. As to proportionality, the applicants had been accorded a longer transition period than lawyers previously restricted to appearing before the lower courts and a longer transition period would not have been acceptable, as it would have prolonged a situation declared to be unconstitutional. The Federal Constitutional Court’s decision was therefore proportionate and justified: manifestly ill-founded.

Inadmissible under Articles 6 § 1 and 13: The proceedings before the Federal Constitutional Court involved a dispute about a civil right. In view of the effect of its ruling, the proceedings could be regarded as decisive for civil rights and obligations. Although the applicants had not been heard individually, associations defending the professional interests of lawyers had been heard. In view of the large number of lawyers affected by the decision, the Federal Constitutional Court had sufficiently fulfilled the requirements of Article 6 § 1. The absence of remedies against a ruling of the Federal Constitutional Court did not raise an issue under Article 13: manifestly ill-founded.

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