Lexploria

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

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G.D. AND M. v. GERMANY

G.D. AND M. v. GERMANY

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