Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16608/90

by Manfred JACUBOWSKI

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 5 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 23 April 1990

by Manfred JACUBOWSKI against the Federal Republic of Germany and

registered on 18 May 1990 under file No. 16608/90;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1933, is a German national and resident

in Bonn. He is a journalist by profession. Before the Commission he

is represented by Mr. W. Meilicke, a lawyer practising in Bonn.

His application No. 15088/89 concerning injunction proceedings

under the German Unfair Competition Act (Gesetz gegen den unlauteren

Wettbewerb) is pending before the Commission.

The applicant was co-founder, partner and manager of a private

company operating a news agency, which went bankrupt in March 1983.

Subsequently, a successor news agency D., operated by a limited

company, was founded. On 3 May 1983 the applicant was appointed, for

a period of five years, as sole managing director and employed as

chief editor of this news agency.

On 17 July 1984 the applicant was dismissed without notice

following disputes concerning financial transactions.

On 16 August 1984 his employer D., in its news network,

published a press release concerning its reorganisation of personnel,

which also commented upon the applicant's qualifications and his

performance as a journalist and managing director. According to this

press release, the unchanged business policy of the applicant and his

inappropriate attitude towards clients on the one hand, and the lack

of an efficient and reliable editorial management on the other hand,

had prevented that the chance of a new start could be seized, and

moreover resulted in the loss of clients. The release continued that

the applicant, in important matters, had wrongly informed the managing

board, and that D. was charged with debts of the preceding firm. The

release then turned to the applicant's dismissal for failure as a

businessman and for the above-mentioned financial transactions. It

also mentioned that the applicant had refused a new contract as chief

editor in an editorial team.

On 25 August 1984 D.'s managing board again pronounced the

applicant's dismissal on the ground of alleged disclosure of internal

matters to third persons. For a formal reason, this dismissal was

repeated on 12 October 1984.

Meanwhile, on 17 September 1984 the Bonn Regional Court

(Landgericht) had dismissed the applicant's request for a preliminary

injunction (einstweilige Verfügung) concerning his claim to reply

(Gegendarstellung) to the above press release.

On 25 September 1984 the applicant addressed a circular letter

to a number of leading newspaper and radio journalists known to him

including clients of the news agency D. The letter was phrased in the

following terms:

Die beigefügte - wenn auch zwangsläufig nicht vollständige -

Auswahl von Berichten über die Sache Jacubowski ./. kann

sicher einiges aufhellen, das noch im dunkeln liegt, auch

wenn Ihnen die eine oder andere Schilderung schon bekannt

sein sollte. Dies gilt trotz manchmal unzutreffender 'facts',

die das Gesamtbild allerdings kaum verändern. Die noch

laufenden Gerichtsverfahren, die von der gegenwärtigen

-Entwicklung betroffene Mitarbeiter und ich einleiteten,

werden aber auch in Details für endgültige Klarheit sorgen.

Ich würde mich freuen, wenn sich schon bald die Gelegenheit

für ein persönliches Gespräch bieten würde, um nicht nur die

Vergangenheit, sondern auch die künftige Entwicklung am

deutschen 'Nachrichtenmarkt' zu erörtern. Um einen Termin

dafür werde ich mich rechtzeitig bemühen."

"The enclosed selection of articles concerning the case

of Jacubowski v. D. which is necessarily not complete

will certainly clarify some matters which are still in the

dark, even if you should already know one or the other

reported fact. This is so despite partly incorrect facts

which however hardly affect the picture as a whole. The

pending court proceedings which have been instituted by staff

members affected by the current development of D. and by

myself will finally throw light on all details.

I would be pleased to have the opportunity for a personal

conversation in which I could discuss not only the past, but

also future developments in the German media market. I shall

in due time ask for an appointment for this purpose."

The letter was accompanied by the text of the employer's press

release of 16 August 1984 and thirteen articles concerning the

financial and staff situation of D. which had been subsequently

published by six newspapers with a wide circulation. While containing

critical remarks on the applicant they also expressed severe criticism

of his former employer. One article of 21/22 September 1984 stated

that D.'s financial situation had become worse than at the time of the

bankruptcy in April 1983, and also mentioned that five clients intended

to terminate their contractual relations with D. Another article

reported that a number of clients of news agency D. had stopped their

subscription to its services because of deficiencies in the quality of

the journalistic product and failure to provide for particular forms

of distribution such as online text or teletext. This was illustrated

by several examples. The article also mentioned that the news agency

risked to lose one of its major clients, who subsidised a news

service in English which had become rather poor.

On 11 October 1984 the Cologne Court of Appeal (Oberlandes-

gericht), upon the applicant's appeal, quashed the Bonn Regional

Court's decision of 17 September 1984, and recognised the applicant's

right to reply to his employer's press release in the terms chosen by

him. The applicant's reply was printed one month later.

On 28 October 1984 the news agency D., referring to the

applicant's circular letter, again pronounced his dismissal.

On 21 December 1984 the Bonn Regional Court, upon the

applicant's action, found that the dismissals of 17 July, 25 August

and 12 October 1984 had not terminated the applicant's contract of

employment. His employer D. was ordered to pay his salary and bonus.

On 12 February 1985 D. pronounced the applicant's dismissal

for having seriously compromised their goodwill. In March 1985 the

applicant himself terminated his contract of employment with D. and

started a news agency.

On 9 October 1986, after unsuccessful appeal proceedings, the

Federal Court of Justice (Bundesgerichtshof), upon D.'s appeal on

points of law (Revision), rejected the applicant's action as

inadmissible on the ground that D. had not been properly represented

in the proceedings.

On 21 September 1987 the Bonn Regional Court, upon the

applicant's action concerning all four dismissals, ordered that D. had

to pay the applicant about DM 427,OOO with interest as salary since July

1984. The Regional Court declared that the four dismissals concerned

had not terminated the applicant's contract of employment. It also

declared D. liable for any future damages of the applicant resulting

from D.'s breach of contract.

The Regional Court found in particular the applicant's

dismissals of 17 July, 25 August as well as 12 October 1984 had not

been declared in time. The reasons for his dismissal on 12 February

1985 were not duly substantiated.

As regards the applicant's dismissal of 28 October 1984 the

Regional Court found that his circular letter was only an attempt to

prevent prejudice to his reputation after his dismissal as managing

director and the subsequent public debate in the press. The

applicant's suggestion, he would contact the addressees in order to

arrange a discussion of the further developments in the German press

market, lacked any concrete background. Furthermore, D., in

particular with its press release of 16 August 1984, and the refusal

to publish the applicant's reply, had given him reasons to react.

There were no indications that the applicant, with his own news agency,

intended to compete with D.

According to S. 626 para. 1 of the German Civil Code (Bürger-

liches Gesetzbuch) a contract of employment may, for an important

reason, be terminated without notice by both parties, if, considering

particular facts, and taking all the circumstances of the case into

account and balancing both parties' interests, the party terminating

the contract cannot be expected to continue the contract of employment

until the term of notice or the fixed termination of the contract.

On 11 October 1988 the Cologne Court of Appeal, in a partial

judgment upon D.'s appeal (Berufung), amended the Regional Court's

decision. It ordered D. to pay the applicant about DM 31,OOO with

interest. It declared that the applicant's contract of employment had

not been terminated by the dismissals pronounced on 17 July, 25 August

and 12 October 1984. It dismissed the applicant's claims for salary

as from 1 November 1984, for bonus and for a declaration that D. was

liable for any future damages.

The Court of Appeal found in particular that the applicant's

contract had been terminated by the dismissal of 28 October 1984. The

distribution of the circular letter of 25 September 1984 to numerous

chief editors and other important staff members of newspapers and

broadcasting systems implied such a serious breach of the applicant's

duty to loyalty (Treuepflicht) that, having regard to all

circumstances and balancing the interests of both parties, a

continuation of the contract could no longer be expected.

The Court of Appeal considered that the distribution of the

circular letter with the negative press cuttings had depreciated D.'s

qualifications, financial situation and thus its goodwill in the eyes

of a great number of clients, potential clients and other important

people working in the media market. The applicant had adopted the

contents of the press reports as his own views, and, in his position

as D.'s former managing director, given them a particular weight and

importance. The risk that D. could lose further clients as a result

of the circular letter was considerable, and consented to by the

applicant. Thus, the applicant, as an employee in a leading position,

had, instead of furthering the interests of his employer to the best

of his abilities, adopted a negative presentation and appreciation

concerning his employer and pointed it out to his employer's clients

without any reference to positive aspects. At the same time he had

indicated his interest in establishing himself business contacts with

the clients addressed. A trustful co-operation with such an employee

was not possible and could not be expected of D. Consequently, the

applicant's circular letter was a reason justifying his dismissal

without notice.

In the Court of Appeal's view, the applicant, as employee in a

leading position was, under his duty for loyalty, not allowed to

transmit defaming information about his employer, even if it were

true. Although D. had already seriously disrupted the relation of

trust with the applicant, he was not completely dispensed from his

duty of loyalty. Furthermore, the wording of his circular letter did

not show any intention solely to react to D.'s preceding attacks

against him. The applicant's rights under the Basic Law (Grund-

gesetz), in particular his right to freedom of expression, would not

lead to another decision. The Court of Appeal also noted that the

applicant had in the meantime finally lost proceedings under the

Unfair Competition Act instituted by D.

On 26 June 1989 the Federal Court of Justice refused to admit

the applicant's appeal on points of law on the grounds that it did not

raise an issue of fundamental importance, and did not offer any

prospect of success. The Federal Court of Justice considered in

particular that the applicant's circular letter was not covered by his

right to freedom of expression. The Court of Appeal's findings that

the applicant had distributed the circular letter with the primary

intentions to depreciate his employer and open up contractual

relations of his own could not be objected to. Furthermore, on

11 December 1986 the Düsseldorf Court of Appeal had decided that the

applicant's behaviour constituted unfair competition.

On 25 October 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it did not offer

any prospect of success. The Constitutional Court, referring to its

decision of 4 October 1988 concerning the proceedings against the

applicant under the Unfair Competition Act, found in particular that

there was nothing to show that the Cologne Court of Appeal and the

Federal Court of Justice, in their respective decisions, had misjudged

the weight and importance of the applicant's right to freedom of

expression.

COMPLAINTS

The applicant complains under Article 10 of the Convention

about the German court decisions confirming his dismissal from

employment as chief editor for having distributed his circular letter

with enclosed negative press reports about D.

THE LAW

The applicant complains under Article 10 (Art. 10) of the

Convention about court decisions confirming his dismissal without

notice on 28 October 1984, i.e. the decision of the Cologne Court of

Appeal of 11 October 1988 and of the Federal Court of Justice of 26

June 1989.

Article 10 para. 1 (Art. 10-1) of the Convention reads,

insofar as relevant, as follows:

" 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 ... "

The applicant's employment as chief editor was terminated by

his employer, a private company, for breach of loyalty in connection

with the distribution of his circular letter and annexed press

articles. This act of a private person does not, in itself, entail

the responsibility of the Federal Republic of Germany.

The applicant's dismissal from employment without notice was

based on German legislation on the protection against unfair

dismissal. S. 626 para. 1 of the German Civil Code provides that a

contract of employment may be terminated without notice, if, for an

important reason, the terminating party cannot be expected to continue

it. One category of cases is the breach of loyalty by the employee.

In the present case, the German courts found that the applicant, as

employee in a leading position and former managing director, had

committed a serious breach of loyalty in distributing to his

employer's clients and potential clients a circular letter and press

articles with negative statements about his employer's qualifications

and financial situation, and indicating his own intentions to

establish business contacts.

The Commission finds that the enactment of such legislation on

the protection against unfair dismissal, and its application by the

German courts in the present case, are in conformity with the

respondent State's obligation under Article 1 (Art. 1) of the Convention to

ensure the rights and freedoms defined in the Convention, in

particular the right to freedom of expression.

Consequently, in these circumstances, there is no interference

by German authorities with the applicant's right to freedom of

expression under Article 10 para. 1 (Art. 10-1) of the Convention.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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JACUBOWSKI v. GERMANY

JACUBOWSKI v. GERMANY

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