FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15073/03 by Lutz JOHN against Germany

The European Court of Human Rights (Fifth Section), sitting on 13 February 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa - Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. J aeger, judges , and Mr s C. Westerdiek , Deputy Section Registrar ,

Having regard to the above application lodged on 6 May 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Lutz John, is a German national who lives in Calbe . He was represented before the Court by Mr Schindler , a lawyer practising in Frankfurt .

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is the operator of a service-station in Calbe. In 1994-1995, he concluded a service-station agreement with an oil company which contained an exclusive purchasing clause, according to which the applicant is obliged to buy petrol from the company for a period of twenty years.

In 1998, after the applicant ’ s legal counsel had challenged the contract, the oil company sued the applicant before the Hamburg Regional Court in order to declare the contract between the parties as being valid and to order the applicant to refrain from purchasing, storing and selling other companies ’ petrol.

On 13 November 1998, the Hamburg Regional Court dismissed the oil company ’ s claim. It held that the agreement was prohibited by Article 81 § 1 EC Treaty (then Article 85 § 1) and was therefore void pursuant to Article 81 § 2 of the EC Treaty . The Hamburg Regional Court found that the exclusive purchasing agreement restricted the competition within the European common market and that the contract with its twenty-year duration formed part of a number of agreements designed to hamper the market entry for potential competitors. The Hamburg Regional Court also found that this provision applied even though the contract had described the applicant ’ s position as that of a sales agent ( Handelsvertreter ), because his contractual obligations did not support such a qualification.

The oil company subsequently lodged an appeal with the Hanseatic Court of Appeal. In the appeal proceedings, the applicant asked the court to dismiss the appeal and, alternatively, to make a referral to the European Court of Justice under Article 234 EC Treaty regarding the following question:

“Is Article 81 EC Treaty to be interpreted in such a way that the obligation for the exclusive purchase of petrol in a service-station contract with the owner of the service-station, like the contract between the parties to the present dispute, -even if the contract is phrased as a sales agent agreement- is capable to distort competition within the relevant market of the sale of petrol by service-stations and to noticeably affect trade between member states and is such an agreement consequently void pursuant to Article 81 § 2 EC Treat y?”

On 13 April 2000, the Hanseatic Court of Appeal set aside the Hamburg Regional Court ’ s judgment of 13 November 1998 and ordered the applicant to refrain from purchasing, storing or selling other oil company ’ s petrol in his service-station. The Court of Appeal concluded that the applicant had to be regarded as a sales agent under European Law and that Article 81 EC Treaty was therefore not applicable. Finally, the Court of Appeal stated that it had not been obliged to seek a preliminary ruling by the European Court of Justice under Article 234 EC Treaty since the applicant could still lodge an appeal on points of law with the Federal Court of Justice.

The applicant, represented by legal counsel, lodged an appeal on points of law with the Federal Court of Justice on 25 September 2000, requesting the Federal Court of Justice to set aside the judgment of the Hanseatic Court of Appeal of 13 April 2000 and to decide in accordance with his motions lodged in the appeal proceedings (“ nach den Schl u ßantr ägen der R evisionkl ägerin in der B erufungsinstanz zu erkennen ” ). Those motions thus also included his alternative motion to request a preliminary ruling under Article 234 EC Treaty. However, his submissions to the Federal Court of Justice did not contain an express request for a reference under Article 234 EC Treaty, nor did the applicant give any express reasons for the necessity of a preliminary ruling. On 26 June 2002 the Federal Court of Justice refused to admit the applicant ’ s appeal on points of law, finding that the case was neither of fundamental importance, nor that it had reasonable prospects of success. No further reasons for the dismissal were given by the Federal Court of Justice.

On 7 November 2002, the Federal Constitutional Court , sitting as a panel of three judges, refused to admit the applicant ’ s constitutional complaint without giving any reasons.

B . Relevant Domestic and European Law

1 . Rele vant provisions of the EC Treaty

Article 81

(1) The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

(2) Any agreements or decisions prohibited pursuant to this Article shall be automatically void. ( ... )

Article 234

The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of this Treaty; (...)

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.

2 . Relevant Domestic Law and P ractice

Article 101 § 1 of the German Basic Law ( Grundgesetz ) provides:

“( ... ) No one may be removed from the jurisdiction of his lawful judge.”

It is settled case-law of the Federal Constitutional Court that the European Court of Justice is a “lawful judge” within the meaning of Article 101 § 1 of the Basic Law (see BVerfGE 73, p. 339, at p. 366; BVerfG, 2 BvR 2248/03). The Federal Constitutional Court finds a violation of that provision if a court against whose decisions there is no judicial remedy basically fails to recognise its obligation to seek a preliminary ruling under Article 234 EC Treaty (BVerfG, decision of 9 January 2001, 1 BvR 1036/99, EuGRZ 2001, p. 152). The same applies in the instance that there does not yet exist any case-law by the European Court of Justice concerning a decisive question on the application or interpretation of European Community law, or the existing case-law has not yet exhaustively answered that question ( BVerfG, decision of 9 January 2001, cited above, p. 152).

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the German courts failed to seek a preliminary ruling from the European Court of Justice (Article 234 of the EC Treaty) . He further complained that the decisions of the Federal Court of Justice and the Federal Constitutional Court did not contain any reasons.

THE LAW

The applicant complained under Article 6 § 1 of the Convention that the Hanseatic Court of Appeal, the Federal Court of Justice and the Federal Constitutional Court refused to seek a preliminary ruling by the European Court of Justice . Referring to the European Court of Justice ’ s ruling in Hoffmann-Laroche & Co. AG v. Centrafarm Vertriebsgesellschaft Pharma-zeutischer Erzeugnisse GmbH of 24 May 1977 ([1978] 3 C.M.L.R. 217), the applicant claims that the Hanseatic Court of Appeal was obliged to seek a preliminary ruling as the admission of his appeal on points of law by the Federal Court of Justice, and consequently its referral of the case to the European Court of Justice, had been uncertain. The German courts had been obliged to seek a preliminary ruling by the European Court of Justice because, at the relevant time, the possible role of a service-station operator as sales agent under European Competition law and the so-called allegedly false agency contracts in that sector had not been decided upon by the European Court of Justice. The applicant further complained that the decisions by the Federal Court of Justice and the Federal Constitutional Court did not contain any reasons.

Article 6 § 1 of the Convention provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court recalls that the Convention does not guarantee, as such, any right to have a case referred to the European Court of Justice for a preliminary ru ling under Article 234 of the EC Treaty. Nevertheless, refusal of a request for such a reference may infringe the fairness of proceedings if it appears to be arbitrary (see , among other authorities , Matheis v. Germany (dec.), no. 73711/01, ECHR February 2005; Bakker v. Austria (dec.), no. 43454/98, 13 June 2002 ; and Schweighofer and Others v. Austria (dec.) nos. 35673/97, 35674/97, 36082/97 and 37579/97, 24 August 1999 ).

The Court further notes that a domestic court of an EU Member State can only ask the European Court of Justice for a preliminary ruling if it considers that a decision on the question of interpretation of the EC Treaty is necessar y to enable the domestic court to give judgment.

The applicant submitted that the European Court of Justice ’ s interpretation of Article 81 EC Treaty was decisive for the finding whether or not the contract between the applicant and the oil company was void. For the purposes of its examination of this question, the Court recalls that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law even when that law refers to international law or agreements ( Bosphorus Hava Yolları Turizm ve Ticaret Anonim Åžirketi (Bosphorus Airways) v. Ireland [GC], no. 45036/98, § 143, ECHR 2005 ‑ ...) . In each instance, the Court ’ s role is confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, mutatis mutandis , Waite and Kennedy v. Germany, Waite and Kennedy v. Germany [GC], no. 26083/94 , § 51 , ECHR 1999 ‑ I , and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97, 44801/98, § 49, ECHR 2001-II).

Regarding the Hanseatic Court of Appeal ’ s refusal to seek a preliminary ruling at the appeal stage in the domestic proceedings, the Court notes that there existed a remedy against the judgment of that court, namely an appeal on points of law to the Federal Court of Justice. The Hanseatic Court of Appeal was thus not “a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law” within the meaning of Article 234 EC Treaty. As was pointed out in its judgement of 13 April 2000, there existed no obligation for the Hanseatic Court of Appeal to seek a preliminary ruling under Article 234 EC Treaty even if the remaining requirements had been met. Consequently, the refusal by the Hanseatic Court of Appeal to seek a preliminary ruling with the European Court of Justice does not raise an issue under Article 6 § 1 of the Conven-tion .

The applicant also complained that both the Federal Court of Justice and the Federal Constitutional Court did not seek a preliminary ruling from the European Court of Justice under Article 234 EC Treaty and did not give any reasons for their decisions.

The Court notes that, in his submissions to the Federal Court of Justice , the applicant asked the court to set aside the judgment of the Hanseatic Court of Appeal and to decide in accordance with his motions lodged with the Hanseatic Court of Appeal. These motions included the request for a preliminary ruling under Article 234 EC Treaty. Nevertheless, the applicant ’ s submissions to the Federal Court of Justice neither contained an express request for a reference under Article 234 EC Treaty nor express and precise reasons for the alleged necessity of a preliminary ruling.

Accordingly, the applicant insufficiently pleaded that he considered a decision as to the interpretation of Article 81 EC Treaty as necessary to enable the Federal Court of Justice to give judgment . Even though the applicant had raised the matter before the Hanseatic Court of Appeal, the Court finds that the fact that the Federal Court of Justice did not obtain a preliminary ruling cannot be regarded as arbitrary under these circumstances.

As far as the applicant complained about the decision of the Federal Constitutional Court, the Court notes that it is settled case-law of the Federal Constitutional Court that the European Court of Justice is a “lawful judge” within the meaning of Article 101 § 1 of the Basic Law, and that where a court against whose decisions there is no judicial remedy fails to recognise its obligation to seek a preliminary ruling, it violates that provision. The Court further notes that, in order for the Federal Constitutional Court to find such a violation, the request for a preliminary ruling under Article 234 EC Treaty to the ordinary court must be sufficiently substantiated. As the applicant insufficiently pleaded that he considered a decision as to the interpretation of Article 81 EC Treaty as necessary to enable the Federal Court of Justice to give judgment , this had not been the case. Therefore, there is no appearance of arbitrariness in the fact that the Federal Constitutional Court ’ s refused to admit the applicant ’ s constitutional complaint.

As regards the allegedly insufficient reasoning of the decisions of the Federal Court of Justice and the Federal Constitutional Court, the Court reiterates that it is acceptable under Article 6 § 1 of the Convention for national superior courts 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) . Having regard to the above circumstances, the Court finds that neither the Federal Court of Justice nor the Federal Constitutional Court was obliged under the Convention to give reasons for their decisions, including reasons for the refusal of a reference to the European Court of Justice under Article 234 EC Treaty.

This complaint has therefore to be rejecte d in accordance with Article 34 § 4 as being manifestly ill -founded within the meaning of paragraph 3 of that same provision.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President