DISSENTING OPINION OF JUDGE bernhardt

I am unable to follow the majority of my colleagues in the present case. I cannot subscribe either to the result in the concrete case, or to the general approach on which it is based. In the final analysis, the present decision of the Court reviews the decisions taken by the national courts like a court of last instance and does so in the context of economic and competition matters.

The earlier decisions of the Court quoted in paragraph 46 of the present judgment concern the freedom of expression in a political context. In paragraph 47, the judgment accepts that it is indispensable for national authorities to enjoy a considerable margin of appreciation in determining what restrictions on the freedom of expression may be necessary in economic matters and especially in the field of unfair competition. But this correct statement is not respected thereafter. The Court tries itself to strike a fair balance between the interests of the economic producers concerned and Mr Hertel’s freedom of expression. In giving a detailed description and evaluation of the publication as well as of the surrounding factors, the Court comes to a different conclusion from that of the national courts.

In the present case, it is beyond doubt that the applicant’s central assertion and the alleged scientific results do not stand up to close scrutiny, and this was obviously decisive for the national courts. There might be good reasons to allow such statements irrespective of their correctness, but the European Court of Human Rights should not substitute its own evaluation for that of the national courts, where those courts considered, on reasonable grounds, the restrictions to be necessary.

DISSENTING OPINION OF JUDGE matscher

( Translation )

1. I agree with the majority’s view that the interference was prescribed by law and pursued a legitimate aim (see the markt intern Verlag GmbH and Klaus Beermann v. Germany judgment of 20 November 1989, Series A no. 165, §§ 28 et seq.). Those two issues must firstly be assessed in the light of the legislation of the State concerned.

2. On the other hand, I am unable to agree with the majority’s finding that the measure in issue was not “necessary in a democratic society”.

Unfair competition is a complex technical subject and it was in accordance with their case-law – which is similar to that of the courts of other European countries – that the Swiss courts held that the applicant’s statements came within that sphere.

After weighing up the interests concerned, the Swiss courts held that the applicant’s exaggerated statements – which, contrary to what was asserted by the applicant, were not based on any scientific evidence – infringed the Unfair Competition Act and granted the plaintiffs’ application for an injunction barring him from continuing to publish the statements. He was not prohibited from continuing his research or from publishing that research in an appropriate way.

Furthermore, the argument that the person “really responsible” was not Mr Hertel, but Franz Weber, does not stand up, as the applicant had made his report available to Mr Weber and could have foreseen the use that would be made of it. Moreover, the applicant approved the publication because he did not dissociate himself from it and had made similar remarks in an interview that was also published in the Journal Franz Weber .

As in the markt intern case, I consider that in unfair competition cases States should be afforded a wider margin of appreciation than in other spheres of freedom of expression. Otherwise, the system for preventing unfair competition, one that is beneficial to the business world, will be destroyed. While there is debate between specialists in the field, it is not over whether interference in the freedom of expression is lawful, but only as to whether particular conduct does or does not amount to unfair competition. That is not an issue for the Court to decide.

I find that the respondent State did not go beyond that margin of appreciation, particularly as the penalty imposed on the applicant was not disproportionate.