CEDH · CASELAW;REPORTS;ENG — 18 décembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 10572/83   MARKT INTERN Verlag GmbH   and Klaus BEERMANN     against     the FEDERAL REPUBLIC OF GERMANY     REPORT OF THE COMMISSION   (adopted on 18 December 1987)   TABLE OF CONTENTS     I.       INTRODUCTION         (paras. 1-20) .........................................     1           A.       The application                 (paras. 2-5) ..................................     1           B.       The proceedings                 (paras. 6-15) .................................     1           C.       The present Report                 (paras. 16-20) ................................     3   II.      ESTABLISHMENT OF THE FACTS         (paras. 21-78) ........................................     4           A.       The particular circumstances of the case                 (paras. 21-57) ................................     4           B.       Relevant domestic law and practice                 (paras. 58-78) ................................    13   III.     SUBMISSIONS OF THE PARTIES         (paras. 79-186) .......................................    17           A.       The applicants                 (paras. 79-128) ...............................    17           B.       The Government                 (paras. 129-186) ..............................    23   IV.      OPINION OF THE COMMISSION         (paras. 187-253) ......................................    32           A.       Point at issue                 (para. 187) ...................................    32           B.       Applicability of Article 10                 (paras. 188-204) ..............................    32           C.       The scope of interference with the                 applicants' freedom of expression                 (paras. 205-206) ..............................    34           D.       The justification of the interference                 with the applicants' freedom of expression                 under Article 10 para. 2                 (paras. 207-252) ..............................    35           E.       Conclusion                 (para. 253) ...................................    42   APPENDIX I       :   HISTORY OF THE PROCEEDINGS .................    43   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ..............    45   I.     INTRODUCTION       1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application     2.       The first applicant, MARKT INTERN Verlag GmbH, is a firm of publishers organised as a limited liability company under German law, which is established in Düsseldorf.   The second applicant, Mr.   Klaus BEERMANN, a German citizen born in 1939, is the editor-in-chief of the information bulletins published by the first applicant.   Both applicants were represented by Prof.   Dr.   Christian Tomuschat of Bonn.   3.       The application is directed against the Federal Republic of Germany whose Government were represented by their Agent, Frau Ministerialdirigentin Irene Maier of the Federal Ministry of Justice.   4.       The case concerns the application of unfair competition law to statements published in one of the first applicant's bulletins on the commercial behaviour of a certain firm.   The publication was restricted on the ground that it unjustifiedly interfered with that firm's competition with others.   The Federal Court of Justice considered it to be in breach of honest practices because, in its view, the disclosure of the relevant facts was not warranted by the circumstances.   The Federal Constitutional Court confirmed this decision, holding that the freedom of expression did not prevail over other legally protected interests where a case concerned the promotion of economic interests in the context of competition.   5.       The applicants allege that the restriction of the above publication amounted to an unjustified interference with their right to freedom of expression, as guaranteed by Article 10 of the Convention.     B.       The proceedings     6.       The application was introduced on 11 July 1983 and registered on 15 September 1983.   7.       On 5 July 1984 the Commission decided, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Governmant and to invite them to present before 26 October 1984 their observations in writing on the admissibility and merits of the application.   8.       On 19 November 1984 the Commission's President granted a request by the Government to extend the above time-limit until 25 February 1985.   On 9 March 1985 the Commission refused to grant a further extension of the time-limit until 1 April 1985, as requested by the Government.   9.       The Government submitted their observations on 27 March 1985 and the applicants submitted observations in reply on 30 April 1985.   10.      On 17 May 1985 the Commission decided to hold an oral hearing on the admissibility and merits of the application.   11.      The hearing took place on 21 January 1986.   The parties were represented as follows:           - the applicants             by their counsel, Professor Dr.   Christian TOMUSCHAT and           Assessor Rolf KOEHN, legal adviser to the applicant firm;           - the Government             by their Agent, Ministerialdirigentin Irene MAIER of           the Federal Ministry of Justice, who was assisted by           Regierungsdirektor Dr.   Alexander MÜHLENDAHL and           Richter am Verwaltungsgericht Hans KREUZBERG, both           of the same Ministry, as Advisers.   12.      Following the hearing, the Commission declared the application admissible.   The text of this decision, approved by the Commission during its session in March 1986, was on 9 May 1986 transmitted to the parties who were invited to submit before 30 June 1986 any supplementary observations on the merits which they wished to make.   13.      The applicants submitted such observations on 23 June 1986. The Government requested an extension of the time-limit until 30 September 1986 which the President granted on 16 July 1986.   The Government's observations, accompanied by a legal expert opinion by Professor Dr.   Gerhard Schricker, Director of the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich, were received on 7 October 1986.   14.      On 11 October 1986 the Commission decided that each party should have an opportunity to reply to the other's observations before 15 December 1986.   Only the applicants made use of this opportunity. They submitted further observations on the merits on 5 December 1986.   15.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report     16.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                               MM.   C. A. NØRGAARD, President                                  J. A. FROWEIN                                  S. TRECHSEL                                  G. SPERDUTI                                  E. BUSUTTIL                                  G. JÖRUNDSSON                                  G. TENEKIDES                                  B. KIERNAN                                  A. S. GÖZÜBÜYÜK                                  A. WEITZEL                                  H. G. SCHERMERS                                  H. DANELIUS                                  G. BATLINER     17.      The text of this Report was adopted on 18 December 1987 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   18.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   19.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   20.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case&S             1.   The applicants' activities in general     21.      The first applicant, "Markt Intern", is a private firm which supports the interests of small businesses (mittelständische Unternehmen) by its publications and certain other activities.   The parties disagree on whether the predominant aspect of the firm is its journalistic function, as submitted by the applicants (cf. paras. 91 et seq. below) or the fact that it also operates as a kind of servicing enterprise for the specialised retail trade, as submitted by the Government (cf. paras. 131 et seq. below).   22.      The first applicant claims to be both financially and organisationally independent of the industry, the wholesale and retail trade and their respective organisations.   It is not contested that the firm's income is exclusively based on the sale of its information bulletins, which do not contain advertisements or sponsored contributions.   23.      Some of the bulletins are addressed to broad sectors of the population such as taxpayers ("Steuertip"), holders of insurance policies ("Versicherungstip") or air travellers ("Flugtip") and there is also a bulletin for lawyers ("Rechtstip").   However, the emphasis is placed on information bulletins for the specialised retail trade. They include a general bulletin ("Markt Intern-Fachhandel") and specific bulletins for 14 different commercial branches ("Branchen- dienste") such as e.g. the radio, television and hi-fi branch ("Markt Intern-Radio, Fernsehen, Hifi") or - as the publication concerned in the present case - the chemists and beauty-shop branch ("Markt Intern -Drogerie- und Parfümeriefachhandel").   These information bulletins are mainly addressed to specialised retailers who form the large majority of the readership.   However, the bulletins can also be subscribed to by other interested persons or institutions outside the branches.   24.      The bulletins pursue the declared aim of defending the interests of specialised retailers, in particular in their competition with large firms such as discount and mail-order shops, commercial chains and supermarkets.   They provide information on market developments including the commercial practices of those firms and their suppliers, which are often dealt with in a critical way.   In this context the applicants do not hesitate to publish "hard facts" concerning certain named firms and to use an outspoken language.   They do not deny a "tendentious approach" in their publications in favour of small-business interests.   In order to promote these interests "Markt Intern" also seeks to enlist the active participation of its readership.   Thus it publishes various appeals to the readers, organises polls and solidarity campaigns, etc.   25.      Apart from its publicistic support for the small and medium-sized specialised retail trade, "Markt Intern" further engages in a number of other activities in favour of this group.   These include, inter alia, the financing of litigation in test cases, the reporting of certain matters to the competent authorities, and also direct lobbying.   To this end "Markt Intern" conducts correspondence with State authorities, political parties, professional organisations, etc.   It has also made a number of specific proposals for legislation.   26.      The above activities have given rise to various proceedings being taken against the first applicant by certain commercial enterprises criticised in the information bulletins or affected by action proposed therein.   The case at issue in the present application is related, in particular, to certain other proceedings by which "Markt Intern" publications were restricted as constituting inadmissible boycott calls (see paras. 51-57 below).             2.   The publication at issue in the present case   27.      The present case concerns an issue of the "Markt Intern" bulletin for the branch of chemists and beauty shops published on 20 November 1975.   It contained a report written by the second applicant dealing with the activities of an outsider in the branch, a kind of mail order shop, called "Club X".   28.      The report was couched in the following terms:   (German)           "'Habe beim Club X das Schönheits-Set ... ... von April bestellt und bezahlt, aber wegen Nichtgefallen nach wenigen Tagen zurückgesandt. Obwohl auf dem Bestellcoupon klar und deutlich geschrieben steht, dass ich bei Nichtgefallen berechtigt bin, das Set zurückzusenden und mir Erstattung zugesichert wird, habe ich bis heute keinen Pfennig wiedergesehen.   Auch auf meine Abmahnung vom 18.   Juni mit Fristsetzung 26.   Juni erfolgte keine Reaktion.'           So der empörte Bericht der Drogistin L über die Geschäftstätigkeit des aus England importierten Clubs.           Unser Telex vom 4.   November an Club X- Geschäftsführerin M: 'Handelt es sich hier um eine Einzelpanne, oder gehört dieses Verhalten zu Ihrer offiziellen Politik?'   In seiner prompten Antwort tags darauf will der Club X weder etwas von Frau Ls Set-Retoure noch von ihrer Abmahnung im Juni wissen.   Er verspricht aber eine sofortige Untersuchung des Falles sowie eine klärende Kontaktaufnahme mit der Drogistin in C.           Unabhängig von dieser vorläufigen Antwort ... unsere Frage an alle Drogerie/Parfümerie-Kollegen: Haben Sie ähnliche Erfahrungen wie Frau L mit dem Club X gesammelt?   Oder sind Ihnen ähnliche Fälle bekannt?   Die Ein- oder Mehrmaligkeit solcher Fälle ist für die Beurteilung der Club X-Politik äusserst wichtig."   (English translation)           "'In April I ordered and paid the beauty set .. from Club X, but returned it a few days later because I was dissatisfied.   Although the order form clearly says in express terms that I am entitled to return the set if I am dissatisfied, and that I will be reimbursed, I have not seen a penny since then.   There was also no reaction to my reminder of 18 June in which I set 26 June as the latest date.'           This is the angry report of Mrs.   L, a chemist at C, concerning the commercial practices of this Club imported from England.           Our telex of 4 November to Club Manager M: 'Is this an isolated incident, or is this part of your official policy?'   In its swift answer of the following day the Club denies knowing anything of the set returned by Mrs.   L nor of her reminder of June. It promises however a prompt investigation of the case and the clarification of the matter by contacting the chemist in C.           Notwithstanding this provisional answer we put the question to all chemists / beauty-store colleagues: Do you have similar experiences as Mrs.   L with the Club? Or do you know of similar cases?   The question of whether there is one or more incidents of this kind is very important for judging the policy of the Club."               3.   The proceedings before the Regional Court of Hamburg   29.      "Club X" objected to this publication of the first applicant and brought court proceedings in the Regional Court (Landgericht) of Hamburg.   Its application to prohibit repetition of the above statements was granted by an interlocutory injunction (einstweilige Verfügung) of 12 December 1975.   30.      As the present applicants requested the clarification of the matter in ordinary proceedings, "Club X" brought an action to this effect, seeking the prohibition of the unqualified repetition of the following statements:           (i)     the statement that Mrs.   L had sent an angry report saying that she had returned a beauty set without being reimbursed despite her reminder;           (ii)    the statement that the Club denied knowing anything of the set returned by Mrs.   L or of her reminder;           (iii)   the question to all chemists / beauty-store colleagues whether they had similar experiences with the Club as Mrs.   L, whether they knew of similar cases, and the statement that it was very important for judging the policy of the Club whether there were one or more incidents of this kind.   31.      The Regional Court of Hamburg decided on 2 July 1976:           - to reject the action as regards statement (i) because it was true and there was no danger that it would in future be repeated without taking into account further developments;           - to allow the action as regards statements (ii) and (iii) on the basis of Section 824 of the Civil Code.   The Court considered that these statements amounted to voicing a suspicion of doubtful commercial practices of "Club X" without sufficient basis in the facts.   The applicants had disregarded their journalistic duties by proceeding to a premature publication without further investigation, other than inviting negative reports from chemists / beauty-store keepers.   32.      The Court denied the applicability of Section 823 of the Civil Code and of the Unfair Competition Act, on the ground that there was no competitive relationship between the applicants as publishers and the cosmetics firm "Club X", and also because the publication was addressed to chemists / beauty-store keepers and not to the clients of "Club X".             4.   The appeal proceedings before the Hanseatic Court of Appeal     33.      The applicants' appeal (Berufung) against the above judgment was successful.   The Hanseatic Court of Appeal (Hanseatisches Ober- landesgericht) dismissed the whole of the action against the applicants by a decision of 31 March 1977.   34.      The Court found that neither Sections 823 or 824 of the Civil Code, nor Sections 1 and 14 of the Unfair Competition Act provided a basis for the claim raised in the action.   35.      As regards the Unfair Competition Act, the Court considered it as inapplicable in the absence of a competitive relationship between the applicants as publishers, and the plaintiff "Club X" as a cosmetics enterprise.   Furthermore there was no promotion of the competitiveness of others as the applicants did not intend to promote the sales of chemists' shops.   The article was addressed to chemists and not the common clients of these and of the "Club X", and its principal aim was to inform these chemists of the commercial practices of that firm.   36.      As regards Sections 823 and 824 of the Civil Code, the Court stated that they prohibited only untrue statements likely to interfere with an established commerce or its reputation.   Commercial enterprises acted in the public sphere and had to tolerate true statements criticising their commercial practices.   It was in fact a task of the press to report on commercial enterprises.   The applicants' allegations were in substance true and justified doubts as to the plaintiff's practices.   They did not insinuate more than a doubt in this respect, as the final position was expressly reserved.        5.   The appeal proceedings before the Federal Court of Justice     37.      The plaintiff, "Club X", lodged a further appeal on points of law (Revision) with the Federal Court of Justice (Bundesgerichtshof), which on 16 January 1980 reversed the Court of Appeal's judgment and allowed the whole of the action, i.e. in respect of all three incriminating statements, on the basis of competition law.   38.      The Federal Court found that Section 1 of the Unfair Competition Act was applicable despite the absence of a direct competitive relationship as between the parties.   It was sufficient that the applicants had acted with intent in a manner likely to promote the competitiveness of others to the detriment of the plaintiff.   39.      The Court of Appeal had wrongly denied the applicants' intention to promote the competitiveness of specialised chemists, on the exclusive basis of the argument that the publication was addressed to the latter and not to their and the plaintiff's common clients.   In doing so, the Court of Appeal had failed to take the surrounding circumstances of the publication sufficiently into account.   40.      The Federal Court further stated that the publication in fact inserted itself in a campaign staged by the applicants on behalf of chemists in order to protect their interests against the intrusion of a mail order shop, i.e. an outsider, into the branch, and this was shown by a number of earlier articles, which inter alia accused "Club X" of operating with false data and promises and stated, in the context of a report on judicial proceedings, that the campaign with the industry to boycott the Club had been successful.   The applicants thereby had gone beyond the mere information of chemists, but had identified themselves with the interests of this branch and had raised doubts as to the commercial practices of "Club X" by inviting chemists to submit evidence against it.   Having regard to normal standards of behaviour it was quite unusual that the applicants should have done so on the basis of a single incident which they themselves admitted had not been completely clarified and could have been an isolated case, and it was even more unusual that in these circumstances they had endeavoured to insinuate improper practices of "Club X" and to invite further negative reports.   41.      Section 1 of the Unfair Competition Act was not only applicable, but also violated.   This conclusion could be drawn by the Federal Court itself as the facts were sufficiently clear.   42.      The Federal Court found each of the applicants' incriminating statements to be contrary to honest practices (gute Sitten) and thus in breach of Section 1 of the Act.   This also applied to the factual assertions concerning the case of Mrs.   L (statement (i), para. 30 above) although the Federal Court acknowledged that these assertions were true.   43.      The Federal Court justified the restriction by the following general consideration:   "A true statement which is damaging to business is not necessarily free from the charge of being contrary to the principles of fair competition merely because it is true.   According to the rules of competition, because it is against honest practices to conduct one's competition by making disparaging statements about competitors, such statements are only admissible if the competitor who makes them has sufficient cause to do so and the manner and extent of his criticism remains within the limits of what the situation requires."   44.      Concerning the particular case, the Federal Court added the following:   "At the time of the publication there was not sufficient cause to report this incident.   The exact circumstances had not yet been clarified, the plaintiff in its reply had agreed to an immediate investigation and to contacting Mrs.   L to clarify the position.   The defendants were aware that further clarification was necessary before it was certain that justified criticism could be levelled at the plaintiff as they themselves had described the plaintiff's reply as a provisional answer.   In these circumstances, the defendants should have taken into consideration that the premature publication must have adverse effects on the plaintiff's business because it gave the specialist retailers an effective argument to use against the plaintiff with their common customers, and one which could be used even if the incident should turn out to be an isolated mishap from which no conclusion could be drawn as to the plaintiff's business policy.   Taking these considerations into account, at all events at the time of the publication, there was not sufficient ground for reporting this isolated incident.   Such conduct is, moreover, very unusual in business competition."   45.      According to the Federal Court, the restriction of the second statement was also justified as it was a mere extension of the first and had to be judged by the same legal standard.   The negative impression created by the simple reporting of the incident was reinforced by the allegation that firm X lacked credibility when it "denied knowing of anything" ("will [nichts] wissen") of the beauty set returned by Mrs.   L and her reminder.   The Court of Appeal had failed to explain why it had interpreted these words in a manner departing from their generally accepted meaning.   46.      Finally, as regards the third statement, the Federal Court noted the applicants' argument that it was only a value judgment (Werturteil) and could not be objected to as such.   However, the Court considered it was not decisive whether it was a value judgment or a statement of fact.   The expression of a value judgment could also have an inadmissible influence on the state of competition contrary to Section 1 of the Unfair Competition Act.   At all events in the present case there had been insufficient cause for making such far-reaching insinuations ("fehlte es an einem hinreichenden Anlass für eine so weit reichende Verdächtigung").   Such an isolated case did not at once justify making the suggestion that the plaintiff was pursuing a deceitful business policy.   Furthermore, it was contrary to established commercial custom ("kaufmännische Sitten") to call on people to send in incriminating material in such circumstances.   47.      The Federal Court finally observed that the applicants knew the circumstances which made their statements incompatible with honest practices, and therefore concluded that the subjective conditions for applying unfair competition law were also met.   A danger of repetition had to be generally assumed in cases of unfair competition, even regarding a press publication as the present one where it was to be expected in the circumstances that the discussion of the matter had not been completed by a single report.   48.      The applicants were accordingly forbidden to repeat their above statements, under sanction of a (non-criminal) fine (Ordnungsgeld) of up to DM 500,000 in each case of contravention, to be replaced by (non-criminal) detention (Ordnungshaft) in case of default (up to a total of two years).             6.   The proceedings before the Federal Constitutional Court     49.      The applicants then filed a constitutional complaint (Verfassungsbeschwerde) in which they invoked the freedom of the press as guaranteed by Article 5 of the Basic Law (Grundgesetz).   However, the Federal Constitutional Court (Bundesverfassungsgericht), acting through a three-judge committee according to Section 93a para. 2 of the Federal Constitutional Court Act, rejected the complaint by a decision of 9 February 1983, stating that it lacked sufficient prospects of success.   50.      This decision was based on the following reasons:   (German)           "Wie das Bundesverfassungsgericht in seinem Beschluss vom 15.   November 1982 (1BvR 108/80 u.a.) entschieden hat, fehlt es an der Voraussetzung für einen Vorrang der Meinungs- und Pressefreiheit vor durch allgemeine Gesetze geschützten Rechtsgütern, wenn eine Presseveröffentlichung der Durchsetzung wirtschaftlicher Interessen gegen andere wirtschaft- liche Interessen im Rahmen des wirtschaftlichen Wettbewerbs dient.   Dies ist bei den vom Bundesgerichts- hof untergesagten Äusserungen der Fall.   Art. 5 Abs. 1 Satz 2 GG erforderte daher keine andere Auslegung und Anwendung des § 1 UWG als es in der angegriffenen Entscheidung geschehen ist.           Da diese nicht auf einer Verletzung des Art. 5 Abs. 1 Satz 2 GG (Pressefreiheit) beruht, kann es nicht darauf ankommen, dass sich der Bundesgerichtshof in den Entscheidungsgründen nicht ausdrücklich mit der Frage der Bedeutung der Pressefreiheit bei der Anwendung des § 1 UWG auseinandergesetzt hat."   (English translation)           "As the Federal Constitutional Court held in its decision of 15 November 1982 (1 BvR 108/80 and others), the requirements for priority to be given to freedom of opinion and freedom of the press over legal interests protected by 'statutes of general application' are not satisfied if a publication in the press serves the purpose of promoting certain business interests against other business interests in the context of business competition.   This is the case as regards the statements forbidden by the Federal Court.   The second sentence of Article 5 para. 1 of the Basic Law does not therefore require a different interpretation and application of Section 1 of the Unfair Competition Act from that given by the judgment appealed against.           As this decision is not based on a violation of the second sentence of Article 5 para. 1 of the Basic Law (freedom of the press) it is not decisive that the Federal Court did not deal expressly, in the reasons for its decision, with the question of the significance of the freedom of the press in relation to the application of Section 1 of the Unfair Competition Act."             7.   Previous litigation     51.      Further litigation in which the first applicant was involved (cf. para. 26 above) included, amongst others, three sets of proceedings under unfair competition law taken by a firm which runs self-service stores for ultimate consumers.   The Federal Constitutional Court's reference in the present case to principles laid down in an earlier decision (cf. para 50 above) related to proceedings in which "Markt Intern" itself had been involved.   52.      The facts of those earlier cases may briefly be described as follows:           - In the first case, the applicants had staged a so-called teaching lesson ("Denkzettelaktion") against manufacturers of household electrical appliances who conceded price reductions to supermarkets.   They had invited specialised retailers to denounce such manufacturers, proposing that they should be struck off the retail trade register and be excluded by the co-operatives and buyers' associations from the buyers' exchanges.           - In the other two cases, the applicants had invited specialised retailers of photographic equipment to refuse buying brand-name articles from manufacturers who also supplied supermarkets, and to denounce those manufacturers.   53.      In its judgments of 13 November 1979 (KZR1/79) and of 5 February 1980 (KZR2/79 and KZR3/79), the Federal Court of Justice considered the applicants' actions, in all three cases, as being unlawful calls for a boycott and thus anti-competitive behaviour contrary to Section 1 of the Unfair Competition Act.   It held that the actions were not covered by the basic right of freedom of the press because they were not restricted to putting forward a view, contesting divergent opinions and convincing by force of argument but rather actively interfered in the play of competitive forces by taking the side of the retail specialists:   In the first case, the actions had not been limited to a call for an uncompetitive boycott, but had included practical and organisational steps to prepare its implementation.   In the second and third cases the applicants had imposed a restriction, alien to the concept of competition, on the freedom otherwise enjoyed by the brand-name producers concerned to take their own decisions without economic pressure.   54.      The applicants' constitutional complaints against these decisions were examined jointly and the Federal Constitutional Court rejected them by a decision of 15 November 1982 (1 BvR 108/80, 1 BvR 438/80, 1 BvR 437/80).   55.      The Court first recalled its constant case-law on the importance of the fundamental right of freedom of the press and its possible limitation by statutes of general application which for their part must be interpreted in the light of the significance of the fundamental right.   Turning to the facts of the concrete case the Federal Constitutional Court found that the articles at issue, while still falling within the area protected by the freedom of the press, were nonetheless restricted by Section 1 of the Unfair Competition Act and in the latter's quality as a statute of general application.   56.      As the applicants had wanted to interfere actively in the competition, they had to accept the responsibility for the economic pressure they wanted to exert and which was not a press-style influencing of the public opinion.   In this respect, the Court observed that the "Markt Intern" bulletins could only be obtained on subscription and were sent to members of the specialist sectors concerned so that it was hardly possible to speak of an attempt to influence and mobilise public opinion, even less so since those who were sent the disputed publication were scarcely in need of enlightenment as to the unsatisfactory aspects of the competition between small retailers and big stores.   The conduct of the applicants could rather be viewed as an attempt to assert or at least to contribute to an assertion of the interests of one group of enterprises against those of another in a particular contest in the economic sphere, and this was not altered by the applicants not maintaining any competitive relationship with the plaintiff.   57.      As a result of the weighing of interests the Court concluded as follows:           "In principle freedom of expression and freedom of press take priority over interests legally protected by statutes of general application insofar as a statement is part of the continuing intellectual controversy and conflict of opinion on matters of public importance which forms an essential part of the free democratic system.   This condition is not fulfilled when what is at stake is the advancement of business interests to the detriment of other business interests in the context of business competition.   The fact that one interest is to be implemented with means which, in principle, are protected by Article 5 para. 1 of the Basic Law can therefore not justify the sacrifice of another interest protected by a statute of general application which restricts freedom of the press, in this case Section 1 of the Unfair Competition Act.   To consider the boycott which the complainants have called for as contrary to honest practices is therefore not excluded by Article 5 para. 1 of the Basic Law."   B.       Relevant domestic law and practice&S             1.   The Unfair Competition Act   58.      German law has contained special regulations against unfair competition since 1896.   The legislation in force is the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb = UWG) of 7 June 1909 (Imperial Law Gazette p. 499) as amended.   59.      The original aim of the legislation was to increase the protection of individual commercial enterprises against unfair competition beyond the standard of the general law of torts (see paras. 73 et seq. below).   A special liability was thus created for acts done "in the course of business activities" and "for the purposes of competition" (cf.   Section 1 of the Act).   60.      At the same time the legislation serves the public interest of upholding fair competition.   Therefore the Act introduced penal or regulatory sanctions for certain kinds of behaviour (cf. e.g. Sections 4 and 15).   Moreover, the possibility to seek a civil injunction (Unterlassungsanspruch) against certain acts of unfair competition (including acts covered by the general clause of Section 1) was made available not only to the direct victims of such acts, but generally to business men with a similar trade and to certain associations representing trade and consumer interests ("Verbandsklage", cf.   Section 13).   61.      The public interest in upholding the competitive system as such is also reflected in the interpretation of the substantive content of the Act.   In particular, the more recent case-law frequently refers to the fundamental importance of the principle of fair and genuine competition based on efficiency (Leistungswettbewerb) for the functioning of a free market economy.   The behaviour prohibited by the Act is often referred to as "wettbewerbswidrig" (= uncompetitive, contrary to principles of competition).   62.      Section 1 of the Act which was applied in the present case reads as follows:   (German)           "Wer im geschäftlichen Verkehre zu Zwecken des Wettbewerbes Handlungen vornimmt, die gegen die guten Sitten verstossen, kann auf Unterlassung und Schadens- ersatz in Anspruch genommen werden."   (English translation)           "Whoever, in the course of business activities, commits, for the purpose of competition, acts contrary to honest practices, may have proceedings taken against him for an injunction and damages."   63.      This general rule is supplemented by a number of more specific provisions which include, in particular,           - a prohibition of misleading statements (irreführende Angaben) made for purposes of competition (Section 3);           - a prohibition of disparaging statements (Anschwärzung) made for purposes of competition, i.e. factual allegations likely to undermine a competitor's business or credit unless they can be proved true (Section 14 para. 1).   A different standard applies to confidential communications in which the informer or receiver has a legitimate interest.   They can be restricted only if they are untrue and they give rise to a claim for damages only if they are made in knowledge of their untruth (Section 14 para. 2).   64.      In practice Section 1 is the provision most frequently applied.   It has been interpreted by a wealth of case-law.   In the leading commentary by Baumbach-Hefermehl (Wettbewerbsrecht, 14th edition 1983) its discussion covers about a third of the space devoted to the entire Act (some 500 pages of approximately 1500).   65.      The outstanding role attributed to Section 1 is due to its construction as the general principle whose philosophy dominates the whole Act.   The other provisions are seen as particular specifications of this principle.   Accordingly there is no sharp dividing line between Section 1 cases and cases covered by other provisions.   Nor are matters excluded from one of these provisions necessarily excluded from consideration under Section 1.   66.      On the whole, the terms of Section 1 are being widely construed.   Its application does not necessarily presuppose that the person acting has commercial activities of his own nor that there is a direct competitive relationship.   The intentional promotion of the competitiveness of others (Förderung fremden Wettbewerbs) is regarded as sufficient a basis for liability under this provision.   67.      The central notion on which the concept of "unfair competition" is based is "acts contrary to honest practices" (Handlungen gegen die guten Sitten).   However, apparently there exists no uniform and generally accepted ethical standard which could be applied in this respect.   The courts have therefore adopted a casuistic approach.   68.      Acts which have been identified as being "contrary to honest practices" include, inter alia, various forms of exerting improper influence on customers such as pressure, molestation and, in particular, deception by untrue or misleading advertising.   These acts need not necessarily be directed against a particular co-competitor.   69.      Another group of acts "contrary to honest practices" comprises various forms of unjustified interference with the business activities of co-competitors including boycott measures.             2.   International instruments against unfair competition   70.      Like all High Contracting Parties to the European Convention on Human Rights the Federal Republic of Germany is bound by the Paris Convention for the Protection of Industrial Property of 20 March 1883.   71.      Article 10 bis of this Convention, which was introduced in 1925, reads as follows:           "(1) The countries of the Union are bound to assure              to nationals of such countries effective pro-    &#xa