CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 novembre 1990

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 16555/90                       by R. GmbHgMBh                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 8 November 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 2 February 1990 by R. GmbH against the Federal Republic of Germany and registered on 2 May 1990 under file No. 16555/90;           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 applicant is a pharmaceutical company producing medical drugs with its seat in U.   Its manager is Mr. Z.   It is represented by Mr. Rüdiger Zuck, a lawyer in Stuttgart.           The applicant company is specialised in producing so-called "generica", i.e. substances which are no longer protected by patents and are used to produce medicaments equivalent to those previously introduced on the market by the inventing firms at a considerably higher price.   The applicant advertises its products as being "bio-acquivalent" to the reference products.   The competitors concerned therefore brought civil actions against the applicant company.           On 11 March 1986 the applicant company was ordered by the Cologne Regional Court (Landgericht) at the request of the Bayer AG to abstain from advertising in publications adressed to the medical profession its product "Nifedipin-ratiofarm 20" as being "bio-acquivalent" with the plaintiff's product "Adalat".   The latter had been until 20 March 1985 the only product on the market containing Nifedipin.          The judgment was confirmed by the Cologne Court of Appeal (Oberlandesgericht) on 5 December 1986.   Both courts considered that the comparison in the applicant's advertisement with the reference product and the alleged "bio-acquivalence" constituted unfair competition in violation of Section 1 of the Unfair Competition Act (UWG).   Even though the plaintiff's product "Adalat" was not expressly mentioned in the advertisement it was the leading product based on Nifedipin and therefore it was obvious to the addressees that it was meant to be the reference product.          In the courts' opinion there was no objective justification for the comparison with a leading product (vergleichende Werbung).   In its publicity the plaintiff company had not in any way denigrated the applicant's product necessitating a counter-publicity on its part. Nor was it necessary to stress the "bio-acquivalence" in order to underline, in the public interest, the economic advantage of the applicant company's product.   The applicant company did have other more general possibilities to publicise the advantages of its products than by referring to the product of a competitor and thereby profiting from this product's market position.   Like the plaintiff it could publicise in a graphic manner the relevant data necessary to inform the medical profession about the therapeutical value of its medicament.   There was no therapeutical necessity for medical doctors to be informed about the two products' interchangeability.   If provided with the relevant data medical doctors could themselves find out this information.   The applicant already had an advantage vis-à-vis the plaintiff as it did not have to invest any time and money into research necessary to develop a new medicament.   This burden had been on the plaintiff and it was therefore unjustified that the defendant profited from the plaintiff product's market position once the patent protection expired.   The right to freedom of expression could not be invoked as the interdiction of the advertisement was justified in the interest of the protection of the prevailing rights of the plaintiff company.           An appeal on points of law (Revision) was rejected by the Federal Court (Bundesgerichtshof) on 30 March 1989.   In respect of the applicant company's argument that the public had an interest in being informed of the "bio-acquivalence" of its product and the considerable price difference compared with the plaintiff's product the Federal Court stated that mere economic interests did, contrary for example to the interest in being informed about technical progress, personal risks or deceitful trade practices, justify a direct comparison with a competitor's product only where there was no other possibility of informing the interested public about the economic advantage of the advertised product.   There were however, so the Federal Court noted referring to the lower court's findings, sufficient other possibilities for the applicant company without a comparison to the detriment of a competitor.   Insofar as there existed a public interest in keeping public health care costs low, there was for example the possibility of providing information to the medical profession via the Federal Health Office (Bundesgesundheitsamt), to insurance companies and other public institutions.   Also the legislator could be requested to intervene.           On 29 January 1986 the applicant company was likewise ordered by the Hamburg Regional Court to abstain from advertising its products by informing health insurance companies of the prices of its own products in comparison with those of the plaintiff, a competitor.   The Court stated that it would be admissible to indicate all medicaments of a given range and their prices in form of a general survey.   However, it constituted unfair competition to compare the applicant company's products only with those of a single competitor.           This judgment was confirmed by the Hanseatic Court of Appeal on 11 December 1986 and the Federal Court on 30 March 1989.   The latter court stated that the applicant company had other possibilities to point out the price advantages of its products than to compare them with those of a competitor who first introduced them on the market. It could, for instance, have indicated prices or percentage relations to prices of competing products without naming those products.   This would have been a practicable and acceptable way to serve the general public by informing the health insurance institutions of the price advantages offered by the applicant company.           The applicant company then lodged a constitutional complaint against all aforementioned decisions.   It was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungs- gericht) on 14 August 1989 as offering no prospects of success.   The applicant company was ordered to pay a fee of 600 DM.   COMPLAINTS           The applicant company complains that the above judgments interfere in an unjustified and disproportionate manner with its right to inform the public, health care institutions and practitioners of the possibility it offers with its cheap but bio-acquivalent products to lower the enormous costs in the sector of health care.   It considers that insurance companies, pharmacies and medical doctors need to receive extensive and complete information.   Therefore it was necessary for its advertisement to mention the reference product.   In order to compare products with the one offered by the applicant company a doctor had to know which one was bio-acquivalent and which product the least expensive.   The applicant company therefore considers that the judgments complained of violate Article 10 of the Convention because they are disproportionate to the aim pursued.   THE LAW           The applicant company, who was forbidden by the competent national courts to publish certain advertisements comparing its own products and their prices with those of specific competitors, complains of an interference with its right to impart information as guaranteed under Article 10 (Art. 10) of the Convention.           Article 10 para. 1 (Art. 10-1) provides:   "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 and regardless of frontiers.   ..."           However, interferences with this right are compatible with the Convention when they fulfil the requirements of paragraph 2 of Article 10 (Art. 10-2) which provides:   "The exercise of these freedoms, since it carries with it duties and responsibiities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."           The Commission first considers that Article 10 (Art. 10) is applicable in the present case as the applicant company's advertisements in question not only intended to promote its economic interest but, being designed for health practitioners, it also conveyed information of both a commercial and scientific nature (cf. Eur. Court H.R., markt intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165, p. 17 paras. 25 - 26).           As to the requirements set out in paragraph 2 (Art. 10-2), the applicant company does not dispute that the interference complained of is based on domestic law and serves the purpose of protecting the rights of others.   The Commission notes in this context that the aim of the Unfair Competition Act is the protection of the rights of business firms against unfair practices by competitors and also the protection of the rights of consumers.   This is in fact a legitimate aim under Article 10 para. 2 (Art. 10-2), for the protection of the rights of others in a democratic society (No. 7805/77, Dec. 5.5.79, D.R. 16 p. 68 [73]).           The applicant company only disputes the necessity and proportionality of the measures in question and invokes the general interest in informing the public about the economic advantages of its products at a time where the cost explosion in the public health care sector required drastic measures to reduce expenditures.           According to the case-law of the European Court of Human Rights the Contracting States have a certain margin of appreciation in assessing the existence and extent of the necessity of an interference.   Such a margin is, according to the Court, essential in commercial matters and in particular in the area of unfair competition.   The Commission has similarly stated in its decision cited above (No. 7805/77) that the level of protection in regard to commercial "speech" is lower than that accorded to the expression of "political" ideas, in the broadest sense, with which the values underlying the concept of freedom of expression are chiefly concerned. The supervision by the Convention organs in this respect is therefore limited to the question whether the measures taken on the national level are justifiable in principle and proportionate (markt intern judgment, loc. cit. at p. 20 para. 33).   In order to establish whether the interference complained of was proportionate it is necessary to weigh the requirements of the protection of the rights of other companies against the publication of the information in question.   The Commission must look at the impugned court decisions in the light of the case as a whole (markt intern judgment, loc. cit., para. 34).           In the present case the national courts did weigh the competing interests at stake.   They underlined that the public had, for example, an interest in being informed about technical progress, personal risks or deceitful trade practices.   A direct comparison with a competitor's product is, under German law, permitted only where there is no other possibility of informing the interested public about the economic advantage of the advertised product.   However, according to the judgments complained of, the applicant company had other possibilities of praising the economic advantages of its products than to compare them directly with those of a particular competitor.   The applicant company has not shown that this reasoning is unrealistic in practice or for any other reason untenable and arbitrary.   In these circumstances it cannot be found that the decisions of the civil courts in the present case, confirmed from the constitutional point of view by the Federal Constitutional Court, went beyond the margin of appreciation left to the national authorities.           The Commission therefore concludes that there is no appearance of a violation of Article 10 (Art. 10) and 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)