CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 septembre 1991

.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. 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:           <German>   Die beigefügte - wenn auch zwangsläufig nicht vollständige - Auswahl von Berichten über die Sache Jacubowski ./. <D.> 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 <D.>-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."           <English translation>   "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)