BRZANK v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mrs Ines Brzank, is a German national who was born in 1969 and lives in Oschatz. The applicant is a practising lawyer who specialises, inter alia, in sports law. She distributed a leaflet containing her curriculum vitae, which mentioned her career as an athlete in the national team of the German Democratic Republic and that she had won several international tournaments. Also, the applicant listed in the leaflet her fees for a first legal consultation, depending on the value in dispute, in matters concerning private litigation and, depending on the duration of the consultation, in matters concerning family law, labour law and criminal law. Her highest fee was 333 German marks (DEM). At the bottom of the list, she put an asterisked footnote that the highest fee for a first consultation permitted under the applicable law, then the Federal Scale of Fees for Lawyers (Bundesrechtsanwaltsgebührenordnung), was DEM 350. The latter fee was therefore higher than any of the fees the applicant had listed. Another lawyer who practised in the same town as the applicant lodged an application for interim measures, and as a result the Leipzig Regional Court provisionally ordered, in a judgment of 7 November 2001, the applicant to refrain from referring to her former sports career in her advertising and from listing her fees for first legal consultations on matters of family and labour law with the above-mentioned footnote. An appeal by the applicant was dismissed by the Dresden Court of Appeal on 5 February 2002. In the main proceedings, by judgment of 17 April 2002, the Leipzig Regional Court repeated the above order and included an order to refrain from listing in the footnote to the leaflet the fees for all first legal consultations, subject to a fine of 250,000 euros (EUR) for non-observance of the order. It based the claimant’s request for an injunction (Unterlassungsanspruch) on sections 1 and 3 of the Unfair Competition Act in conjunction with section 43b of the Federal Lawyers Act (see relevant domestic law section). The Leipzig Regional Court reasoned that lawyers were only allowed to use factual information whose form and content was connected with the profession in their advertising. It reasoned that the reference to her former sports career lacked any such connection with her profession as a lawyer. As to the list of her legal fees containing the asterisked footnote, it noted that the applicant had made a comparison between her fees for a first legal consultation and the fees permitted under the applicable law. Ordinary citizens however would not be aware that the applicable law gave lawyers the discretion to charge a fee for a first consultation ranging between a tenth of that fee and the full amount, and that the fees varied according to the value in dispute. After comparing the applicant’s fees with the amount mentioned in the footnote, an ordinary citizen would assume that any other lawyer might charge DEM 350 for a first legal consultation, whereas the maximum fee the applicant charged was DEM 333. Therefore, the leaflet might give the impression that the applicant’s fees were normally lower than the fees of those lawyers who used the full discretion permitted under the applicable law. The Leipzig Regional Court noted however that this was not the case, pointing out that some of the applicant’s fees for lower values in dispute were considerably higher than the fees permitted under the applicable law. It also pointed out that the footnote referred to a fee of DEM 350 without mentioning that this was the full fee for consultations only for disputes with a value above DEM 10,000. Therefore, ordinary clients could be misled into assuming that the fee of DEM 350 applied to all values in dispute and that the applicant’s fees were normally lower than the fees permitted under the applicable law. Therefore, the list with the footnote had to be considered “misleading advertising” within the meaning of section 3 of the Unfair Competition Act. On 27 September 2002, the Dresden Court of Appeal dismissed an appeal lodged by the applicant. It reasoned that, contrary to the applicant’s submission, she had not generally been prohibited from mentioning her fees in her advertising. It was the specific form of the advertisement in conjunction with the footnote that had been regarded as misleading by the Leipzig Regional Court. On 4 August 2003 the Federal Constitutional Court partly quashed the judgments of the Leipzig Regional Court of 29 May 2002 and of the Dresden Court of Appeal of 27 August 2002 in so far as they concerned the prohibition on referring to the applicant’s sports career in the leaflet. It took the view that, because the applicant partly specialised in legal disputes concerning sports, the reference did have a direct connection to her profession. Therefore, the prohibition violated the applicant’s freedom to choose a profession under Article 12 of the German Basic Law. With regard to the prohibition on listing her fees in the asterisked footnote, the Federal Constitutional Court refused to admit the constitutional complaint for adjudication. It found that Article 12 of the Basic Law included advertising for professional services, and that the professions were allowed to advertise as long as they provided factual information which was not misleading. It was not objectionable from a constitutional point of view that the domestic courts had regarded the list with the asterisked footnote as misleading and that they had interpreted that list in context and from the perspective of an ordinary citizen. By using the footnote, the applicant had made a comparison between her “prices” and the highest fees permitted under the applicable law. It could not be regarded as erroneous that the domestic courts had found that an ordinary citizen (who would not make complicated calculations) would assume by mistake that the applicant was normally less expensive. The Unfair Competition Act protected not only other competitors, but also the general public, from unfair competition. It was not decisive that there had not been malpractice on the part of the applicant. The applicant received the decision of the Federal Constitutional Court on 20 August 2003. Relevant provisions of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb): “Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from performing these acts and held liable for damages.” “Any person who, in the course of business activity and for purposes of competition, makes misleading statements concerning business matters, in particular concerning the nature, the origin, or the manner of manufacture, or the pricing of individual goods or commercial services or of the offer as a whole, concerning price lists, the manner or the source of acquisition of goods, concerning the possession of awards, concerning the occasion or purpose of sale, or concerning the size of the available stock, may be enjoined from making such statements.” Relevant provision of the Federal Lawyers Act (Bundesrechtsanwalts-ordnung): “A lawyer is only permitted to advertise his/her services in as far as the advertising in question provides factual information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief.”