03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant organisation is the Vienna Chamber of Medical Doctors (Ärztekammer für Wien). The Chamber represents all medical practitioners in Vienna and also has its own website. The second applicant was the Chamber’s president at the time of the events. A. Statement in issue and injunction proceedings 6. On 18 January 2007 the second applicant published a letter on the first applicant organisation’s website, which was addressed to all members of the Chamber in Vienna and was also sent out to all of them via e-mail. The letter was titled “Locust funds want to take over medical practices” (“Heuschreckenfonds wollen Ordinationen übernehmen”). The second applicant went on to state that he had been forced to write to his colleagues for a serious reason, namely, because it had been reported in the media that the F. company planned to go into “the radiology business”. He added that sharebidding companies planned to offer medical services - initially in the area of radiology, but soon enough in other areas of the profession as well - and that doctors risked becoming mere employees of such “locust” companies. If they would not act according to the companies’ wishes, they would be dismissed. The second applicant then explained the assumed legal and organisational basis of such a plan: radiology services which were currently being provided by medical practices could, in future, also be offered by limited companies. Shares of those companies could then be bought by the F. company, and the “locusts” would reach their goal, namely control of the medical profession. Giving an example of a risky development, the second applicant stated that in the last 20 years, colleagues had founded laboratories which had reciprocal agreements with certain health insurance boards. Today, almost all of those laboratories were owned by the F. group, which, in turn, was owned by insurance companies, investment funds and foundations, and which employed a large number of doctors. The second applicant ended his letter by stating that he could guarantee one thing: that the doctors’ professional representative body would make use of all legal and political means available to stop such a disastrous development from going ahead, to prevent that the quality of medical treatment being determined by “managers and controllers” and to ensure, inter alia, that existing medical practices were protected from the competition from “international locust funds” (“internationale Heuschreckenfonds”). 7. On 24 January 2007 the F. company lodged an action against the two applicants and an application for an injunction with the Vienna Commercial Court (Handelsgericht Wien). The applicants contested the application. 8. On 16 February 2007 the Vienna Commercial Court issued an injunction prohibiting the applicants (each of them individually) from repeating the statement that the F. company was ruthless towards third parties, in particular medical professionals. The injunction prevented the applicants from referring to the F. company as a “locust”, “locust company” or “locust fund”. The applicants were further prohibited from stating that the provision of services by the F. company, particularly services in the area of radiology, was a disastrous development. The court found that there was a competitive relationship between the F. company and the applicants, and found the statements made by the applicants to be defamatory under Article 1330 of the Civil Code and unethical under the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb). 9. The applicants appealed against the injunction. On 30 October 2007 the Vienna Court of Appeal (Oberlandesgericht Wien) partly granted the appeal, and prohibited the applicants from alleging that the F. company was ruthless towards third parties and medical practitioners, and from calling it, inter alia, a “locust company”. However, it dismissed the F. company’s application to prohibit the applicants from calling its provision of services a “disastrous” development. The Court of Appeal found that the first applicant organisation had locus standi in the injunction proceedings. The Chamber of Medical Doctors held official authority status in relation to certain areas of its work (Bereich der Hoheitsverwaltung), in addition to representing the interests of its members; it was therefore considered a legal entity under the Official Liability Act (Amtshaftungsgesetz). However, when acting as a special interest group, it represented its members’ interests from a mainly economic perspective, www.bailii.org/eu/cases/ECHR/2016/179.html 3/13