03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… 15. The used language could also not be justified with a reference to the right to freedom of expression as the statement was uttered within the framework of a commercial competitive relationship. With reference to the Court’s case-law allowing for a wider margin of appreciation under Article 10 of the Convention with regard to commercial language, the Commercial Court observed that a competitor was required to be more diligent in the context of commercial communication among competitors. The term “locust” was almost exclusively loaded with negative meaning, which led to the unethical general vilification of a competitor. The applicants were therefore prohibited from using that statement in relation to the F. company, pursuant to the Unfair Competition Act. 16. On 19 September 2008 the applicants lodged an appeal against that judgment. On 12 December 2008 the Vienna Court of Appeal dismissed the appeal as unfounded. It referred to the extensive reasoning given in the interim injunction proceedings and added that, according to the case-law of the Supreme Court, the test used to verify whether a statement was covered by the right to freedom of expression required the assessment of whether a factual basis for such a statement existed; if a competitor participated in a public debate of general interest, freedom of expression had more weight with regard to the assessment of the statement than in the context of purely commercial communication. The greater the public interest in being properly informed and the less the statement related to commercial interests, the more the statement would be protected by Article 10 of the Convention. In the present case, there was no doubt that there was an ongoing public debate; however, the commercial interests of the applicants had very much been in the foreground of the communicated statement itself. 17. The applicants lodged an extraordinary appeal on points of law against that judgment, which was rejected by the Supreme Court on 14 July 2009. The Supreme Court found that the applicants had not only called the F. company a “locust”, but had also reproached this company for negative conduct, such as dominating doctors, dismissing doctors who did not act in accordance with company wishes, and focusing on economic factors rather than the welfare of patients (“Herrschaft über den ärztlichen Berufstand, Kündigung nicht “spurender” Ärzte, Orientierung an ökonomischen Erwägungen und damit nicht am Wohl der Patienten”). Therefore, the expression used had turned into a statement of fact, giving the reader the impression that the F. company had already demonstrated unethical conduct which threatened the interests of doctors and patients. In view of the specific circumstances of the case, the prohibition ruled upon by the lower courts was justified. Even though the applicants had taken part in a debate of general public interest, an untrue and damaging statement of fact was not protected by freedom of expression. Furthermore, the issuing of warnings concerning the potential risks of the provision of medical services by companies was not, as such, prohibited by the decisions of the Austrian courts; the applicants had only been required to refrain from making untrue statements of fact in respect of their competitors. 18. The decision of the Supreme Court was served on the applicants’ counsel on 27 August 2009. II. RELEVANT DOMESTIC LAW A. The Chamber of Medical Doctors and the Medical Practitioners Act 19. According to Article 120a of the Federal Constitution Act (Bundesverfassungsgesetz), people may be united by law to self-administrating bodies to autonomously take care of public interests being in their exclusive or preponderant common interest and qualified to be handled jointly by them. The self-administrating bodies are authorized to take care of their tasks in own responsibility without orders and to render statutes within the frame of the laws. The Federation or the Region has a right of supervision over them on the basis of the legal regulations with regard to the legality of the handling of the administration. Such right of supervision may also extend to the expedience of the handling of the administration, if such is required because of the tasks of the self-administrating body. Upon the selfadministrating bodies tasks of administration of the state may be conferred. The laws have to expressly indicate that such matters belong to the assigned executive responsibility and to provide a binding effect of the instructions by the supreme administrative authorities (see Article 120b of the Federal Constitution Act). www.bailii.org/eu/cases/ECHR/2016/179.html 5/13