03/02/2020 ARZTEKAMMER FUR WIEN AND DORNER v. AUSTRIA - 8895/10 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [201… Panel. With regard to decisions relating to pension and disability funds and disciplinary proceedings, the rule permitting appeals to the Federal Chamber remained in force. As of 1 January 2014 an appeal to the Regional Administrative Courts can be filed against all decisions of the chambers. 28. The regional chambers are supervised by the regional governments, the Federal Chamber by the Federal Minister of Health. To fulfil this supervisory function, the chambers have to provide information needed by regional governments or the Federal Minister of Health. All decrees have to be presented for supervision automatically. The supervisory body has to examine the lawfulness of the decrees and decisions issued by the chambers, and can suspend unlawful acts (sections 195 et seq.). If an organ of the chamber oversteps its competences or neglects its duties, the regional government may dismiss this organ from office, if this organ acted with culpable negligence or wilful intent and the chamber does not take appropriate measures. If the chamber becomes inquorate, the regional government may depute a commissioner of the Government (Regierungskommissär) to administrate the acts of the chamber until the establishment of a new board of the chamber through elections (see section 195b). 29. In accordance with Article 127b of the Federal Constitution, the Audit Office (Rechnungshof) examines the finances of the chambers and verifies that all their transactions are lawful, appropriate and in line with relevant budgets. It reports to the chambers themselves and to the supervisory bodies. 30. Apart from the public responsibilities described above, medical chambers can act as private entities. They may form all manner of civil contracts and acquire possessions. In this field, they can be held liable for violations of laws, in the same way as any private entity. B. Article 1330 of the Civil Code and section 7 of the Unfair Competition Act 31. Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.. 2. The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...” Sections 1(1) and 7(1) of the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb) provide: Section 1 “§ 1. Any party who, for competitive purposes: 1. uses an unfair commercial practice or any other unfair action which might possibly affect the competitive capability of a business in a significant way; or 2. uses an unfair commercial practice which is contrary to the requirements of professional diligence and likely to materially distort the economic behaviour of the average consumer whom it reaches or to whom it is addressed. can be sued for negligence and damages in the event of default.” Section 7 “1. Any party who, for competitive purposes, alleges or disseminates facts about a person’s business, a business owner or manager’s character, or a person’s, goods or services which may be detrimental to that business or to the credit standing of its owner, shall be liable [to pay] damages to the injured [party] unless such facts are demonstrably true. The injured [party] may file a claim for the party at fault to cease and desist from alleging or disseminating the facts. The injured [party] may furthermore demand a retraction and publication of the retraction. ...” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS www.bailii.org/eu/cases/ECHR/2016/179.html 7/13