Officina Meccanica Gorlese v Burgsmller
| Date | 26 Enero 1971 |
| Court | Regional Court (Germany) |
International law in general Relation to municipal law International treaty provisions Whether doctrine of immediate applicability under municipal law applies only to rules of customary international law or also to treaties Basic Law of Federal Republic of Germany, Article 25 Requirement of transformation into municipal law by legislation Extent to which transformation governed by municipal law or international law Duty of State to enact municipal law required for enforcement of treaty provisions Effect of continued application of municipal law contrary to treaty The law of the Federal Republic of Germany
Jurisdiction In general Territorial Territorial limits of jurisdiction Expropriation of property by foreign State Whether general rule of international law requiring effect of such measure to be limited to territory of State where measure taken The law of the Federal Republic of Germany
Treaties Conclusion and operation of Operation and enforcement Necessity for municipal legislation Whether doctrine of immediate applicability under municipal law applies only to rules of customary international law or also to treaties Basic Law of Federal Republic of Germany, Article 25 Requirement of transformation into municipal law by legislation Extent to which transformation governed by municipal constitutional law or international law Duty of State to enact municipal enabling legislation Effect of continued application of municipal law contrary to treaty Paris Convention for the Protection of Industrial Property, 1934, Article 5 Judgment of foreign court ordering forfeiture of patent rights contrary to Convention Whether municipal courts empowered to give effect to such judgment Forfeiture constituting expropriation without compensation Whether general rule of international law requiring effect of such measure to be limited to territory of State where measure taken The law of the Federal Republic of Germany
Summary: The facts:The plaintiff manufactured threading machines. In 1965 the defendant obtained from an Italian court the seizure of some of the plaintiff's machines for infringement of a patent granted in 1956. In proceedings for confirmation of the seizure the plaintiff successfully moved that the patent be declared forfeited under the Italian Patent Act since it had not been worked for the past three years. The defendant was ordered to pay damages to be fixed in subsequent proceedings and appeals against the judgment were subsequently dismissed by the Italian courts.
In proceedings before the Provincial Court (Landgericht) of Braunschweig the plaintiff claimed damages from the defendant on the basis of the decision of the Italian court. The defendant argued principally that the decision of the Italian court would necessarily have been different if Article 5 of the Paris Convention for the Protection of Industrial Property of 1934, which provided that no suit for forfeiture of a patent on grounds of non-use could be brought before the expiration of two years from the granting of the first compulsory licence, had been applied. Italy had ratified the Convention but had failed to enact the appropriate municipal legislation. The defendant contended nevertheless that under German law international treaties automatically became part of municipal law upon their ratification. In these circumstances, argued the defendant, the declaration of forfeiture amounted to an expropriation without compensation which violated German public policy and should not therefore be recognized in the Federal Republic.
Held:The action was unfounded. The plaintiff could not claim damages from the defendant on the basis of the judgment of the Italian court. The court of the Federal Republic would not give effect to that judgment because it offended against the public policy of the Federal Republic.
(1) Article 25 of the Basic law provided that the general rules of international law were an integral part of federal law. Nevertheless domestic law did not result spontaneously from the ratification of a treaty. In the majority of cases it was not the content of treaties but rather the principle that they were to be observed which was a general rule of international law, immediately applicable under federal law.
(2) The transformation of international treaty provisions into domestic law was governed, in the first place, by municipal constitutional law and not...
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