Spanish State Tourist Office Case

CourtCourt of Appeal of Frankfurt (Germany)
Federal Republic of Germany, Superior Provincial Court (Oberlandesgericht) of Frankfurt
Spanish State Tourist Office Case1

Sovereign immunity Foreign States and agencies State tourist office Claim for breach of copyright Whether Spanish State entitled to jurisdictional immunity Activities iure imperii and iure gestionis Whether use of copyright material by the State a private law activity Whether promotion of tourism by the State a sovereign activity The law of the Federal Republic of Germany

Summary: The facts:The plaintiff2 brought a successful action against Spain before the Provincial Court (Landgericht) of Frankfurt am Main for damages in respect of breach of copyright in film music by the Spanish State Tourist Office in Frankfurt am Main, a State agency without its own legal personality, which was responsible for promoting Spanish tourism. Spain appealed to the Superior Provincial Court (Oberlndesgericht) of Frankfurt on the ground that it was entitled to unrestricted immunity from jurisdiction as a foreign State engaged in sovereign activity.

Held:The appeal was dismissed.

(1) Foreign States were only entitled to immunity in respect of activities of a sovereign nature (iure imperii) and the distinction between such activities and activities of a non-sovereign nature (iure gestionis) was to be made according to municipal law. The determinant factor was the nature rather than the purpose of the State act or of the legal relationship which had arisen.

(2) The use of copyrighted material normally came about on the basis of contracts under private law and the activities of a foreign State in this regard were therefore to be assimilated to those of private parties. The fact that the use of the material in this case had been unauthorised made no difference to the basic classification of the nature of the activity.

(3) Even if the purpose of the activities of the foreign State performed by its tourist office were taken into account there could still be no finding of sovereign activity. Those activities were aimed at improving its income from tourism and it thereby pursued primarily commercial interests which were equivalent to the activities of private travel agencies.

The following is a statement of the facts as reported in RIW/AWD, 1977, p. 721:

The defendant, the Spanish State, maintains Spanish tourist bureauxin several cities in the Federal Republic of Germany as subordinate

and non-independent establishments without legal personality of their own. The question in dispute between the parties is the plaintiff's claim for damages or remuneration for the unauthorized performance of copyrighted film scores

The defendant's Spanish tourist bureau in Frankfurt am Main operates a shop where posters showing tourist resorts in Spain, maps and travel articles of all kinds are obtainable free of cost. In addition this tourist bureau rents out display material showing Spanish scenes for use in advertising by travel agencies and airlines. It also advertises Spain as a tourist country on radio and television and in newspapers and magazines. The plaintiff's claim was allowed.

The following is the text of the grounds of the judgment of the Court:

Under international law [the defendant] does not enjoy in the Federal Republic unlimited immunity from the jurisdiction of the German courts. Rather, the defendant is entitled only to limited immunity in respect of its sovereign activities.

In the first place there is no international treaty between the defendant and the Federal Republic of Germany which might accord unlimited immunity to the defendant (see Art. 59, para. 2, of the Basic Law; Berber, Lehrbuch des Vlkerrechtes, 2nd ed., Vol. I, p. 61; von Mnch(editor)/Rojahn, GG (Basic Law), Vol. II, Art. 25, No. 8; see also previous decision of the Federal Constitutional Court of 30 April 19632 BvM 1/62BVerfGE 16, p. 27;[3] Giese/Schunck/Winkler, Verfassungsrechtsprechung, Art. 25, No. 8, with additional references).

The fact that [the defendant] indicates its readiness to accord...

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