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Case:
BGHZ 107, 117 I. Civil Senate (I ZR 189/86)
Date:
09 March 1989
Translated by:
Raymond Youngs
Copyright:
Professor B.S. Markesinis

I Landgericht Köln

II Oberlandesgericht Köln

The claimant is a well known national chemical undertaking. Amongst other things, it develops and sells plant protection products. It maintains extensive research and experimentation facilities for this purpose.

The Federal Biological Institute has approved the sale of products regulating growth with the agent chlormequat chloride and herbicides with the agent chloridazone. The claimant had on this issue submitted extensive investigation reports about the unobjectionable nature of both chemical agents from the point of view of toxicology. When approving very similar products of the defendant in 1983 and 1984, the authority relied on the claimant's toxicology investigations.

The claimant is of the view that the defendant must bear a part of its research costs. Without the use of its documents, the defendant would have had to carry out its own toxicology investigations at an expense of about 6.6 million DM. It had made use of the claimant's legal position for the permission necessary under the Plant Protection Act (PflSchG) for the sale of the products. Its documents which it submitted for the permission were economically valuable, representing secret "know how", and were protected as legal property against intrusions by third parties. In this connection it did not matter that the defendant had made use of the co-operation of the authority or whether its conduct was unlawful.

The defendant has contested the claim. It could not incur liability, as after the expiry of patent protection everyone was free to use the agents mentioned. As a subsequent applicant it had had no influence on the extent to which the approval authority utilised its findings of the environmental suitability of the substances obtained in other permission proceedings. No secret "know how" of the claimant had been used: use had been made of the state of technological development.

The Landgericht has rejected the claim to payment of a partial sum of 500,000 DM. The claimant's appeal and appeal in law were unsuccessful.

Reasons:

There is no basis for liability on the part of the defendant on the principles of the intervention condictio (Eingriffskondiktion) in accordance with § 812 para 1 sentence 1 2nd alternative of the BGB. According to this provision the debtor is obliged to hand over to the creditor what he has obtained in another way without legal ground. The non-performance condictio (Nichtleistungskondiktion) intervenes if the requirements for obtaining something without legal ground at the cost of another are present, and in principle independently of the way in which this acquisition has taken place. Even acquisition without legal ground on the basis of statutory provisions or by (lawful) actions of third parties, even holders of sovereign state authority, can trigger liability in enrichment law. The legal ground of acquisition from a third party cannot make up for the absence of a legal ground in the condictio relationship.

1. It is therefore not of decisive significance in the present case for the assessment of the liability in enrichment law whether the Federal Biological Institute used scientific findings from the claimant's registration proceedings on the environmental suitability of the agents chlormequat chloride and chloridazone as a basis for the permission for the defendant's plant protection products in accordance with § 8 of the Plant Protection Act of the 2nd October 1975 (reference omitted) in a legally permissible way. The Federal Biological Institute did not see itself as required under old law - corresponding with the administrative practice of the Federal Health Office in relation to the approval of medicines of a second applicant - applying §§ 24, 26 of the Administrative Procedure Act, which permit the utilisation of officially known results, to obtain agreement by the claimant as first applicant to the utilisation of the results of its series of experiments. Neither the Plant Protection Act of the 2nd October 1975 nor the Medicines Act (AMG) of the 24th August 1976 (reference omitted) provided for a regime corresponding to § 7 para 3 of the Act for the Protection from Dangerous Substances (Chemicals Act) of the 16th September 1980 (reference omitted) according to which it is only permissible for the subsequent applicant to rely on the results of the investigation for the earlier registration with the agreement of the applicant.

For the assessment of the settlement in enrichment law between the parties to the legal dispute, no further consideration should be given to the fact that the legislature after detailed discussion of the question of further use of the documents of the first applicant by the authority without compensation - references omitted - has created a regime in § 13 of the new version of the Plant Protection Act of the 15th September 1986 (reference omitted) - see also § 24 a of the Medicines Act in the version of the 16th August 1986 (reference omitted) - which preserves equality in competition between the participants regarding a ban on utilisation of the documents of the first applicant and/or compensation for him by the second applicant. § 13 para 3 of the Plant Protection Act, which came into force on the 1st January 1987, creates for the future an independent duty on the part of the subsequent applicant to compensate the prior applicant, subject to certain prerequisites. For the assessment of enrichment liability for the period which is decisive here, this norm neither confirms nor excludes liability. The concept of fairness, like knowledge on its own, even when there is need for a regime for the preservation of different economic interests, cannot support an enrichment settlement through the principles of the Eingriffskondiktion.

2. An enrichment settlement through the Eingriffskondiktion only occurs if the debtor adopts a protected legal position of the creditor, which he would not be entitled to use in a lawful manner without the permission of the owner of the right. In the law of incorporeal property, an enrichment settlement is granted if there is intrusion in the allocated content of a legal interest, the economic exploitation of which is reserved to the creditor (references omitted). The legal starting point for enrichment liability "in another manner" is in this connection the violation of such a legal position which is allocated, in accordance with the intention of the legal order, to the person entitled, for his exclusive disposal and exploitation (references omitted). An enrichment liability "in another manner" only commences if the financial advantage obtained contradicts the allocated content of the violated legal interest. There is extensive unanimity in legal theory about this prerequisite for liability (references omitted). The allocated content of the legal position replaces, in respect of the condictio of the enrichment "in another manner", the requirement in the case of the performance condictio that what is obtained must originate from a performance of the enrichment creditor (reference omitted). A settlement in enrichment law through the Eingriffskondiktion assumes interference with a legal position which is worthy of protection and exploitable in property law. The allocated content of the protected legal position corresponds to a prohibitory claim by the owner of the right. It is in that person's power to let an otherwise excluded third party utilise the legal interest for economic exploitation. Such a property law advantage, which the acquirer could only obtain by violating a protected legal position and the sole authority of owner of the right to exploit it, is accordingly subject to the Eingriffskondiktion. Mere interference with a chance to exploit does not have as its consequence the sanction of the duty to make a settlement in enrichment law. The protected legal position must instead guarantee to the creditor that its utilisation by third parties must not occur without his agreement (references omitted). Mere chances of acquisition and profit are not included in the allocated content of a legal interest in the enrichment law sense, even if they are also connected - as with a right to an established and operating business - with a legal interest protected in tort law (reference omitted). Contrary to the view of the appeal in law, it therefore does not suffice for the consideration in enrichment law that the first applicant lets the subsequent applicant have its documents on many occasions for permission proceedings in return for money, if they are not in a position on the basis of their legal position to prevent the sale of corresponding products.

3. Liability on the part of the defendant as condictio debtor is accordingly excluded. The financial advantage which has accrued to him through the authority's permission of being allowed to disseminate the plant protection products without preceding cost-intensive investigations into their environmental compatibility, does not represent interference with an economic authority of the claimant to exploit its protected right which is provided with a prohibitory claim. The defendant sells plant treatment products which are compatible with the environment, the commercial use of which the claimant cannot forbid by its own rights. It utilises the knowledge of established fact but not secret documents, or a secret process for the obtaining of this knowledge. Its profit advantage does not follow from the utilisation of secret "know how" to which it has no access. Its action also does not prove to be an invasion of the claimant's right to an established and operating business as a component of which secret "know how" can enjoy statutory protection under § 823 para 1 of the BGB (references omitted). It is advantageous to the defendant that, in accordance with the knowledge of the authority issuing permissions, a special series of experiments which prove environmental compatibility is not needed. The claimant cannot however prevent this knowledge operating to the defendant's advantage and the exploitation of that knowledge, since, as the permitted use of the claimant's products shows, it is obvious that they are unobjectionable. The use of publicly available technical knowledge, which is not protected by a special commercial right, is available to everyone. Substantial intellectual and cost intensive expenditure alone cannot found an independent protection of performance (references omitted).

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