Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Munich Regional Court held that representatives of the Munich-based dialogue group “Jüdisch-Palästinensische Dialoggruppe” (JPDG) were entitled to rely on a lease agreement they had signed with the respondent local charity Caritasverband der Erzdiözese München und Freising e.V. to use one of the respondent’s facilities for an event with a German journalist. On September 19, 2019, the respondent terminated the lease without notice, reasoning that the event supported the BDS-movement (Boycott, Divestment, Sanctions – a Palestinian-led movement for freedom, justice and equality). This decision was based on a May 2019 motion of the German Bundestag, “Resisting the BDS Movement with Determination – Combating Anti-Semitism,” which inter alia calls not to support any events organized by the BDS movement or by groups pursuing its aims. The complainants found this to infringe upon their right to freedom of expression under Article 5 Basic Law and therefore requested an interim injunction. The Munich Regional Court agreed with the complainants finding that political opinions of the supporters of the BDS Movement are protected and that there was no evidence that actions punishable under the criminal code might take place. It further held that a termination without notice can only be justified if the criteria of section 543 (1) of the Civil Code are fulfilled. However, this was not the case because the complainants did not breach any contractual obligations. Moreover, referring to the motion of the Bundestag, which is not a legislative act, does not justify an infringement of their right to freedom of expression under Article 5 Basic Law.
The complainants are three representatives of the Munich-based dialogue group “Jüdisch-Palästinensische Dialoggruppe” (JPDG) supporting initiatives and groups in the Middle East and Europe with the goal of reducing prejudice and conflict between Israeli and Palestinian people. The respondent is Caritasverband der Erzdiözese München und Freising e.V., a local charity.
On August 28, 2019 the complainants sent an email from Yalla Arabi’s e-mail account requesting to use one of the respondent’s facilities (“Korbiniansaal”) for a public event with Christoph Sydow, a German journalist working for the magazine “Spiegel”. The event was planned for September 23, 2019 and both parties came to a lease agreement for the said date.
On September 19, 2019, the respondent terminated the lease agreement without notice, reasoning that the group Yalla Arabi, which is an initiative supporting Arabic culture and language, was part of the JPDG and the BDS-movement. This decision was based on the motion of the German Bundestag from May 17, 2019 “Resisting the BDS Movement with Determination – Combating Anti-Semitism” which inter alia calls not to support any events organized by the BDS movement or by groups pursuing its aims.
The complainants considered the termination unjustified because it infringed their right to freedom of expression under Article 5 Basic Law. They therefore requested an interim injunction from the Munich Regional Court to force the respondent to grant access to the requested facilities as agreed in the lease agreement.
On September 23, 2019, the Munich Regional Court issued an interim injunction which allowed the complainants to use the respondent’s facilities.
The Court held that the complainants had a right to access based on the lease agreement the two parties concluded earlier. The respondent had no right to terminate the agreement without notice according to sec. 543 (1) German Civil Code, which states
(1) Each party to the contract may terminate the lease for cause without notice for a compelling reason. A compelling reason is deemed to obtain if the party giving notice, with all circumstances of the individual case taken into account, including without limitation fault of the parties to the contract, and after weighing the interests of the parties, cannot be reasonably expected to continue the lease until the end of the notice period or until the lease ends in another way.
The Court argued that a compelling reason had to be linked to a breach of contractual obligations, which cannot be found in the case at hand especially because the respondent knew from the beginning that the facilities were requested for Yalla Arabi.
Moreover, the Court said, it was not unreasonable to expect the respondent to continue the lease. Referring to the motion of the German Bundestag does not change that evaluation because supporters of the BDS movement are protected under Article 5 (1) Basic Law which states
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.
Also, there had been no indications that any kind of actions punishable under the criminal code might take place. Therefore, the termination was not justified under section 543 (1) Civil Code. The respondent was ordered to grant access to its facilities as agreed in the lease agreement.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it finds that a motion by the German Bundestag is not able to justify an infringement on the complainants’ right to freedom of expression under Article 5 Basic Law. It also states that as long as a lease agreement has been concluded and no obligations thereunder have been breached, the agreement cannot be terminated without notice merely because one contracting party supports the BDS movement.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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