EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 26988/95

Osteo Deutschland GmbH

against

Germany

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-33) 3

A. The particular circumstances of the case

(paras. 16-29) 3

B. Relevant domestic law

(paras. 30-33) 5

III. OPINION OF THE COMMISSION

(paras. 34-48) 6

A. Complaint declared admissible

(para. 34) 6

B. Point at issue

(para. 35) 6

C. As regards Article 6 of the Convention

(paras. 36-47) 6

CONCLUSION

(para. 48) 8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant company is a limited company with seat in Freiburg .  Before the Commission the company, represented by Mr. B. Leu , its managing director, was represented by Mr. H. Kroitzsch , a lawyer practising in Karlsruhe .

3. The application is directed against Germany. The respondent Government were represented by their Agent, Ms. H. Voelskow-Thies , Ministerialdirigentin , of the Federal Minister of Justice.

4. The case concerns the length of civil proceedings in regard to an official liability action for alleged damages due to the length of product authorisation proceedings before the Federal Health Office. The applicant company invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 14 March 1995 and registered on 6 April 1995.

6. On 12 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 21 June 1996.  The applicant company replied on 18 July 1996. It made further submissions on 13 November 1996. The Government filed supplementary observations on 5 December 1996. The applicant company also made submissions on 11 December 1996, on 4 August and 22 September 1997.

8. On 14 January 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 30 January 1998 and they were invited to submit further observations on the merits. The applicant company submitted observations on 25 February and 16 March 1998. The Government submitted observations on 2 March and 13 August 1998.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 21 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 21 January 1988 the applicant company requested the Federal Health Office ( Bundesgesundheitsamt ) for an authorisation to produce, as a medical product, a bone substitute product, pursuant to the Pharmaceutical Act ( Arzneimittelgesetz ).

17. In July 1991, in the absence of any decision on their request, the applicant company instituted proceedings with the Berlin Administrative Court ( Verwaltungsgericht ) complaining about the inactivity of the Federal Health Office.  On 13 December 1991 the Administrative Court ordered the defendant to decide on the applicant company's request.

18. On 4 December 1992 the applicant company lodged an official liability action before the Berlin Regional Court ( Landgericht ) against the Federal Health Office, claiming damages due to the failure to decide upon their request of 1988. These submissions were received at the Court Registry on 13 January 1993.

19. Moreover, on 16 December 1992 the applicant applied to the Berlin Administrative Court for measures in execution of the decision of 13 December 1991.  On 11 January 1993 the Administrative Court, pursuant to S. 172 of the Code of Administrative Procedure ( Verwaltungsprozeßordnung ), fixed a fine of DEM 2,000 in case the Office should not decide within one month.  The Office appealed, but, on the basis of its appeal statements, the applicant company submitted that the matter was disposed of. The proceedings were thereupon discontinued.

20. On 18 March 1993 the Regional Court, referring to S. 148 of the Code of Civil Procedure ( Zivilprozeßordnung ), stayed ( Aussetzung ) the proceedings in order to await the decision by the Federal Health Office on the applicant company's request.  The Regional Court considered that the outcome of the proceedings regarding the compensation claims depended upon the question whether or not the product concerned could be authorised .

21. On 17 May 1993 the Regional Court declined to entertain (" wird nicht abgeholfen ") the applicant company's appeal.  It referred the applicant company, inter alia , to the possibility of applying for executive measures under the Administrative Court decision of 13 December 1991. Thereupon the Regional Court forwarded the appeal to the Berlin Court of Appeal ( Kammergericht ).

22. On 26 November 1993 the Berlin Court of Appeal dismissed the applicant company's appeal against the decision of 18 March 1993.  The Court of Appeal argued that the stay of the proceedings was necessary within the meaning of S. 148 of the Code of Civil Procedure.  The Court noted that the officials of the Federal Health Office had failed in their duty to decide speedily on the applicant's request, in particular after a decision rendered by the Berlin Administrative Court ( Verwaltungsgericht ) on 13 December 1991, ordering the Office to decide without further delay.  However, the award of damages depended on the question whether the production of the medical product concerned could be authorised under the Pharmaceutical Act, and the decision of the Federal Health Office had to be awaited in order to avoid conflicting decisions.

23. On 29 December 1993 the applicant company lodged a constitutional complaint with the Federal Constitutional Court, complaining that the decision to stay the official liability proceedings violated its right to have its compensation claims decided within a reasonable time. On 2 March 1995 the applicant company's representative Mr. Kroitzsch , upon his inquiry with the Federal Constitutional Court, was informed that no date for the Court's deliberations on the complaint of December 1993 had been fixed.

25. On 8 May 1996 the applicant company lodged an objection ( Widerspruch ) with the Institute.  In the statement of reasons dated 26 June 1996 it submitted that the alleged shortcomings had been fully remedied and attached a private medical opinion.

26. On 20 May 1996 the Rapporteur of the First Division ( Senat ) of the Federal Constitutional Court inquired with Mr. Kroitzsch as to whether, following the Institute's decision of April 1996, steps had been taken with a view to resuming the adjourned proceedings pending before the Berlin Regional Court as well as about the state of these proceedings.  The Rapporteur further warned that in the event that the Regional Court had set aside its earlier decision to adjourn, the constitutional complaint could be inadmissible.  By letter of 4 June 1996, Mr. Kroitzsch replied that no decision had been taken by the Regional Court and that appeal proceedings were pending before the Institute for Pharmaceutical and Medical Products.

27. On 31 October 1996 the Second Section ( Kammer ) of the First Division of the Federal Constitutional Court refused to entertain the applicant company's constitutional complaint.  The decision was served on the applicant company's representative on 13 November 1996.

28. Meanwhile, on 28 February 1996 the applicant company obtained a certificate under the 1994 Medical Devices Act ( Medizinproduktegesetz ) and can sell its bone substitute product in Germany.

29. On 25 June 1998 the Federal Institute for Pharmaceutical and Medical Products dismissed the applicant company's objection against the decision of 12 April 1996. The Institute stated that the bone substitute product in question was a medical product within the meaning of the Medical Devices Act for which an application for a licence under the Pharmaceutical Act had no longer been admissible subsequent to 14 June 1998.

B. Relevant domestic law

30. As regards preliminary issues giving rise to separate proceedings still pending, S. 148 of the Code of Civil Procedure ( Zivilprozeß-ordnung ) provides as follows:

"Where the determination of a dispute depends wholly or in part on the existence or non-existence of a legal relationship, which is the subject of other legal proceedings pending or which is to be established by an administrative authority, the court may stay the main proceedings until such time as a final decision has been given in the other legal proceedings or the decision by the administrative authority has been given."

" Das Gericht kann , wenn die Entscheidung des Rechtsstreits ganz oder teilweise von dem Bestehen oder Nichtbestehen eines Rechtsverhältnisses abhängt , das den Gegenstand eines anderen anhängigen Rechtsstreits bildet oder von einer Verwaltungsbehörde festzustellen ist , anordnen , daß die Verhandlung bis zur Erledigung des anderen Rechtsstreits oder bis zur Entscheidung der Verwaltungsbehörde auszusetzen ist ."

31. According to S. 150 of the Code of Civil Procedure, the court may at any time amend ( aufheben ) its decisions on, inter alia , the stay of the main proceedings.

32. S. 250 of the Code of Civil Procedure provides that stayed or suspended proceedings are resumed ( Aufnahme ) in filing written submissions with the court.

33. Decisions to stay main proceedings are subject to appeal (S. 252 of the Code of Civil Procedure).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

34. The Commission has declared admissible the applicant company's complaint about the length of the official liability proceedings and, in particular, about the delay in the Constitutional Court proceedings.

B. Point at issue

35. The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 of the Convention

36. The relevant part of Article 6 para. 1 of the Convention provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...".

37. The proceedings in question concern an official liability action for alleged damages due to the length of product authorisation proceedings before the Federal Health Office. The Commission finds that the purpose of the proceedings is to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

38. The applicant company filed the official liability action in question by its submissions dated 4 December 1992. These submissions were received at the Berlin Regional Court's Registry on 13 January 1993. The proceedings are still pending. Thus, the proceedings have so far lasted about at least five years and nine months.

39. The Government observe at the outset that the proceedings at issue concerned in essence the length of administrative proceedings. They maintain that the applicant company could have pursued administrative execution proceedings on the basis of the Administrative Court's decision of 13 December 1991. Moreover, as regards the official liability action, they submit that the stay in March 1993 of the proceedings before the Berlin Regional Court was appropriate in the circumstances in order to avoid the taking of specialist expert evidence on a complex question in these proceedings. Furthermore, they state that, pursuant to Sections 150 and 250 of the Code of Civil Procedure, the Court may, either proprio motu or on the initiative of a party to the proceedings, either revoke an order suspending proceedings or resume the proceedings by service of the relevant pleadings. However, the applicant company has not taken any action to this effect, nor had it informed the Regional Court of the further course of the administrative proceedings.

40. The applicant company opposes these views. It submits in particular that the continuation of the official liability proceedings is in fact left to the discretion of the defendant public authority. In these proceedings the taking of specialist expert evidence in addition to the expertise of the defendant authority will eventually be necessary. Furthermore, repeated applications for executive measures would not have speeded up the official liability proceedings.

41. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

42. As regards the complexity of the case, the Commission observes that the applicant company's official liability action has not yet been examined as to its merits; the Regional Court limited itself to finding that the subject matter of the action is closely linked to the question whether or not the authorisation for the applicant company's product would eventually be granted. This latter is, however, a rather complex issue.

43. Turning to the applicant company's conduct, the Commission observes no particular delays. There is nothing to show that it failed to take any measures which could have accelerated the official liability proceedings. The Commission further considers that the Government did not advance convincing arguments that, in the circumstances of the present case, in particular the reason for the suspension, a request to resume the proceedings would have been effective.

44. The Commission has next examined the conduct of the judicial authorities.

45. The Commission observes that the applicant company's constitutional complaint concerned merely the Regional Court's decision to stay the official liability proceedings and hence the length thereof. These proceedings before the Federal Constitutional Court started on 29 December 1993 and ended on 13 November 1996. Although this period itself is rather lengthy, it cannot be taken to have contributed to the overall length, given that the proceedings before the Constitutional Court were entirely parallel to the principal proceedings. Moreover, the Commission cannot speculate whether or not the principal proceedings could have possibly been expedited by a favourable ruling of the Constitutional Court.

46. Furthermore, as to the conduct of the Regional Court, the Commission notes the Court's considerations in staying the official liability proceedings pending the outcome of the authorisation procedure. The Commission recognises that, in certain circumstances, the interests of fair administration of justice may warrant the suspension or staying of civil court proceedings pending a decision to be taken on a preliminary question. However, in the present case, the inactivity following the Regional Court's decision of 18 March 1993 have lasted to date about five years and a half, a period which cannot be regarded as reasonable within the meaning of Article 6 para. 1 of the Convention. In this respect the Commission attributes importance to the fact that the official liability proceedings concerned the very claim that the proceedings before the defendant authority themselves lasted unreasonably long. In sum, the Commission considers that no convincing explanation for this protracted inactivity has been advanced by the respondent Government.

47. It follows that, in the light of the criteria established by case-law and having regard to the circumstances of the present case, the length of the proceedings has been excessive and has failed to meet the "reasonable time" requirement.

CONCLUSION

48. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber