Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15497/89

by Albertus Cornelis NIJS, Kees JANSEN and the

Onderlinge Waarborgmaatschappij Algemeen

Ziekenfonds Delft-Schiedam-Westland U.A.

against the Netherlands

The European Commission of Human Rights sitting in private on

9 September 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 July 1989 by

by Albertus Cornelis NIJS, Kees JANSEN and the Onderlinge

Waarborgmaatschappij Algemeen Ziekenfonds Delft-Schiedam-Westland U.A.

against the Netherlands and registered on 14 September 1989 under file

No. 15497/89;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, A.C. Nijs, is a Dutch citizen, born in 1941,

and residing in Schiedam, the Netherlands. He is a physician by

profession. The second applicant, K. Jansen, is a Dutch citizen, born

in 1938, and residing in Schiedam. He is a pharmacist by profession.

The third applicant, the Onderlinge Waarborgmaatschappij Algemeen

Ziekenfonds Delft-Schiedam-Westland DSW U.A. (hereinafter referred to

as "DSW") is a Medical Insurance Fund founded in 1983 with its

registered seat in Schiedam. DSW is the legal successor of the

Onderlinge Waarborgmaatschappij Algemeen Ziekenfonds Schiedam-

Vlaardingen SVM U.A.

Before the Commission the applicants are represented by D.W.F

Verkade, a lawyer practising in Amsterdam, and by R.S. Meijer, a lawyer

practising in The Hague.

The facts of the case, as submitted by the parties, may be

summarised as follows.

In April 1980 Mr. Nijs gave a patient a prescription, which read:

"R/Tanderil of gelijkwaardig ander middel volgens

geaccordeerde lijst."

"R/Tanderil or equivalent other product according to agreed

list."

The agreed list is a list of synonyms, drawn up by the Commission

Information Drug Prices (Commissie Voorlichting Prijzen

Geneesmiddelen). This Commission consists of representatives of the

Royal Netherlands Medical Association (de Koninklijke Nederlandse

Maatschappij tot bevordering der Geneeskunst), the Royal Netherlands

Pharmaceutical Association (de Koninklijke Nederlandse Maatschappij ter

bevordering van de Pharmacie) and the Association of the Netherlands

Medical Insurance Funds (de Vereniging van Nederlandse Ziekenfondsen).

The list contains, apart from registered brand names, both brand and

generic names of drugs, which are medically and pharmaceutically

considered as being equivalent.

Mr. Jansen subsequently provided this patient with a generic

preparation in the prescribed form of administration, dose and quantity

of oxyphenbutazone.

By letter of 1 May 1980 the applicants informed the

pharmaceutical company Ciba-Geigy, who owns the trade mark and name

Tanderil in the Benelux, that in the future they would proceed in the

above-described manner, and that they would draw the attention of their

colleagues to this procedure of drug prescription. They requested

Ciba-Geigy to provide them with a declaration that this procedure is

neither contrary to the law, i.e. the Uniform Benelux Trade Mark Act

(Eenvormige Benelux-wet op de Warenmerken) nor to Article 1401 of the

Civil Code (Burgerlijk Wetboek), which provision deals with tort

(onrechtmatige daad) and that Ciba-Geigy would refrain from legal

proceedings challenging this procedure for prescribing drugs.

As Ciba-Geigy failed to provide the applicants with the requested

declaration, the applicants requested the District Court

(Arrondissementsrechtbank) of Rotterdam to deliver a declaratory

judgment (verklaring voor recht) that the first applicant's way of

prescribing drugs was lawful, that the second applicant's delivery of

thus prescribed drugs was lawful and that the third applicant's

recommendation of this procedure to other physicians and pharmacists

was lawful in respect of Ciba-Geigy.

On 12 January 1981 the District Court rejected the applicants'

request.

Following the applicants' appeal, the Court of Appeal

(Gerechtshof) of The Hague decided in its interlocutory judgment of

28 April 1982 to request a preliminary ruling by the Benelux Court

(Benelux-Gerechtshof) in Brussels on the interpretation of Article 13

sub A of the Uniform Benelux Trade Mark Act.

The declaratory judgment of 9 July 1984 by the Benelux Court

provided the Court of Appeal with the requested preliminary ruling.

On 9 January 1987 the Court of Appeal, taking the Benelux Court

ruling of 9 July 1984 into account, upheld the District Court's

judgment of 12 January 1981. The Court of Appeal rejected the

applicants' complaint under Article 10 of the Convention, considering

that no indication was given as to which information contained in the

prescriptions at issue would be given to a patient and which

information would be withheld from a patient if these kinds of

prescriptions would not be allowed.

The applicants' subsequent appeal to the Supreme Court (Hoge

Raad) of 9 April 1987 was rejected on 20 January 1989. Insofar as the

applicants relied on their freedom to receive and impart information,

the Supreme Court, referring to the Benelux Court's case-law, held in

respect of the notion of "valid reason" (juste motif) within the

meaning of Article 13 sub A of the Uniform Benelux Trade Mark Act that

a use of a trade mark in such a way that the owner of this trade mark

would suffer damage is only permitted where such a use can be justified

by exceptional circumstances. The Court considered that this would

require the existence of such a necessity that it could not reasonably

be expected that one refrains from the use of such a trade mark. The

Supreme Court did not consider such a situation to exist in the present

case. The Supreme Court did not deal with the applicants' reference

to Article 8 of the Convention in their further explanatory submissions

to the Supreme Court of 17 June 1988.

RELEVANT LAW

The authentic French text of Article 13 sub A of the Uniform

Benelux Trade Mark Act provides as follows:

"Sans préjudice de l'application éventuelle du droit commun

en matière de responsabilité civile, le droit exclusif à la

marque permet au titulaire de s'opposer à:

1. tout emploi qui serait fait de la marque ou d'un signe

ressemblant pour les produits pour lesquels la marque est

enregistrée ou pour les produits similaires;

2. tout autre emploi qui, dans la vie des affaires et sans

juste motif, serait fait de la marque ou d'un signe

ressemblant, en des conditions susceptibles de causer un

préjudice au titulaire de la marque.

Dans les mêmes conditions, ce droit permet au titulaire de

réclamer réparation de tout dommage qu'il subirait à la

suite de cet emploi.

Toutefois, le droit exclusif à la marque n'implique pas le

droit de s'opposer à l'emploi de cette marque pour les

produits que le titulaire ou son licencié a mis en

circulation sous ladite marque à moins que l'état des

produits n'ait été altéré."

COMPLAINTS

1. The applicants complain under Article 10 of the Convention that,

as a result of the decision by the domestic courts not to declare the

procedure at issue for prescribing drugs lawful, Mr. Nijs' right to

impart information to a patient is unjustly limited, that Mr. Jansen's

right to receive this information via the patient is unjustly limited

and that the DSW has unjustly been limited in its right to give

publicity to the procedure for prescribing drugs of Mr. Nijs and

Mr. Jansen.

2. The applicants Mr. Nijs and Mr. Jansen complain under Article 8

of the Convention that their right to respect for their private life

and correspondence has unjustly been interfered with. They submit that

the confidential contacts between a physician, his patient and a

pharmacist are to be considered as forming a part of their private life

and that medical prescriptions are to be considered as correspondence.

3. The applicant DSW complains under Article 1 of Protocol No. 1

that a reduction of medical costs is in its interests as a Medical

Insurance Fund and that, as a result of the national proceedings, it

is unjustly affected in its assets and possessions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 July 1989 and registered on

14 September 1989.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on 7

November 1990. It 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 their written

observations on the admissibility and merits of the application.

The Government's observations were submitted on 25 April 1991.

The applicants' observations in reply were submitted on 11 June 1991.

THE LAW

1. The applicants complain under Article 10 (Art. 10) of the

Convention that, as a result of the decision by the domestic courts not

to declare the procedure at issue for prescribing drugs lawful, Mr.

Nijs' right to impart information to a patient is unjustly limited,

that Mr. Jansen's right to receive this information via the patient is

unjustly limited and that the DSW has unjustly been limited in its

right to give publicity to the procedure at issue.

Article 10 (Art. 10) of the Convention reads:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers. This Article

shall not prevent States from requiring the licensing of

broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

The Government are of the opinion that the applicant DSW in this

respect failed to exhaust domestic remedies, as in the national

proceedings this complaint has always been related to the right of the

physician to provide a patient and the pharmacist with information he

considers necessary to the performance of his duties as a doctor.

Concerning the complaints by Mr. Nijs and Mr. Jansen, the

Government consider Article 10 (Art. 10) of the Convention to be

applicable to the present case, but are of the opinion that the

interference with the above applicants' rights under this provision is

justified under para. 2 of Article 10 (Art. 10-2). The Government

submit that the infringement complained of was based on Article 13 sub

A of the Benelux Trade Mark Act, and was necessary in order to protect

the rights of others, i.e. the holder of the trade mark.

The Government further submit that the interference complained

of was proportionate to the legitimate aim pursued, as the physician

would have reached his aim of reducing medical costs by merely putting

the generic name of the drug at issue on the prescription instead of

the brand name followed by the phrase "or equivalent other product

according to agreed list", thereby respecting the rights of the trade

mark holder. The Government finally argue that within the margin of

appreciation allowed to the various courts, they were able reasonably

to establish that there was a pressing social need to impose

restrictions on the way in which Mr. Nijs and Mr. Jansen made use of

their right to receive and impart information.

The applicants are of the opinion that all applicants have

exhausted the domestic remedies concerning their complaints under

Article 10 (Art. 10) of the Convention. They argue, inter alia, that

Article 13 sub A of the Benelux Trade Mark Act lacks sufficient

precision and that the scope of protecting the rights of others should

not be extended so far that the purpose of the applicants' action, i.e.

reducing the costs of health care, can be disregarded for the reasons

stated by the Government. The applicants do not consider there was a

pressing social need to restrict their rights under Article 10

(Art. 10) of the Convention.

The Commission notes that the applicants' requests for a

declaratory judgment were closely related and interdependent. The

Commission, therefore, considers that in the circumstances of the

present case no distinction can be made between the three applicants

as to the exhaustion of domestic remedies in respect of the present

complaint.

It follows that the applicants have exhausted the domestic

remedies as required by Article 26 (Art. 26) of the Convention.

As to the substance of the applicants' complaint, the Commission

does not find it necessary to determine whether or not there has been

an interference with the applicants' rights under Article 10 para. 1

(Art. 10-1) of the Convention, as, even assuming there has been an

interference, this interference must be considered as being justified

under para. 2 of Article 10 (Art. 10-2) for the following reasons.

The Commission observes that the decisions of the national courts

were, inter alia, based on Article 13 sub A of the Benelux Trade Mark

Act, which provision seeks to protect the owner of a trade mark against

the unauthorised use of his trade mark.

The Commission notes that the Court of Appeal saw fit to request

a preliminary ruling in order to clarify the exact meaning of that

provision and that the Benelux Court provided the Court of Appeal with

this preliminary ruling, which the Court of Appeal took into account

in its judgment of 9 January 1987.

The mere fact that a legislative provision may give rise to

problems of interpretation does not mean, however, that it is so vague

and imprecise as to lack the quality of "law" in this sense

(Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51 p. 136 with further

references).

The Commission is therefore of the opinion that the interference

at issue was "prescribed by law" within the meaning of Article 10 para.

2 (Art. 10-2) of the Convention.

As to the aim of the interference, the Commission considers that

the interference was designed to protect the "rights of others" within

the meaning of Article 10 para. 2 (Art. 10-2), namely the rights of

Ciba-Geigy as owner of the trade mark.

Lastly, the Commission must examine whether the interference was

necessary in a democratic society.

The Commission recalls that the word "necessary" in para. 2 of

Article 10 (Art. 10-2) implies the existence of a "pressing social

need" and that the Contracting States have a certain margin of

appreciation in assessing whether such a need exists (cf. Eur. Court

H.R., Lingens judgment of 8 July 1986, Series A no. 103, para. 39).

The Commission further recalls that this margin of appreciation

is, however, subject to a European supervision embracing both the

legislation and the decisions applying it, even those given by an

independent Court. In particular, it must be determined whether in the

light of the case as a whole the interference complained of is

"proportionate to the legitimate aim pursued" and whether the reasons

adduced by the national authorities to justify it are "relevant and

sufficient" (cf. Eur. Court H.R., Sunday Times judgment of 26 November

1991, Series A no. 217, para. 50).

The Commission notes that the Supreme Court, referring to the

Benelux Court's case-law concerning Article 13 sub A of the Uniform

Benelux Trade Mark Act, considered that only under exceptional

circumstances a trade mark owner should have to accept certain damage

resulting from an unauthorised use of his trade mark, and that in the

present case there were no such exceptional circumstances. The Supreme

Court consequently concluded that the specific way of drafting

prescriptions as suggested by the applicants cannot be considered as

lawful.

The Commission agrees with the Government's reasoning that the

applicants could achieve their aim of reducing medical costs by

phrasing medical prescriptions in such a way that the rights of trade

mark owners are respected, namely by the mere use of generic names in

medical prescriptions. The Commission does not find it established that

this way of prescribing drugs could not be used in practice.

Therefore the Commission concludes that the fact that it was not

permissible for the applicants to use and recommend the particular

manner of drafting prescriptions is to be regarded as a proportionate

restriction prescribed by law and can therefore be considered necessary

in a democratic society for the protection of the rights of others

within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

This complaint must, therefore, be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants Mr. Nijs and Mr. Jansen complain that their right

to respect for their private life and correspondence has unjustly been

interfered with. They submit that the confidential contacts between

a physician, his patient and a pharmacist are to be considered as

forming a part of their private life and the medical prescriptions are

to be considered as correspondence.

The applicants invoked Article 8 (Art. 8) of the Convention,

which reads:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Government submit that the applicants have failed to exhaust

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention, as in the domestic proceedings Article 8 (Art. 8) was only

invoked in respect of the prescription given by the physician to his

patient and only as an unsubstantiated remark in the applicants'

further written submissions to the Supreme Court.

The applicants are of the opinion, that they have raised this

complaint by consistently having referred to the private nature of the

relationship between the physician, patient and pharmacist.

The Commission recalls its constant case-law that in order to

exhaust domestic remedies, an applicant must have raised, either in

form or in substance, the complaints he wishes to put before the

Commission (cf. No. 12461/86, Dec. 10.12.86, D.R. 51 p. 258).

The Commission is of the opinion that in the circumstances of the

present case it cannot be concluded that the applicants have submitted

this complaint to the domestic courts. A reference to Article 8

(Art. 8) of the Convention in the applicants' further explanatory

submissions to the Supreme Court cannot be regarded as a substantiated

complaint on which the Supreme Court should decide.

It follows that the applicants have not satisfied the condition

of the exhaustion of domestic remedies and that this complaint must be

rejected in accordance with Article 27 para. 3 (Art. 27-3) of the

Convention.

3. The applicant DSW complains under Article 1 of Protocol No. 1

(P1-1) that a reduction of medical costs is in its interests as a

Medical Insurance Fund and that, as a result of the national

proceedings, it is unjustly affected in its assets and possessions.

The Government are of the opinion that the applicant failed to

exhaust domestic remedies as the present complaint was not, as such,

submitted to the domestic courts.

The applicant states that, although this provision was not

explicitly mentioned in the national proceedings, it is obvious that

the applicant's argument on the reduction of costs for health care

directly aimed at the influence such reduction might have on the

applicant's financial resources.

It is true that the applicant in the national proceedings has

referred to the importance of reducing the costs of health care for

Medical Insurance Funds like itself. However, in the opinion of the

Commission, this argument cannot be considered as being a complaint

that the applicant's rights under Article 1 of Protocol No. 1

(P1-1) have unjustly been interfered with.

The Commission, therefore, considers that the applicant has not

satisfied the condition of the exhaustion of domestic remedies and that

this complaint must be rejected in accordance with Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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NIJS, JANSEN AND THE ONDERLINGE WAARBORGMAATSCHAPPIJ ALGEMEEN ZIEKENFONDS DELFT-SCHIEDAM-WESTLAND U.A. v. THE NETHERLANDS

NIJS, JANSEN AND THE ONDERLINGE WAARBORGMAATSCHAPPIJ ALGEMEEN ZIEKENFONDS DELFT-SCHIEDAM-WESTLAND U.A. v. THE NETHERLANDS

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