Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11759/85

by J.A.W.M.J. KORTMANN

against the Netherlands

The European Commission of Human Rights sitting in private

on 14 July 1987 the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 11 August 1985

by J.A.W.M.J. Kortmann against the Netherlands and registered

on 25 September 1985 under file N° 11759/85;

Having regard to:

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 18 July 1986 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government

on 30 October 1986 and the observations in reply submitted

by the applicant on 10 December 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the

applicant may be summarised as follows.

The applicant is a Dutch citizen, born in 1936 and a tradesman

by profession. At present he is residing at Helmond, the Netherlands.

On 14 June 1978, the applicant, who was trading in

pharmaceutical products at the time, was informed by the Medicine

Assessment Board (College ter beoordeling van geneesmiddelen) that the

Medicine Supply Act (Wet op de Geneesmiddelenvoorziening) had been

substantially amended as of 1 January 1978. The applicant was further

informed of the specific consequences of these amendments for the

registration of pharmaceuticals.

It appears that the applicant requested the Medicine

Assessment Board by letter of 26 June 1978 to register the products

he had previously registered with the Directorate of Public Health

(Direktoraat voor de Volksgezondheid) on 3 December 1970. Such

registration was a condition for trading such pharmaceuticals.

In October 1983, the Medicine Assessment Board informed the

applicant by circular letter that under the Medicine Supply Act since

the registration of certain pharmaceuticals was only valid for five

years, registration had to be prolonged by a special procedure set out

in the letter.

The applicant then enquired about the prolongation of the

registration of certain pharmaceutical products in the name of his firm,

but he was informed on 14 February 1984 that only one product was

registered in the name of his firm.

In the course of further correspondence it then appeared that

the applicant's letter of 26 June 1978 was never received by the

Medicine Assessment Board and that, consequently, no pharmaceutical

products were registered in the name of his firm. The applicant was

informed that he would have to submit a separate request for the

registration of each product.

The applicant then lodged an appeal with the Crown

(Kroonberoep) and requested the Administrative Litigation Division of

the Council of State (Afdeling voor geschillen van bestuur van de Raad

van State) to grant an order in his favour by way of an interim

measure.

However, on 18 July 1984, the chairman of the Administrative

Litigation Division of the Council of State rejected the applicant's

request for an interim measure, and on 25 February 1985 his appeal was

rejected by the Crown on the basis of an advisory opinion by the

Administrative Litigation Division. The Crown considered, inter

alia, that it had not been sufficiently demonstrated that the

applicant had in fact registered certain pharmaceutical products in

time.

This decree was sent to the applicant on 28 March 1985 by the

Deputy Minister of Welfare, Public Health and Culture (Staatssecretaris

van Welzijn, Volksgezondheid en Cultuur).

COMPLAINTS

The applicant claims that he has a civil right to the

continued registration as of 3 December 1970, of certain pharmaceutical

products in the name of his firm.

He complains that the Administrative Litigation Division of the

Council of State which heard him was not an independent court, and that

this body only advised the responsible Minister, who then took the

decision which was signed by the Queen.

The applicant invokes Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 August 1985 and

registered on 25 September 1985.

On 18 July 1986 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits.

The respondent Government's observations were submitted

on 30 October 1986 and the reply thereto by the applicant on

10 December 1986.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

The Government states that the key question in the appeal

lodged by the applicant with the Crown is whether or not he submitted

an application for registration before 1 July 1978.

The Crown concluded that the applicant had not provided

convincing evidence that he had submitted this application in time.

It referred the applicant to the possibility of submitting in full a

new application for registration.

Therefore, in this case, unlike that of Benthem (see Eur.

Court H.R., Benthem judgment of 23 October 1986, Series A no. 97),

no substantive assessment of the application (for registration of a

number of pharmaceutical preparations) ever took place.

The applicant's appeal was in fact declared inadmissible

because he never submitted an application, or at least the Medical

Assessment Board never received such an application. The Government

cannot therefore be accused of having violated Article 6 para. 1 of

the Convention.

B. The applicant

The applicant agrees with the Government that there was no

substantive assessment in his case before the Crown.

However, he claims that this is a shortcoming in these proceedings

and that as a result of this shortcoming no determination of his civil

rights took place.

THE LAW

The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of

the Convention with respect to the proceedings concerning continued

registration of certain pharmaceutical products.

Article 6 para. 1 (Art. 6-1) provides, inter alia:

"In the determination of his civil rights and obligations,

everyone is entitled to a fair and public hearing by an

independent and impartial tribunal established by law."

The Commission considers that the first question should be

whether the proceedings in the present case concern the determination

of a civil right.

The question in this case was not whether certain

pharmaceutical products could be registered but whether the applicant

could benefit from certain transitional provisions which would make it

easier for him to continue selling products which he had already sold

before new legislation entered into force.

The Crown considered that the applicant could not benefit from

these provisions because he had not fulfilled the formal requirement

of applying within the prescribed time-limit.

The applicant was, however, informed of his right to apply

for registration under the normal procedure.

The Commission finds that the question thus submitted by the

applicant to the Crown relates exclusively to the procedure which should

be used in applying for registration.

Therefore there was no determination of a civil right and the

application is consequently incompatible with the provisions of the Convention

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

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KORTMANN v. THE NETHERLANDS

KORTMANN v. THE NETHERLANDS

LEXI