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)