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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