AS TO THE ADMISSIBILITY OF
Application No. 26988/95
by OSTEO Deutschland GmbH
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, 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
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 March 1995 by
OSTEO Deutschland GmbH against Germany and registered on 6 April 1995
under file No. 26988/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
21 June 1996 and their further submissions of 5 December 1996;
and the observations in reply submitted by the applicant company
on 18 July 1996 and its further submissions of 13 November,
11 December 1996 and of 4 August and 22 September 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant company is a limited company with its seat in
Freiburg. It produces pharmaceuticals and other medical products.
Before the Commission the company, represented by Mr. B. Leu, its
managing director, is represented by Mr. H. Kroitzsch, a lawyer
practising in Karlsruhe.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
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).
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.
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.
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.
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.
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.
On 26 November 1993 the Berlin Court of Appeal (Kammergericht)
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.
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.
On 12 April 1996 the Federal Institute for Pharmaceutical and
Medical Products (Bundesinstitut für Arzneimittel und Medizinprodukte),
the successor of the Federal Health Office, dismissed the applicant
company's request. The Institute noted that in its report of
13 July 1995 it had drawn the applicant company's attention to
shortcomings in its application for authorisation, i.e. questions of
clinical research. The Institute found that the applicant company's
further submissions of 31 October 1995 had not remedied these
shortcomings. The decision was served upon the applicant company on
15 April 1996.
On 8 May 1996 the applicant company lodged an administrative
appeal (Widerspruch) with the Institute. In the appeal reasons of
26 June 1996 it was submitted that the alleged shortcomings had been
fully remedied and attached a private medical opinion. These
proceedings are pending.
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.
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.
According to information provided by the applicant company on
22 September 1997, no further decisions have been taken.
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.
B. Relevant domestic law
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." 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. S. 250 of the Code of Civil Procedure provides that stayed or suspended proceedings are resumed (Aufnahme) in filing written submissions with the court. Decisions to stay main proceedings are subject to appeal (S. 252 of the Code of Civil Procedure). COMPLAINTS The applicant company complains under Article 6 para. 1 of the Convention about the length of the official liability proceedings and in particular about the delay in the Constitutional Court proceedings. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 14 March and registered on 16 April 1995. On 12 April 1996 the Commission decided to communicate the application to the respondent Government. The Government's written 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. THE LAW The applicant company complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the compensation proceedings pending before the Berlin Regional Court. This provision, as far as relevant, provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...". The Commission notes that the applicant instituted the said proceedings with the Berlin Regional Court on 13 January 1993 and that these proceedings are still pending. The Government submit that the application is manifestly ill- founded. They consider that, following the decision given by the Institute for Pharmaceutical and Medical Products in April 1996, the applicant company can request that the proceedings pending before the Berlin Regional Court be resumed. In their view, the stay of these proceedings in March 1993 was appropriate in the circumstances, thereby avoiding the taking of specialist expert evidence on a complex question in the civil proceedings. The applicant company could have pursued the administrative execution proceedings regarding the Administrative Court decision of 13 December 1991. The Government further submit that Article 6 para. 1 (Art. 6-1) of the Convention does not apply to the proceedings before the Federal Constitutional Court. In any event, the Constitutional Court decided within a reasonable time, other more urgent cases had prevented it from deciding upon the applicant company's complaint earlier. The applicant company complains that the continuation of the compensation proceedings is completely left to the discretion of the defendant public authority. Moreover, it was not required to apply repeatedly for executive measures against a public authority. In any event, such measures were not effective in the circumstances. The Commission has taken cognizance of both parties' submissions. After a preliminary examination thereof the Commission has reached the conclusion that the case raises serious issues as to the interpretation and application of Article 6 (Art. 6) of the Convention and that these issues can only be determined after a full examination of their merits. It follows that the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, unanimously, the Commission DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. M.F. BUQUICCHIO M. PELLONPÄÄ Secretary President to the First Chamber of the First Chamber
Full & Egal Universal Law Academy