CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)