CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 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:   <Translation>        "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."   <German>        "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