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Archive for November, 2014

Podemos and Spanish thalidomide petition to EU parliament

Posted by Ivo Cerckel on 24th November 2014

Upon assuming their mandates in the EU parliament, Podemos’s MEPs showed that we can attack the oligarchic nightmare with which thalidomide monsters are faced in the EU, due to the 1957 need of the EEC caste of the thalidomide scandal for its lunatic 1985 product-liability directive.

The EEC needed thalidomide, but the EU rejects the drug’s victims.

POINT OF ORDER
According to Chambers Giant Paperback Dictionary, “monster” can be defined as a deformed person, plant or animal.
Hence, anyone deformed by thalidomide, including this blogger, is by that definition a “monster.”
This blogger is also such a monster.
If he uses the noun “monster”, this is for the reason which makes you, dear reader, afraid of it.
END OF POINT OF ORDER

“Podemos” means “we can” in Spanish.

The Spanish Podemos (“yes, we can” change things by sweeping away the corruption of the “caste” of the elites) movement is an anti-establishment movement which emanates from the “indignados” who in the 2011–12 Spanish protests demanded a radical change in Spanish politics. “You can – but you don’t want to” … attack the “oligarchic nightmare” with which you are faced, was the battle cry then.

The movement complains of the post-Franco (Franco ruled Spain from 1939 until his death in 1975) oligarchic regime and has morphed 10 months ago into a populist far-left wing political party, whose supporters nevertheless include former supporters of the ruling centre-right Partido Popular (PP) of Mariano Rajoy, the prime Minister of the King of Spain.

As it stressed before and during the campaign for the elections for the EU parliament in May 2014, Podemos wants to encourage the Spaniards to come to realise that they can change things and that if the voter puts Podemos into power, the party will show the world how to change these things.

The action plan of Podemos is a response to the collapse of an unjust, cynical and oligarchic society under the weight of corruption.

The citizen is being scandalised by the corruption of the regime which has brought about its collapse. This collapse has resulted in austerity by which the citizen is being crushed.

Podemos wants to replace corruption and austerity by the renationalisation of recently privatised state enterprises, the orderly restructuring of debt, the revision of the 1978 constitution and the repeal of the monarchy.

Podemos offers a consistent approach to post-crisis economic management by recognising a simple truth about the eurozone in late 2014, that is, by recognising that it is logically inconsistent for the single currency to enter a secular stagnation and not restructure its debt, said Wolfgang Münchau on 23 November 2014 in the Financial Times, a newspaper.

Münchau added that what Podemos still needs to do is to offer a coherent vision of life after a debt restructuring. (1)

Podemos’s hobbyhorse or favourite subject is the corruption of the “caste” of the elites.

The party promises a new politics, beyond the left-right paradigm.
Ergo, as indicated above, former PP supporters feel at home in Podemos.

In May 2014, Podemos won 5 of the 54 Spanish seats in the EU parliament.

Upon assuming their mandates in said parliament in November 2014, Podemos’s members of the European parliament (MEPs) immediately attacked the oligarchic nightmare with which thalidomide monsters are faced in the EU.

Indeed, as La Verdad, a regional newspaper located in the Spanish city of Murcia, reported on 19 November 2014, two of Podemos’s MEPs, Lola Sánchez and Pablo Echenique, have donated 6’000 euro of their salaries to the Spanish thalidomide monsters (this blogger is also such a monster, be it from another EU member state) to allow them to a file a petition before the EU parliament. (2)

The Spanish news agency EFE explained on 21 November 2014 that the petition is to be filed “en breve” (this blogger who doesn’t speak Spanish supposes this means “shortly” or “before long” and that this does not mean “through an express procedure”) before the committee on petitions of said parliament. (3)

UNEQUAL TREATMENT

As a Spanish MEP, who’s not prepared to invest her capital in thalidomide monsters, of another party had said on 30 October 2014, the petition will invoke, or will complain of, the unequal treatment of thalidomide monsters by the different EU member states. (4)

The Spanish thalidomide monsters do not understand why they are to file the petition, they are filing the petition “because that was recommended by all MEPs [they] have recently met, who said they were going to support, to denounce the situation of the Spanish [ONLY] victims, “con respecto a” (this blogger does not speak Spanish. does this mean, vis-à-vis, with regard to, or with respect to?) the other EU member states and the world”. (5)

This blogger understands that article 227 (ex article 194 TEC) of the treaty on the functioning of the European union provides that any citizen of the EU, or resident in a member state, may, individually or in association with others, submit a petition to the EU parliament on a subject which comes within the European union’s fields of activity and which affects them directly.

This blogger further understands that a petition may take the form of a complaint or a request and may relate to issues of public or private interest.
http://www.europarl.europa.eu/aboutparliament/en/00533cec74/Petitions.html

This blogger quoted a Spanish MEP as saying that the petition will invoke, or will complain of, the unequal treatment of thalidomide monsters by the different EU member states. (4, again)

As the blogger understands it, the complaint will come under two headings.
One the hand, the complaint will complain that the number of thalidomide monsters recognised in Spain is (proportionally to the Spanish population) too low vis-à-vis the number of monsters recognised in other EU member states.
On the other hand, they will complain of the fact that Spanish monsters did not and are still not receiving compensation or pensions. (4, again) (6) (7)

Under the first heading the complaint should argue that in Germany approximately 2’700 victims are recognised and enjoying pensions, in the UK of NI-and-GB approximately 500 victims are recognised and enjoying pensions, in Italy approximately 300 victims are recognised, whereas of the estimated 1’000 victims in Spain only 24 victims are recognised by the health Ministry of the King of Spain.

Under the second heading, the complaint should argue that whereas no Spanish victim did yet receive any compensation, the victims in Germany and in the UK of NI-and-GB are enjoying pensions.

As a non-recognised thalidomide monster from the southern Low Countries (his father, a medical doctor, gave thalidomide on purpose, that is, in bad faith, to his (this blogger’s) mother), who had to flee fourteen years ago to South-East Asia, where life is much cheaper, this blogger hopes that this petition may be beneficial for him also, although two quotations above make him doubt

The quoted EFE press release, the first quote which makes this blogger doubt, said indeed that the petition would “denunciar la situación de las víctimas … españolas [ONLY]“. (3, again)

The second quote which makes this blogger doubt is that the Spanish thalidomide monsters themselves do not understand why they are filing this petition but are only filing it “because that was recommended by all MEPs [they] have recently met, who said they were going to support, to denounce the situation of the Spanish [ONLY] victims, “con respecto a” the other EU member states and the world”. (5, again)

To repeat, with these two caveats (the snippets just quoted from the documents referred to in notes (3) and (5)), this blogger who suffers the nationality of the southern Low Countries, where he was born out of parents with both the same nationality of the same Low Countries, hopes that this petition may be beneficial for him, as a non-recognised thalidomide monster who is still waiting for his first Belgian franc of compensation, also.

The blogger understands indeed that the application of EU law does not vary according to the member state of the nationality of the subject to whom that law is to be applied.

That’s what equal treatment of EU subjects is about, isn’t it?

ANALYSIS TO CONDUCT

The blogger will now sketch the analysis which the committee on petitions of the EU parliament will have to conduct prior to replying to the petition.

Thalidomide first appeared on the West-German market in 1957, that is the year that the original founding treaty of an international organisation was signed at Rome, Italy, and that organisation was called the … European Economic Community.

A coincidence?

Why did the EEC legislator, the “caste” of EEC heads of state and guv’mint gathered in the EEC council, then wait three decades to adopt its 1985, that’s ten years after Franco’s death, five months before Spain’s accession to the EEC, product-liability directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products?

Why did that “caste” wait so long to make European law become the corner stone (“la pièce maîtresse”) of national consumer-protection legislations? (8)

Was that not in order not to make it too obvious that the thalidomide scandal was necessary to achieve this?

Was that not in order to hide this co-incidence?

STRUCTURING, NOT RE-STRUCTURING, THE DEBT TO THALIDOMIDE MONSTERS

But in the Spanish city of Cádiz, it’s the lunatics who are running the asylum, said this blogger’s 20 November 2014 comment in English in La Vanguardia, a newspaper. (9)

Are the lunatics also running the EU parliament’s asylums in Brussels and Strasbourg?
We’ll see!

A non-lunatic anti-establishment movement as a response to the failure of the oligarchic regime, that’s just what the EU needed – at this moment – and long before that.

“Yes, we can” change things by sweeping away the corruption of the “caste” of the elites and by attacking the oligarchic nightmare with which thalidomide monsters are faced in the EU due to the EEC’s 1957 need of the thalidomide scandal for its lunatic 1985 product-liability directive.

Upon assuming their mandates in the EU parliament, Podemos’s MEPs immediately responded to one of the failures of the oligarchic regime, that is, to the nightmare of an unjust, cynical and oligarchic EEC, now EU, which needed thalidomide for its lunatic policies but which rejects the thalidomide monsters.

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
November 23, 2014 2:53 pm
Radical left is right about Europe’s debt
Wolfgang Munchau
It is logically inconsistent for the eurozone to enter secular stagnation and not restructure
http://www.ft.com/cms/s/0/48e6fa76-70bd-11e4-8113-00144feabdc0.html#ixzz3Jvy2SJIr

(2)
Lola Sánchez y Pablo Echenique donan 6000€ a las víctimas de la Talidomida
19/11/2014, 16:40
http://www.foropodemos.es/actualidad-podemos/936-lola-nchez-pablo-echenique-donan-6000-las-ctimas-de-la-talidomida.html
http://www.laverdad.es/murcia/201411/18/pablo-echenique-lola-sanchez-20141118193711.html

(3)
Víctimas de la Talidomida recurren ante el Supremo la anulación de indemnizaciones
EFE – Madrid
21/11/2014 – 15:04h
http://www.eldiario.es/sociedad/Victimas-Talidomida-Supremo-anulacion-indemnizaciones_0_326867889.html
SNIP
Avite recuerda que está trabajando en la elaboración de una petición para presentarla “en breve” ante la Comisión de Peticiones del Parlamento Europeo en Bruselas, para denunciar la situación de las víctimas españolas, con respecto a las del resto de países de la Unión Europea y del mundo.

(4)
UPyD se reúne con la Asociación de Víctimas de la Talidomida en España
30 octubre, 2014|
http://weblogs.upyd.es/europa/2014/10/30/upyd-se-reune-con-la-asociacion-de-victimas-de-la-talidomida-en-espana/
SNIP
Existen grandes disparidades en el trato a las víctimas de la talidomida entre los Estados Miembros. En España, de hecho, no tienen ningún tipo de indemnización, mientras que en países como Alemania tienen una pensión vitalicia. UPyD ya impulsó desde el Congreso de los Diputados en la pasada legislatura iniciativas para que se pusiera una solución a este colectivo.

(5)
MATO SE REUNIRÁ CON LAS VÍCTIMAS DE LA TALIDOMIDA
22/11/2014 – http://www.teinteresa.es, MADRID
http://www.teinteresa.es/espana/MATO-REUNIRA-VICTIMAS-TALIDOMIDA_0_1253274874.html
SNIP
Además, Avite informa de que está trabajando en la elaboración de una petición para presentarla en breve, ante la Comisión de Peticiones del Parlamento Europeo en Bruselas, “porque así nos lo recomendaron todos los eurodiputados con los que recientemente nos hemos reunido, la cual nos dijeron que iban a apoyar, para denunciar la situación de las víctimas españolas, con respecto a las del resto de países de la Unión Europea y del mundo”.

(6)
Justicia para los hijos de la Talidomida
MAITE MARTÍNEZ BLANCO – domingo, 09 de noviembre de 2014
http://www.latribunadealbacete.es/noticia/ZA39BC940-B69F-6257-1A3A73F9394C620C/20141109/justicia/hijos/talidomida
SNIP
Sin duda, esta decisión de los magistrados ha caído como un jarro de agua fría en los afectados, pero no tirarán la toalla. Mientras preparan el recurso al Tribunal Supremo, tratarán de llamar a la puerta de Europa. Mañana una delegación de víctimas españolas se reunirá en el Parlamento Europeo con eurodiputados y les contarán lo injusto que es que en España apenas se haya reconocido como talidomídicos a 24 personas, cuando «en Alemania hay 2.900 víctimas indemnizadas, 500 en Gran Bretaña o 300 en Italia», enumera Rafael Basterrechea, vicepresidente de Avite a La Tribuna de Albacete.

(7)
JUSTICIA PARA LOS AFECTADOS POR LA TALIDOMIDA
Izaskun Bilbao Barandica | 17 noviembre 2014
http://www.izaskunbilbao.eu/2014/11/justicia-para-los-afectados-por-la-talidomida/
SNIP
De las más de 35.000 personas que sufrieron los efectos de este medicamento en Europa sobreviven una cinco mil. De ellas cerca de mil son españoles o españolas que encuentran pocas o ninguna facilidad para operar ante sus tribunales nacionales y que tampoco encuentran caminos para obligar a las autoridades alemanes a integrarlos en el acuerdo al que legaron con sus víctimas nacionales en 1970. Ha llovido desde entonces, pero el problema no se ha resuelto. Hay aspectos del mismo irreparables, los daños psíquicos y físicos que sufren las víctimas. pero las indemnizaciones que les corresponden pueden aliviar sus problemas de dependencia y financiar los tratamientos y asistencia que necesitan para vivir con normalidad. Por eso me he comprometido con ellos para colaborar en que mi grupo se sume al movimiento mediante el que el Parlamento Europeo debe apoyar a los afectados en sus reclamaciones frente a las autoridades alemanas de las compensaciones que merecen estas víctimas.

(8)
Jean-Sylvestre Bergé and Sophie Robin-Olivier, “Introduction au droit européen”, Presses Universitaires de France, 2008, 1st ed., section 377

(9)
Un municipio de Cádiz declarará “non grata” a la farmaceútica Grünenthal
Los visitadores médicos ni siquiera podrán acceder al municipio de Olvera a ofrecer sus productos
Andalucía | 19/11/2014 – 12:29h
http://www.lavanguardia.com/local/sevilla/20141119/54419479680/olvera-cadiz-declarara-non-grata-a-la-farmaceutica-grunenthal.html

1 Comentario

philmigrator@yahoo.com4 días atrás

Are the lunatics in power in Cádiz?

Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary” – denotes any proposition that is argued to be correct because it is not disproven by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven,
has demonstrated in 1996 that the thalidomide scandal cannot be considered to be an example of the development-risk defence
by saying on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that :
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”
https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf

This means that the primary causeof the thalidomide scandal in Spain is the fact that after the French Leviathan had banned thalidomide, its neighbour across the Pyrenees did not prevent the product being brought onto “its” markets nor did it immediately order the withdrawal of thalidomide from “its” markets, once the product appeared there after the French ban.

The primary cause is opposed to the (Aristotelian) efficient of the thalidomide scandal, the tablet. For Aristotle, 25 centuries ago, the efficient cause is the being in act who brings about the change. And Aristotle went on to give the example of the sculptor who makes the … statue. Was this example devised 25 centuries ago with thalidomide monsters in mind?

The thalidomide scandal in Spain was caused by the Spanish Leviathan.

The thalidomide scandal in Spain was not caused by Grünenthal.

Are the lunatics in power in Cádiz?

Ivo Cerckel

Posted in Uncategorized | No Comments »

¿Quién dirige la fundación alemana Contergan?

Posted by Ivo Cerckel on 12th November 2014

Last edited on 15 November 2014 at 04h35 GMT+8

ANTI-EXECUTIVE SUMMARY

The primary cause of the thalidomide scandal is the fact that after France had banned thalidomide, other countries did not prevent, nor react to, the product being brought onto “their” markets

There is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

As a matter of fact, the Conterganstiftung would be a worldwide provider of benefits since 2009.
In 2013, the number of beneficiaries of these benefits was however still the same, 2’700, as in 2008.

After having exonerated itself from liability in the scandal, but not from future payments to thalidomide monsters
and after having exonerated Chemie Grünenthal GmbH, the maker of thalidomide, from future payments, after the initial joint funding of the Conterganstiftung, with the West-German Leviathan,
the West-German federal constitutional court decreed in a 1976 judgment that by setting up the Conterganstiftung and providing alone future funding of said Stiftung,
the West-German Leviathan has not recognised its liability in the scandal.

In order to make sure that the future increases of capital of said Stiftung by the (West-)German Leviathan, could not or cannot be interpreted as recognition of liability on its part, said Leviathan is managing said Stiftung,
which it is alone funding,
that is,
said Leviathan is the only capital provider of said Stiftung,
alone, that is,
said Leviathan is managing said Stiftung without any intervention of Grünenthal.

“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state?,
ask the Spanish thalidomiders.

“Contergan” was the commercial name of thalidomide in Germany.
The “Conterganstiftung” is the Contergan Foundation which was, as we will see, set up by the West-German legislator in 1971.

“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida.”,
Maybe there is some reason of higher economic and social order which prevents the state from indemnifying the thalidomide monsters (hereafter, TMs),
says Juan Antonio Megas in a 28 October 2014 “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (” Párate a pensar”) in La Opinión de Murcia.

Perhaps the Conterganstiftung can indemnify Spanish TMs, as Grünenthal was arguing in court and as Grünenthal reiterated after the October 2014 judgment of the Madrid Provincial Court overturning the November 2013 judgment of the Madrid Judge of First Instance?

No, here is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

If this blogger, who is also such a monster, uses the noun “monster” in “thalidomide monster”, this is for the reason which makes you, dear reader, afraid of it. (1)

END OF ANTI-EXECUTIVE SUMMARY

1.
I interrupted the drafting of this post to draft
“Three UK politicians look only at Germany behaviour After thalidomide scandal Not UK behaviour Before scandal”
Posted by Ivo Cerckel on November 3rd, 2014
http://bphouse.com/honest_money/2014/11/03/uk-politicians-want-germany-to-compensate-uk-thalidomiders/
which concerns inter alia the 1970 dropping of the German criminal case against Grünenthal.

I said in that 03 November 2014 post that in this post I would attempt to do three things.

One, to answer to the 24 october 2014 question of the Spanish thalidomiders
“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state? (2)

Two, to explain what Juan Antonio Megas meant on 28 October 2014 in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (”Párate a pensar”) in La Opinión de Murcia, when he said that:
“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”,
Maybe there is some reason of higher economic and social order which prevents the state from compensating the TMs. (3)

Three, to explain with two judgments of the German federal constitutional court, the “Bundesverfassungsgericht”, hereafter BVG, and some pieces of German legislation why the Conterganstiftung will NEVER compensate Spanish TMs, contrary to what Grünenthal was arguing in court and reiterated after the 22 October 2014 judgment of the Madrid Provincial Court, overruling the 20 November 2013 judgment of the Madrid Judge of First Instance, who (the latter) had ordered Grünenthal to pay, to the victims as recognised by Spain’s Health Ministry, 20’000 euro for each percentage point of disability of the victims.

I explained the Madrid procedure in my 23 October 2014 post “Historical Criticism, Thalidomide, Statutes of Limitations and Prescription – Update 1.0” on this blog.
http://bphouse.com/honest_money/2014/10/23/historical-criticism-thalidomide-statutes-of-limitations-and-prescription/

I thus said in my 03 November 2014 post that the third thing I would examine in this post is whether the Conterganstiftung can provide benefits (“Leistungen”) to TMs who have no link to Germany. I also gave in my previous post a preview of how I would reply to this (third) question.

This was that preview:

“Until 22 March 2009, the Conterganstiftung was providing benefits to the 2’700 thalidomiders living in Germany or born in West Germany, says the bill leading to the 23 March 2009 second revision of the Conterganstiftung Act.
“This 23 March 2009 second revision of the Conterganstiftung Act would have extended those benefits to thalidomiders not living or born in Germany, although the act does not say so explicitly – or implicitly. I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 [Act] that it is extraterritorially applicable to TMs who have no link to Germany.
“As of today, or rather as of 12 March 2013, date of the bill leading to the third revision of the Conterganstiftung Act, how many monsters are, or rather were, receiving benefits from said Stiftung?”

2.
In this post, I will start with developing the third thing I said in my 03 November 2014 post I would attempt in this post, that is, the question whether the Conterganstiftung, the German thalidomide foundation, will ever pay benefits (“Leistungen”) to TMs who have no link to Germany. (SECTION 3)

Then I will look at who’s the culprit in the thalidomide scandal. (SECTION 4)

Third, I will look at the second thing I would attempt in this post, according to my 03 November 2014 post, that is, I will look at what Juan Antonio Megas meant with his 28 October 2014 statement, in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (”Párate a pensar”) in La Opinión de Murcia, that:
“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”, (3)
Maybe there is some reason of higher economic and social order which prevents the state from compensating the TMs. (SECTION 5)

Fourth, and finally, I will do the first thing I was going to do in this post, according to my 03 November 2014 post, that is, I will reply to the 24 October 2014 question of the Spanish thalidomiders:
“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state? (SECTIONS 6 – 9)

3.
3.1
The first thing I do in this post is developing the third thing I said in the 03 November 2014 post I would attempt in this post, that is, to reply to the question whether the Conterganstiftung, the German thalidomide foundation, will ever pay benefits (“Leistungen”) to TMs who have no link to Germany.

We are being told that the 2009 German legislator, legislating the second revision of the Conterganstiftung Act, WOULD have made its law extraterritorially applicable – without stating so explicitly.

In my 03 November 2014 post, I gave already this preview of my argument:

“Until 22 March 2009, the Conterganstiftung was providing benefits to the 2’700 thalidomiders living in Germany or born in West Germany, says the bill leading to the 23 March 2009 second revision of the Conterganstiftung Act.
“This 23 March 2009 second revision of the Conterganstiftung Act would have extended those benefits to thalidomiders not living or born in Germany, although the act does not say so explicitly – or implicitly. I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 [Act] that it is extraterritorially applicable to TMs who have no link to Germany.
“As of today, or rather as of 12 March 2013, date of the bill leading to the third revision of the Conterganstiftung Act, how many monsters are, or rather were, receiving benefits from said Stiftung?”

If the German legislator wanted to make its Act extraterritorially applicable from 2009 onwards, it should have stated so explicitly in its 2009 second revision of the Conterganstiftung Act – which it didn’t.

I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 Act that it is extraterritorially applicable to TMs who have no link to German.

When replying to the question as to the identity of the manager of the Conterganstiftung in SECTIONS 6-9 of this blog post, I will refer to a 1976 judgment of the German federal constitutional court (BVG) which can be interpreted as saying that the 1971 West-German legislator broke with its 1971 Conterganstiftung Act new ground in constitutional law, a part of public law, by introducing the private-law concept of “novation”, which public law seems only to recognise or acknowledge in public “international” law relating to the creation and transfer of territorial sovereignty, into constitutional law.

The extraterritorial applicability of the Conterganstiftung Act since 2009 is also an example of the German, no longer West-German, legislator breaking new ground in constitutional and international law.

These are the two judgments of the BVG to which I (will) refer:

Judgment BVerfGE 42, 263 of 08 July 1976
of which I find the text on a website hosted in Switzerland,
http://www.servat.unibe.ch/dfr/bv042263.html

Judgment BVerfG, 1 BvR 1541/09 vom 26.2.2010
http://www.bundesverfassungsgericht.de/entscheidungen/rk20100226_1bvr154109.html

This is the Bill leading to the 2009 second revision of the Conterganstiftung Act to which I just referred:

Deutscher Bundestag
Drucksache
16/12413
16. Wahlperiode
24. 03. 2009
Gesetzentwurf der Fraktionen der CDU/CSU und SPD
Entwurf eines Zweiten Gesetzes zur Änderung des Conterganstiftungsgesetze
http://dip21.bundestag.de/dip21/btd/16/124/1612413.pdf
Begründung
A. Allgemeiner Teil
I. Zielsetzung und Inhalt des Gesetzentwurfs p. 7
SNIP
Heute erhalten rund 2 700 contergangeschädigte Menschen Leistungen der im Jahre 2005 umbenannten Conterganstiftung für behinderte Menschen

Motivation
A General Part
I Object and content of the bill
SNIP
At present 2’700 [TWO THOUSAND SEVEN HUNDRED] people damaged by Contergan are receiving benefits from the Conterganstiftung for handicapped persons which was renamed in 2005.

This is the bill leading to the third revision of the Conterganstiftung Act which the “Bundestag”, the lower house of the German parliament, on 25 April 2013 UNANIMOUSLY adopted (The upper house, the Bundesrat, also adopted the bill, so that it became an act of parliament, but I don’t know how the vote went there) to which I will refer:

Deutscher Bundestag Drucksache 17/12678
17. Wahlperiode 12. 03. 2013
Gesetzentwurf
der Fraktionen der CDU/CSU, SPD und FDP
Entwurf eines Dritten Gesetzes zur Änderung des Conterganstiftungsgesetzes
http://dip21.bundestag.de/dip21/btd/17/126/1712678.pdf
SNIPS
P. 4
Begründung
A. Allgemeiner Teil

I. Zielsetzung und Inhalt des Gesetzentwurfs
1. […]
2. Anrechnung von Zahlungen ausländischer Staaten p. 5
SNIP
Das Conterganstiftungsgesetz sieht Leistungen an conter gangeschädigte Menschen WELTWEIT vor. Von den rund 2 700 Leistungsempfängern leben derzeit etwa 10 Prozent im Aus-land. Zahlungen, die die im Ausland und in Deutschland lebenden ausländische Leistungsberechtigte wegen ihrerThalidomidschädigung erhalten oder erhalten haben, werden derzeit nur dann auf die Leistungen nach dem Conterganstiftungsgesetz angerechnet, wenn die Zahlungen von „ANDEREN MÖGLICHERWEISE VERANTWORTLICHEN“ – ALSO INSBESONDERE VON PHARMAFIRMEN – [capitalisation mine] geleistet wurden (§ 15 Absatz 2). [all capitalisations mine]

Motivation
A General Part
I Object and content of the bill
1 […[
2. Deduction of payments by foreign states
The Conterganstiftung Act provides benefits (“Leistungen”) worldwide to people damaged by Contergan.
SNIP
Of approximately 2’700 recipients of the benefits, 10% live at present abroad. Payments which the aliens living abroad and the aliens living in Germany receive or have received due to thalidomide damage are at present only being into account on the payments by the Conterganstiftung from which they will be deducted when these payments are payments from other possibly liable parties – thus in particular pharmaceutical companies (article 15, section 2).

3.2.
In the 2009 bill leading to the 2009 second revision of the Conterganstiftung Act, some members of the German legislature, the proponents of the bill, said, on p. 7 in the first paragraph of object and contents of the bill,
that:
“At present 2’700 [TWO THOUSAND SEVEN HUNDRED] people damaged by Contergan are receiving benefits from the Conterganstiftung for handicapped persons which was renamed in 2005.”
(“Begründung A. Allgemeiner Teil I. Zielsetzung und Inhalt des Gesetzentwurfs p. 7)

The bill leading to the 2013 third revision of the Conterganstiftung Act starts by saying on p. 4 of its motivation of 12. 03. 2013:
“The Conterganstiftung Act provides benefits (“Leistungen”) worldwide to people damaged by Contergan.”
(p. 4 Begründung A. Allgemeiner Teil I. Zielsetzung und Inhalt des Gesetzentwurfs 1. […] 2. Anrechnung von Zahlungen ausländischer Staaten p. 5)

3.2.1.
Note that this bill leading to the 2013 third revision of the Conterganstiftung Act DOES NOT SAY at this start of its motivation on p. 4 that the Conterganstiftung Act provides benefits worldwide to people damaged by products made with thalidomide, but sold under ANOTHER NAME than “Contergan”.

Ergo, the 2013 Conterganstiftung Act, resulting from this third revision, does not say that the Conterganstiftung provides benefits to people damaged by a product sold under another name than Contergan.

The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does also not say anything about extraterritorial applicability.

(Is the correct English: “The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does neither say anything about extraterritorial applicability”?)

3.2.2
If you would say that what is meant is “people damaged by a product containing thalidomide”, then please continue reading the section:
“Of approximately 2’700 [TWO THOUSAND SEVEN HUNDRED] recipients of the benefits, 10% live at present abroad. […]”

How many?

Two thousand seven hundred, that is the same number as the number of beneficiaries before the 2009 second revision.

In 2013, that is, four years after the Conterganstiftung Act would have received worldwide application, the Conterganstiftung was still providing benefits to two thousand seven hundred victims of Contergan.

It is true that it adds that 10% of these beneficiary victims of Contergan live at present abroad.

But since the number of beneficiaries, 2’700, has remained the same, one must conclude that those 10% were already included in the 2’700 victims to whom the Conterganstiftung was providing benefits before the 2009 second revision of the Conterganstiftung Act.

This means that the Conterganstiftung up to March 2013, date of the third revision of the 1971 Conterganstiftung Act, only provided benefits to TMs who have a link to Germany, although the intention of the 2009 second revision of the Contergasnstiftung Act WOULD have been to extend those benefits to TMs without any link to Germany.

If the German legislator wants to make its Act extraterritorially applicable, it should state so explicitly, which it didn’t in 2009.
(But then again, how can foreign nationals, who don’t have any link to Germany be bound by this?)

To repeat:
The number of the victims to whom said Stiftung provided benefits before the 23 March 2009 Act, the second revision of the Conterganstiftung Act,
TWO THOUSAND SEVEN HUNDRED,
was FOUR YEARS LATER,
when the 12 March 2013 bill leading to he third revision of the Conterganstiftung Act was introduced,
TWO THOUSAND SEVEN HUNDRED
that is,
still the same.

The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does also not say anything about extraterritorial applicability.
AGAIN CORRECT MY ENGLISH, IF NECESSARY, INTO:
“The text resulting from this third revision includes the second revision which, as we have seen in Section 3.1, does neither say anything about extraterritorial applicability.”

There is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

Maybe this blogger was not totally erring when he said in the 07 December 2009 title of a blog post that the Conterganstiftung is ridiculous and malicious.

“Die Conterganstiftung ist lächerlich und arglistig”
http://bphouse.com/honest_money/2009/12/07/die-conterganstiftung-ist-laecherlich-und-arglistig/

4.
After having demonstrated in the previous section that the Conterganstiftung will NEVER pay benefits (“Leistungen”) to TMs who have no link to Germany,
I do now look at the culprit in the thalidomide scandal.

Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven,
has in 1996 lifted the veil on the truth about the thalidomide scandal
by saying on p. 163, in note 28,
of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’”Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that :

“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”(4)

This means that the primary cause – as opposed to the efficient cause, the tablet, (5) – of the thalidomide scandal is the fact that after the French Leviathan had banned thalidomide, other Leviathans did not prevent the product being brought onto “their” markets nor did they immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

Professor Cousy thereby clearly demonstrates that thalidomide is not a “catastrophe” caused by Grünenthal, against which nobody could have done anything – indeed the French Leviathan did something by banning the product – but a “scandal” against which the non-French Leviathans didn’t do anything.

5.
After having demonstrated in the previous section that the thalidomide scandal was caused by those Leviathans which did not prevent the product being brought onto “their” markets and did not immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban,
I do now turn to the reason of higher economic and social order to which Juan Antonio Megas referred on 28 October 2014 in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (” Párate a pensar”) in La Opinión de Murcia, when he said that:

“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”,
Maybe there is some reason of higher economic and social order which prevents the state from compensating the TMs. (3, again)

Compensation can result from criminal law or civil law.

In criminal law, the proof of a crime is required.
In civil law, the proof of a tort or of a breach of contract is required.

Section 4 has demonstrated that the crime or tort was committed by Leviathan, not by Grünenthal, who (the former) is therefore the culprit in the thalidomide scandal.

Leviathan cannot accept this. It cannot admit that it needed the thalidomide scandal to extend its welfare state and its product-liability legislation.

The parents of the TMs cannot accept this because this implies that these parents themselves also were aware of the dangers of thalidomide in early pregnancy.

Whereas the parents initially did not reply to the question of their monsters as to why they were missing limbs, once the monsters were aware of the fact that the cause of this absence was thalidomide, the parents indoctrinated their monsters that the manufacturer Grünenthal, not Leviathan, that is, not themselves, was the culprit.

Sections 6-9 of this blog post will demonstrate that the BVG therefore had no other option in 1976 and 2010 but to hide the liability in the thalidomide scandal.

6.
After having tried to find the reason of higher economic and social order which prevents the state from compensating the TMs,
I do now turn to the identity of the manager of the Conterganstiftung. (2, again)

“A Leviathan’s first job is to protect its citizens”,
said the subtitle of a 15 June 2013 Leader of The Economist
http://www.economist.com/news/leaders/21579455-governments-first-job-protect-its-citizens-should-be-based-informed-consent
and when the guv’mint did not provide this protection against criminals c.q. tortfeasors, it becomes itself a criminal c.q. tortfeasor.

As Professor Cousy indicates (4, again), the Leviathans knew from their French colleague that there was a “slight” “problem” with thalidomide.

During the thalidomide scandal, those Leviathans did nevertheless not order the product to be removed from their markets.

After the thalidomide scandal, the West-German parents of some TMs reached agreement with Grünenthal on some compensation.

That’s what the rule of law provides: When one individual is injured by another (or by another’s product), the compensation of the former takes the form of compensation by the latter, except if the latter can convince the former, or the courts, that he can invoke an excuse. And if the parties can reach an agreement on this compensation, then the bureaucrats of the courts and of guv’mint don’t have to intervene.

All that happened before the Conterganstiftung was set up in 1971.

In order to exculpate both Grünenthal, which is indeed innocent in the thalidomide scandal, and itself, the West-German Leviathan, who is not innocent at all in the thalidomide scandal, realised that the best way to obscure its own liability was to participate in the compensation of TMs, or rather that in order to achieve that objective, it also had to carry the burden of the compensation, no not the burden of compensation of TMs, but the burden of providing effective help to speed up the integration of TMs into society (“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”), says SECTION 16 of the 1976 judgment of the German federal constitutional court which I will quote later in this section.

In that way, the West-German Leviathan could thank Grünenthal for accepting not to point the finger at Leviathan when discussing the liability for the scandal. Grünenthal accepted not contesting that it had the sole liability for the scandal. (Is this what is called in the USofA the argument of “nolo contendere”, which is Latin for “I don’t want to contest”?)
Just like Grünenthal originally did not want to contest its liability vis-à-vis the West-German parents of some TMs which whom (the parents) it had reached agreement on some compensation.

That’s why by an Act of 19 December 1971, the Conterganstiftung was set up. The starting capital of said Stiftung was provided jointly by the West-German Leviathan and by Grünenthal. Said Leviathan later provided more capital out of taxation, not out of money set aside to cover the payments due to TMs. Grünenthal later VOLUNTARILY provided some more capital.

Most of the parents who had reached agreement with Grünenthal were not happy with this overruling by the West-German Leviathan of their agreements with Grünenthal and filed court cases.

That’s how the case ended up in the courts, first in the lower courts and finally, in 1976, in the German federal constitutional court, BVG, which had the opportunity to explain its 1976 judgment in a 2010 judgment.

7.
Langenscheidt’s 2006 New College Dictionary German tells us that “liability” is “Schuld” or “Haftung” in German
and that the German adjective “verantwortlich” means “responsible, liable”.
(The noun “Verantwortlichkeit”, “Verantwortung”, thus means responsibility, liability.)

The internet teaches that “Gewähr” also means responsibility or liability and that this noun encompasses both “Verantwortung” and “Haftung”.
http://www.dict.cc/?s=Gew%C3%A4hr+%5BVerantwortung+Haftung%5D

None of these four nouns – “Schuld”, “Gewähr”, “Verantwortung”, and “Haftung” – appear in the 1976 judgment in relation to the thalidomide scandal.

The 1976 judgment does thus not discuss the liability for the thalidomide scandal.

The 2010 judgment discusses in SECTION 23 the argument of the failing guv’mint control of medicines.
And then says, out of the blue, in its final sentence of that SECTION that the Act by which the Conterganstiftung was created was not connected to any recognition of liability (“Schuldanerkenntnis”, “Schuld-Anerkenntnis”) by guv’mint.

The 2010 judgment does thus merely state that guv’mint had not recognised its liability with its 1971 Conterganstiftung Act.

The 2013 bill speaks on p. 5
when dealing in its motivation with the purpose or object and contents of the bill and more specifically with the taking into account of payments by foreign guv’mints
about payments by other possibly liable parties – consequently, in particular pharma companies
(“Zahlungen von “anderen möglicherweise Verantwortlichen” – also insbesondere von
Pharmafirmen” (“also” in German does not have the same meaning as its English homonym.)
http://dip21.bundestag.de/dip21/btd/17/126/1712678.pdf

The bill thus speaks about “other possibly liable” (“verantwortlich”) parties.

Other?

Who’s then the (main) “Verantwortliche” (liable party), the main “Schuldiger” (culprit), who will have “Haftplicht” (“Haft-Plicht” (liability)) because he hasn’t “gewährleistet” (“gewähr-leistet”, ensured) that a medicine which had been banned in France was not put on the West-German store shelves?

The bill does not reply.

I, Ivo, can only draw the reader’s attention to the fact that the bill discusses this issue in a section whose title is “The taking into account of payments by foreign … states” (“Anrechnung von Zahlungen ausländischer Staaten”) and that this seems to mean that the main “Verantwortliche” (liable party), for the German legislator, is indeed the Enemy, the State.

In the southern Low Countries, it was being taught in 2010, THAT IS ONLY FOUR YEARS AGO, that we should not expect too much from tort law [because it cannot reach its objectives of compensating TMs] and that there therefore is in THE LAST FEW YEARS [that is, the last few years vis-à-vis 2010] a tendency, and not only in the southern Low Countries, to try to achieve the compensation of damages through particular compensation systems whereby amounts of money set aside for a specific purpose (“fondsen” in Dutch) play an important role. (6)

I understand this as meaning that since the cause of damages cannot be ascertained, “our” enlightened society, and not only in the southern Low Countries, has decided to no longer look for the culprit but to award damages on the basis of … solidarity.

Concerning the Conterganstiftung Act of 1971, that’s FORTY YEARS ago, i.e., not “in the last few years” vis-à-vis 2010, the German federal constitutional court demonstrates in its judgment of 08 July 1976, that the German legislator went, by instituting the “Conterganstiftung” in 1971, already MUCH FURTHER than what was being taught in the southern Low Countries as happening there, but not only there, in THE LAST FEW YEARS only.

That legislator did not set money aside, but ensured – or so it thinks – that the German tax collector would extract enough money from the sheeple to pay
not “Sozialrenten”
but additional pensions (“Zusatzleistungen”)
to TMs.

And once we were vis-à-vis 2010, not in the last few years, but in 2013, the German legislator said in its bill leading to the third revision of the Conterganstiftung Act that the main “Verantwortliche” (liable party) is, for this legislator, indeed the Enemy, the State.

8.
After having completely dodged the issue of responsibility or liability for the thalidomide scandal, which guv’mint caused, and which the judgment labels a “catastrophe”,
the first sentence of SECTION 112 of the 1976 judgment says:

” The Conterganstiftung Act is being characterised by the fact that it withdraws or takes way (“entziehen”, “ent-ziehen”) one group of cases of injury or rather one group of cases of damage (“Schadensfällen”) from the general private-law system of settlement (“allgemeinen privatrechtlichen Ordnungssystem”) and [transfers it to] a system where the settlement of that group is subjected (“unterstellen”) to a special legal arrangement (“eine gesetzlichen Sonderregelung”).”

(“Das Stiftungsgesetz ist dadurch gekennzeichnet, daß es eine Gruppe von Schadensfällen dem allgemeinen privatrechtlichen Ordnungssystem entzieht und einer gesetzlichen Sonderregelung unterstellt.”)

The Act would have achieved the betterment of the position of TMs by withdrawing them from, or taking away from them, the general private-law system of settlement and by forcing them into the straitjacket of settlement through a special legal arrangement.

What is so special about that group that it has to be denied all possibilities of obtaining compensation through the usual legal avenues?

Remember that the judgment completely dodges the issue of the liability for the thalidomide scandal.

9.
The question of Avite is:
“Who manages the German Contergan Foundation, Grünenthal or the German federal state?”

The answer is:

After having exonerated itself from liability in the scandal, but not from future payments to TMs
and after having exonerated Grünenthal from future payments, after the initial joint funding of the Conterganstiftung, with the West-German Leviathan,
the West-German federal constitutional court decreed in a 1976 judgment that by setting up the Conterganstiftung and providing alone future funding of said Stiftung,
the West-German Leviathan has not recognised its liability in the scandal.

In order to make sure that the future increases of capital of said Stiftung by the (West-)German Leviathan, could not or cannot be interpreted as recognition of liability on its part, said Leviathan is managing said Stiftung,
which it is alone funding,
that is,
said Leviathan is the only capital provider of said Stiftung,
alone, that is,
said Leviathan is managing said Stiftung without any intervention of Grünenthal.

End of the answer.

I do now outline how I arrive at this answer.

The German federal constitutional court, BVG, had to explain in a judgment of 08 July 1976 why the German federal republic
provided jointly with Chemie Grünenthal GmbH (starting) capital for the “Conterganstiftung” in 1971
and exonerated Chemie Grünenthal GmbH for any future payments which would be supported by said republic.

In SECTION 4 of its judgment of 26 February 2010, the BVG “summarised” its 1976 judgment as saying:
“the 17 December 1971 Statute has changed the form of the claims of private law into claims arising from the law”
(“Umformung der privatrechtlichen Vergleichsforderungen in gesetzliche Leistungsansprüche nach dem Gesetz”
– sections 118 and others of the 1976 judgment have also used the verb “umstallen” instead of “umformen” and nouns “Umstaltung” and “Umformung”.) (7)

SECTION 75 of the 1976 judgment says that the Conterganstiftung was arguing in court that it leaves no doubt that the monsters are better off with this “Umformung” or “Umstaltung”.

SECTION 120 of the 1976 judgment says that there is a Section 120 of that judgment says that there is an unbridgeable tension [sic] (eine “unaufhebbaren Spannungslage”) between
the area of freedom of the individual (der “Freiheitsraum des Einzelnen”)
and the requirements of the order imposed by way of straitjacket by the welfare state (die “Anforderungen der sozialstaatlichen Ordnung”)
and that this requires the supersession of private autonomy to settle claims resulting from torts.
(“Die Ersetzung der autonomen Regelungsbefugnis muß der unaufhebbaren Spannungslage zwischen dem Freiheitsraum des Einzelnen und den Anforderungen der sozialstaatlichen Ordnung gerecht werden”.)

To achieve the aim of exonerating Chemie Grünenthal GmbH from any future payments to TMs,
the Conterganstiftung Act says in Part I §2, 2, quoted in SECTION 16 of the 1976 judgment, that its aim
(is not to compensate TMs, but that it)
is to provide effective help to speed up the integration of TMs into society (“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”).

SECTION 129 of the 1976 judgment, goes on to qualify this “Umformung” or “Umstaltung” as a “novation”
(“Umschaffung”) resulting in … “subrogation”.

SECTION 129
SNIP
“Es fehlt bereits an diesem für die Enteignung typischen Rechtsentzug zugunsten fremder Belange. Die Rechtsansprüche wurden vielmehr in erster Linie im Interesse ihrer Inhaber umgestaltet. Dies geschah nicht zur Befriedigung von Bedürfnissen der Allgemeinheit oder eines Begünstigten, sondern es sollte das recht verstandene Eigeninteresse der Betroffenen verwirklicht werden. Ein solcher Vorgang kann nicht ohne Verkennung seines Sinnes nur unter dem Aspekt von Verbesserungen oder Verschlechterungen einzelner Anspruchsmodalitäten gewertet werden. Es handelt sich um eine “Umschaffung” (Novation) bei prinzipieller Werterhaltung. Hierbei bleibt die personelle und wertmäßige Zuordnung im Vorgang der Ersetzung durch ein wertmäßig Ebenbürtiges erhalten. Dieses Prinzip der Surrogation ist in unserer Rechtsordnung an mehreren Stellen verwirklicht.”

There was thus a “novation”
of the agreements reached between the manufacturer of thalidomide Chemie Grünenthal GmbH and some victims
by an Act
by which said GmbH was “subrogated” by the German Leviathan.

This would be a “novation” accompanied by or with a “subrogation”.
If you can understand this, please explain this to me.

This principle of “subrogation” is, says the court, implemented or realised in many places, or exists on those places, in the German legal order.
(“Dieses Prinzip der Subrogation ist in unserer Rechtsordnung an mehreren Stellen verwirklicht.”)

Ivo: At which places? And also in public law?

Ivo: In both English and German (and many other) private law, the concept of “novation”
– which substitutes a new CONTRACT for an existing contract which (the latter) is thereby being discharged –
requires the consent of all parties.

In public law, decrees the court, no one can complain that the so-called “novation” occurred without her consent when such “novation” is in the interests of one party, in this case the claimants of the pensions.

Indeed, the individual claims are integrated (“eingebunden”) in a global settlement and the claimants of the pensions have obtained a more reliable debtor, Leviathan which can better take care of this task, says the court.

The court continues by claiming that the Act has its origin in the needs of the TMs for aid or assistance (“Hilfe”). That’s why their legal position (“Rechtsposition”) has been improved in their interests.

Therefore, says the court, the pensions cannot be compared with “Sozialrenten” because they have first of all to provide care.
They are not “Sozialrenten” but additional pensions (“Zusatzleistungen”).

The judgment concludes by saying that when the legislator accepts the responsibility of providing the required aid or assistance to TMs, that legislator is obliged to keep an eye (“wachen”) on the correct (“gerecht”) application of the law and make sure that the pensions of the “Conterganstiftung” continue to correspond to such a level that Leviathan can be said to be living up to his accepted responsibility. (8)

That’s how the BVG, the German federal constitutional court, tried to hide its
acknowledgement that the thalidomide scandal had been caused by Leviathan.

That’s not enough, of course.

To repeat: The “Bundestag”, the lower house of the German parliament, on 25 April 2013 UNANIMOUSLY adopted a Bill whose motivation says that guv’mint did not commit any improper act in the thalidomide scandal which it, guv’mint, caused.

To insist: There is no legal basis – in the Conterganstiftung Act – for said Stiftung to be providing benefits (“Leistungen”) worldwide to thalidomiders.

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
In an 28 October 2014 opinion in El Diario Córdoba under the title “Monstruos verdaderos” (Real Monsters), Emma Riverola draws attention to the fact that thalidomide is known as a “teratogen”
(“terato-” +? “-gen”, “terato-” from Ancient Greek “teras”, “monster”, “gen-” root of Latin “genesis”, “birth”, any agent or substance which can cause malformation of an embryo or birth defects).

Riverola argues that “teras” can also be translated as “prodigy” and she concludes:

“Terato también puede traducirse como prodigio. Sin duda, esta acepción es mucho más adecuada para definir a estos luchadores. Nacieron con el cuerpo mermado por los errores y la codicia de una farmacéutica. Ahora, su vejez también se ve mermada por la (in)justicia y por la codicia.
“En esta historia, los verdaderos monstruos son otros.” (1)

which Google translates as:
“Certainly, this definition is more appropriate to define these fighters. They were born with the body diminished by the mistakes and greed of a pharmaceutical. Now his age is also diminished by the (in) justice and greed.
“In this story, the real monsters are different.”

Monstruos verdaderos
EMMA Riverola
El Diario Córdoba 28/10/2014
http://www.diariocordoba.com/noticias/opinion/monstruos-verdaderos_916562.html

(2)
VÍCTIMAS DE LA TALIDOMIDA PIDEN UNA REUNIÓN URGENTE CON EL FISCAL DEL ESTADO
24/10/2014MADRID
http://www.teinteresa.es/espana/VICTIMAS-TALIDOMIDA-REUNION-URGENTE-FISCAL_0_1235876961.html
SNIP
En relación al comunicado emitido por Grünenthal tras conocerse la resolución de la Audiencia Provincial de Madrid, argumentando que cualquier afectado español podía solicitar las ayudas de la fundación alemana Contergan, Avite asegura que en el formulario de solicitud se piden “pruebas del consumo de talidomida de su marca, la receta y el frasco original que tomó la madre hace 50 años”.
“Cuando no se les aporta, te contestan diciendo que no has presentado ni el frasco ni la receta, y deniegan cualquier ayuda”, dicen en Avite, que también denuncia que la fundación alemana “obliga a todos los solicitantes de ayuda a firmar primero una renuncia formal a no demandar nunca a la farmacéutica Grünenthal”. “¿Quién dirige esta fundación, Grünenthal o el Estado alemán?”, se preguntan las víctimas.
Entre el 10 y el 13 de noviembre, una representación de Avite acudirá al Parlamento Europeo junto a afectados de otros países europeos para “destapar pruebas incontestables de esta catástrofe”. “Vamos a buscar fuera de nuestras fronteras el apoyo político que se nos niega aquí”, afirman.

(3)
Desde mi pecera
Párate a pensar
28.10.2014 | 04:00 Juan Antonio Megas
http://www.laopiniondemurcia.es/opinion/2014/10/28/parate-pensar/599713.html
SNIPS
[INSERT] Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida. Pero legales o económicas, de conveniencia o de vértigo umbilical, ninguna de ellas es una razón justa.
+
Tal vez haya sido un razonamiento irreprochable desde el punto de vista legal el que ha llevado a los jueces a anular la sentencia. Tal vez haya sido también una razón legal impecable la que ha mantenido al Ministerio Fiscal en silencio durante todos estos años. Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida. Pero legales o económicas, de conveniencia o de vértigo umbilical, ninguna de ellas es una razón justa.

(4)
Herman Cousy,
“The Precautionary Principle: A Status Questionis”, in:
“The Geneva Papers on Risk and Insurance – Issues and Practice”,
1996, 158
https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf
p. 163, footnote 28:
“28 Anyway, if the restrictive interpretation is upheld, the number of actual cases may turn out to he extremely rare. It will indeed not happen very often that the dangerous potentials of a product or activity are completely unknown. One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when Thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfiled?”

(5)
Brazil Scotland Thalidomide and Thomas Aquinas
Posted by Ivo Cerckel on July 22nd, 2014
http://bphouse.com/honest_money/2014/07/22/brazil-scotland-thalidomide-and-thomas-aquinas/
SNIP
Aristotle distinguishes four types of causes
– the “material” cause is that out of which something is made; it is the intrinsic constitutive element of something (e.g., the wood of the statue)
– the “formal” cause is the form or shape of something; it is what determines its essence to be what it is (the shape of the statue)
– the “efficient” cause is the being in act who brings about the change (the sculptor who makes the statue)
– the “final” cause is that for the sake of which the change takes place; it is what constitutes the perfection of the being (in the case of the statue, this is the purpose for which the statue was made).
(Aristotle, “Metaphysics”, Book Zeta (or VII), Chapter 8. line 1033a33)
It may be that thalidomide is the “efficient” cause,
the being in act who brings about the change
(Aristotle gives the example of the … sculptor who makes the … statue
Was this example devised 25 centuries ago with thalidomide monsters in mind?)
of the physical malformations of thalidomide monsters.
This does not make Chemie Grünenthal GmbH, now Grünenthal GmbH, the maker of thalidomide, the “primary” cause of thalidomide monsters and of the thalidomide scandal.
The adjective “efficient”, as in “efficient” cause, comes from Aristotle.
The adjective “primary”, as in “primary” cause, comes from the “Book of … Causes” (“Liber de Causis”).
Eight centuries ago, Thomas Aquinas, one of the most prominent interpreters of Aristotle, was the first to realise and to say in the “Preface” to his “Commentary” to the Book that the “De Causis” had been excerpted by one of the Arab philosophers from the work of a Neo-Platonist, the “Elements of Theology” of Proclus (412 AD – 485 AD), and thus could not be traced back to Aristotle as was generally thought.
Aquinas adds that the Arab philosophers who excerpted the “De Causis” from Proclus reserved the subject matter with which the Book deals for the mature part of one’s life.
The approach proposed by the Book might seem antithetical to Aquinas’s own Aristotelian conviction.
At the end of his short life and career Aquinas managed however in his “Commentary on “The Book of Causes”” to interpret the text as complementary rather than in opposition to what he had learned from Aristotle.
(Ralph McInerny, “Aquinas”, Cambridge UK, Oxford UK, Malden, MA: Polity, 2004, p. 19)
For Aquinas the “Liber de Causis” is an exercise in the culminating philosophical effort, wisdom, as theology.
(McInerny, op. cit., p. 37)
Every primary cause infuses its effect more powerfully than does a universal second cause,
“Omnis causa primaria plus est influens super causatum suum quam causa universalis secunda”,
says Proposition One of the “Liber de Causis”.
This means that when the alleged causes of a phenomenon stop existing or stop their effect, the real causes continue their effect.
(Adriaan Pattin, “De hiërarchie van het zijnde in het “Liber de Causis””, “Tijdschrift voor Filosofie”, 23 (1961), 130, p. 140)
Whereas the Aristotelian doctrine of efficient causality supposes that there be a “contact” between agent and patient, which contact can only be harmonised with extreme difficulty with the transcendence of divine action, the “De Causis” explains how the first Cause, while remaining separate, acts immanently in the inferior causes, supports those inferior causes, and links them to their effects.
(Alors que la doctrine aristotélicienne de la causalité efficiente suppose un “contact” entre agent et patient, ce qui s’accorde mal avec la transcendance de l’action divine,
le De Causis explique comment la Cause première, tout en restant séparée, agit de façon immanente dans les causes inferieures, les soutient, et les lie à leurs effets.
(Jean-Luc Solère, “Livre des Causes”, in : “Encyclopédie Philosophique Universelle”, t. III, Paris, Presses Universitaires de France, 1992, 676, p. 678)

(6)
Walter Van Gerven and Steven Lierman, “Algemeen Deel – Veertig Jaar Later – Privaat- en Publiekrecht in een Meergelaagd Kader van Regelgeving, Rechtsvorming en Regeltoepassing”, in: Roger Dillemans et Walter Van Gerven, eds., “Beginselen van Belgisch Privaatrecht”, completely revised edition of the “Algemeen Deel” of 1969, Mechelen (Malines), Kluwer, 2010, § 191, pp. 493-495

(7)
Here’s the text of that SECTION 4 of the 2010 judgment:
“Mit Urteil vom 8. Juli 1976 (1 BvL 19 und 20/75, 1 BvR 148/75) erklärte der Erste Senat des Bundesverfassungsgerichts (vgl. BVerfGE 42, 263) die Regelung zum Inkrafttreten (§ 29 StHG) für vereinbar mit dem Grundgesetz und wies eine Verfassungsbeschwerde gegen das Stiftungsgesetz zurück. Er maß die Umformung der privatrechtlichen Vergleichsforderungen in gesetzliche Leistungsansprüche unter Überführung der Vergleichssumme in das Stiftungsvermögen am Maßstab des Art. 14 Abs. 1 GG und befand insbesondere, dass die Substanz des Wertanspruchs der Beteiligten prinzipiell erhalten geblieben war (vgl. BVerfGE 42, 263 ). Das Bundesverfassungsgericht wies außerdem darauf hin, dass es dem Gesetzgeber obliege, auch in Zukunft darüber zu wachen, dass die Leistungen der Stiftung – sei es in Form von Rentenerhöhungen oder in sonstiger Weise – der übernommenen Verantwortung gerecht werden (vgl. BVerfGE 42, 263 ).”

(8)
Does this obligation to keep an eye on the correspondence between the level of assistance or aid and the fostering of the integration of TMs into society
(“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”, said SECTION 16 of the 1976 judgment)

mean that the funds necessary for this assistance could not be said aside, like what happened in the southern Low Countries, but not only there, in the last few years before 2010 (see the text to which note (6) of this post refers to), in what the Anglo-Saxons call a “trust”

because the amount necessary for the “trust” to fulfil its obligations could not be known?

But is not that what insurance is all about?

Posted in Uncategorized | 1 Comment »

Three UK politicians look only at Germany behaviour After thalidomide scandal Not UK behaviour Before scandal

Posted by Ivo Cerckel on 3rd November 2014

S.O.S. to Guy Verhofstadt!

Last updated on 05 November 2014 at 10h46 GMT+8

Syed Kamall, UK conservative MEP, said on 31 October 2014. that he opposes the rule of law.

Michael McCann, UK labour MP, on 31 October 2014, and Sir Robert Smith, UK liberal democrat MP, on 04 November 2014, said that they refuse to grasp that thalidomide had been tested and that France therefore banned it.
Smith did moreover “extraordinarily” admit on that 04 November 2014 that the dropping of the criminal case against the maker of thalidomide resulted in concealment of evidence. Evidence of what, isn’t it?

Fortunately, there is still in the European parliament, Beatriz Becerra, MEP from Spain, in the ALDE, the Alliance of Liberals and Democrats for Europe, fraction led by Guy Verhofstadt.

Tension between the supporters and opponents of European integration.

Tension between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

Tension between those who look only at the German behaviour after the thalidomide scandal and those who look also at the UK behaviour before and during the scandal.

ANTI-EXECUTIVE SUMMARY

When thalidomide was brought onto the West-German market, the product had been banned in France and remained banned there.
Later, the product was, while still being banned in France, brought onto the British market.

When thalidomide appeared on the British isles, the UK could have chosen between two possible courses of action.

Either, it could follow the French example and ban the drug,
Or, it could follow the West-German example and refrain from doing anything against this marketing of the product on the isles.

The UK chose the latter course of action.

Half a century later, some UK politicians are complaining to Germany that the UK followed the West-German example.

Syed Kamall wants Germany, not the UK, to compensate the UK thalidomiders.
His only argument is that “we are knowing what we now know”.
This is an argument for the UK to compensate the UK thalidomiders.

If the UK does not compensate the UK thalidomiders, the EU, not Germany, should do so.

Michael McCann says that the German Leviathan’s inexplicable decision to end the criminal case against Grünenthal was itself a criminal act.
Sir Robert Smith adds that this decision resulted in concealment of evidence from parents in the UK and lower court settlements for effected families.

In the 1970 criminal case against Grünenthal, the office of the West-German public attorney was arguing that thalidomide had not been tested. The case was dropped by that office because there was, in that office’s eyes, lack of public interest in the public finding out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany.

If, when agreeing on the sidelines of the case on compensation with the parents of some thalidomiders, Grünenthal had contested its liability, vis-à-vis the parents, this would have brought into the open the reasons why the office of the German public attorney dropped the 1970 criminal case against Grünenthal, that is, it would have brought into the open that in the prosecution’s eyes, there was lack of public interest in the public finding out that thalidomide had been tested before it was ever marketed.

Grünenthal did that in order to protect the West-German Leviathan.

Why did the prosecution fear the truth about the real culprit in the thalidomide scandal being displayed in the open?

Good question, isn’t it?

Sir Robert Smith “extraordinarily” said that the termination of the criminal trail against Grünenthal resulted in concealment of evidence?
He probably didn’t realise that this concealment also concerns the real culprit in the thalidomide scandal – on the British isles –, Her Majesty’s guv’mint.
The only way for Grünenthal to defend itself in that trial would have been to draw the court’s – the jury’s? – attention to the real culprit in the scandal – in West-Germany – the West-German Leviathan.

END OF ANTI-EXECUTIVE SUMMARY

1.
The primary cause – as opposed to the efficient cause, the tablet, (1) – of the thalidomide scandal is the fact that after the French Leviathan had banned thalidomide, other Leviathans – such as the UK of NI-and-GB – did not prevent the product being brought onto “their” markets nor did they immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

Let’s start with some essentials of correct thinking or correct reasoning.

Every reasoning process involves a number of previously known truths. These truths are called the “premises”, when taken separately, and the “antecedent” when taken as a whole.
The reasoning process also involves the knowledge of a new truth (the “conclusion” or “consequent”) which is inferred from the premises. (2)

The impossibility of being either true or false is the essential note of logical opposition. (3)

Contradictory opposition is the opposition of a pair of propositions so related to one another that they cannot be either simultaneously true or simultaneously false. (4)

Through a correct deduction, one may infer from the contradictory proposition of the consequent to the contradictory proposition of the antecedent. (5)

Now that some essentials of correct thinking or correct reasoning have been refreshed in our minds, let’s start with the tabloids.
(Wow, page-three girl! – Or did she die?).

Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered, as defined at present “a contrario” (“argument based on the contrary” – denotes any proposition that is argued to be correct because it is not disproven by a certain case, says Wikipedia) in article 15(1)(b) of the 1985 EEC Product Liability Directive, formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

Dr. Herman Cousy, professor now-emeritus from the law department of the K.U. Leuven, reports in note 28 of his 1996 paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, l’“Association Internationale pour l’Etude de l’Economie de l’Assurance”, the leading international think tank of the insurance industry, that:
“One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when thalidomide was brought onto the German market, the product had been banned in France.”

And Professor Cousy goes on to ask in the note:
“Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfiled?” (6)

The Sunday Times added in an 08 February 2009 article “Thalidomide ‘was created by the Nazis’” that the drug may have been developed as an antidote to nerve gas and that the manufacturer of thalidomide, Chemie Grünenthal GmbH, now known as Grünenthal GmbH, in Stolberg, Aachen, hereafter Grünenthal, “apparently purchased the trade name of the drug – Contergan – and therefore probably the substance itself, from a French firm, Rhône-Poulenc, which was under Nazi control during the war years.” (7)

Thalidomide was developed in France and banned there before it was licensed anywhere.

Got it?

This demonstrates that the Leviathans – such as the UK of NI-and-GB – which did not prevent thalidomide being brought onto “their” markets nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban, are the primary cause of the thalidomide scandal.

Indeed, I submit that the quoted article 15(1}(b) of the 1985 EEC Product Liability Directive can be applied “mutatis mutandis” (by changing what has to be changed) to the Leviathans which did not prevent the product being brought onto “their” markets nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

2.
Syed Kamall is a member of what should be, according to its name, the “European parliament”, the legislative branch of the EU Leviathan, member “emanating” from the sheeple of the UK of NI-and-GB where he is a member of the conservative party. He apparently lives in New Malden, Surrey, UK of NI-and-GB.

Here’s what Kamall wrote to the editor of The Daily Telegraph which the said newspaper, the mouthpiece of Kamall’s conservative party, published on 31 October 2014:

” [TITLE] It’s time to secure justice for Thalidomide victims

” [SUBTITLE 1] More than half a century after the Thalidomide scandal, European governments still aren’t doing enough to make amends

” [SUBSTITLE 2] Launched as a drug for treating morning sickness, thalidomide unexpectedly gave rise to severe abnormalities in children

“[TEXT UNDER PICTURE OF TABLETS] Justice: Grünenthal, a German pharmaceutical company, produced Thalidomide

6:59AM GMT 31 Oct 2014
http://www.telegraph.co.uk/comment/letters/11198359/Its-time-to-secure-justice-for-Thalidomide-victims.html

” SIR – The Thalidomide scandal almost six decades ago continues to have a serious impact on thousands of people who were born severely disabled. Independent reports show that over the past 10 to 15 years, many European Thalidomide survivors have seen their health decline, experiencing complex and continuing health problems.

” Several EU countries have still not put in place a formal compensation scheme, while in others the compensation available is not sufficient to meet victims’ health and independent living costs. “At the time of the original legal action, a lack of clear evidence prevented lawyers from making the case for a just settlement. This was particularly the case in Germany.

” Knowing what we now know, surely the German government has an obligation to meet the needs of the few remaining European Thalidomide survivors?

” German ministers should meet representatives of those survivors, with a view to sympathetic consideration of the cases of victims in Denmark, Finland, Italy, Spain, Sweden and Britain.

” Syed Kamall MEP (Con)
” New Malden, Surrey ”

3.
Kamall seems to agree with my submission in earlier blog posts that article 15(1)(b) of the 1985 EEC Product Liability Directive can be applied “mutatis mutandis” (by changing what has to be changed) to the Leviathans which did not prevent the product being brought onto “their” markets nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

Why then does Kamall want Germany, not the UK of NI-and-GB, to compensate the UK thalidomiders?

Here’s the only argument the politician has or the only reasoning he is able to perform:
“Knowing what we now know, “surely” the German government has an obligation to meet the needs of the few remaining European Thalidomide survivors.”

Note the “surely” in the argument or reasoning.

Sorry Mr Kamall, most honourable member of the European parliament,
what we now, that is, since 1996
when Professor Cousy published his quoted article, know “for sure” is that
after the French Leviathan had banned the product,
the UK of NI-and-GB did not prevent thalidomide from reaching the isles
nor did it order the immediate withdrawal of the product from the isles once it appeared there.

But like all politicians, Kamall is a mystic failing to elaborate on two essential parts of his reasoning or argument.

One, Kamall does not elaborate what is the antecedent of his argument or reasoning. He only refers to “what we now know” without elaborating on what it is that “we now know”.

Two, as he does not elaborate what is the antecedent of his argument or reasoning, he cannot elaborate on how the consequent follows from this antecedent. He can only use the mystic’s “surely” to link the unexpressed (unverbalised – my spell checker doesn’t like this … verb -, that is, not put into words, “omitted” will I say in section 7) antecedent to the so-called “consequent”.

“Ex absurdo sequitur quodlibet”, from what is false follows whatever you want, Mr Kamall.

This means that if the premises are false, the conclusion can be either true or false. (8)

Section 7 of this blog post will argue that Michael McCann, labour MP, that is, member of the labour party and of the lower house, the house of commons, of the parliament of the UK of NI-and-GB, in his 31 October 2014 blog post “Michael McCann MP Demands Thalidomide Justice” could have given the arguments which Kamall, MEP, failed to give. The section will immediately refute McCann’s arguments.

The section will also happily expand, or rather really explain while being very happy, Sir Robert Smith, member of the UK of NI-and-GB liberal democrat party and member of the house of commons, ’s “extraordinary” admission on 04 November 2014 that the dropping of the case resulted in concealment of evidence. Evidence of what, isn’t it?

What Kamall also knows, perhaps even “surely” knows, is that thalidomide first appeared on the West-German market in 1957, that is the year that the original founding treaty of an international organisation was signed at Rome, Italy, and that that organisation was called the … European Economic Community.

A coincidence?
Why did the EEC legislator, the EEC council, then wait three decades to adopt its 1985 product-liability directive?
Why did that legislator wait so long to make European law become the corner stone (“la pièce maîtresse”) of national legislations concerning consumers? (Jean-Sylvestre Bergé and Sophie Robin-Olivier, “Introduction au droit européen”, Presses Universitaires de France, 2008, 1st ed., section 377)
Was that not in order not to make it too obvious that thalidomide was necessary to achieve this?
Was that not in order to hide this co-incidence?

If the UK of NI-and-GB does not compensate the UK thalidomiders, the EU, not Germany, should do so.

4.
It would seem that Beatriz Becerra, Spanish MEP of the ALDE, the Alliance of Liberals and Democrats for Europe, fraction of my anarcho-capitalist hero 35 years ago, Guy Verhofstadt, now leader of the ALDE fraction in the European parliament, has better ideas than the conservative party of Kamall.

On 30 October 2014, Ms Becerra raised the issue of unequal treatment of thalidomide monsters by the different EU member states. (9)

Kamall is only interested in the “sympathetic” [sic] consideration of the cases of victims in the UK of NI-and-GB, Denmark, Finland, Italy, Spain and Sweden. (see section 2 of this blog post)

I suppose that by “sympathetic consideration” of some cases, Kamall means that the conclusions in these cases should, like in his argument or reasoning, “surely” follow from the unexpressed antecedent.

Guy,
Gij, als eerste Minister van de Koning der Belgen, had mij veel schrijfgenot toegewenst hier in de Zuid-Oost Azië waarheen ik als niet-erkend softenonmonster 14 jaar geleden diende te vluchten.
In de Filipijnen is ‘s mens’ existentie inderdaad beterkoop. Dit is belangrijk voor een niet-erkend softenonmonster als ik die in het Westen niet in zijn levensonderhoud kan voorzien.
Dit, deze blog, is het resultaat.
Een blog post van 20 oktober 2014, ook van mijn … hand, op deze blog richtte zich tot minister van volksgezondheid, Maggie De Block, van de Partij. (10)

My work is done, be it that I am trying to draft a post attempting to do three things.

One, to answer to the 24 october 2014 question of the Spanish thalidomiders
“¿Quién dirige la fundación alemana Contergan, Grünenthal o el Estado alemán?”
Who manages the German Contergan Foundation, Grünenthal or the German federal state? (11)

Two, to explain what Juan Antonio Megas meant on 28 October 2014 in an “From my Fishbowl” (“Desde mi pecera”) column under the title “Stop and think” (” Párate a pensar”) in La Opinión de Murcia, when he said that:
“Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida”,
Maybe there is some reason of higher economic and social order which prevents the state to compensate the thalidomide monsters. (12)

Three, to explain with two judgments of the German federal constitutional court, the “Bundesverfassungsgericht”, hereafter BVG, and some pieces of German legislation why the Conterganstiftung will NEVER compensate Spanish thalidomide monsters, contrary to what Grünenthal was arguing in court and reiterated after the 22 October 2014 judgment of the Madrid Provincial Court, overruling the 20 November 2013 judgment of the Madrid Judge of First Instance, who (the latter) had ordered Grünenthal to pay, to the victims as recognised by Spain’s Health Ministry, 20’000 euro for each percentage point of disability of the victims.
I explained the Madrid procedure in my 23 October 2014 post “Historical Criticism, Thalidomide, Statutes of Limitations and Prescription – Update 1.0” on this blog. (13)

My work is done.

Yours is cut out, Guy!

6.
On 31 October 2014 at 11h36 GMT+1, Guy Verhofstadt wrote the following tweet:

Read my opinion in autumn’s edition of @EuropesWorld on how we can make #Europe work for its citizens #juncker -> http://goo.gl/Gj9QgK
https://twitter.com/GuyVerhofstadt/status/528133381171593216

After starting with the prediction that the new European parliament will be rowdier, with more heated debates as TENSIONS rise between clashing supporters and haters of European integration, Verhofstadt went on in the article to “inter alia” (among other things) recognise that the EU is not yet a fully-developed polity and to argue that Europe needs to show a human face, that is, that it must show that it is more than a purely economic or monetary union, but also a political and social union that shares, and is prepared to defend, commonly-held fundamental values of freedom, non-discrimination and respect for the RULE OF LAW. As the guardian of the treaties and acting through a commissioner with special responsibility for upholding fundamental rights, the commission, with small “c” in the article, is the most impartial body to do this, concludes Verhofstadt.

Can the contradiction between the approach of Ms Becerra who supports thalidomide monsters from all EU member states and the approach of Mr Kamall who is only interested in the “sympathetic” [sic] consideration of the cases of victims in the UK of NI-and-GB, Denmark, Finland, Italy, Spain, and Sweden (see section 2 of this blog post), be interpreted as a tension between supporters and haters of European integration?

In my next post I should discuss judgment BVerfGE 42, 263 of 08 July 1976 of the BVG of which I find the text on a website with a Swiss address
http://www.servat.unibe.ch/dfr/bv042263.html
which also speaks about an unbridgeable tension.

Section 120 of that judgment says that there is an unbridgeable “TENSION” (eine “unaufhebbaren Spannungslage”) between
the area of freedom of the individual (der “Freiheitsraum des Einzelnen”)
and the requirements of the order imposed by way of straitjacket by the welfare state (die “Anforderungen der sozialstaatlichen Ordnung”)
and that this requires the supersession of private autonomy to settle claims resulting from torts.

(“Die Ersetzung der autonomen Regelungsbefugnis muß der unaufhebbaren Spannungslage zwischen dem Freiheitsraum des Einzelnen und den Anforderungen der sozialstaatlichen Ordnung gerecht werden.”)

Kamall also wants to supersede the Rule of Law for all, by or with the “sympathetic” treatment of the cases of some only of the thalidomide monsters, depending on the place where they were born.

Yes, Kamall opposes the Rule of Law. He opposes the Rechtsstaat.

Yes, Kamall hates this characteristic of European integration.

Yes, the contradiction between the approach of Ms Becerra who supports thalidomide monsters from all EU member states and the approach of Mr Kamall who is only interested in the monsters from some members states can be interpreted as a tension between supporters and haters of European integration.

7.
Tension between the supporters and opponents of European integration.
Tension between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

Michael McCann, member of the UK of NI-and-GB labour party and of the lower house, the house of commons, of the parliament of the UK of NI-and-GB, posted on 31 October 2014 an article “Michael McCann MP Demands Thalidomide Justice” on his website arguing, as the title says, that he wants justice for thalidomide monsters.

He correctly says that the German Leviathan, not Grünenthal, is the culprit and that the case is a scandal, not a catastrophe.

He only does not understand the real scandal of the West-German Leviathan not having done anything, before and while thalidomide was being marketed on “its” territory, against a drug which the Leviathan’s French neighbour had banned for an obvious reason.

I repeat,
the real West-German and UK of NI-and-GB thalidomide scandal is that the Leviathans instituted on those territories, c.q., isles, have not done anything against a drug that had been banned by an “ally” while the drug was being marketed on the West-German territory, c.q., on the British isles.

McCann does not grasp this and merely says that the German Leviathan, a supposed ally [sic – in and against what?], has consistently

[that is, consistently AFTER,
that is, NOT BEFORE NOR DURING,
the thalidomide scandal]

displayed behaviour more in common with an organised crime syndicate than that of a “sovereign” [sic] state
[Ivo: what’s the difference between Leviathan and such a syndicate, anyway?]
and “believes” that the German Leviathan’s inexplicable decision to end the case against Grünenthal was itself a criminal act and that he has have written to [German chancellor] Dr Merkel […] to demand that she acknowledges this and … “does “something” about it”. (14)

All these allegations of McCann which I quoted after “He merely says that […]” concern the behaviour of the West-German Leviathan AFTER the drug had been withdrawn from sale on the West-German territory,
NOT the behaviour of the said monster
(“teratos” in Greek, isn’t it,
ergo “teratogenic”, as in thalidomide being a teratogenic, monster-creating, drug)
BEFORE and DURING the thalidomide scandal when the monster could have followed the French example – at any moment.

Likewise, “our” three UK of NI-and-GB politicians are not interested in the behaviour of their insular state before and during the thalidomide scandal – but only in the behaviour of West-Germany after the scandal.

Sir Robert Smith, member of the UK of NI-and-GB liberal democrat party and member of the house of commons, “extraordinarily” added on 04 November 2014, that this decision to end the criminal case against Grünenthal resulted in concealment of evidence from parents in the UK and lower court settlements for effected families. (15)

The right honourable (or whatever may be the correct adjective for this gentleman, a UK of NI-and-GB MP) gentleman forgets that if the case had proceeded, the public would have found out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany, “a fortiori” – an “a fortiori” argument is an “argument from a yet stronger reason”, says Wikipedia – before it was marketed on the British isles.

In that way, the public would have found out that when thalidomide appeared on the British isles, the UK of NI-and-GB could have chosen between two possible courses of action.

Either, the UK of NI-and-GB could follow the French example and ban the drug,
Or, it could follow the West-German example and refrain from doing anything against this marketing of the product on the isles.

The said insular state chose the latter course of action.

Half a century later, Kamall, McCann and Smith are complaining to Germany that they, the insular state, did not follow the French example.

Maybe this is the explanation which Kamall omitted.
Kamall’s only argument was that
“Knowing what we now know, “surely” the German government has an obligation to meet the needs of the few remaining European Thalidomide survivors.”
As I said, what we now, that is, since 1996
when Professor Cousy published his quoted article, know “for sure” is that
after the French Leviathan had banned the product,
the UK of NI-and-GB did not prevent thalidomide from reaching the isles
nor did it order the immediate withdrawal of the product from the isles once it appeared there.
And I continued by saying that like all politicians, Kamall is a mystic failing to elaborate on two essential parts of his reasoning or argument.

But let me now refute McCann’s argument, which could be the argument which Kamall omitted or left unexpressed.
By refuting McCann’s argument, I would then by the same token also be refuting Kamall’s unexpressed argument.

The argument says that the German Leviathan’s inexplicable decision to end the case against Grünenthal was itself a criminal act.

In his “The History of Thalidomide”, Dr Widukund Lenz, a paediatrician and human geneticist from Hamburg who on 25 November 1961 advised Grünenthal by telephone that he suspected thalidomide of causing birth defects (16), indicates
that the suit was started by the public prosecutor against seven men of Grünenthal,
that the proceedings or hearings in court started on 27 May 1968,
that the prosecution’s case was that Grünenthal had put on sale a drug which caused an unacceptable degree of bodily harm without having tested it properly, and that Grünenthal had failed to react to information on side effects in due time, and instead had tried to suppress information. (17)

As Professor Cousy indicated, the drug had been tested and France therefore had banned the drug.

On 18 December 1970, the 283th day of the court proceedings or hearings, the case was dropped by the prosecution not for an inexplicable reason, as McCann alleges, but because of minor guilt of the accused and because of lack public interest, says wochenblatt.de. (18)

This is the explanation which McCann cannot find.

In the 1970 criminal case against Grünenthal, the office of the West-German public attorney was arguing that thalidomide had not been tested. The case was dropped by that office because there was, in that office’s eyes, lack of public interest in the public finding out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany.

I repeat:
In the 1970 criminal case against Grünenthal, the office of the West-German public attorney was arguing that thalidomide had not been tested. The case was dropped by that office because there was, in that office’s eyes, lack of public interest in the public finding out, through Grünenthal’s defence, that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany.

Is Jacques H. Herbots listening?

Are the then-proponents of the 1985 EEC product-liability direction still alive and also listening?

Once the reason why the prosecution dropped the 1970 criminal case against Grünenthal has become clear, the rest of the story should become clear in my next post.

I quoted already an excerpt from section 120 of the 08 July 1976 BVG judgment which says that there is an unbridgeable TENSION (eine “unaufhebbaren Spannungslage”) between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

After the thalidomide scandal – apparently after the dropping of the criminal case to which, if memory (19) serves me well, the 08 July 1976 BVG judgment does not refer – the West-German parents of some thalidomide monsters reached agreement with Grünenthal on some compensation.

That’s what the RULE OF LAW provides: When one individual is injured by another (or by another’s product), the compensation of the former takes the form of compensation by the latter, except if the latter can convince the former, or the courts, that he can invoke an excuse. And if the parties can reach an agreement on this compensation, then the bureaucrats of the courts and of guv’mint don’t have to intervene.

All that happened before the Conterganstiftung was set up in 1971.

In order to exculpate both Grünenthal, which is indeed innocent in the thalidomide scandal (see Cousy), and itself, the West-German Leviathan, who is not innocent at all, in the thalidomide scandal, realised that the best way to obscure its own liability was to participate in the compensation of thalidomide monsters, or rather that in order to achieve that objective, it also had to carry the burden of the compensation, no not the burden of compensation of thalidomide monsters, but the burden of providing effective help to speed up the integration of thalidomide monsters into society (“Hilfe […] um ihre Eingliederung in die Gesellschaft zu fördern”), says section 16 of 1976 BVG judgment.

Is Jacques H. Herbots still listening?

By now, the then-proponents of the 1985 EEC product-liability directive must all be dead.

By exculpating itself and Grünenthal, the West-German Leviathan could thank Grünenthal for accepting not to point the finger at Leviathan when discussing the liability for the scandal.

Grünenthal accepted not contesting that it had the sole liability for the scandal. (Is this what is called in the USofA the argument or rather the reply, defence or admission of guilt of “nolo contendere”, which is Latin for “I do not want to contest”?)

Just like Grünenthal did not want to contest its liability vis-à-vis the parents of some West-German thalidomide monsters with whom (the parents) it (Grünenthal) had reached agreement on some compensation.

Grünenthal did that in order to protect the West-German Leviathan.

Why did the prosecution fear the truth about the real culprit in the thalidomide scandal being displayed in the open?

Good question, isn’t it?

Sir Robert Smith “extraordinarily” said that the termination of the criminal trial against Grünenthal resulted in concealment of evidence?
He probably didn’t realise that this concealment also concerns the real culprit in the thalidomide scandal – on the British isles –, Her Majesty’s guv’mint.
The only way for Grünenthal to defend itself in that trial would have been to draw the court’s – the jury’s? – attention to the real culprit in the scandal – in Germany – the German Leviathan.

By now, even Jacques H. Herbots must be dead.

It is because
there was, in the eyes of the prosecution, a lack of public interest in the public finding out that thalidomide had been tested and indeed banned in France before it was ever marketed, that is, before it was marketed in West-Germany,
that by an Act of 19 December 1971 the Conterganstiftung was set up.

The starting capital of the said Stiftung was provided jointly by the West-German Leviathan and by Grünenthal.
The West-German Leviathan later provided more capital.
Grünenthal later VOLUNTARILY provided some more capital.

Most of the parents who had reached agreement with Grünenthal were not happy with this overruling by the West-German Leviathan of their agreements with Grünenthal and filed court cases.

That’s how the case arrived first in the lower courts and finally in 1976 at the BVG which had the opportunity to explain its 1976 judgment in a 2010 judgment.

These judgments, which, as far as I can remember (19, again), do not refer to the 1970 criminal case should be discussed in my next post.

The third thing I will examine in my next post is, as I said towards the end of section 5 of this post, whether the Conterganstiftung can provide benefits to thalidomide monsters who have no link to Germany.

As another or supplementary preview of that post, I can tell you, dear reader, the following:

Until 22 March 2009, the Conterganstiftung was providing benefits to the 2’700 thalidomiders living in Germany or born in West Germany, says the bill leading to the 23 March 2009 second revision of the Conterganstiftung Act,.
This 23 March 2009 second revision of the Conterganstiftung Act would have extended those benefits to thalidomiders not living or born in Germany, although the act does not say so explicitly – or implicitly. I am probably totally unqualified or my German is too bad, but I am unable to find in the 2009 bill that it is extraterritorially applicable to thalidomide monsters who have no link to Germany.
As of today, or rather as of 12 March 2013, date of the bill leading to the third revision of the Conterganstiftung Act, how many monsters are, or rather were, receiving benefits from the Stiftung?

Tension between the supporters and opponents of European integration.

Tension between the area of freedom of the individual and the requirements of the order imposed by way of straitjacket by the welfare state.

Tension between those who look only at the German behaviour after the thalidomide scandal and those who look also at the UK behaviour before and during the scandal.

Enough said – for today!

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
Brazil Scotland Thalidomide and Thomas Aquinas
Posted by Ivo Cerckel on July 22nd, 2014
http://bphouse.com/honest_money/2014/07/22/brazil-scotland-thalidomide-and-thomas-aquinas/

SNIP

Aristotle distinguishes four types of causes
– the “material” cause is that out of which something is made; it is the intrinsic constitutive element of something (e.g., the wood of the statue)
– the “formal” cause is the form or shape of something; it is what determines its essence to be what it is (the shape of the statue)
– the “efficient” cause is the being in act who brings about the change (the sculptor who makes the statue)
– the “final” cause is that for the sake of which the change takes place; it is what constitutes the perfection of the being (in the case of the statue, this is the purpose for which the statue was made).
(Aristotle, “Metaphysics”, Book Zeta (or VII), Chapter 8. line 1033a33)

It may be that thalidomide is the “efficient” cause,
the being in act who brings about the change
(Aristotle gives the example of the … sculptor who makes the … statue
Was this example devised 25 centuries ago with thalidomide monsters in mind?)
of the physical malformations of thalidomide monsters.

This does not make Chemie Grünenthal GmbH, now Grünenthal GmbH, the maker of thalidomide, the “primary” cause of thalidomide monsters and of the thalidomide scandal.

The adjective “efficient”, as in “efficient” cause, comes from Aristotle.

The adjective “primary”, as in “primary” cause, comes from the “Book of … Causes” (“Liber de Causis”).

Eight centuries ago, Thomas Aquinas, one of the most prominent interpreters of Aristotle, was the first to realise and to say in the “Preface” to his “Commentary” to the Book that the “De Causis” had been excerpted by one of the Arab philosophers from the work of a Neo-Platonist, the “Elements of Theology” of Proclus (412 AD – 485 AD), and thus could not be traced back to Aristotle as was generally thought.

Aquinas adds that the Arab philosophers who excerpted the “De Causis” from Proclus reserved the subject matter with which the Book deals for the mature part of one’s life.

The approach proposed by the Book might seem antithetical to Aquinas’s own Aristotelian conviction.

At the end of his short life and career Aquinas managed however in his “Commentary on “The Book of Causes”” to interpret the text as complementary rather than in opposition to what he had learned from Aristotle.
(Ralph McInerny, “Aquinas”, Cambridge UK, Oxford UK, Malden, MA: Polity, 2004, p. 19)

For Aquinas the “Liber de Causis” is an exercise in the culminating philosophical effort, wisdom, as theology.
(McInerny, op. cit., p. 37)

Every primary cause infuses its effect more powerfully than does a universal second cause,
“Omnis causa primaria plus est influens super causatum suum quam causa universalis secunda”,
says Proposition One of the “Liber de Causis”.
This means that when the alleged causes of a phenomenon stop existing or stop their effect, the real causes continue their effect.
(Adriaan Pattin, “De hiërarchie van het zijnde in het “Liber de Causis””, “Tijdschrift voor Filosofie”, 23 (1961), 130, p. 140)

Whereas the Aristotelian doctrine of efficient causality supposes that there be a “contact” between agent and patient, which contact can only be harmonised with extreme difficulty with the transcendence of divine action, the “De Causis” explains how the first Cause, while remaining separate, acts immanently in the inferior causes, supports those inferior causes, and links them to their effects.
(Alors que la doctrine aristotélicienne de la causalité efficiente suppose un “contact” entre agent et patient, ce qui s’accorde mal avec la transcendance de l’action divine,
le De Causis explique comment la Cause première, tout en restant séparée, agit de façon immanente dans les causes inferieures, les soutient, et les lie à leurs effets.
(Jean-Luc Solère, “Livre des Causes”, in : “Encyclopédie Philosophique Universelle”, t. III, Paris, Presses Universitaires de France, 1992, 676, p. 678)

(2)
Juan Jose Sanguineti, “Logic”, Manila, Sinag-Tala Publishers, (first published in 1982 in Spanish by the Ediciones Universidad de Navarra), 1992, p. 131

(3)
Andrew H. Bachhuber, S.J., “Logic”, New York, Appleton-Century-Crofts, 1957, p. 74

(4)
Bachhuber. op. cit., p. 75

(5)
François Chenique, “Éléments de Logique Classique – L’art de penser, de juger et de raisonner”, Paris, L’Harmattan, 2006, 2nd ed., p. 200
SNIP
Par une déduction correcte, on peut inférer de la contradictoire du conséquent à la contradictoire de l’antécedent.

(6)
Herman Cousy,
“The Precautionary Principle: A Status Questionis”, in:
“The Geneva Papers on Risk and Insurance – Issues and Practice”,
1996, 158
https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf
p. 163, footnote 28:
“28 Anyway, if the restrictive interpretation is upheld, the number of actual cases may turn out to he extremely rare. It will indeed not happen very often that the dangerous potentials of a product or activity are completely unknown. One often cites the Thalidomide (Contergan) case as an example of a development risk situation, although it appears that when Thalidomide was brought onto the German market, the product had been banned in France. Can it be readily upheld, under such circumstances, that the conditions for a “development risk” situation were fulfiled?”

(7)
From The Sunday Times
February 8, 2009
Thalidomide ‘was created by the Nazis’
The damaging drug may have been developed as an antidote to nerve gas
Daniel Foggo
http://www.timesonline.co.uk/tol/life_and_style/health/article5683577.ece
link does no longer work
copied here
http://www.fourwinds10.net/siterun_data/health/harmful_products/news.php?q=1234215547
SNIP
One document […] shows that Grunenthal apparently purchased the trade name of the drug – Contergan – and therefore probably the substance itself, from a French firm, Rhone-Poulenc, which was under Nazi control during the war years.

(8)
Sanguineti, op. cit, p. 132

(9)
UPyD se reúne con la Asociación de Víctimas de la Talidomida en España
30 octubre, 2014|
http://weblogs.upyd.es/europa/2014/10/30/upyd-se-reune-con-la-asociacion-de-victimas-de-la-talidomida-en-espana/

En determinadas semanas del año (las conocidas como “semanas verdes”) los eurodiputados trabajan en sus respectivos Estados Miembros. Son días que en UPyD se aprovechan para rendir cuentas ante los ciudadanos y para establecer contactos con distintas asociaciones y colectivos de la sociedad civil.

Beatriz Becerra se reúne con la Asociación de Víctimas de la Talidomida en España (AVITE)
En este contexto la eurodiputada Beatriz Becerra se reunió con la Asociación de Víctimas de la Talidomida en España (AVITE). Los contactos ya se habían iniciado antes de la cita, puesto que la asociación se planteaba emprender acciones en el Parlamento Europeo. Becerra, que efectúa un especial seguimiento en todo lo relacionado con las políticas de salud pública de la Unión, ha anunciado que impulsará y agilizará las actuaciones desde la Comisión de Peticiones (de la que es miembro, además de coordinadora del Grupo de la Alianza de Liberales y Demócratas por Europa – ALDE). Se está planteando que la petición la presenten víctimas de la talidomida de distintos Estados Miembros para así plantearlo como una cuestión “de desigualdad de trato, ya que hay un número de agraviados que no reciben nada. El tiempo juega en contra de ellos, ya que los afectados tienen ya más de 50 años y sus condiciones de vida son cada vez peores”.

Existen grandes disparidades en el trato a las víctimas de la talidomida entre los Estados Miembros. En España, de hecho, no tienen ningún tipo de indemnización, mientras que en países como Alemania tienen una pensión vitalicia. UPyD ya impulsó desde el Congreso de los Diputados en la pasada legislatura iniciativas para que se pusiera una solución a este colectivo.

Entre otras cuestiones, están planteando que dicha petición sea presentado por víctimas de la talidomida de varios países. “Se podría plantear una cuestión común de desigualdad de trato, ya que hay un número de agraviados que no reciben nada y que además, en el caso de España, se les ha arrinconado durante años. El tiempo juega en contra de ellos, ya que los afectados tienen ya más de 50 años y sus condiciones de vida son cada vez peores”, ha señalado.

GOOGLE TRANSLATES AS FOLLOWS:

UPyD meets with the Association of Victims of Thalidomide in Spain
October 30, 2014 |

MEP UPyD Beatriz Becerra has held meetings with various groups and associations in the development of their “constituency week.”

In certain weeks of the year (known as “green weeks”) MEPs working in their respective Member States. These are days that are exploited to UPyD accountable to the citizens and to establish contacts with various associations and groups in civil society.

Beatriz Becerra joins the Association of Victims of Thalidomide in Spain (Avite)
In this context MEP Beatriz Becerra met with the Association of Victims of Thalidomide in Spain (Avite). The contacts were already underway before the appointment, since the association take action raised in the European Parliament. Becerra, who made a special tracking everything related to the public health policy of the Union, has announced that it will promote and expedite the proceedings from the Petitions Committee (of which he is a member, as well as coordinator of the Group of the Alliance of Liberals and Democrats for Europe – ALDE). It is considering that the petition presented thalidomide victims from different Member States so I put it as a matter “of unequal treatment, as there are a number of injured parties get nothing. Time plays against them, because sufferers are over 50 years old and living conditions are getting worse. ”

There are wide disparities in the treatment of victims of thalidomide among Member States. In Spain, in fact, do not have any compensation, while in countries like Germany have a pension. UPyD and drove from the House of Representatives in the last term initiatives for a collective solution to this is put.

Among other issues, they are suggesting that such request is filed by victims of thalidomide in several countries. “You could raise a common question of unequal treatment, as there are a number of injured parties get nothing and also, in the case of Spain, has cornered them for years. Time plays against them, because sufferers are over 50 years old and living conditions are getting worse, “he noted.

(10)
van Ebola en Softenon naar Maggie De Block en Koen Geens
Posted by Ivo Cerckel on October 20th, 2014
http://bphouse.com/honest_money/2014/10/20/van-ebola-en-softenon-naar-maggie-de-block-en-koen-geens-2/

(11)
VÍCTIMAS DE LA TALIDOMIDA PIDEN UNA REUNIÓN URGENTE CON EL FISCAL DEL ESTADO
24/10/2014 – http://www.teinteresa.es, MADRID
http://www.teinteresa.es/espana/VICTIMAS-TALIDOMIDA-REUNION-URGENTE-FISCAL_0_1235876961.html
SNIP
En relación al comunicado emitido por Grünenthal tras conocerse la resolución de la Audiencia Provincial de Madrid, argumentando que cualquier afectado español podía solicitar las ayudas de la fundación alemana Contergan, Avite asegura que en el formulario de solicitud se piden “pruebas del consumo de talidomida de su marca, la receta y el frasco original que tomó la madre hace 50 años”.
“Cuando no se les aporta, te contestan diciendo que no has presentado ni el frasco ni la receta, y deniegan cualquier ayuda”, dicen en Avite, que también denuncia que la fundación alemana “obliga a todos los solicitantes de ayuda a firmar primero una renuncia formal a no demandar nunca a la farmacéutica Grünenthal”. “¿Quién dirige esta fundación, Grünenthal o el Estado alemán?”, se preguntan las víctimas.
Entre el 10 y el 13 de noviembre, una representación de Avite acudirá al Parlamento Europeo junto a afectados de otros países europeos para “destapar pruebas incontestables de esta catástrofe”. “Vamos a buscar fuera de nuestras fronteras el apoyo político que se nos niega aquí”, afirman.

(12)
Desde mi pecera
Párate a pensar
28.10.2014 | 04:00 Juan Antonio Megas
http://www.laopiniondemurcia.es/opinion/2014/10/28/parate-pensar/599713.html
SNIPS
[INSERT] Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida. Pero legales o económicas, de conveniencia o de vértigo umbilical, ninguna de ellas es una razón justa.
+
Tal vez haya sido un razonamiento irreprochable desde el punto de vista legal el que ha llevado a los jueces a anular la sentencia. Tal vez haya sido también una razón legal impecable la que ha mantenido al Ministerio Fiscal en silencio durante todos estos años. Tal vez sea una invencible razón económica y legal la que impide que el Estado indemnice a la víctimas de la Talidomida. Pero legales o económicas, de conveniencia o de vértigo umbilical, ninguna de ellas es una razón justa.

(13)
Historical Criticism, Thalidomide, Statutes of Limitations and Prescription – Update 1.0
Posted by Ivo Cerckel on October 23rd, 2014
http://bphouse.com/honest_money/2014/10/23/historical-criticism-thalidomide-statutes-of-limitations-and-prescription/

SNIP

On 20 November 2013, the Judge of First Instance number 90 of Madrid ordered the manufacturer of thalidomide, the private limited company now known now known as Grünenthal GmbH, known fifty years ago as Chemie Grünenthal GmbH. hereafter Grünenthal, to pay 20’000 euro for each percentage point of disability of the victims as recognised by Spain’s Health Ministry.
(Spanish Thalidomide Victims obtain Judgment against Innocent Party
Posted by Ivo Cerckel on November 22nd, 2013
http://bphouse.com/honest_money/2013/11/22/spanish-thalidomide-victims-obtain-judgment-against-innocent-party-3/

The judge did not consider it necessary to inquire into the tort which Grünenthal would have committed.
No, Grünenthal produces an unsafe medicine, therefore it is liable for tort damages.
What tort? No reply.

In its 20 December 2013 appeal against this decision to Madrid’s Provincial Court, Grünenthal had three main arguments. One, the original plaintiffs do not prove that their malformations are due to thalidomide. Two, their claims are so old that “a valid judgment is impossible”. Three, the plaintiffs can obtain allowances from the German Thalidomide Foundation, Conterganstiftung.
(Grünenthal recurre la indemnización a los afectados por la talidomida en España
SMS News
20 de diciembre, 2013 10:41 AM
http://www.ksmstv.com/2013/12/20/grunenthal-recurre-la-indemnizacion-a-los-afectados-por-la-talidomida-en-espana/
Grünenthal apeló el fallo judicial, emitido el 20 de noviembre, por considerar que AVITE no aportó “las pruebas imprescindibles” para justificar sus reclamaciones y no probó que las malformaciones estuvieran causadas por el producto distribuido por el esta farmacéutica.
El laboratorio alemán invocó el principio de prescripción de las acciones legales, al entender que, después de cincuenta años, “un juicio válido resulta imposible”.
El laboratorio resaltó que los afectados españoles con malformaciones atribuibles a un producto de talidomida distribuido porGrünenthal pueden solicitar ayudas a la Fundación Contergan.)
On Wednesday 22 October 2014, Madrid’s Provincial Court ruled that the claims of the original plaintiffs were prescribed, thereby overturning the condemnation of Grünenthal by the Judge of First Instance.
(German Firm Wins Appeal in Spain Thalidomide Case
MADRID — Oct 22, 2014, 10:54 AM ET
http://abcnews.go.com/Health/wireStory/german-firm-wins-appeal-spain-thalidomide-case-26367275
SNIP
Madrid’s provincial court said the statute of limitations for the plaintiffs’ case had expired.
+
Gruenenthal said in a statement the “the court confirms that the plaintiffs weren’t able to prove their claims and that fair proceedings aren’t possible after more than 50 years. ” It added that there existed “effective and established options for people harmed by products containing thalidomide to get financial support from Gruenenthal or its distributors. ”
UNSNIP
Ivo: the article is from Associated Press (AP), an American news agency, and is thus intended for an American audience and thus speaks of a “statute of limitations” instead of “prescription”.)

(14)
Michael McCann MP Demands Thalidomide Justice
Posted on October 31, 2014
http://www.michaelmccann.org.uk/?s=thalidomide&submit=Go
http://www.michaelmccann.org.uk/michael-mccann-mp-demands-thalidomide-justice/
SNIPS
Afterwards, Michael, MP for East Kilbride, Strathaven and Lesmahagow, said: “I want justice for Gerry!
“The German Government, a supposed ally, has consistently displayed behaviour more in common with an organised crime syndicate than that of a sovereign state.
+
“I believe the German Government’s inexplicable decision to end the case against Grunewald was itself a criminal act and I have written to Dr Merkel on Gerry’s behalf to demand that she acknowledges this and does something about it.”

(15)
MP calls on Germany to help Thalidomide survivors
4 November 2014
https://www.pressandjournal.co.uk/fp/news/politics/westminster/390117/mp-calls-on-germany-to-help-thalidomide-survivors/
SNIPS
An MP has called on German Chancellor Angela Merkel to help compensate north-east survivors of the Thalidomide scandal.
Sir Robert Smith, who represents West Aberdeenshire and Kincardine, met Stonehaven resident Laura Beeton and her son Owen Thomson at a reception for survivors in Westminster.
+
The criminal trial of the German manufacturer Grunenthal was terminated in 1970, resulting in concealment of evidence from parents in the UK and lower court settlements for effected families.

(16)
Chronik des Contergan-Falls: Tragödie – Katastrophe – Skandal?
http://www1.wdr.de/themen/archiv/sp_contergan/contergan176.html
SNIP
15. November 1961:
Der Hamburger Kinderarzt und Humangenetiker Widukind Lenz unterrichtet den Forschungsleiter der Firma Grünenthal telefonisch, dass er Contergan verdächtigt, bei der Einnahme während der Schwangerschaft zu Kindesmissbildungen zu führen. Lenz fordert, alle Thalidomid-Präparate aus dem Handel zu nehmen.

(17)
The History of Thalidomide
by Dr. Widukind Lenz May 27, 1968,
http://www.thalidomide.ca/history-of-thalidomide/
SNIP
The first accusations against Chemie Gruenenthal reached the public prosecutors office at the country court of Aachen by the end of 1961. By 1968 the bill of indictment comprising 972 pages was completed, based on some 500,000 documents. On May 27, 1968, a criminal law suit was started by the public prosecutor against seven men of Chemie Gruenenthal. The case was that they had put on sale a drug which caused an unacceptable degree of bodily harm without having tested it properly, and that they had failed to react to information on side effects in due time, and instead had tried to suppress information.

(18)
Contergan und die schrecklichen Folgen
http://www.wochenblatt.de/nachrichten/schwandorf/ueberregionales/Contergan-und-die-schrecklichen-Folgen;art5580,79583
SNIP
Am 18. Dezember 1970, dem 283. Verhandlungstag, stellte das Gerichte das Strafverfahren wegen geringfügiger Schuld der Angeklagten und mangelnden öffentlichen Interesses an der Strafverfolgung ein.

(19)
I analysed and discussed the 08 July 1976 BVG judgment and the 26 February 2010 BVG judgment in case 1541/09
IN ENGLISH
on the “Question Disputées” forum on le “Grand Portail Philosophie Saint Thomas Thomas” under this post:

“25e anniversaire : Joseph Wresinski, celui qui remue la vie”
Auteur: mandonnaud
Date: 14-02-2013 10:39
http://www.thomas-aquin.net/PHPhorum/read.php?f=6&i=57642&t=57175

Scroll down under this post until you arrive at my replies, first in French, then in English.

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