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    ¿Quién dirige la fundación alemana Contergan?

    Posted by Ivo Cerckel on November 12th, 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?

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