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¿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.

Posted in Uncategorized | No Comments »

Historical Criticism, Thalidomide, Statutes of Limitations and Prescription – Update 1.0

Posted by Ivo Cerckel on 23rd October 2014

The update details the procedural aspects of the Spanish and USofA court cases and draws attention to the fact that “tort” liability of public authorities requires the proof of a … tort – committed by the Enemy.

Updated on 25 October 2014 at 13h25 GMT+8

The truth about the thalidomide scandal is still being hidden from the public eye.
The veil on the truth has not yet been lifted – for the public eye.

Thalidomide is not case of product liability but of (tortuous) government liability for not guaranteeing public health, the tort being the intentional neglect of ordering the product to be withdrawn from “its” market, the intention being to present what is a case of guv’mint liability for the said negligence as a case of product liability.
Layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth.

“Historical Criticism”, also known as the “historical-critical method” or “higher criticism”, is a branch of literary criticism that investigates the origins of ancient texts in order to understand “the world behind the text”, says Wikipedia.

“Tort” liability of public authorities requires the proof of a … tort (or negligence) – committed by the Enemy.
More research will have to be conducted, like that of Professor Cousy which I will mention in this post, before we can convince the public authorities known as the courts that the Enemy has indeed committed a tort half a century ago.

A Spanish and a USofA judgment, this month, denied thalidomide claims against the maker of thalidomide, not against the culprits for or of the thalidomide scandal (1), because the claims would not have been brought (in-)to court within the time allotted to bring them which would result in the claims being prescribed (in Spain), barred by a statute of limitations (in the USofA) or extinguished and thus barred from being instituted. Under Spanish law, the claims are then deemed “inadmissible”.

On 20 November 2013, the Judge of First Instance number 90 of Madrid ordered the manufacturer of thalidomide, Chemie Grünenthal GmbH, now known as 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.

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. (2)

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. (3)

PENNSYLVANIA

On Thursday 16 October 2014 a Pennsylvania federal judge, Paul S. Diamond of the United States of A. District Court for the Eastern District of Pennsylvania, dismissed a suit by Edmund Andre who claimed that his birth defects were caused by thalidomide, which in the USofA is a product of GlaxoSmithKline LLC, hereafter GSK, finding that Andre’s suit against GSK is barred by the state’s two-year statute of limitations on personal injury suits. (4)

The plaintiff was among roughly a dozen plaintiffs who filed a personal injury suit in Philadelphia state court in October 2011. The defendants subsequently moved the case to federal court. The thalidomide cases were then consolidated in Diamond’s federal court. At least 10 of those plaintiffs have so far voluntarily dismissed their claim. (4 again)

GSK contended the claim was barred by a statute of limitations because the plaintiff’s birth defects occurred 50 years ago.
Andre countered that a statute of limitations shouldn’t apply to the suit, because he didn’t discover his injuries until recently, when new scientific and historical evidence pointed to thalidomide as the possible cause.
He claimed Grünenthal and companies that sold the drug in the USofA hid evidence of its distribution in the late 1950s and lied to the USofA Congress, all the while they knew or should have known about its potential risks. Companies that developed, manufactured, tested and distributed thalidomide were responsible for any babies born with defects as a result of exposure to thalidomide, according to the suit. (5)

Diamond said in his judgment that the time for Edmund Andre to bring a suit against the maker of thalidomide had long since passed, thereby rejecting Andre’s argument that the company’s initial cover-up of the drug’s effect on babies born to women who took it would extend the statute of limitations. (6)

As to the issue of the statute of limitations, Diamond applied Pennsylvania law, which has a two-year limit from the infliction of harm. The clock would have started running in 1957 for Andre, the judge said.
“The gravamen of plaintiff’s complaint is that defendants’ fraudulent concealment of both thalidomide’s extensive distribution in the United States and the drug’s dangerousness tolled the running of the two-year limitations clock, but the plaintiff failed to prove that claim.
“Andre knew as early as 1969 that his mother had taken thalidomide while she was pregnant with him and he made no significant effort until recently to investigate and bring a case”, Diamond said. (6 again)

Andrew was born in 1957. The judge says that when he had reached the ripe old age of 12, in 1969, he had to file the suit – without knowing whether anybody had committed a tort.

Yes, Andre was left with damage in 1957. But could Andre demonstrate in 1969 that this damage is due to a tort (or negligence) committed by anybody – say guv’mint?

COVER-UP

We, thalidomide monsters, were not present before our birth. We don’t know what “really” happened then.

We were born.

Again, we were not present at our births nor could we ascertain the truth about what cover-up or denial occurred during our childhood.

“How come I am missing limbs? ”
“Ah, this happens just like that – for no reason at all!”

Even though it is (also) a democracy, my understanding is that in a “Rechtsstaat”, where something like the “Rule of Law” exists, the Enemy, a.k.a (also known as) guv’mint, does what it has to do.

As good citizens of democracies, we supposed that the Enemy did what it had to do.

I was born in February 1962. It was only in the fall of 1982, that’s 20 years later, that I first heard of thalidomide, n’est-ce pas Jacques H. Herbots?

In the second half of the first decade of the 21st century, I found that on 30 April – 1 May 1960 at a Düsseldorf congress of neurologists, neurologist Dr. Ralf Voss warned that thalidomide attacked the nervous system of the mother. (7)

It is only in the last 12 or 18 months that I found the 1996 paper by Dr. Herman Cousy, professor emeritus from the law department of the K.U. Leuven, “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,

which started lifting the veil on the truth about the thalidomide scandal

by saying on p. 163, in note 28, 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?”(8)

“Historical criticism” only investigates the origins of “ancient” texts in order to understand “the world behind the text”, said Wikipedia?

The Enemy knew – after the war – like his French colleague who therefore banned the product that there was a “slight” “problem” with thalidomide.

It is the Enemy, not Grünenthal, the maker of thalidomide, who “concealed” – to use Diamond’s words which he probably borrowed from the plaintiff – the dangerousness of the drug by not ordering the immediate withdrawal of the product from “its” territory.

This blogger therefore submits that the cover-up or denial, by all thalidomide “stories” of the past, except by the 1996 scholarly paper of Professor Cousy, of the sole liability of the Enemy for the scandal made it impossible for the (future – as of today) plaintiffs to bring their actions or claims earlier against the real culprit for the scandal.

SPAIN

“Statutes of limitations” are written laws passed by a legislative body in common-law systems – but the Spanish legal system is a civil-law system – to restrict the maximum time after an event that legal proceedings may be initiated, says Wikipedia.

In Québec which, says Wikipedia, continues to apply civil law toward civil private law matters, while the other [Canadian] provinces operate under common law, “prescription” is a way to gain or lose a right through the passage of time, the period of time varying according to the situation, says educaloi.qc.ca.

Similarly in Spain, “en el Derecho, la “prescripción” es un instituto jurídico por el cual el transcurso del tiempo produce el efecto de consolidar las situaciones de hecho, y permite por consiguiente la extinción de los derechos o la adquisición de las cosas ajenas”, says Wikipedia.

Prescription is a legal institution which results in the extinction or acquisition of rights after the passing of time.
Got it?
Or is your Spanish not better than mine?

The title of the article in El Diario, a newspaper, concerning the Spanish judgment of 22 October 2014 quoted above therefore says:
“Anulada la indemnización para los afectados de la talidomida por haber … “prescrito”.” (9)

How can the claims against the Enemy who covered the truth up, or who covered up the truth, or denied the truth, have been prescribed?

How can the statute of limitations have started running before the veil, which still has not totally been lifted, although Professor Cousy gave a good starting-shot, will be lifted on the truth about the Enemy’s sole liability for the thalidomide scandal?

Or was thalidomide really created by the USofA Food and Drug Administration (FDA) director, Dr Frances Oldham Kelsey, to whom USofA president John F. Kennedy gave a Presidential award for having saved the USofA from thalidomide? (10)

And is that real cover-up?

Wait a moment, didn’t I mention a 16 October 2014 judgment of a Pennsylvania, which is a state of the … USofA, federal court in a case Andre vs. GSK?
How can there be a thalidomide victim in the USofA if Kelsey saved the country from thalidomide?

Oops, I also said that Professor Cousy gave a good starting- … shot? Sorry, that was not intended.

Layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth.

That is why that method or “Historical Criticism” still has or rather already has its role to play in ascertaining the truth about the thalidomide scandal and “a fortiori” in assessing whether the actions or claims for thalidomide compensation – against the culprit, guv’mint, the Enemy – have been brought within the time allotted to bring them.

“Da mihi facta, dabo tibi ius”, gimme the facts, I’ll give you the law?

How can we give the facts to the judge, if we don’t know those facts – yet,
or rather if we cannot convince the courts of them – yet?

“Tort” liability of public authorities requires the proof of a … tort – committed by the Enemy.

As layers of cover-up or denial, which the “historical-critical method” has to clean up, are still preventing the disclosure of the thalidomide truth, more research like that of Professor Cousy will have to be conducted before we can convince the public authorities known as the courts that the Enemy has indeed committed a tort half a century ago.

The tort being the intentional neglect of ordering the product to be withdrawn from “its” market, the intention being to present what is a case of guv’mint liability for the said negligence as a case of product liability.

How can we give the facts before the veil on those facts with have been lifted – for the public eye?

Historical Criticism, said you?

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
For the Spanish case, see, concerning the judgment of the Judge of First Instance of 20 November 2013, which was overturned by the Provincial Court on 22 October 2014, my:
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/

(2)
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 por× Grünenthal pueden solicitar ayudas a la Fundación Contergan.

(3)
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”.

(4)
GSK Dodges Claims Over Thalidomide Birth Defects:
By Sindhu Sundar
October 16, 2014
http://www.law360.com/pennsylvania/articles/587662/gsk-dodges-claims-over-thalidomide-birth-defects

(5)
Pa. Judge Denies GSK’s Attempts To Nix Thalidomide Suits
Share us on: By Kurt Orzeck
Law360, Los Angeles (September 27, 2013, 8:56 PM ET)
http://www.law360.com/articles/476480/pa-judge-denies-gsk-s-attempts-to-nix-thalidomide-suits

(6)
Eastern District Judge Tosses Thalidomide Case Against GSK
Saranac Hale Spencer, The Legal Intelligencer
October 17, 2014
http://www.thelegalintelligencer.com/id=1202673704974/Eastern-District-Judge-Tosses-Thalidomide-Case-Against-GSK#ixzz3GvBlUHEx

(7)
Chronik des Contergan-Falls: Tragödie – Katastrophe – Skandal?
http://www1.wdr.de/themen/archiv/sp_contergan/contergan176.html
SNIP
30. April/1. Mai 1960 (ik werd geboren in februari 1962) :
Auf einem Neurologen-Kongress in Düsseldorf berichtet der Neurologe Ralf Voss über die Nervenschädigungen, die seinen Beobachtungen zufolge durch Thalidomid verursacht werden. Die Forschungsabteilung von Grünenthal versucht daraufhin, die Nervenschädigungen an Ratten zu reproduzieren – ohne Erfolg. Grünenthal-Forschungsleiter Mückter schließt daraus, dass es sich um besondere Situationen handelt, für die Contergan nur selten als Ursache infrage kommt.

(8)
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

(9)
Anulada la indemnización para los afectados de la talidomida por haber prescrito
22/10/2014 – 12:12h
http://www.eldiario.es/sociedad/Anulada-indemnizacion-afectados-talidomida-prescrito_0_316368571.html

(10)
Thalidomide – Dishonest Drug
Posted by Ivo Cerckel on April 6th, 2008
http://bphouse.com/honest_money/2008/04/06/dishonest-drug/
SNIP
Thalidomide was definitely known in the year 1938 and [its] defects were noted in Phoenix, AZ (USA) in a medical journal that year. It was known as a cure for Hanson’s Disease and made by [Richardson]-Merrill Co. in [Cincinnati], OH (USA). I don’t know what action was taken, but a young female doctor named Frances Oldham Kersey (or Kelsey) recognized its dangers. Theodore, Princeton, WV/USA
(reaction under From The Times April 4, 2008 Thalidomide: 50 years on victims unite to seek more compensation Nigel Hawkes, Health Editor
http://www.timesonline.co.uk/tol/news/uk/health/article3671815.ece )
Kelsey was the lady who in 1960 only joined the US of A Food and Drugs Administration (FDA).
Once there, she further delayed thalidomide’s approval (thalidomide was marketed – in West Germany – since 1957)
and was given a Presidential award by US of A president Kennedy for that delay.
Wikipedia says
that Kelsey is credited SINCE NINETEEN THIRTY-EIGHT with her interest in teratogens – that is, drugs that cause congenital malformations,
that 1938 was the date of the creation of the FDA,
and that Kelsey managed to be appointed there in 1960
http://en.wikipedia.org/wiki/Frances_Oldham_Kelsey
Thalidomide was marketed since 1957.
Kelsey was only appointed in the FDA in 1960.
How can she get (all) the credit for having “saved” the US of A from it?

Posted in Uncategorized | No Comments »

van Ebola en Softenon naar Maggie De Block en Koen Geens

Posted by Ivo Cerckel on 20th October 2014

Softenon betreft geen product-aansprakelijkheid, maar overheids-aansprakelijkheid voor het niet vrijwaren van de volksgezondheid.

De ebola- en softenon-vragen die niemand aandurft.

Als de 24 vorige ebola-epidimieën sinds 1976 vrij snel onder controle konden komen, kon de huidige dat ook.
Als de Franse Leviathan – na de oorlog, voor het product ooit verhandeld werd – wist dat softenon schadelijk was, wisten zijn buren dat ook.

Op 08 augustus 2014 heeft EU commissaris voor volksgezondheid Tonio Borg betreffende de ebola-crisis verklaard dat het belangrijk is te overwegen (“to consider”) dat Europa over zeer hoge standaarden voor gezondheidszorg en preventieve zorg beschikt. (1)

Belga meldde op donderdag 16 oktober 2014 dat:
“De Europese ministers van Volksgezondheid donderdag overleg hebben gepleegd over de aanpak van de ebola-crisis op Europese bodem. Er werd informatie uitgewisseld, maar er worden geen collectieve maatregelen genomen, ook in België komen er geen nieuwe maatregelen. ‘Iedereen is het erover eens dat we momenteel een paniekcrisis beleven in Europa, maar dat er geen gevaar is voor een heuse uitbraak van ebola’, zei de Belgische minister [van volksgezondheid] Maggie De Block na afloop.” (2)

Op diezelfde 16 oktober 2014 meldde AFP echter dat :
EU commissaris voor volksgezondheid Tonio Borg de effectiviteit van de controles op de luchthavens van de drie meest getroffen landen (Liberia, Guinea en Sierra Leone) zou nagaan (“vérifier”) en zou voorzien in de traceerbaarheid van mogelijke virusdragers (3)
omdat, zo meldde nu.nl die dag:
er “tegenstrijdige berichten” zijn over de effectiviteit van de controles in die drie landen waar het ebola-virus al duizenden levens heeft geëist. (4)

Het enige dat Borg dan kan voorstellen, als effectief zou blijken blijkt dat de controles niet afdoende zijn, is om in internationaal verband maatregelen te treffen om ze te versterken.

Tot zover de zeer hoge EU standaarden voor preventieve gezondheidszorg waarover de EU zou beschikken, volgens de verklaring van Borg op 08 augustus 2014, dat is drie weken na zijn laatste gedachtewisseling met Britse softenonmonsters op 16 juli 2014, waarvan ik hieronder (11) melding zal maken.

Van de hoogmoed van 8 augustus bleef op 16 oktober dus niks over.

Ondertussen had Borg op 04 september 2014, tijdens een gedachtewisseling met de leden van de commissie voor volksgezondheid van het Europees parlement over de ebola-crisis, gesteld dat de EU een “morele plicht” heeft om de getroffen landen te helpen de ebola-uitbraak in te dammen.” (5)

In een “Opinie” “De vraag over ebola die nog niemand beantwoordde” in De Morgen van 18 oktober 2014 vraagt Dr. Luc Bonneux, arts en epidemioloog, zich af waarom deze 25ste ebola-epidemie niet te stoppen te lijkt.

“Ebola veroorzaakt een ‘bloedende koorts’ – de bloedstolling faalt, de zieke bloedt uit alle lichaamsopeningen – dat bloed zit tjokvol virussen, je hebt er niet veel van nodig om besmet te raken. Het virus verspreidt zich echter enkel door direct contact van mens tot mens (dus niet door hoesten, niezen of door besmet water). Een mens is slechts besmettelijk als hij (erg) ziek of net overleden is. Doorgaans stopt de epidemie zichzelf, omdat patiënten doodziek zijn en sterven: het virus sterft met zijn gast. Eenvoudige quarantaine van zieken en doden moet volstaan om de epidemie te stoppen. Er zijn 24 eerdere epidemieën geweest, allemaal kwamen die vrij snel onder controle, zij het soms na enige honderden doden.”

Maar quarantainemaatregelen blijken thans bij de drie geteisterde West-Afrikaanse staten, die model staan voor door burgeroorlog, corruptie en wanbeleid falende staten, niet aan te slaan.

Doorgaans heft de ziekte zichzelf op: patiënten worden snel doodziek en het virus sterft met zijn gast. Maar nu heerst chaos en anarchie, stelt Bonneux.

DE SOFTENON-VRAAG DIE NIEMAND AANDURFT

Bart Eeckhout, chef politiek bij De Morgen, schreef het volgende op 13 oktober 2014 :
“Misschien heeft [minister van volksgezondheid] Maggie De Block wel een andere ‘voorbeeldfunctie’. In een tijd van perceptiedwang, is zij een krachtig en complexloos toonbeeld van hoe ook vrouwen die niet beantwoorden aan een opgelegd lichaamsideaal veel kunnen bereiken.” (7)

Anderen die niet aan het lichaamsideaal beantwoorden zijn de softenon-monsters.

Koen Geens, minister van justitie – dat is iets dat iets met rechtsbedeling te maken heeft, denk ik -, kan misschien uitleggen wat zijn collega Professor emeritus Herman Cousy van de Leuvense rechtsfaculteit, waar Geens ook hoogleraar is, in 1996 bedoelde toen hij schreef dat alhoewel Frankrijk softenon had verboden en verbannen, het product desalniettemin in West-Duitsland en later in de Zuidelijke Nederlanden op de markt kwam. (8)

The Sunday Times voegde er op 06 februari 2009 in een artikel onder de titel “Thalidomide ‘was created by the Nazis’” aan toe dat het medicijn zou kunnen ontwikkeld zijn geweest als een tegengif voor zenuwgas en dat de fabricant van softenon, Chemie Grünenthal GmbH, thans Grünenthal GmbH, in Stolberg, Aken, “de handelsnaam van het medicijn – Contergan – en derhalve waarschijnlijk ook de substantie zelf blijkbaar kocht van een Franse onderneming, Rhône-Poulenc, die tijdens de oorlogsjaren onder Nazi bezetting was.” (9)

Als de Franse Leviathan – na de oorlog, voor het product ooit verhandeld werd – wist dat softenon schadelijk was, wisten zijn buren dat ook.

Of zal de EU commissie dat nog op de valreep, t.t.z. voor het einde van haar mandaat op 1 november 2014, uitleggen door een beslissing te nemen?

Na een eerste (of tweede?) gedachtewisseling met de hogervermelde EU commissaris voor volksgezondheid Tonio Borg in februari 2014 (10), hadden sommige Britse softenon-monsters nog een derde gedachtewisseling met Borg op 16 juli 2014. (11)

Het zou dus drie weken later, op 08 augustus 2014, zijn dat Borg betreffende de ebola-crisis zou verklaren, dat het belangrijk is te overwegen (“to consider”) dat Europa over zeer hoge standaarden voor gezondheidszorg en preventieve zorg beschikt. (1)

Je zal maar durven, drie weken na de gedachtewisseling met Britse softenon-monsters
… om dan op 16 oktober 2014 te moeten toegeven vragen te stellen betreffende de effectiviteit van de controles die inderdaad niet afdoende blijken te zijn. (4)

Maar dat is niet alles voor Borg. Zoals ik hoger vermeldde, verklaarde hij op 04 september 2014, tijdens een gedachtewisseling met de leden van de commissie voor volksgezondheid van het Europees parlement over de ebola-crisis, dat de EU een “morele plicht” heeft om de getroffen landen te helpen de ebola-uitbraak in te dammen.” (5)

Bestond die morele plicht een halve eeuw geleden niet voor softenon, (niet in West-Afrika, maar) in de Zuidelijke Nederlanden?

Zoals ik zei, had Borg drie gedachtewisselingen met Britse softenon-monsters.

Groot-Brittannië is geen buurland van Frankrijk, zegt U?

Geens was liever op het “departement” financiën gebleven?

Bij zijn “landing” op justitie verklaarde Geens:
“Natuurlijk hoopt een grootvader dat zijn kleinkind een zoon is. Maar als het een kleindochter is, dan is hij nog gelukkiger. Met Justitie gaat mijn stoutste droom in vervulling.” (12)

Hoe reageert een grootvader als het kleinkind een softenon-monster is tengevolge van het feit dat het goevernement, ofte de Vijand, na de Franse verbanning van softenon het product niet van de markt geweerd heeft?

Dit heeft aan andere misdadigers zoals de vader van dit softenon-monstertje, Henri Cerckel
(sinds ik hiervan weet heb en gewag maakte op internet, heet hij “Hendrik” Cerckel in de telefoongids op infobel.be),
doctoor in de geneeskunde,
toegelaten om softenon ter kwader trouw toe te bedienen zonder strafvervolging te moeten vrezen.

Neen, het Luikse hof van assisen, onder luid applaus, neen gejoel, van de massa opgesteld op de Place Saint Lambert voor het Luikse gerechtsgebouw, kwam dan in 1962, het jaar waarin De Block en dit bloggertje geboren werden, af met een verdict dat de moordenaars van een softenon-monster, geboren na De Block (april 1962) en dus na dit monstertje (februari 1962), vrijsprak.

Waarom wachtte de raad van de E.E.G. dan tot 25 juli 1985 om haar richtlijn 85/374/EEG betreffende de harmonisering van het product-aansprakelijkheids-recht aan te nemen?
Omdat de E.E.G. werd opgericht te Rome in 1957, hetzelfde jaar dat softenon op de West-Duitse markt verscheen?

Als de Franse Leviathan – na de oorlog, voor het product ooit verhandeld werd – wist dat softenon schadelijk was, wisten zijn buren dat ook.

Geen Leviathan heeft daartegen iets ondernomen – laat staan dat strafvervolging werd ingesteld tegen hen – zoals de vader van dit softenon-monstertje – die daarvan geprofiteerd hebben om misdrijven te begaan.

Daar waar juristen softenon zouden dienen te kwalificeren als een zaak van overheids-aansprakelijkheid voor het niet vrijwaren van de volksgezondheid, hadden onze heersers softenon nodig om hun richtlijn inzake product-aansprakelijkheid te kunnen stemmen, maar dat mocht niet geweten worden en dus wachtte de E.G. raad tot 1985 om die richtlijn inzake product-aansprakelijkheid aan te nemen.

Daarom dat alhoewel de buren van de Franse Leviathan die (na de oorlog), zoals de Franse Leviathan, wisten dat softenon schadelijk was, deze buren niks ondernomen hebben om het product van de markt te verwijderen. De Franse Leviathan daarentegen weigerde de toegang van het product tot “zijn” markt.

De voorgangster van De Block als minister van volksgezondheid, Laurette Onkelinkx, die reeds haar eigen voorgangster was in de regering voor de vorige, heeft twee regeringen geleden, in maart 2010, stappen ondernomen om softenon-monsters te “helpen”. (13)
Toen “kwamen” er “plots” verkiezingen, dat was dus weer de verkiezingen (die van 2010) voor de vorige verkiezingen, en viel alles in het water.

Dit softenon-monstertje schreef toen Professor Johan Vande Lanotte aan. (14)

Enkele maanden later hebben sommige softenon-monsters de Leviathan opgesteld in de Zuidelijke Nederlanden gedagvaard in schadevergoeding (15) zodat het voorstel van Onkelinx verder verdronk.

De eisers hebben verloren in eerste aanleg.

Tegen dat vonnis werd hoger beroep ingesteld. (16)
Wat met dat hoger beroep gebeurd is, weet ik niet.
Ik veronderstel dat de Vijand zwaar druk heeft uitgeoefend op de (advocaten van de) appellanten.

Misschien kan De Block iets doen voor hen die, zoals dit bloggertje, nog steeds wachten op hun eerste frank vergoeding en daarom 14 jaar geleden naar Zuidoost Azië, waar alles beterkoop is, dienden te vluchten.

Tenmidden van deze chaos en anarchie, kunnen Maggie De Block en Koen Geens een ‘voorbeeldfunctie’ uitoefenen door op de ware oorzaken van deze zogenaamde ‘catastrofen’ te wijzen.

Als de 24 vorige ebola-crisissen onmiddellijk de wereld uit waren, kon de huidige crisis ook ommiddellijk de wereld uit zijn geweest.

Als de Franse Leviathan – na de oorlog, voor het product ooit verhandeld werd – wist dat softenon schadelijk was, wisten zijn buren dat ook.
Waarom deden de andere Leviathans dan alsof hun neus bloedde?
Waarom heeft “men” de huidige ebola-epidemie niet snel onder controle gekregen?

Dit zijn de vragen die nog niemand beantwoordde.

Maggie De Block beanwoordt niet aan het lichaamsideaal?
So what? Beantwoord ik aan het lichaamsideaal?
Het ideaal van de volksgezondheid werd door de Belgische Leviathan 50 jaar geleden met de voeten getreden.
Het quarantaine-ideaal van ebola-zieken en –doden van de 24 vorige ebola-crisissen wordt met de voeten getreden.

De juridische deskundigheid van de Leuvense Professoren Herman Cousy en Koen Geens zou moeten volstaan om hiermee komaf te maken.

Vrouwe “Justitia” wordt altijd geblinddoekt afgebeeld met een zwaard en een … weegschaal, niewaar Maggie?
Het recht is de kunst van het billijke en het goede, “ars aequi et boni”.

Maar in een democratie, als tegengesteld aan een rechtsstaat, gaat het enkel om het uiterlijke.

Ivo Cerckel
ivocerckel@siquijor.ws

NOTEN

(1)
Statement by Commissioner Borg on the Ebola outbreak in West Africa
European Commission – STATEMENT/14/251 08/08/2014
http://europa.eu/rapid/press-release_STATEMENT-14-251_fr.htm
UITREKSEL
It is also important to consider that the EU has very high standards of health and preventive care.

(2)
Maggie De Block: ‘Europa beleeft momenteel paniekcrisis’
16/10/2014 om 14:52 | Bron: BELGA
http://www.standaard.be/cnt/dmf20141016_01324894

(3)
Ebola: l’UE veut des contrôles efficaces et plus de traçabilité
Publié le 16-10-2014 à 16h22Mis à jour à 19h12
http://tempsreel.nouvelobs.com/monde/20141016.AFP8472/ebola-l-ue-va-immediatement-verifier-l-efficacite-des-controles.html
UITREKSEL
Bruxelles (AFP) – L’Union européenne va vérifier l’efficacité des contrôles anti-Ebola menés dans les aéroports des trois pays africains touchés par l’épidémie et travaille à garantir la traçabilité des possibles porteurs du virus, a annoncé jeudi le commissaire européen à la Santé, Tonio Borg, à l’issue d’une réunion ministérielle à Bruxelles.

(4)
Heel Sierra Leone nu in de greep van ebola
16 oktober 2014 17:55
http://www.nu.nl/ebola/3905161/heel-sierra-leone-in-greep-van-ebola.html
UITREKSEL
Volgens Borg zijn er “tegenstrijdige berichten” over de effectiviteit van controles in Guinee, Liberia en Sierra Leone, de drie landen waar het ebolavirus al duizenden levens heeft geëist. Als blijkt dat de controles niet afdoende zijn, zullen er in internationaal verband maatregelen worden getroffen om ze te versterken, aldus Borg.

(5)
Tonio Borg: EU heeft “morele plicht” om door Ebola getroffen landen te helpen – Hoofdinhoud
Met dank overgenomen van Europees Parlement (EP), gepubliceerd op donderdag 4 september 2014, 15:44.
http://www.europa-nu.nl/id/vjmwnkfb8bva/nieuws/tonio_borg_eu_heeft_morele_plicht_om?ctx=vhsjeu461wp8&tab=0
UITREKSEL
“De EU heeft een “morele plicht” om de getroffen landen te helpen de Ebola-uitbraak in te dammen,” zei Tonio Borg, Commissaris voor Volksgezondheid, tijdens een gedachtewisseling met de leden van de Volksgezondheidscommissie over de Ebobala-crisis. “Hoe meer we de ziekte indammen, hoe kleiner de kans dat de ziekte Europa bereikt,” zei hij. De leden deelden de mening dat er meer moet worden geholpen maar waren bezorgd over budgettaire beperkingen en wezen op het belang van onderzoeksfinanciering.

(6)
“Opinie”
“De vraag over ebola die nog niemand beantwoordde”
Luc Bonneux is arts en epidemioloog.
18 oktober 2014
http://www.demorgen.be/opinie/de-vraag-over-ebola-die-nog-niemand-beantwoordde-a2093273/

(7)
“Standpunt”
Bart Eeckhout
“Maggie De Block is een krachtig en complexloos toonbeeld”
Bart Eeckhout is chef politiek bij De Morgen.
13 oktober 2014
http://www.demorgen.be/opinie/-maggie-de-block-is-een-krachtig-en-complexloos-toonbeeld-a2087132/

(8)
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, voetnoot 28
UITREKSEL:
“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? ”

(9)
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 werkt niet langer.
Gecopieerd hier:
http://www.fourwinds10.net/siterun_data/health/harmful_products/news.php?q=1234215547
UITREKSEL
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.

(10)
Open Letter to EU Health Commissioner Tonio Borg – Re: Thalidomide
Posted by Ivo Cerckel on February 23rd, 2014
http://bphouse.com/honest_money/2014/02/23/open-letter-to-eu-health-commissioner-tonio-borg/

(11)
Harrogate Thalidomider’s unprecedented third meeting with EU Health Commissioner
16 July 2014
http://www.harrogate-news.co.uk/2014/07/16/harrogate-thalidomiders-unprecedented-third-meeting-eu-health-commissioner/

(12)
REACTIES. ‘Grootvader heeft liefst een kleinzoon, maar met kleindochter is hij nog gelukkiger’
11/10/2014 om 14:50 door rvs
http://www.standaard.be/cnt/dmf20141011_01315803
UITREKSEL
Voormalig minister van Financiën Koen Geens (CD&V) bekeek zijn ‘position switch’ op een filosofische manier. ‘Natuurlijk hoopt een grootvader dat zijn kleinkind een zoon is. Maar als het een kleindochter is, dan is hij nog gelukkiger. Met Justitie gaat mijn stoutste droom in vervulling.’

(13)
Un premier geste pour les victimes du Softenon
Laurence Dardenne
Publié le mardi 23 mars 2010 à 04h15 – Mis à jour le mardi 23 mars 2010 à 07h59
http://www.lalibre.be/actu/sciences-sante/un-premier-geste-pour-les-victimes-du-softenon-51b7301ee4b0de6db974feba
UITREKSEL
Lundi, en effet, la ministre de la Santé, Laurette Onkelinx (PS) devait annoncer en conclave qu’un budget de 5 millions d’euros serait débloqué pour les victimes du Softenon. “La somme sera versée à une Fondation qui doit encore être créée, nous a-t-on dit au cabinet de la ministre, elle sera chargée de répartir le montant entre les personnes atteintes qu’il faudra recenser. L’obtention du budget est un geste de soutien important à ces personnes atteintes de malformations congénitales particulièrement handicapantes”.

(14)
Open Brief aan Johan Vande Lanotte
Posted by Ivo Cerckel on April 30th, 2010
http://bphouse.com/honest_money/2010/04/30/open-brief-aan-johan-vande-lanotte/

(15)
treize monstres softenon c/ état belge
Posted by Ivo Cerckel on September 2nd, 2010
http://bphouse.com/honest_money/2010/09/02/treize-monstres-softenon-c-etat-belge/

(16)
14 victimes du Softenon ont interjeté appel
Rédaction en ligne
Mis en ligne vendredi 16 mars 2012, 6h00
http://www.lesoir.be/55609/article/actualite/belgique/2012-08-24/14-victimes-du-softenon-ont-interjet%C3%A9-appel

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Brazil Scotland Thalidomide and Thomas Aquinas

Posted by Ivo Cerckel on 22nd July 2014

SUMMARY

The primary cause, as opposed to the efficient cause, of the thalidomide scandal is the fact that after the French government had banned thalidomide, other governments 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.

This is proven by the fact that thalidomide monsters are in 2014 still being born in Brazil.

It may be that ‘in clinical trials’, thalidomide is shown to be effective against many things. But ‘in real life’, it is given to pregnant girls who are unaware of the effects of the drug.

A government’s first reason to exist – if any – is to protect “its” subjects from such behaviour by others.
That’s government’s general duty to maintain public order and to maintain the physical integrity of “its” subjects.

Government should have prevented thalidomide being brought onto “its” markets after the French ban or should at least have immediately ordered the withdrawal of thalidomide from “its” markets, once the product appeared there after the French ban.
By not doing that, government has committed a crime or offence, but, of course, prosecution can only be instituted by, and in the name of … government.

Fortunately, the description of a tort, as opposed to a crime or offence, implies that certain standards should be maintained or upheld – even by non-French governments.

The UK thalidomiders do therefore in July 2014 no longer attack the manufacturer of thalidomide as they did in February 2014, although some members of Scottish parliament continue to argue that this manufacturer is the primary cause of the thalidomide scandal.

END OF SUMMARY

POINT OF ORDER

Dr. Eileen Cronin writes on p. 282 of her “Mermaid: A Memoir of Resilience” (London & New York, W. W. Norton & Company, 2014) that she had to rub her eyes and double-check the wording when she read as a young adult that thalidomide-deformed children were being referred to as “monsters” and that thalidomide was being referred to 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.)

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

1.
On 11 July 2014, Jim Hume, a member of the Scottish parliament, from the party of the Scottish Liberal Democrats, filed the following Motion, hereafter the Motion, in the Scottish parliament:

Motion S4M-10594: Jim Hume, South Scotland, Scottish Liberal Democrats, Date Lodged: 11/07/2014
Justice for Thalidomiders
http://www.scottish.parliament.uk/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S4M-10594&ResultsPerPage=10

“That the Parliament notes the ongoing struggles faced by thalidomiders across the UK, including the 57 survivors who live in Scotland; considers that the supply of thalidomide to pregnant women between 1958 and 1961 to combat morning sickness is the world’s worst drug disaster and has led to the birth of over 10,000 disfigured children; further notes that babies continue to be born with disabilities caused by thalidomide in some parts of the world where it is still prescribed to pregnant women; considers that the German pharmaceutical company, Grünenthal GmbH, has primary responsibility for the disaster; commends the Scottish and UK governments for providing financial assistance to help meet some of the extra health-related costs thalidomiders experience because of their disabilities; understands that, despite government assistance, thalidomiders still face costs and regrets that Grünenthal GmbH fail to meet the deficit; further commends the work of the Thalidomide Trust, which campaigns to raise awareness of the plight of thalidomiders and supports those affected; welcomes the independent inquiry announced by the state of North Rhine-Westphalia in Germany into alleged irregularities in the 1968-70 criminal trial of Grünenthal, which was eventually terminated; understands that thalidomide campaigners are working to secure a political solution through negotiations with Grünenthal GmbH and the German Government to receive more adequate compensation, and believes that the German Health Minister, Hermann Grohe, and the Families Minister, Manuela Schwesig, should agree to meet with campaigners to try and reach a satisfactory outcome.

“Supported by: Bill Kidd, Jean Urquhart, John Mason, Fiona McLeod, Richard Lyle, Kevin Stewart, Mike MacKenzie, Maureen Watt, Jackie Baillie, Drew Smith, Kenneth Gibson, Cara Hilton, Anne McTaggart, David Torrance, Colin Keir, Neil Findlay”

2.
The primary cause – as opposed to the efficient cause (see Section 6 of this blog post) – 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.

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” 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, 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 fulfilled?” (1)

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, Rh?ne-Poulenc, which was under Nazi control during the war years.”

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

This demonstrates that the Leviathans 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 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.

3.
It is possible that in the first country where thalidomide was marketed, West Germany, there were, at the time when the product was brought onto the West German market, no laws requiring the licensing of medicines. Like all other Leviathans, the West German Leviathan had however a general duty to maintain public order and to maintain the physical integrity of “its” subjects and had thus to use all the required means to prevent thalidomide being brought onto “its” markets after the French ban or should at least have immediately ordered the withdrawal of thalidomide from “its” markets, once the product appeared there after the French ban. The said Leviathan, nor its competitors onto whose markets the product was brought following the West German example did not use any of these means. Nay, after having committed these crimes or offences, some of the Leviathans went on to licensing the product.

The West German Leviathan’s first reason to exist – if any – was and is for all other Leviathans to protect “their” subjects.

To that effect,
Leviathan is entrusted with a general duty to maintain public order and to maintain the physical integrity of “its” subjects
and
Leviathan can,
if one of “its” subjects – or itself – commits a “crime” or “offence”, that is, an illegal act, omission or event, whether or not it is also a tort, a breach of contract or trust [against or vis-à-vis another of its subjects], and the offender is detected,
decide to “prosecute” him “in the name of … Leviathan”. (2)

All Leviathans should have prevented thalidomide being brought onto “their” markets after the French ban or should at least have immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban. By not doing that, those Leviathans have committed a crime, but, of course, prosecution against Leviathan can only be instituted by … Leviathan itself.

Fortunately, the description of a tort, as opposed to a crime or offence, implies that certain standards should be maintained or upheld – even by non-French governments.

Smith & Keenan taught and are still teaching in England, yes, but concerning Common Law, thus also applicable in Scotland I think, that:
“it is difficult to give a satisfactory definition of a tort. According to Professor Winfield (who was a distinguished author of a major text on the subject and whose definition has been accepted by our courts in many decided case), ‘tortuous liability arises from a duty primarily fixed by law. This duty is towards persons generally and its breach is redressible by an action for unliquidated damages’. Perhaps a more straightforward description of tort is that it is ‘comprised in the golden maxim to do unto your neighbour a you would have him do unto you. It imposes standards … and it is of the utmost importance to the community that those standards should maintained and it teaches a man to respect his neighbour’s right of property and his person’ as “per” Lord Atkin, ‘Law as Educational Subject’ [1932]“. (3)

I understand this as meaning that the description of a tort derives from the fact, or implies, that certain standards should be maintained and that the description therefore teaches a man to respect his neighbour’s right of property and [the physical integrity of] his person.

By banning thalidomide, the French Leviathan maintained or respected these standards and respected [the physical integrity of] the “persons” of its citizens.

All those Leviathans, which did not prevent the product being brought onto “their” markets after the French ban nor immediately ordered the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban, have violated these standards.

4.
The reader will have noticed that the Motion contains the following excerpt:
“further notes that babies continue to be born with disabilities caused by thalidomide in some parts of the world where it is still prescribed to pregnant women; considers that the German pharmaceutical company, Grünenthal GmbH, has primary responsibility for the disaster; [...]“.

If I translate this legalese, which the Motion contains in and as ONE BLOCK, this means:
“That the Parliament […] further notes that babies continue to be born with disabilities caused by thalidomide in some parts of the world where it is still prescribed to pregnant women; [that the Parliament] considers that the German pharmaceutical company, Grünenthal GmbH, has primary responsibility for the disaster; [...]“.

The parliament notes that babies continue to be born with disabilities caused by thalidomide in some parts of the world where it is still prescribed to pregnant women.
Is this the fault of Grünenthal?

No, this is not the fault of Grünenthal.

Taking into account that thalidomide was banned almost sixty years ago by the French Leviathan,
and taking human nature, which is constituted as such that some individuals who have knowledge about the effects of thalidomide will ‘always’ deliberately and unnoticeably cause the serious harm thalidomide can ‘so easily’ cause to the foetus and the mother, into account,
the Brazilian Leviathan should have more than fifty years ago immediately ordered the withdrawal of thalidomide from “its” markets, once the product appeared there after the French ban.

By not doing this, the Brazilian Leviathan and all others Leviathans on whose territory thalidomide was marketed, violated these standards.

Ergo,
“The Fifty Year Fight”, fiftyyearfight.org, a UK thalidomide monsters’ organisation, does no longer attack Grünenthal.

To repeat:

The fact that babies continue to be born with disabilities caused by thalidomide in some parts of the world, especially in Brazil, where thalidomide is still being swallowed by pregnant women
is not the fault of Grünenthal,

“quod erat demonstrandum”
(‘what or which had to be proven’ for “The Fifty Year Fight” in the February 2014 when I wrote on this blog my “Open Letter to Commissioner EU Health Commissioner Tonio Borg- Re: Thalidomide” (4) in whose Section 5 I gave that proof),

or rather,
what has already been proven in Section 2 of the present blog post (as I had done in Section 5 of that Open-Letter blog post (4, again)).

As the Motion notes, there’s a new generation of thalidomide monsters in the third world, [especially in Brazil – in the first world, they are probably all killed at birth – or rather aborted before birth as echoscopy (ultrasound), which did not exist fifty years ago, will have revealed the thalidomidisation of the foetus].

Thalidomide is available in Brazil – with or without prescription – because ‘in clinical trials’, it is shown to be effective against many things.
But ‘in real life’, it is given, “prescribed” says the Motion, to pregnant girls who are unaware of the effects of the drug.

And the Brazilian Leviathan, whose primary and general duty is to maintain public order and to maintain the physical integrity of “its” “sub”-”jects”
(thrown under in Latin – “sub” is under, “iacere” or something like that is to throw,
“alea iacta est” (“the die is cast”))
is a “passive” spectator, because the die has been cast it thinks, and cannot possibly imagine that it could outlaw thalidomide.

At the end of the day, the following question arises:
Who is the real “sub”-”ject”?
Who is really thrown under the facts and (thinks he) cannot control those evens by which he is submerged?
Yes, Leviathan is the “sub”-”ject”.

An anarchist’s paradise!

5.
The Motion was filed by Jim Hume in the Scottish parliament on 11 July 2014, that is, exactly one month up to the day, 11 June 2014, that “The Fifty Year Fight” released a News Release, signed by “inter alia” (among others) Liz Buckle from Scotland (and Guy Tweedy from England), arguing that new evidence proves that the German Leviathan was “complicit” in the thalidomide scandal. (5)

The Harrogate Informer, harrogate-news.co.uk, said on 17 July 2014, that Guy Tweedy, an Harrogate thalidomide monster, had on that day, [together with other members of "The Fifty Year Fight"] an unprecedented third meeting with EU Health Commissioner Tonio Borg. (6)

At the end of February 2014, the ultimate goal of “The Fifty Year Fight” was a financial settlement from Grünenthal.
And to that effect the said organisation wanted Borg to mediate between
itself, whose members include Liz Buckle from Scotland,
[and] Grünenthal,
AND the German Leviathan. (4, again)

The Harrogate Informer is now reporting that “The Fifty Year Fight” ONLY wants Borg’s support in brokering a meeting between “The Fifty Year Fight” and the German Leviathan, which “The Fifty Year Fight” says is complicit in the Thalidomide scandal. (6, again)

What a change of attitude!

In February, the ultimate goal of “The Fifty Year Fight” was to obtain a financial settlement from Grünenthal and they wanted Borg to convince the German Leviathan to “mediate” between them and Grünenthal.

Now, they want Borg to help them “attack” the said Leviathan and they seem to have no more claims against Grünenthal, although their ultimate goal was to obtain a financial settlement from Grünenthal.

I would happily applaud this change of attitude with both hands but … I don’t have two hands.

6.
I said in Section 4 that the reader will have noticed that the Motion contains the following excerpt:
“further notes that babies continue to be born with disabilities caused by thalidomide in some parts of the world where it is still prescribed to pregnant women; considers that the German pharmaceutical company, Grünenthal GmbH, has primary responsibility for the disaster; [...]“.

And I went immediately on in that Section to translate this legalese, which the Motion contains in and as ONE BLOCK, as:
“That the Parliament […] further notes that babies continue to be born with disabilities caused by thalidomide in some parts of the world where it is still prescribed to pregnant women; [that the Parliament] considers that the German pharmaceutical company, Grünenthal GmbH, has primary responsibility for the disaster; [...]“.

I demonstrated in Section 2 that the only cause of the thalidomide scandal is, that is, that the only responsibility for the thalidomide scandal lies with, the Leviathans which, after the French Leviathan had banned thalidomide, did not prevent the product being brought onto “their” markets, nor did immediately order the withdrawal of thalidomide from “their” markets, once the product appeared there after the French ban.

In this Section 6, I want to draw attention to the fact that the Motion says in the quoted block that Grünenthal has “primary” responsibility for the disaster, that is, that Grünenthal is the “primary” cause of the thalidomide scandal.

It may be that thalidomide is the “efficient” cause (7),
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 Grünenthal 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. (8)

For Aquinas the “Liber de Causis” is an exercise in the culminating philosophical effort, wisdom, as theology. (9)

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. (10)

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. (11)

The Motion alleges that Grünenthal is the (“alleged”) cause of the thalidomide scandal.
Or rather, it says that Grünenthal has “primary” “responsibility” for the disaster,
thereby implying that Grünenthal is the “primary” “cause” of the thalidomide scandal.

“Ad nauseam” ((I repeat the argument) to seasickness):
The fact that thalidomide monsters are still being born in Brazil, when the teratogenic (monster-creating) characteristics of thalidomide are well known since half a century proves that the Leviathans are the “primary” cause, as opposed to the “efficient” cause of the thalidomide scandal .

It may be that ‘in clinical trials’, thalidomide is shown to be effective against many things. But ‘in real life’, it is given to pregnant girls who are unaware of the effects of the drug.

To repeat (and extend):
Human nature is indeed constituted as such that some individuals who have knowledge about the effects of thalidomide will ‘always’ deliberately and unnoticeably cause the serious harm thalidomide can ‘so easily’ cause. They do that precisely because the damage is so serious to the mother and to the foetus and because they can do that so easily and without being noticed.

“Ad nauseam” again, it may be that ‘in clinical trials’, thalidomide is shown to be effective against many things. But ‘in real life’, it is given to pregnant girls who are unaware of the effects of the drug.

A Leviathan’s first job, a Leviathan’s first reason to exist – if any – is to protect “its” subjects from such behaviour by others by preventing thalidomide being brought onto “its” markets after the French ban or at least by immediately ordering the withdrawal of thalidomide from “its” markets, once the product appeared there after the French ban.

Thalidomide should immediately be outlawed by all Leviathans, full stop – without any concession to the so-called “results” ‘in clinical trials’.

At the end of the day, even the “The Fifty Year Fight” seems to understand that.

Me happy!

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
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

(2)
A crime or offence is an illegal act, omission or event, whether or not it is also a tort, a breach of contract or trust, the principal consequence of which is that the offender, if he is detected and if it is decided to prosecute, is prosecuted by or in the name of [Leviathan], and if he is found guilty is liable to be prosecuted whether or not he is also ordered to compensate his victim
(Card Cross and Jones (Richard Card, ed.), “Criminal Law”, Edinburgh, Butterworths, 1992, Section 1)

(3)
Smith & Keenan’s, “English Law”, 2010, 16th ed. (Charles Wild & Stuart Weinstein, eds.),, Longman, an imprint of Pearson Education, p. 439

(4)
Open Letter to EU Health Commissioner Tonio Borg – Re: Thalidomide
Posted by Ivo Cerckel on February 23rd, 2014
http://bphouse.com/honest_money/2014/02/23/open-letter-to-eu-health-commissioner-tonio-borg/

(5)
News Release !
11/06/2014
New Evidence Proves German Government “Complicit” In
Thalidomide Scandal (embargoed until 00:01 11/06/2014)
http://www.fiftyyearfight.org/images/NewEvidence.pdf
SNIP
UK disability campaigners have unearthed new evidence that proves the German
government’s lack of pharmaceutical regulations led to the devastating Thalidomide
scandal.

(6)
Harrogate Thalidomider’s unprecedented third meeting with EU Health Commissioner
July 17, 2014
http://www.harrogate-news.co.uk/2014/07/16/harrogate-thalidomiders-unprecedented-third-meeting-eu-health-commissioner/

(7)
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)7)

(8)
Ralph McInerny, “Aquinas”, Cambridge UK, Oxford UK, Malden, MA: Polity, 2004, p. 19

(9)
McInerny, op. cit., p. 37

(10)
Adriaan Pattin, “De hiërarchie van het zijnde in het “Liber de Causis””, “Tijdschrift voor Filosofie”, 23 (1961), 130, p. 140

(11)
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)

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Open Letter to EU Health Commissioner Tonio Borg – Re: Thalidomide

Posted by Ivo Cerckel on 23rd February 2014

Dear Commissioner Borg,

Most people agree with conclusions reached through immediate inference.
But, if they are already able to find the major and minor premises, most people are afraid of the conclusions reached through syllogisms.

1.
The press is reporting that on Tuesday 25 February 2014 you will meet three persons who claim to be representatives of the UK’s remaining 469 thalidomiders. They will be accompanied by a cross-party selection of British Members of the European Parliament (MEPs) which arranged for the meeting. You will be holding roundtable discussions with them in Strasbourg.

Those three persons want you to mediate between them, Grünenthal GmbH, i.e., the maker of thalidomide, and the German Leviathan, their ultimate goal being a financial settlement from Grünenthal GmbH, known fifty years ago as Chemie Grünenthal GmbH.

One of your main questions after your first meeting on Tuesday 14 January 2014 – without the MEPs – at your Brussels headquarters is why the German Leviathan should be involved.

2.
The three so-called representatives want Grünenthal GmbH, hereafter Grünenthal, which has never paid a penny to UK, Swedish and other European victims of its drug, which the European Leviathans labelled the “wonder drug”, to own up to its “moral” duties and compensate those its product damaged for life.

Grünenthal refused to intervene in the recent Australian New Zealand compensation case which was settled between the plaintiffs and the distributor of thalidomide in Australia and New Zealand.

It appears therefore that it will be impossible to convince Grünenthal to agree to an amicable settlement with the EU as judge – and …  party.

Yes “party”, see the final section 10 of this letter.

3.
One of the representatives’ main arguments is that the German legislator in 1971 created the Conterganstiftung, the Thalidomide Foundation, whose starting capital was provided jointly by the said Leviathan and by Grünenthal.

Payments to thalidomiders born in West Germany would be made, and are still made, through the said Stiftung.

The Act/Statute/Law relating to the Conterganstiftung went on to exonerate Grünenthal from future payments to the Stiftung which provides payments to German-born thalidomiders only. Payments to other thalidomiders cannot possibly have been affected by this Act/Statute/Law. German legislators and courts have indeed no jurisdiction to declare their Diktat(for legislators)/ruling(for courts} in a case involving German parties living/established in Germany applicable outside Germany.

In two judgments of 1976 and 2010, the German constitutional went to great lengths to demonstrate that by doing this the German Leviathan had not recognised its liability for the thalidomide scandal.

If you are interested, I went – to great lengths also – to understand these judgments
(BVerfGE 42, 263. of 08 July 1976 and BVerfG, 1 BvR 1541/09 of 26 February 2010)
and criticise them
by posting, after having posted comment in French under the original post, also English comment on Le Grand Portail Philosophie Thomas d’Aquin 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=57241&t=57175&v=f

But again, German courts have no jurisdiction to declare their ruling in a case involving German parties living/established in Germany applicable outside Germany.

So thalidomiders born outside Germany (and who never lived in Germany) are not bound by these judgments.
They can therefore invoke the Conterganstiftungsgesetz, the Act/Statute/Law relating to the Conterganstiftung, as West Germany recognising its liability for the thalidomide scandal.

West Germany recognised its liability.
Why do UK thalidomiders continue to attack Grünenthal?

4.
As I said in section 2, the three so-called representatives want Grünenthal to own up to its “moral” duties and compensate those its product, which the Leviathans labelled the “wonder drug”, damaged for life.

My understanding of tort law is that before anybody can be asked, c.q. condemned, to pay damages to somebody else, the latter must prove a tort or negligence on the part of the former.

The representatives seem not even to be bothering about demonstrating a tort or negligence on the part of Grünenthal. Their only argument seems to be that the said private limited company manufactured the product and that it therefore has a “moral”, not legal, duty to compensate the victims of its product. Compensate to what extent and for which damage which would not yet have been compensated – they don’t say.

That’s the first step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions which Grünenthal will not agree to attend.

5.
Next step.

Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers
[and, I submit, governments licensing the products,]
to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation
[, c.q., I submit, at the time when they allowed the product onto "their" markets,]
was not such as to enable the existence of a defect to be discovered,
as defined at present “a contrario” 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
which provides that:
“each Member State may by way of derogation … maintain … or provide in [its] legislation that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.”

Dr. Herman Cousy, professor 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 situation were fulfilled?” (1)

Indeed,
as The Sunday Times said on 08 February 2009
“Grünenthal, the maker of the drug, 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.” (2)

Thalidomide which was developed in France had been banned in France.

Why did West Germany nevertheless allow it to its market?
West Germany allowed to its market. Others therefore followed the example.
Fortunately, the example was not followed by East Germany.

Ergo,
as Die Welt, a newspaper, reported on 29 January 2014,
“the (German) Land (state) of North Rhine-Westphalia announced on 28 January 2014 that it will examine its role in the thalidomide scandal.” (3)

By the late 1950s, our enlightened society had indeed already entrusted Leviathan with the task of ensuring that only safe medicines are marketed.
That is what is called “government control of medicines”, “staatliche Arzneimittelkontrolle”.
Section 23 of the quoted 2010 judgment of the German constitutional court speaks about “mangelnde staatliche Arzneimittelkontrolle” which I would translate as “failing government control of medicines”. (4)

It is possible that in those days the control requirements or control criteria were less stringent than today, the fact is that they existed. A product whose teratogenic effects were known had to be refused access to the market by the competent bureaucrats. If not, why does Leviathan extract currency from its subjects through taxation in order to pay those bureaucrats?

6.
Third step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions which Grünenthal will not agree to attend.

Thalidomide was first marketed in 1957, the same year that the European Economic Community (EEC)-Treaty was signed at Rome.

European law has 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)

In order not to make it too obvious that thalidomide was necessary to achieve this,
the then-EEC waited until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC,
n’est-ce pas Jacques H. Herbots?

7.
The first step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions is that the representatives of the UK thalidomiders seem not even to be bothering about demonstrating a tort or negligence on the part of Grünenthal GmbH. Their only argument seems to be that the said private limited company manufactured the product.

The second step is that when thalidomide was brought onto the German market, the product had been banned in France.

The third step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions is that in order not to make it too obvious that thalidomide was necessary to achieving that European law became the corner stone (“la pièce maîtresse”) of national legislations concerning consumers, the then-EEC waited until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC.

These two latter steps should each serve as the minor premise of two different syllogisms.

In section 8, I will therefore try to explain what is a syllogism, what are its premises and what is an immediate inference.

Once I have done that, my argument that if most people agree with conclusions reached through immediate inference, but that, if they are already able to find the major and minor premises, most people are afraid of the conclusions reached through syllogisms, becomes understandable I think.

In sections 9 and 10, I will construct two syllogisms. As most people refuse to accept the conclusions of these syllogisms, the validity of my argument that most people, if they are already able to find the major and minor premises, are afraid of the conclusions reached through syllogisms will thereby have been demonstrated.

Mr Commissioner, you are not “most people” and should thus accept these conclusions – although, I agree, they are somewhat unpleasant for your employer.

Before moving to section 8, I will quote Josef Pieper:

“What is self-evident is not discussed. It is taken for granted, “it goes without saying”. “Cela va sans dire.” One only has to ask: what exactly is it that is taken for granted and so many remain unexpressed?”

(Josef Pieper, “The Negative Element in the Philosophy of Saint Thomas Aquinas”, in: Josef Pieper, “The Silence of Saint Thomas – Three Essays”, translated by John Murray, S.J., and Daniel O’Connor, South Bend, Indiana, USA : Saint Augustine’s Press, 1999, 43, p. 45)

8.
I do thus now give the definition of syllogism, premise and immediate inference and I differentiate the immediate inference from the syllogism.

Andrew H. Bachhuber, S.J., “Logic”, New York, Appleton-Century-Crofts, 1957, p. 87
Syllogism = any argumentation in which from two propositions, called the premises, we infer a third proposition, called the conclusion, which is so related to the premises taken jointly, that if they are true, it must also be true.

François Chenique, “Éléments de Logique Classique – L’art de penser, de juger et de raisonner”, Paris, L’Harmattan, 2006, 2nd ed., p. 204
In order to constitute a reasoning, there must be a passing from one truth to another and the second truth must not be only a re-formulation of the same truth.
(Pour constituer un raisonnement, il faut qu’il y ait passage d’une vérité à une autre et qu’il ne s’agisse pas d’une autre reformulation de la même vérité.)

Chenique, op. cit, loc. cit.
Reasoning is a discourse, i.e., a movement.
Reasoning implies a movement and a causal relationship.
(Le raisonnement est un discours, c.à.d. un mouvement.
Le raisonnement implique un mouvement et une relation causale.)

Ivo: movement must be initiated, must have a cause,
reasoning implies a causal relationship, said Chenique.

The principle of causality says that nothing can be the cause of itself.
(Alvira, Clavell and Melendo, “Metaphysics”, Manila, Sinag-Tala Publishers, 1991, p. 181)

Bachhuber, op. cit., p. 51
An immediate inference consists in passing directly, (i.e., without the intermediacy of a middle and second proposition) from one proposition to another that is a partial or complete reformulation of the very same truth expressed in the original proposition.

Chenique, op. cit., p. 195
For some authors, immediate inference is a mode of reasoning by which one passes from the truth (or falsity) of one proposition to the truth (or falsity) of another proposition without middle term (ergo the name immediate).
Chenique, on the contrary, argues that if there is no middle term, there is no reasoning.
(Pour certains auteurs, l’inférence immédiate est un mode de raisonnement qui n’exige pas de moyen terme (d’où sa qualification d’immédiate), et dans lequel on passe directement de la vérité (ou de la fausseté) d’une proposition à la vérité (ou à la fausseté) d’une autre proposition.
[…]
Nous maintenons cependant que si le moyen terme est absent, il n’y a pas de raisonnement.)

Ivo agrees with Chenique on this point.

Juan Jose Sanguineti, “Logic”, Manila, Sinag-Tala Publishers, (first published in 1982 in Spanish by the Ediciones Universidad de Navarra in Pamplona), 1992, p. 50
Speech is “the manifestation of the interior word conceived in the mind”, it is the external expression of concepts
(Saint Thomas Aquinas, “Quaestiones Disputatae De Veritate” (“Disputed Questions on the Truth”), question 9, article 4 and question 5, article 1)

Let me again remind you that if most people agree with conclusions reached through immediate inference,
but that, if they are already able to find the major and minor premises, most people are afraid of the conclusions reached through syllogisms.

9.
I will now construct the (first) syllogism with as minor premise the second step towards the answer to the question as to the reason of the involvement of the German Leviathan in the roundtable discussions.

This second step was, and thus the minor premise of the (first) syllogism is,
“when thalidomide was brought onto the German market, the product had been banned in France”.

MAJOR PREMISE
No dangerous drug can be brought onto the market.

MINOR PREMISE
The banning in France of thalidomide demonstrated in the open – to the West Germany – that thalidomide was a dangerous, c.q., teratogenic, drug.

CONCLUSION
West Germany could not bring thalidomide onto “its” market.

“What is self-evident is not discussed. It is taken for granted, “it goes without saying”. “cela va sans dire.” One only has to ask; what exactly is it that is taken for granted and so many remain unexpressed?”, said Pieper.

Yes, in this syllogism there is “something” which “goes without saying”, i.e., the very fact, mentioned in section 23 of the quoted 2010 German constitutional court (“Bundesverfassungsgericht”) judgment, and referred to in section 5 of this letter, that our enlightened society had entrusted – already before 1957 – guv’mint, a.k.a. Leviathan, with the task of ensuring that only safe medicines are marketed.

Of course, this conclusion was not a reformulation of a existing truth through immediate inference, but resulted from a syllogism and most people, if they are already able to find the major and minor premises, are afraid of the conclusions reached through syllogisms.

Philosophising about who’s better qualified to include “something” which “goes without saying” into her reasoning or immediate inference would require going into such questions as whether toddler- and child-thalidomiders should be forced to wear a prosthesis on their shortened limbs (see my “Témoignage thalidomide – Les Monstres de Heidelberg” on top of this page) and this would be outside the ambit of this letter.

10.
Now I come to the interesting part of this letter.

I must construct a syllogism whereby I use as minor premise:
“in order not to make it too obvious that thalidomide was necessary to achieving that European law became the corner stone (“la pièce maîtresse”) of national legislations concerning consumers,
the then-EEC, whose founding treaty was signed at Rome in the same year as thalidomide was first marketed, waited until 25 July 1985 to adopt its Product-Liability Directive 85/374 EEC”.

Let me rephrase this minor premise as:
“the EEC tried to hide that the bringing onto the market of a dangerous, i.e. teratogenic, drug was necessary for European law becoming the corner stone (“la pièce maîtresse”) of national legislations concerning consumers”.

Let me choose as major premise, the same one I used in section 9 for the first syllogism.
i.e., that
“no dangerous drug can be brought onto the market”.

I prefer not to be too explicit about the conclusion of the syllogism I should construct with those two premises.
I hope however that even some eurocrats retain some semblance of rationality and can construct it for themselves and that you will not, like the three so-called representatives of the UK thalidomiders, deduce liability from the manufacturing of a product which, after having been banned in France, was sent to the common market minus France to promote the interests of some French (future – they would only become it on 01 January 1958, when the comic market entered into force) eurocrats.

Still waiting
(Belgian Leviathan didn’t take steps to prosecute my father, an M.D., upon my birth 20 months after the 30 April – 1 May 1960 Düsseldorf alarm (5)),
now since 13 years in South-East Asia where life is cheaper,
before that 38 years in Europe,
for my first belgian franc of compensation,

Sincerely Yours,

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
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

(2)
From The Sunday Times
February 8, 2009
Thalidomide ‘was created by the Nazis’
http://www.timesonline.co.uk/tol/life_and_style/health/article5683577.ece
Link does no more work
copied here
http://www.fourwinds10.net/siterun_data/health/harmful_products/news.php?q=1234215547

(3)
29.01.14
NRW Kompakt
Contergan-Skandal wird untersucht
http://www.welt.de/print/welt_kompakt/koeln/article124325513/NRW-Kompakt.html

(4)
Re: 25e anniversaire : Joseph Wresinski, celui qui remue la vie
Auteur: Ivo Cerckel
Date: 03-10-2013 01:40
http://www.thomas-aquin.net/PHPhorum/read.php?f=6&i=57732&t=57175&v=t

(5)
Chronik des Contergan-Skandals – Contergan – WDR.de
Chronik des Conterganfalls
Tragödie – Katastrophe – Skandal?
http://www1.wdr.de/themen/archiv/sp_contergan/contergan176.html
SNIPS
30. April/1. Mai 1960:
Auf einem Neurologen-Kongress in Düsseldorf berichtet der Neurologe Ralf
Voss über die Nervenschädigungen, die seinen Beobachtungen zufolge durch
Thalidomid verursacht werden. Die Forschungsabteilung von Grünenthal
versucht daraufhin, die Nervenschädigungen an Ratten zu reproduzieren – ohne Erfolg. Grünenthal-Forschungsleiter Mückter schließt daraus, dass es sich um besondere Situationen handelt, für die Contergan nur selten als Ursache infrage kommt.
+
27. November 1961:
Die Firma Grünenthal kündigt in einem Telegramm an das Düsseldorfer Innenministerium an, ihre Thalidomid-Präparate im In- und Ausland sofort aus dem Handel zu nehmen.

Posted in Uncategorized | 5 Comments »

euthanasie softenon dierenwelzijn

Posted by Ivo Cerckel on 14th February 2014

Medelijden is een dubbelzinnig begrip.
Bestaan van echoscopie (ultrasound) 50 jaar geleden had tot abortus van alle softenonfoetussen geleid.

Juist op de dag dat de katholieke partij in het federale parlement van het Koninkrijk België tegen de euthanasiewet, die onze Heersers toelaat om te beslissen om kinderen te vermoorden, stemde (1)
kwam de Vlaamse minister-president Kris Peeters, die nochtans deel uitmaakt van de Vlaamse katholieke partij CD&V, af met een voorstel om een Vlaamse minister voor dierenwelzijn op te voeren in de politieke poppenkast.(2)

Dit is het gevolg van het verdict van het Luikse hof van assisen van 1962 waarin gedreceteerd werd dat softenonmonsters bij geboorte mogen (neen: dienen) vermoord.

En dan verschiet men, neen dat is normaal zegt men, dat is mijn (Ivo’s) schuld, dat ik, die nog steeds wacht op mijn eerste centiem vergoeding voor mijn sinds-andropause-met-de-dag-verergerende softenonschade, 13 jaar geleden heb dienen te vluchten om te proberen te overleven op een eilandje waar de levenskost geringer is dan in het Vaderland.

Alhoewel René Descartes en Immanuel Kant, en niet langer Sint Thomas van Aquino, in Leuven en Nieuw Leuven – zoals aan de ULB en VUB – op de “handen” worden gedragen,
hoop ik dat de stem van Mgr Michel Schooyans, prof emeritus van de UCL, (3) (4) toch niet helemaal onderdrukt zal worden in het Vlaamse parlement noch in de senaat van het federale parlement (of zijn er in het federale parlement geen twee kamers meer?).

Het dubbelzinnige begrip “medelijden” leidde het Belgische Volk ertoe, en de Luikse assisenjury volgde haar in 1962 hierin, om de moordenaars van een pasgeboren softenonmonster vrij te spreken.

Pseudo-medelijden wordt dikwijls aangevoerd ten gunste van daders van daden die inherent verkeerd zijn, zoals abortus, en leidt dus tot schandaal, besluit Mgr Schooyans.

De schijn-heilige, en dus schandalige, CD&V kiest voor een Monsterplaneet – waaruit softenonmonsters dienen verbannen. (5)
Softenmonsters zijn immers (zelfs?) geen dieren, niewaar?

Indien echoscopie (ultrasound) 50 jaar geleden had bestaan waren alle softenonfoetussen dan ook geaborteerd geweest.

Menselijke foetussen heeft geen recht op welzijn – laat staan dat softenonmonsters dat hebben in Vlaanderen.
Dieren hebben wel recht op welzijn, zegt Meneer Peeters.

Ivo Cerckel
Caipilan
Siquijor, Siquijor 6225
Philippines

ivocerckel@siquijor.ws

NOTEN

(1)
Kamer keurt uitbreiding euthanasiewet goed
13 februari 2014 om 18:30 door Eveline Vergauwen
http://www.standaard.be/cnt/dmf20140213_00977927

(2)
Kris Peeters wil Vlaamse minister van Dierenwelzijn
13 februari 2014 om 11:05 door llo | Bron: Belga
http://www.standaard.be/cnt/dmf20140213_00977495

(3)
Mgr Michel Schooyans
Professor Emeritus at UC Louvain
The pitfalls of compassion
http://www.lifesitenews.com/ldn/2010_docs/Compassion.pdf
UITREKSELS
In 1962 the Assizes Court in Liège (Belgium) was called upon to judge a mother who, “out of compassion”, had killed her child. During the pregnancy, the mother ad taken Softenon, today known as Thalidomide. The child was born with serious malformations. The mother decided to terminate the life of her child; which in fact she did. After a trial which attracted extensive media coverage, the woman was acquitted. She left the court a free woman, to hearty applause from the public.
+
Pseudo-compassion, frequently invoked in favour of the perpetrators of acts which are inherently wrong, such as abortion, hence leads to scandal; it invites others into grave sin. Scandal is the first thing to be avoided.25

(4)
Tempêtes au Vatican.
[scroll down]
LES PIÈGES DE LA COMPASSION
Michel Schooyans
http://chiesa.espresso.repubblica.it/articolo/1342048?fr=y

(5)
Voor meer kritiek op de katholieke partij in 1962 en van de Brusselse – niet Aalsterse – loge in 1962
zie – ook de voetnoten van – mijn
Re: 25e anniversaire : Joseph Wresinski, celui qui remue la vie
Auteur: Ivo Cerckel
Date: 09-03-2013 02:05
http://www.thomas-aquin.net/PHPhorum/read.php?f=6&i=57241&t=57175&v=t

Posted in Uncategorized | 5 Comments »

Spanish Thalidomide Victims obtain Judgment against Innocent Party

Posted by Ivo Cerckel on 22nd November 2013

The culprits for the thalidomide scandal are the guv’mints which allowed it on their territories despite its having been banned on the territory of the French republic, not the maker of thalidomide.

First payout for Spanish thalidomide victims
Published: 21 Nov 2013 08:38 GMT+01:00
Updated: 21 Nov 2013 08:38 GMT+01:00
http://www.thelocal.de/20131121/spanish-thalidomide-victims-get-german-money
SNIP
A court ordered the German maker of the banned pregnancy drug thalidomide to compensate Spanish victims on Wednesday who suffered birth defects from it in the 1960s.
UNSNIP

1.
Legal tabloids tell us that thalidomide is an example of the development-risk defence which allows producers
[and, I submit, governments licensing the products,]
to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation
[, c.q., I submit, at the time when they allowed the product onto "their" markets,]
was not such as to enable the existence of a defect to be discovered,
as defined at present “a contrario” 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
which provides that:
“each Member State may by way of derogation … maintain … or provide in [its] legislation that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.”

Dr. Herman Cousy, professor 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 situation were fulfilled?” (1)

Indeed,
as The (London, England) Sunday Times said on 08 February 2009
” Grünenthal, the maker of the drug, 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,” (2)

The judge nevertheless rules that thalidomide had not been properly tested by its manufacturer, the company, then known as Chemie Grünenthal GmbH, now known as Grünenthal GmbH, says El Pais, a newspaper. (3)

If,
as Deutsche Welle or DW, a broadcaster, says,
the court ruled that Grünenthal has been “negligent” in permitting thalidomide to be further prescribed in Spain despite the risks of birth defects (4),
was General Franco’s (Spanish) guv’mint not negligent in granting a licence for thalidomide to be marketed on its territory even though thalidomide had been banned in France?

Guv’mints – in Spain and elsewhere – should never have allowed thalidomide to “their” markets.

2.
When were the claimants born?

The whistle on thalidomide was blown on 30 April – 1 May 1960
at a Düsseldorf congress of neurologists
where neurologist Dr. Ralf Voss warned that it attacked the nervous system of the … mother. (5)

Nobody born more than 9 months later, that’s after 01 February 1961, can claim that her birth defect has been caused by the maker of thalidomide.

Guv’mints, which should never have allowed thalidomide to “their” markets in the first place, should have withdrawn their licence in May 1960.

Ivo Cerckel
ivocerckel@siquijor.ws

NOTES

(1)
Herman Cousy,
The Precautionary Principle: A Status Questionis,
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

(2)
From The Sunday Times
February 8, 2009
Thalidomide ‘was created by the Nazis’
http://www.timesonline.co.uk/tol/life_and_style/health/article5683577.ece
Link does no more work
copied here
http://www.fourwinds10.net/siterun_data/health/harmful_products/news.php?q=1234215547

(3)
Thalidomide pharmaceutical firm ordered to pay compensation to victims
Drug was not properly tested by German company, judge rules, causing serious disabilities in Spanish babies
20 NOV 2013 – 19:25 CET
http://elpais.com/elpais/2013/11/20/inenglish/1384971811_107975.html

(4)
Spanish birth defect victims win damages from German drug maker
Date 20.11.2013
http://www.dw.de/spanish-birth-defect-victims-win-damages-from-german-drug-maker/a-17242253?maca=en-rss-en-all-1573-rdf

(5)
Chronik des Contergan-Skandals – Contergan – WDR.de
Tragödie – Katastrophe – Skandal?
http://www1.wdr.de/themen/archiv/sp_contergan/contergan176.html

Posted in Uncategorized | 4 Comments »

What is the renminbi? – 14 March 2013 FT Standard Chartered Taiwan Economic Summit

Posted by Ivo Cerckel on 1st March 2013

Last updated Thursday 07 March 2013 10h50 GMT+8

Currency hegemony is the imposition of a currency, even gold (at a stated currency price, of course), on the population. Such an imposition is in fact precisely the opposite of allowing the parties to a sales contract to freely determine the contents of the contract.

Although article 4 of the 1999 Contract Law of the People’s Republic of China provides that “a party is entitled to enter into a contract voluntarily under the law and no entity or individual may unlawfully interfere with such right”,

the programme of the 14 March 2013 FT Standard Chartered Taiwan Economic Summit says that currently only a tiny amount of the USD 120 billion in trade between China and Taiwan is settled in renminbi.(1)

The programme continues by saying that a major opportunity for Taiwan may be generated by the further internationalisation of the said renminbi.
http://www.ft-live.com/fttaiwan

Notice immediately that the debate at the Summit concerns renminbi “internationalisation”, not renminbi “convertibility” – into pieces of scrap, a.k.a. USA dollars.

MENG-TZE

What is money? And what is [the renminbi as] a currency?

As Mencius (Meng-Tze) (372 – 289 B.C.), who studied with the great-grandson of Confucius (2) and became the foremost follower and greatest developer of the orthodox teaching of Confucius (3), taught: “wherever there are things and affairs, there must be their principles.” (4)

Aristotle (384 – 322 B.C.), who like the elder Plato (429 – 347 B.C.) was a contemporary of Mencius, saw “substance” as the root of the intelligibility of the world and went on to define the “substance” of a thing as its “essence” by which the thing is differentiated from other things due to its nature which “specifies” it. (5)

For “essence”, Aristotle gave the “what-it-was-to-be-that-thing” as definition. (5, again)
By using a phrase in this way in the grammatical role of a noun, this definition is as unnatural in Greek as it in English.
The definition suggests the idea of what something was all along going to, destined to, become. (6)

Could it be that money [as opposed to currency] is a good readily acceptable in exchange by everyone in a given geographical area and is sought for the purpose of being re-exchanged (7) and that gold was all along going to, destined to, become money?

Could it also be that when English speakers say that something has “currency”, they mean that it is in the state of being current; that it is in the state of being in general acceptance or … “recognition”?

Xinhua reported on 22 February 2013 that according to Peng Xingyun, a researcher and financial specialist at the Chinese Academy of Social Sciences, the developments in renminbi internationalisation may indicate a rising “recognition” of the currency worldwide. (8)

This seems to indicate that before the renminbi can be recognised as an “international” currency, it must be recognised as a “currency”.

MONETARY ANCHOR

Money must have an anchor, an anchor in reality, not in the mind. Not a nominal anchor, not an anchor in name only. Money cannot be itself the anchor if it has no reality. Money cannot be itself the anchor if it exists only in the (digital) mind. The reason why money needs an anchor is not to evoke, not to bring into the mind, the gold standard, but to anchor money by providing for a Wealth Asset that stands Beside Money, yet has no official connection to money, hereafter a WABM. Calling this process “anchoring” relates to the way that ships down anchor to keep themselves in a specific place to avoid drifting way.

The last remnant of the gold standard disappeared on 15 August 1971 when USA president Richard Nixon broke the 1944 Bretton Woods Agreement. This Agreement, which established the International Monetary Fund (IMF), said that the IMF’s only task was to maintain the Agreement. As the Agreement did no longer exist, the IMF should have been repealed in August 1971.

The Agreement linked the USA dollar at fixed parity to the price of gold and all other currencies to the said dollar. On 15 August 1971, Nixon broke the Agreement. Since then, the value of the USA dollar is determined by … nothing. The USA of course never (dare to make explicit that it) severed the link of the USA dollar to gold. Nay, after making sure that article IV, section 2, (b), of the IMF Articles of Agreement does prohibit members from linking their currencies to gold, the USA managed to give new tasks to the IMF so that it could be kept in existence.

Middle East oil producers could therefore obtain less gold than before with the USA dollars received for their oil. Out of love for gold, they were thus forced to increase their prices which caused the first oil crisis in 1973.

China doesn’t declare its gold purchases, but it is an open secret that its People’s Bank is buying on every dip, as they have to do merely to keep the proportion stable at 2 percent of their USA dollar 3.3 trillion reserves, said a London newspaper on 21 February 2013. (9)

The old “fixed” gold-standard could not change human nature which dictates that no ruler can withstand the pressure to print more receipts than he has gold in reserve. (10)
The old “fixed” gold-standard was faced with the problem of matching the amount of gold in the treasury to the “fix”. To make the money stronger, one had to bring in gold, as it took twice as many ounces to back a currency “in circulation” at USD 10 as it did at USD 20. The reverse is true when lowering the money value to USD 40. Then, one half the gold backing had to be removed as only half was now needed to back the USA dollar. (11)
Its chief weakness was however that it could be repealed by the politicians. (10, again)

Since, on the one hand, a monetary system must have an anchor, but since, on the other hand, a fixed gold-standard, is affected by many weaknesses, the only way a monetary system can work is if anyone, anywhere, be able to exchange the currency for gold, not at a fixed rate, but at a floating rate.

This is “Freegold”, the free exchangeability “at will” of a (any?) currency into gold. I say free exchangeability “at will” into gold. I don’t say free exchangeability “on demand” into gold, as “on demand” would imply that somebody – most likely the issuer of the currency – can be forced to exchange his gold for currency.

FREEGOLD

On 01 January 1999 a fresh form of currency, the euro, was introduced.

In his 09 May 2002 Acceptance speech of the International Charlemagne Prize of Aachen for 2002, European Central Bank (ECB) president, the late Dr Willem F. Duisenberg said:
“The euro probably more than any other currency, represents the mutual confidence at the heart of our community. It is the first currency that has not only severed its link to gold, but also its link to the nation-state.” (12)

Dr Duisenberg was here saying that the euro, the new medium of exchange, is to co-exist with Freegold, as a store of value. Freegold will be a gold-based currency valuation system where the currency is not tied to a fixed amount of gold. This will entail a free-floating price of gold whereby gold will not be money, but a physical wealth consolidator, a WABM into which you can transform your wealth in order to maintain its purchasing power and to prevent it from vanishing into thin air.
Remember that a WABM has no official connection to money.

By the same token, Duisenberg challenged USA-dollar hegemony, confirming to the planet that not only had the currency of which the ECB is the guardian severed the link to the nation-state but that the ECB was also prepared to utilise gold as a “currency without a country” to act as a reserve for interventions if required — a breakthrough. (13)

The euro has a gold component and a paper component and puts a “firewall” between both so that gold’s valuation as a wealth-preserving asset cannot be pulled lower by the inevitable inflation of the paper component of circulating currencies. It is the (quarterly) marking to market (MTM) of the gold reserves of the Eurosystem (the European System of Central Banks) not to the model of USD 42.2 like the USA (originally, in 1944, when Bretton Woods came into force, USD 35), by the Eurosystem which provides that wall. Gold is an item not related to euro monetary policy operations.

By trading behind the MTM firewall, not behind a fiat-monetary firewall, the euro is trying to achieve Freegold and return gold to its status as a WABM, an asset itself, not a claim on assets.
Remember that a WABM has no official connection to money and that a WABM is a Wealth Asset that stands Beside Money.

Once Freegold will have been achieved, the gold reserves in the strong-rooms of the Eurosystem will fulfil the same role as the Mona Lisa in the Louvre museum in Paris, a wealth reserve, a WABM, in the strong-room (the Louvre) of a monetary union.

That’s a model which the People’s Bank of China could be following.

Whether the Bank is following the model, I don’t know.

CONTRACT VOLUNTARINESS

If money needs an anchor, so does contract law.

Freedom of contract became the “anchor” of modern contract law after the French Civil Code was adopted in 1804. (14)

Article 1134 of the said Code provides that the agreement entered into between parties is the law governing the relationship between the parties [...].

Does Chinese contract law allow for the inclusion in an international trade contract of a clause stipulating that payment shall be made in Another currency than the USA dollar – the currency imposed by trade usages?

I said at the outset that article 4 of the 1999 Contract Law of (the People’s Republic of) China (CLC) provides that “a party is entitled to enter into a contract voluntarily under the law and no entity or individual may unlawfully interfere with such right”.

Dr Junwei Fu of the Beijing Institute of Technology School of Law says that it is often believed by Chinese academic circles that “contract voluntariness” of the CLC is the same as “freedom of contract”. (15)

In order to understand what the Chinese legislator meant with this article 4, the drafting history or drafting process of this article 4 may contain some indications – as to the meaning. And this history or process reveals that “freedom of contract” which was stated as a general principle in a 1995 bill which finally led to the 1999 CLC was already revised in a 1997 bill and was finally rejected and replaced in the final 1998 bill by “contract voluntariness”, says Dr Fu. (16)

This seems to indicate that “contract voluntariness” is NOT the same as “freedom of contract”.

While European “freedom of contract” acknowledges, among other things, the freedom to choose the other contractual party and to conclude and determine the contents of a contract (17), Chinese “contract voluntariness” is much narrower and essentially limited to the autonomy to enter into a contract. (18)
Conversely, the exceptions to European “freedom of contract” are much narrower than the exceptions to Chinese “contract voluntariness”.

When European legal systems say that contracts must respect “public order” and “good morals”, those two concepts are always defined in a narrow way in order to respect the will and freedom of the parties. (19)

In China due to the influence of Confucianism and a historically planned economy, it is necessary for the state to exercise intervention measures to ensure that contracts are not disturbing the “socio-economic order”. (20)

“Disturbance of the “socio-economic order” or disruption of the State economic plan by any organisation or individual is prohibited”, says article 7 of the amendment to the Constitution of the People’s Republic of China (Adopted at the First Session of the Eighth National People’s Congress and promulgated for implementation by the Announcement of the National People’s Congress on March 29, 1993).

Is the USA dollar regime a constitutive part of the Chinese socio-economic order?

TRADE USA-GES

Chinese law of contracts consists of default rules and mandatory rules. The first ones can be excluded by the parties whereas mandatory rules are widely accepted to be a limitation to the freedom of contract since contractual parties cannot avoid them in the agreement. (21)
Since China has signed “numerous” international treaties impacting the parties concluding the contract, the mandatory rules in those international treaties cannot be violated by the individuals. These treaties are given priority over national law. (22)

China has signed the 1980 Vienna Convention on the International Sale of Goods.
This Convention is not mandatory in character and article 6 provides that parties may exclude its application altogether. (23)

Trade usages and trade terms play however an important role in international commercial law, and for a convention to be successful it needs to be sympathetic them. [... At the negotiations leading to Vienna Convention,] Socialist countries were wary of trade usages since they preferred the contract to be secure and certain so that the parties are not taken by surprise, especially where local usages are adopted. [...] This does not mean that Socialist countries did not recognise trade usages. By and large they do, provided they are widely “recognised” – that is, internationally well-known – clear and certain. (24)

Does payment in USA dollar, not in Zimbabwe dollar, the official currency of Zimbabwe from 1980 to 12 April 2009, make the contract secure and certain?

Payment in USA dollar is deemed to be payment in a known – should I say “recognised”? – “hard” currency, which currency is not subject to surprises – such as being reduced to its intrinsic value, the paper it is printed on and the green ink, of course – that’s the way to test whether the USA dollar is a “hard” currency.

And what about the payment for the shipping of the goods to and from Taiwan and China? Also in USA dollars?

In international law concerning carriage of goods by sea, there are standard forms of contract which include “freight clauses”, that is, additional clauses which will normally make provision for the currency in which the freight is to be paid. In a period of fluctuating exchange-rates [such as in 2013] this is a matter of particular importance to the ship-owner, especially where the expenses of the voyage are likely to be incurred in a different currency. (25)

Will the carrier also have to accept USA dollars?

This becomes hilarious.

Moreover, if Taiwan and China do a good job of manufacturing and run a balance of trade surplus they are receiving more USA dollars than they are spending.
What can or should they do with those excess USA dollars they are receiving in their trade exchanges with the planet?

If Taiwan and China allow those USA dollars to flow back into the world markets (actively buying Taiwan dollars c.q., renminbi with those USA dollars) this would raise the NTD c.q. RMB exchange-rate and penalise the international pricing structure of their goods. Their goods would cost more and slow down their exports.

Yet, since Taiwan’s and China’s currency management is strong (like that of euroland) and their people (read that economy) work better than their foreign competitors (including those from euroland) the exchange-rate system shouldn’t hurt the price of Taiwan’s and China’s goods. But, it does.

You see, selling these extra USA dollars today has the effect of hurting a competitive producer that has good money management.

The only alternative for Taiwan and China is to save those USA dollars, thereby supporting the USA dollar regime. (26)

Is that the way (the original 1944 or) the post-1971 Bretton Woods regime was supposed to work?

Or is that the result of machinations by the USA dollar regime?

See also my
Freegold ?????
Posted by Ivo Cerckel on August 8th, 2012
http://bphouse.com/honest_money/2012/08/08/freegold-%E5%92%8C%E5%9B%9E%E5%BD%92%E5%AE%9A%E7%90%86/

Ivo Cerckel
ivocerckel@yahoo.com
https://twitter.com/IvoCerckel

NOTES

(1)
FT Standard Chartered Taiwan Economic Summit 14 March 2013
https://www.etouches.com/ehome/52414/98778/
SNIP
4:05 pm – 5:05 pm
Moderator: Gideon Rachman, Chief Foreign Affairs Commentator, Financial Times
Panel Discussion: Financial Market Innovation – Taiwan as the next offshore Renminbi Centre and the impact on Taiwan’s businesses
SNIP
Currently only a tiny amount of the U.S.$120 billion in trade between China and Taiwan is settled in renminbi.

(2)
Alfredo P. Co, “The Blooming of a Hundred Flowers -Philosophy of Ancient China”, Manila University of Santo Tomas, 1992, p. 303

(3)
Dr Charles McGruder, professor of philosophy, Mt. San Antonio College, Los Angeles, California, USA, “Mencius”, handout (to students), without date,
http://faculty.mtsac.edu/cmcgruder/mencius.html

(4)
Mencius, “Book of Mencius”, Book VI, Chapter 1, point 6

(5)
Aristotle, “Metaphysics”, Book VII, Chapter 4

(6)
Hugh Lawson-Tancred. “Introduction”, in: Aristotle, “Metaphysics”, Penguin Books, 1998, updated bibliography 2004, xi, p. xxx
http://bphouse.com/honest_money/2009/10/15/the-substance-of-the-gcc-single-currency-reserves/

(7)
George Reisman, “Capitalism – A Treatise on Economics”, Ottawa, Illinois, USA, Jameson books, 1998, 3rd ed., p. 142

(8)
Currency expands its reach
English.news.cn 2013-02-22 10:28:09
By Wang Xiaotian in Beijing and Cecily Liu in London
http://news.xinhuanet.com/english/china/2013-02/22/c_132184771.htm

(9)
Gold’s Death Cross is a buy signal for China
By Ambrose Evans-Pritchard
Last updated: February 21st, 2013
http://blogs.telegraph.co.uk/finance/ambroseevans-pritchard/100022953/golds-death-cross-is-a-buy-signal-for-china/

(10)
Roland Leuschel and Claus Vogt, “Das Greenspan Dossier, Wie die US-Notenbank das Weltwährungssystem gefährdet. Oder: Inflation um jeden Preis”, finanzbuchverlag.de, 2006, 3rd ed., pp. 300 and 304

(11)
ANOTHER (THOUGHTS!) ID#60253:
The Management of Gold, A Simple Tool for the 90s
(ANOTHER (THOUGHTS!)
Foundational Gold Trail Commentary
The Inside Story on the Gold-for-Oil Deal that could Rock the World’s Financial Centers
– Page Three -
Mar ’98 – Apr ’98
Date: Sat Mar 07 1998 13:08
http://www.usagold.com/goldtrail/archives/another3.html

(12)
International Charlemagne Prize of Aachen for 2002
Acceptance speech by Dr Willem F. Duisenberg,
President of the European Central Bank,
Aachen, 9 May 2002
http://www.ecb.int/press/key/date/2002/html/sp020509.en.html

(13)
FOA (05/08/01; 09:59:55MT – USAgold.com msg#70)
A Tree in the Making #02
(The Gold Trail:- The Message of an Evolving Market – Walking the Gold Trail Using the “Thoughts! ” of ANOTHER. “Nearing the Great Divide…?”, the Fourth Archive for “Walking the Gold Trail”
http://www.USAgold.com/goldtrail/archives/goldtrailfour.html

(14)
Junwei Fu, “Modern European and Chinese Contract Law: A Comparative Study of Party Autonomy”, Alphen aan den Rijn (The Netherlands), Wolters Kluwer – Law and Business, Kluwer Law International, 2011, p. 134

(15)
Fu, op. cit., p. 40

(16)
Fu, op. cit., p. 41

(17)
Fu, op. cit., p. 67

(18)
Fu, op. cit., p. 40

(19)
Fu, op. cit., p. 47

(20)
Fu, op. cit., p. 41

(21)
Fu, op. cit., p. 152

(22)
Fu, op. cit., p. 151

(23)
Indira Carr, “International Trade Law”, London & New York, Routledge-Cavendish, 2010, 4th ed., p. 68

(24)
Carr, op. cit., p. 70

(25)
John F. Wilson, “Carriage of Goods by Sea”, Pearson Education, 2010, 7th ed., p. 50

(26)
FOA (09/16/00; 15:11:26MD – usagold.com msg#38)
After six miles we arrive at the burial tree!
(The Gold Trail:- The Message of an Evolving Market – Walking the Gold Trail Using the “Thoughts! ” of ANOTHER, “The Long and Winding Road…” the Second Archive for “Walking the Gold Trail”
http://www.usagold.com/goldtrail/archives/goldtrailtwo.html

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Open Letter to Christine Lagarde and Wim Dejonghe

Posted by Ivo Cerckel on 17th October 2012

Madame la Directrice générale du Fonds Monétaire International,
Mijnheer de Worldwide Managing Partner of Allen&Overy, international law firm with global reach,

On 29 October 2012, the KU Leuven, the Catholic University of Leuven, Belgium, is conferring a doctorate “honoris causa” to Christine. You will accept the honorary doctorate at a ceremony at KU Leuven’s Kulak campus on the said date. (1)

One week later, on 06 November 2012, Wim will address the alumni of said University, with a lecture “The worldwide financial crisis: the point of view of a lawyer (“advocaat”)”. (2)

The University is conferring the “honoris causa” degree on Christine in recognition of your strong leadership, your exceptional legal and macroeconomic vision, and your lucid analyses and straightforward proposals for understanding and addressing the current global financial crisis.

Legal vision? Yes, Christine used to be a lawyer at Baker&McKenzie, another international law firm with global reach, which like Wim’s Allen&Overy was originally founded in London, England.

Early last week, Christine was calling, at a moment when practically all of the western countries are running massive fiscal deficits, for the need of the world economy to balance austerity with growth, i.e., – in her interpretation – with more fiscal deficits, if it is to recover fully from the global financial crisis. (3)

Wolfgang Schäuble, the finance minister of the president of the German federal republic, went on to accuse Christine of backpedalling on an earlier commitment to fiscal consolidation, but the BBC, the British guv’mint broadcaster, hastily organised a debate in which Christine and Wolfgang (plus two others) participated and which was meant to save appearances. (4)

Later last week, the International Monetary Fund (IMF), of which Christine is thus the director general or managing director, held its annual meeting in Tokyo.

On Saturday, 13 October 2012, Christine won the day with your call for the need of the world economy to balance austerity with growth,
when a key IMF committee, the International Monetary and Financial Committee, said in a communiqué that:
“Fiscal policy should be appropriately calibrated to be as growth-friendly as possible”.(5)

To repeat: you, Christine, want to calibrate fiscal policy with growth, i.e., – in your interpretation – with more fiscal deficits, at a moment when practically all of the western countries are running huge fiscal deficits.

MONEY

Money, as opposed to currency (6), is a good readily acceptable in exchange by everyone in a given geographical area and is sought for the purpose of being re-exchanged. (7)

The gold standard collapsed during the First World War.
At the end of the Second World War, some bureaucrats met in 1944 in Bretton Woods, New Hampshire, USA, with John Maynard Keynes and they devised a system whereby the value of the USA dollar was linked at fixed parity to the price of gold and all other currencies were linked to the said dollar.
By the same token, the IMF was instituted.
The IMF’s only function was to maintain the Bretton Woods Agreement.

The IMF’s only function was thus to maintain the value of money in exchange – money being a good readily acceptable in exchange by everyone.

On 15 August 1971, USA president Richard Nixon unilaterally broke the Bretton Woods Agreement linking the USA dollar at fixed parity to the price of gold.
The said Agreement thus ceased to exist or ceased to be an Agreement.
At that moment, the IMF had no more reason to exist.
At that moment, the IMF should have been repealed.

Since then, the value of the USA dollar is determined by … nothing.

The USA did of course never dare to make explicit that it severed the link of its dollar to gold.
Nay, the USA managed to change the IMF rules in such a way that current IMF rules (article IV, section 2, (b), of the IMF Articles of Agreement) do prohibit, members from linking their currency to money, from linking their currency to gold.

If the IMF continues to exist, this is in order to support the bankrupt USA-dollar regime.

THE LAWYER

Wim, what could a lawyer (“advocaat”) say about this?

If you allow me to simplify to the extreme, I will say that Aristotle opposed commutative justice to distributive justice. (Yes, I know, commutative justice is a division of remedial justice, the other division of remedial justice being criminal law.)

Distributive Justice is about Leviathan dividing goods among “its” citizens according to geometrical proportions, i.e., according to merit, viz., according to the place of the citizen in the whole.

Commutative Justice deals with voluntary transactions between or among individuals
It proceeds according to arithmetical proportion.

Commutative Justice says that
when person A is voluntarily exchanging goods or services with person B
and that person A receives goods or services from person B
she, person A, should return to person B “some-thing” (of the same value) in exchange for what she, person A, has received from her, person B.

Whereas before 15 August 1971, the IMF dealt with money in commutative justice, i.e., money as a good readily acceptable in exchange by everyone in a given geographical area and sought for the purpose of being re-exchanged,
Christine’s call for the balancing of austerity with growth is a giant leap into distributive justice.

Distributive justice produces a kind of society which in all essential respects would be the opposite of a free society – a society in which authority decided what the individual has to do and how he has to do it, says Nobel laureate Friedrich A. von Hayek. (8)

With her distributive justice, Christine wants to play Santa Claus and freely distribute loans granted out of money created out of thin air.

The recipients of these loans will then be able to acquire goods and services with these loans.

As voluntary transactions, these acquisitions should respect commutative justice.

One of the parties in these transactions, person B in the example above,
will however have to work to (produce and then) provide a good of value or a service of value to the other, person A in the example above.
The other party, the recipient of the loans granted out of Christine’s distributive justice, person A in the example above,
will provide person B, not with some good or services for which person A had to work,
but with something that is not only created out of thin air by central banksters,
but that is also comparable to manna fallen out of the IMF-heaven. (9)

Is this worldwide system of fiat money compatible with a lawyer (“advocaat”)’s notion of responsibility, liability, and … Justice?

Perhaps an “advocaat” could demonstrate that those demanding more regulations are dogs barking up the wrong tree. (10)

Perhaps we just need to return to the general principles of the law on property, on contract, and on … tort and on … crimes.

Fiat money issued by guv’mint and fractional-reserve banksterism by banksters are fraudulent.
Our tort law defines these violations of our contract law and property law as torts.
Our criminal law defines them as crimes.

And is the repeal of the IMF taboo for lawyers?

Subjecting banksters to the general principles of the law on property, contract, and tort will harm the banksters, some of the largest of whom are Wim’s largest customers – it’s no coincidence that some of the largest parasites on fractional-reserve banksterism are Wim’s “largest” customers also.

If those parasites disappear, so will perhaps global law-firms like Wim’s.
So don’t expect Wim to advocate the solution.

Your firm is benefiting from criminals proceeding to issuing fiat money and from (other) criminals proceeding to fractional-reserve banksterism.

Without the latter your firm wouldn’t indeed be “global”.

Yours in Honest Money,

Ivo Cerckel

ivocerckel@siquijor.ws

NOTES

(1)
KU Leuven awards honorary doctorate to Christine Lagarde, IMF chief
SNIPS
The university is recognising Ms. Lagarde, the current Managing Director of the International Monetary Fund (IMF), for her outstanding and internationally recognised leadership during times of financial crisis. She will accept the honorary doctorate at a ceremony at KU Leuven’s Kulak campus on 29 October 2012.
+
The university is conferring the honoris causa degree on Ms. Lagarde in recognition of her strong leadership, her exceptional legal and macroeconomic vision, and her lucid analyses and straightforward proposals for understanding and addressing the current global financial crisis.
https://www.kuleuven.be/english/news/ku-leuven-awards-honorary-doctorate-to-christine-lagarde-imf-chief

(2)
Kennis en Maatschappij
Alumni Lovanienses vzw organiseert causeriën rond belangrijke maatschappelijke thema’s met gerenommeerde sprekers. Deze lezingen staan open voor alumni van alle disciplines en generaties. De lezingen gaan door in de promotiezaal van de KU Leuven en worden telkens afgesloten met een korte receptie.
Aanvang 19u15 – einde 22u00
Programma lezingen academiejaar 2012-2013
SNIP
Dinsdag 6 november 2012
Dhr. Wim Dejonghe, topman worldwide van Allen&Overy
De wereldwijde financiële crisis : de visie van een advocaat
http://alum.kuleuven.be/Kennis.htm

(3)
Last updated: October 11, 2012 2:15 pm
Lagarde calls for caution on austerity
By Claire Jones in Tokyo
©AFP
SNIP
The head of the International Monetary Fund said debt-stricken Greece should be given more time to implement its austerity programme and European countries should refrain from fresh budget cuts or tax rises if growth weakens.
http://www.ft.com/intl/cms/s/0/dca55090-135a-11e2-bca6-00144feabdc0.html#axzz28rQ16mV3

(4)
14 octobre 2012
Assemblée du FMI à Tokyo : éviter une récession mondiale
http://finance.blog.lemonde.fr/2012/10/14/assemblee-du-fmi-a-tokyo-eviter-une-recession-mondiale//

(5)
Communiqué of the Twenty-Sixth Meeting of the International Financial and Monetary Committee
Chaired by Mr. Tharman Shanmugaratnam, Deputy Prime Minister of Singapore and Minister for Finance
Press Release No. 12/391
October 13, 2012
http://www.imf.org/external/np/sec/pr/2012/pr12391.htm

(6)
The etymology of currency is the French “monnaie courante”,
and not, as John Locke argues, the Latin “currentia”.

(7)
George Reisman, “Capitalism – A Treatise on Economics”, Ottawa, Illinois: Jameson books, 1998, 3rd ed., p. 142

(8)
Friedrich A. von Hayek, “The Constitution of Liberty”, Chicago University Press, 1960, p.100

(9)
Or are these two characteristics “created out of thin air” and “manna fallen out of (IMF) heaven” only one and the same?

(10)
Frank Van Dun, “Crash en Depressie”, Doetinchem, Kritische Nederlandse Ondernemers (KNO), 1988, pp. 3 and 4

 

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