66
MedTech Europe unless so doing would conflict
with UK law. For the avoidance of doubt MedTech
Europe shall not rule on the merits or facts of
any particular complaint but only on questions of
interpretation of the Code.
2.8 This Procedure shall not preclude complainants
from having recourse to courts or other
tribunals to seek resolution of complaints and
any complaints made under the Code and this
Procedure should not be initiated or should be
suspended in case of initiation of formal civil court
proceedings with respect to the same subject
matter. Where a governmental or regulatory
investigation or criminal proceedings are either
initiated or threatened against an Applicable
Company with respect to the same subject
matter, that company shall notify the Chairman of
the same in confidence, who shall then have the
discretion whether or not to suspend any relevant
proceedings under this Procedure.
2.9 For the avoidance of doubt, all companies or
individuals that wish to utilise this Complaints
Procedure to submit a Complaint, and all
Applicable Companies that have agreed to
submit to the jurisdiction of the Panel in respect
of a Complaint, shall not, save in respect of fraud,
fraudulent misrepresentation, manifest error
or gross negligence by the Panel (or a member
thereof) in arriving at a Panel ruling, commence
legal proceedings or any analogous contentious
or complaint proceedings against ABHI, the Panel,
or any Panel member, in respect of any loss or
damage they may suffer as a consequence of any
such Panel ruling.
COMPLAINTS PROCEDURE
3. Action on Complaints
3.1 Prior to lodging a formal complaint against an
Applicable Company under this Procedure, any
company wishing to make a complaint against an
Applicable Company shall first attempt a genuine
mediation with that company in an attempt to
reach an amicable solution. For complaints
between Applicable Companies, such genuine
attempt at mediation shall be a pre-condition
before a complaint can be made utilising this
Procedure and any such complainant shall
adduce sufficient evidence to the Panel to prove
such genuine attempts at mediation have been
made. Any individual wishing to make a complaint
against an Applicable Company utilising this
Complaints Procedure must initially attempt to
resolve the complaint utilising that company’s
internal or external whistleblowing and/or
dispute resolution procedures. If, in either case,
no amicable resolution of the complaint can be
reached through such means within a reasonable
timeframe however, the complainant shall be
entitled to pursue the matter further directly via
this Procedure.
3.2 Any individual or company making a complaint
under this Procedure that is not an Applicable
Company shall be required (in the case of a company
for a minimum of 18 months, and in the case of
an individual for the duration of the Procedure) to
undertake to abide by the provisions of the Code
and of this Procedure as a pre-condition before a
complaint can be made utilising this Procedure.
3.3 If a complaint is received about a company other
than an Applicable Company, such company will
be invited to agree to comply with the Code and
accept the jurisdiction of the Panel. In the absence
of such agreement however, the complaint will not
be accepted for adjudication using this Procedure.
Notwithstanding the foregoing, where a complaint
is brought in respect of activities undertaken or
instigated by an Applicable Company’s parent
or other affiliated company which is not itself an
Applicable Company, the Applicable Company will
be deemed as the respondent company for the
purposes of this Procedure and the complaint will
proceed accordingly.
3.4 When the Chairman receives information from
which it appears that an Applicable Company
may have contravened the Code, the Chairman
shall undertake an initial review of the complaint
and will determine (if appropriate, in consultation
with the complainant and/or respondent) whether
there is a prima facie case to answer.
3.5 If, in the view of the Chairman, a complaint does
not show that there may have been a prima facie
breach of the Code, the complainant shall be so
advised. If the complainant does not accept that
view, the following paragraphs of this Section 3
shall apply.
3.6 In the event that the Chairman determines that
there is either a prima facie case to answer, or
(pursuant to paragraph 3.5) the complainant
insists that the complaint is referred to the Panel
for adjudication, then the Chairman shall write
to the managing director or chief executive or
equivalent of the Applicable Company against
whom the complaint has been made requesting
that it provide a complete response to the matters
of complaint.