Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 19005/91

Johannes Schouten

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 12 October 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-5) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 6-10). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-38). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 16-19) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 20-38) . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 39-69). . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6

B. Points at issue

(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 6

C. Applicability of Article 6 para. 1 of the Convention

(paras. 41-52) . . . . . . . . . . . . . . . . . . . . . 6

D. Alleged violations of Article 6 para. 1

(paras. 53-69) . . . . . . . . . . . . . . . . . . . . . 8

1. Length of the proceedings

(paras. 53-62) . . . . . . . . . . . . . . . . . . 8

Conclusion

(para. 63) . . . . . . . . . . . . . . . . . . . . 9

2. Fair hearing

(paras. 64-68) . . . . . . . . . . . . . . . . . .10

Conclusion

(para. 69) . . . . . . . . . . . . . . . . . . . .10

E. Recapitulation

(paras. 70-71) . . . . . . . . . . . . . . . . . . . . .10

PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, H.G. SCHERMERS

MRS. G.H. THUNE, J. LIDDY, MM. I. CABRAL BARRETO, B. CONFORTI

AND N. BRATZA . . . . . . . . . . . . . . . . . . . . . . . .11

DISSENTING OPINION OF MR. M.F. MARTINEZ. . . . . . . . . . .12

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .13

APPENDIX II : DECISION ON THE ADMISSIBILITY OF THE APPLICATION. .14

I. INTRODUCTION

1 The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

A. The application

2 The applicant is a Dutch citizen, born in 1927 and resident at

Zoetermeer, the Netherlands. He has submitted the application in his

capacity as Director of the company Praktijk Mevrouw Breevaart B.V.

Before the Commission the applicant is represented by Mr. P.J.A. Høvig,

a lawyer practising at Zwijndrecht, the Netherlands.

3 The application is directed against the Netherlands, whose

Government are represented by their Agent, Mr. Karel de Vey Mestdagh

of the Netherlands Ministry of Foreign Affairs.

4 The application concerns proceedings relating to the above

company's obligation to pay social security contributions. These

proceedings began on 27 March 1987, when the company requested the

competent Industrial Insurance Board to issue a formal decision, and

ended on 10 July 1991 when the Central Appeals Tribunal determined the

company's appeal.

5 Before the Commission the applicant complains under

Article 6 para. 1 of the Convention of both the unfairness and the

length of the proceedings.

B. The proceedings

6 The application was introduced on 4 September 1991 and registered

on 29 October 1991.

7 On 2 April 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

8 The Government's observations were submitted on 26 June 1992 and

the applicant's observations in reply were submitted on

17 September 1992.

9 On 9 December 1992 the Commission declared the application

admissible.

10 After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties'

reaction, the Commission now finds that there is no basis on which such

a settlement can be effected.

C. The present Report

11 The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

J. C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.F. REFFI

M. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

12 The text of the Report was adopted on 12 October 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 1 of the Convention.

13 The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

(1) to establish the facts, and

(2) to state an opinion as to whether the facts

found disclose a breach by the State concerned

of its obligations under the Convention.

14 A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

15 The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

16 The task of the company Praktijk mevrouw Breevaart B.V.

(hereinafter called "the company"), of which the applicant is the only

director, was to provide physiotherapeutic treatment. It also put its

equipment at the disposal of physiotherapists who could make use of it

against payment of part of their turnover. The conditions were laid

down in a standard contract between the company and the

physiotherapists and the latter were originally regarded by the

taxation and social security authorities as independent professionals.

17 The implementation of the social insurance schemes for employed

physiotherapists is entrusted to the Industrial Insurance Board for

Health, Mental and Social Well-Being (Bedrijfsvereniging voor de

Gezondheid, Geestelijke en Maatschappelijke Belangen, abbreviated

"B.V.G."). Until August 1984, the B.V.G. considered that, where there

was a contract of the kind the company had concluded with the

physiotherapists, there was no obligation to insure the

physiotherapists under the various social insurance schemes applicable

to employees. However, in August 1984 the B.V.G. changed its view and

considered that the physiotherapists should be compulsorily insured

retroactively as from 1 January 1984.

18 In accordance with its new practice, the B.V.G. invited the

company to pay social security contributions in respect of the Sickness

Benefits Act (Ziektewet, ZW), the Health Insurance Act (Ziekenfondswet,

ZFW), the Unemployment Insurance Act (Werkloosheidswet, WW) and the

Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheids-

verzekering, WAO) for the years 1984, 1985, 1986 and 1987. By letter

of 27 March 1987, the company objected to the payment of contributions

and asked for a formal decision (voor beroep vatbare beslissing)

against which it could lodge an appeal. The B.V.G. issued such a

decision on 9 December 1988.

19 On 21 December 1988 the company appealed to the Appeals Tribunal

(Raad van Beroep) in Rotterdam and requested an adjournment until

1 June 1989 in order to amplify the grounds of appeal. An adjournment

was granted until 15 September 1989. On 13 December 1989 the Appeals

Tribunal rejected the appeal. A further appeal lodged by the company

was rejected on 10 July 1991 by the Central Appeals Tribunal (Centrale

Raad van Beroep) in Utrecht.

B. Relevant domestic law

a. General features

20 As regards unemployment, health and disability insurance, social

security in the Netherlands is managed jointly by the State, which in

general confines itself to establishing the legal framework of the

scheme and to ensuring co-ordination, by employers and by employees.

21 The branches of the economy are divided into sectors, each with

an Industrial Insurance Board (bedrijfsvereniging) responsible for the

implementation of the social security legislation.

22 These Boards are legal persons within the meaning of Article 1

of Book 2 of the Civil Code (Burgerlijk Wetboek). The method of their

establishment, their structure and their powers are laid down in the

Social Security Organisation Act 1952 (Organisatiewet Sociale

Verzekeringen). They are subject to approval by the Minister for

Social Affairs and Employment (Minister van Sociale Zaken en

Werkgelegenheid) on the basis of their representative character. They

are semi-public institutions and operate like private insurance

companies.

23 They may entrust the administrative work resulting from the

application of social security schemes to a common administrative

office (Gemeenschappelijk Administratiekantoor), recognised by the

Minister.

24 A Social Insurance Council (Sociale Verzekeringsraad), set up by

the Government and comprising representatives of the State (/),

employers (/) and employees (/), supervises the proper implementation

of the legislation in question.

25 The statutory social insurances can be divided into two main

groups, on the one hand the general insurances (volksverzekeringen),

covering all persons residing in the Netherlands, and on the other hand

the employees' insurances (werknemersverzekeringen), covering persons

bound by an employment contract with a private or public employer or

who can be assimilated to this category.

26 The decisions of the Industrial Insurance Boards as regards

contributions to the social security schemes and benefits from those

schemes can be appealed to an Appeals Tribunal. An appeal cannot be

lodged until a formal decision has been issued by the Industrial

Insurance Board concerned. Against the decision of an Appeals Tribunal

there is a further appeal to the Central Appeals Tribunal.

b. The Sickness Benefits Act

27 Under the Sickness Benefits Act (ZW) insurance against sickness

is compulsory for persons under 65, who are bound by a contract of

employment with a public or private employer or who can be assimilated

to this category.

28 The ZW premiums are fixed by the Industrial Insurance Board and

differ per economic sector. The premiums are calculated on the basis

of an employee's salary by, and are collected by, the Industrial

Insurance Board. The premiums are paid in part by the employees

themselves and in part by their employers.

29 Benefits awarded under the ZW are paid by the Industrial

Insurance Board. These benefits are calculated on the basis of the

insured's salary. ZW benefits are paid for a maximum period of one

year, but not beyond the age of 65, as from that age a person becomes

eligible for a statutory old-age pension.

c. The Health Insurance Act

30 Under the Health Insurance Act (ZFW) insurance against medical

expenses is compulsory for persons under 65, who are bound by a

contract of employment with a public or private employer or who can be

assimilated to this category and whose income does not exceed a certain

amount. This amount is fixed by law yearly. Under certain conditions

also persons having reached the age of 65 and unemployed persons can

be insured.

31 The ZFW premiums for compulsorily insured employed persons are

fixed by the Minster of Welfare, Health and Cultural Affairs (Minister

van Welzijn, Volksgezondheid en Cultuur) and the Minister of Social

Affairs and Employment together. The premiums are calculated on the

basis of an employee's salary by, and are collected by, the Industrial

Insurance Board, which transfers the funds thus received to the General

Account (Algemene Kas) of one of the National Health Service Funds

(Ziekenfonds). The premiums are paid in part by the employees

themselves and in part by their employers.

32 Under the ZFW, insured medical expenses are paid directly to the

providers of medical care by the National Health Service.

d. The Unemployment Insurance Act

33 Under the Unemployment Insurance Act (WW) insurance against

involuntary unemployment is compulsory for persons under 65, who are

bound by a contract of employment with a public or private employer or

who can be assimilated to this category.

34 The WW premiums are fixed by Order in Council (Algemene Maatregel

van Bestuur). The premiums are calculated on the basis of an employee's

salary by, and are collected by, the Industrial Insurance Board. The

premiums are paid in part by the employees themselves and in part by

their employers. By Order in Council it can also be decided that the

State pays a part of the WW premiums.

35 Benefits awarded under the WW are paid by the Industrial

Insurance Board. These benefits are calculated on the basis of the

period the insured has worked and the salary earned before becoming

unemployed. The duration of the benefits differs in each case as it

depends on a number of elements, but does not exceed five years, and

benefits are not paid to persons having reached the age of 65.

e. The Labour Disablement Insurance Act

36 Under the Labour Disablement Insurance Act (WAO) insurance

against incapacity to work lasting more than one year is compulsory for

persons under 65, who are bound by a contract of employment with a

public or private employer or who can be assimilated to this category.

37 The WAO premiums are fixed by the Board of the Disablement

Insurance Fund (Arbeidsongeschiktheidsfonds) subject to the approval

of the Minister of Social Affairs and Employment following consultation

with the Social Insurance Council. The premiums are calculated on the

basis of an employee's salary by, and are collected by, the Industrial

Insurance Board. The premiums are paid in part by the employees

themselves and in part by their employers.

38 Benefits awarded by the Industrial Insurance Board under the WAO

are charged to the Disablement Insurance Fund. The benefits are

calculated on the basis of the income earned before disablement and the

degree of disability. WAO benefits are paid as long as the person

concerned is incapacitated for work but not beyond the age of 65.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

39 The Commission has declared admissible the applicant's complaint

that in the determination of his civil rights and obligations he did

not receive a fair hearing within a reasonable time.

B. Points at issue

40 Accordingly, the issues to be determined are:

- whether the applicant's civil obligations were determined

within a reasonable time, and

- whether the applicant has had a fair hearing in the

determination of his civil obligations.

C. The applicability of Article 6 para. 1 (Art. 6-1)

of the Convention

41 Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

"In the determination of his civil rights and obligations

(...) everyone is entitled to a fair (...) hearing within

a reasonable time by a (...) tribunal (...)."

42 The Commission notes that the proceedings at issue concerned the

applicant's obligation as an employer to pay contributions under four

different social security schemes.

43 The applicant submits that Article 6 para. 1 (Art. 6-1) of the

Convention applies not only to proceedings relating to the Sickness

Benefits Act but also to proceedings concerning the other social

security schemes at issue. The payment of contributions is closely

connected with the right to receive benefits and both aspects of the

schemes come within the scope of this Article.

44 The Government submit that Article 6 para. 1 (Art. 6-1) does not

apply to the proceedings concerned, since they did not concern the

determination of a civil right. They concerned the obligation to pay

contributions under the Sickness Benefits Act, the Unemployment

Insurance Act, the Health Insurance Act and the Labour Disablement

Insurance Act. As regards the Sickness Benefits Act, the European Court

of Human Rights has found Article 6 (Art. 6) to be applicable to

proceedings regarding the entitlement to benefits, whereas there is no

such decision in regard to the benefits under the other Acts.

45 In the Government's opinion, proceedings regarding the payment

of contributions under the said social security schemes are excluded

from the scope of Article 6 (Art. 6), in the same way as taxation

proceedings. The obligation to contribute to the social security

schemes at issue is laid down in law, rests not only on the insured but

also on the insured's employer, an employer's failure to contribute

does not affect an insured's right to receive benefits, and the rules

relating to the deduction of contributions and transfers by the

employer and regarding the records to be kept in this respect are in

line with those relating to the levying of taxes.

46 The Commission recalls that the Court in the case of Schuler-

Zgraggen v. Switzerland (Eur. Court H.R., judgment of 24 June 1993,

Series A no. 263) stated in para. 46 of its judgment:

"The Court is here once again confronted with the issue of

the applicability of Article 6 § 1 (Art. 6-1) to social-

security disputes. The question arose earlier in the cases

of Feldbrugge v. the Netherlands and Deumeland v. Germany,

in which it gave judgment on 29 May 1986 (Series A nos. 99

and 100). At that time the Court noted that there was great

diversity in the legislation and practice of the member

States of the Council of Europe as regards the nature of

the entitlement to insurance benefits under social-security

schemes. Nevertheless, the development in the law that was

initiated by those judgments and the principle of equality

of treatment warrant taking the view that Article 6 § 1

(Art. 6-1) does apply in the field of social insurance,

including even welfare assistance (see the Salesi v. Italy

judgment of 26 February 1993, Series A no. 257-E,

pp. 59-60, § 19).

As in the two cases decided in 1986, State

intervention is not sufficient to establish that Article 6

§ 1 (Art. 6-1) is inapplicable; other considerations argue

in favour of the applicability of Article 6 § 1 (Art. 6-1)

in the instant case. The most important of these lies in

the fact that despite the public-law features pointed out

by the Government, the applicant was not only affected in

her relations with the administrative authorities as such

but also suffered an interference with her means of

subsistence; she was claiming an individual, economic right

following from specific rules laid down in a federal

statute (...).

In sum, the Court sees no convincing reason for

distinguishing between Mrs Schuler-Zgraggen's right to an

invalidity pension and the rights to social-insurance

benefits asserted by Mrs Feldbrugge and Mr Deumeland.

Article 6 § 1 (Art. 6-1) therefore applies in the

present case."

47 Having regard to the Court's above findings, namely that

Article 6 para. 1 (Art. 6-1) of the Convention applies in the field of

social insurance, including welfare assistance - which is a unilateral

benefit granted by the State (Eur. Court H.R., Salesi judgment of

26 February 1993, Series A no. 257-E) -, the Commission considers that

Article 6 para. 1 (Art. 6-1) of the Convention is applicable to

proceedings concerning the right to benefits under the social security

schemes at issue in the present case.

48 It is true that the proceedings at issue in the present case did

not concern the right to benefits under these social security schemes,

but the obligation to pay contributions under those schemes.

49 However, unlike the Government, the Commission finds no basis for

distinguishing, as regards the applicability of Article 6 para. 1

(Art. 6-1), between a right to benefits and the obligation to

contribute under the same social security schemes. It notes that

Article 6 para. 1 (Art. 6-1) covers civil "rights" and "obligations"

alike.

50 In support of this view the Commission notes that all the private

law elements the European Court found in the Feldbrugge case (loc.cit.)

to characterise the right to benefits under the Sickness Benefits

Act - the personal and economic nature of the benefits, their

connection with a contract of employment and the affinities of the

scheme with private insurance - are mutatis mutandis also present in

respect of the obligation to pay contributions. Contributions to the

social security schemes are of the same individual and economic nature

as the benefits and are equally connected with a contract of employment

or a contract regarded as such. Moreover the schemes under which

contributions are paid are the same as those under which benefits are

awarded and their affinities with private insurances are the same.

51 Furthermore, recalling the Court's statements that it is

sufficient for the applicability of Article 6 para. 1 (Art. 6-1) of the

Convention that proceedings are "pecuniary" in nature and that the

action is founded on an alleged infringement of rights which were

likewise pecuniary rights (cf. Eur. Court H.R., Editions Périscope

judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40) or that

the outcome is "decisive for private rights and obligations" (cf. Eur.

Court H.R., H. v. France judgment of 24 October 1989, Series A

no. 162-A, p. 20 para. 47 with further references), the Commission

notes that the outcome of the proceedings at issue determined, inter

alia, whether or not the relation between the applicant and the

physiotherapists concerned could be assimilated to a contract of

employment and consequently whether or not the applicant was under an

obligation to pay social security contributions. The Commission finds

that the proceedings at issue were therefore "pecuniary" in nature and

were decisive for the applicant's private obligations.

52 The Commission consequently finds that the proceedings at issue

involved a determination of civil obligations within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention, which is thus

applicable to the present case.

D. Alleged violations of Article 6 para. 1 (Art. 6-1)

of the Convention

1. Length of the proceedings

53 The applicant considers that the delay in the issue of a formal

decision should be taken into account in the assessment of the total

length of the proceedings. He submits that his legal counsel, in view

of experiences in other similar cases in which he had acted as counsel

and where requests to expedite the proceedings had remained without

result, refrained from requesting the B.V.G. to expedite the issue of

the formal decision, considering that this would be of no avail.

54 The Government consider that the reasonable time requirement

contained in Article 6 para. 1 (Art. 6-1) of the Convention does not

apply to the stage preceding appeal proceedings under the Social

Security Appeals Act (Beroepswet). If one would include the delay in

the issuing of the formal decision by the B.V.G in the total length of

the proceedings, the Government admit that the issue of the formal

decision by the B.V.G. took too long, but they do not find that the

applicant has urged the B.V.G. to issue its formal decision speedily

although he was informed that this could take some time.

55 The Government finally argue that the matter was complex, that

the applicant delayed the hearing of his case by at least twelve months

and that, during the period in question, the B.V.G. was confronted with

a great number of applications for formal decisions in similar cases.

In view of these circumstances it cannot be said that the proceedings

at issue violated the reasonable time requirement of Article 6 para. 1

(Art. 6-1).

56 The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the circumstances of each

case and having regard to the following criteria: the complexity of the

case, the conduct of the applicant and that of the authorities dealing

with the case (cf. Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

57 As regards the period to be considered, the Commission notes that

the applicant could not obtain any examination by a tribunal until he

had obtained a formal decision from the B.V.G. and finds that the

proceedings began on 27 March 1987, when the applicant requested the

B.V.G. to issue a formal decision against which he could lodge an

appeal, and ended on 10 July 1991, when the Central Appeals Tribunal

rejected the applicant's appeal. The period to be examined thus lasted

four years and over three months.

58 The Commission notes that the proceedings at issue concerned

matters of a certain complexity and that apart from the adjournment

before the Appeals Tribunal, which was granted at the applicant's

request, no delay in the proceedings is imputable to the applicant.

59 Concerning the applicant's failure to request the B.V.G. to

expedite the issue of a formal decision, the Commission does not find

it established that such a request would have been effective in the

circumstances of the present case.

60 Concerning the conduct of the administrative authorities, the

Commission finds that the period between 27 March 1987, when the

applicant requested the B.V.G. to issue a formal decision, and

9 December 1988, when the B.V.G. issued the formal decision, was

unreasonably long and unduly delayed the proceedings.

61 As for the argument relating to the numerous other applications

for a formal decision pending before the B.V.G., the Commission recalls

that it is for Contracting States to organise their legal systems in

such a way that the requirement under Article 6 para. 1 (Art. 6-1) of

the Convention, that everyone has the right to a final decision within

a reasonable time in the determination of his civil rights and

obligations, can be met (cf. Eur. Court H.R. Vocaturo judgment of

24 May 1991, Series A no. 206-C, p. 32, para. 17).

62 The Commission therefore considers that the length of the

proceedings complained of was excessive and failed to satisfy the

"reasonable time" requirement contained in Article 6 para. 1 (Art. 6-1)

of the Convention.

Conclusion

63 The Commission concludes, by eighteen votes to one, that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention

in that the applicant's civil obligations were not determined within

a reasonable time.

2. Fair hearing

64 The applicant complains that he did not have a fair hearing in

that the B.V.G., which was the opposite party in the proceedings,

prevented him for a long time from appealing by not issuing a formal

decision.

65 The Government do not find that the delay in the issue of a

formal decision by the B.V.G. affected the fairness of the proceedings

in that it was not to the applicant's detriment. The Government do not

accept that in case of an earlier recourse to the Appeals Tribunal the

outcome would or could have been different, since in a similar case in

which the applicant's counsel also acted as counsel, the Central

Appeals Tribunal had already concluded that insurance was compulsory.

Furthermore, the Government find no indication that the applicant had

insufficient opportunity to argue his case during the B.V.G.'s

preparations for the formal decision or during the appeal proceedings.

66 The Commission recalls that the right to a fair hearing implies

that the interested party must be able to present his case under

conditions which do not place him at a substantial disadvantage vis-à-

vis his opponent (cf. No. 9938/82, Dec. 15.7.86, D.R. 48, p. 21).

67 The Commission notes that in the proceedings concerned the B.V.G.

played the double role of the body which issued the first decision

against which an appeal was lodged and as a party to the appeal

proceedings. In these circumstances, the fact that the B.V.G., by

failing for a considerable time to issue a formal decision, could delay

the introduction of an appeal means that there was a lack of equality

between the applicant and his opponent in the appeal proceedings.

68 The Commission, therefore, considers that the applicant did not

have a fair hearing in the determination of his civil obligations as

required by Article 6 para. 1 (Art. 6-1) of the Convention.

Conclusion

69 The Commission concludes, by eleven votes to eight, that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention

in that the applicant did not have a fair hearing in the determination

of his civil obligations.

E. Recapitulation

70 The Commission concludes, by eighteen votes to one, that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention

in that the applicant's civil obligations were not determined within

a reasonable time (para. 63).

71 The Commission concludes, by eleven votes to eight, that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention

in that the applicant did not have a fair hearing in the determination

of his civil obligations (para. 69).

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

(Or. English)

PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, H.G. SCHERMERS

MRS. G.H. THUNE, J. LIDDY, MM. I. CABRAL BARRETO, B. CONFORTI

AND N. BRATZA

We share the view of the majority of the Commission that there

has been a breach of Article 6 para. 1 of the Convention in the present

case by reason of the length of the proceedings, but we are unable to

agree with the conclusion of the majority that there has been a

separate breach of this provision by reason of the lack of fairness of

the proceedings.

In so concluding the majority rely on what is described as the

double role of the BVG, which both rendered the decision against which

the applicant's appeal to the Appeals Tribunal was lodged and

participated as a party before the Tribunal. It is the view of the

majority that, in these circumstances, the BVG, by failing for a

considerable time to arrive at a formal decision could delay the

introduction of an appeal and that this meant that there was a lack of

equality between the applicant and his opponent in the appeal

proceedings.

We do not consider that the "double role" of the BVG, a role

which is by no means unusual in litigation between administrative

agencies and private parties, has been shown to have affected the

fairness of the proceedings before the Tribunal. Moreover, insofar as

the fairness of the proceedings may be said to have been affected by

the delay of the BVG in issuing its decision, this complaint is in our

view subsumed in the Commission's finding of a violation in relation

to the length of proceedings.

(Or. français)

OPINION DISSIDENTE DE M. F. MARTINEZ

A mon avis, les procédures relatives à l'obligation des

employeurs de payer les contributions à la sécurité sociale ne

concernent pas des contestations sur des droits et obligations de

caractère civil au sens de l'article 6 de la Convention.

La majorité de la Commission s'appuie sur les arrêts Feldbrugge,

Deumeland et Schuler-Zgraggen pour arriver à la conclusion contraire.

Mais, d'autre part, la Commission a toujours exclu l'application de

l'article 6 au contentieux fiscal.

Je crois que le cas d'espèce doit être distingué de la doctrine

Feldbrugge, Deumeland et Schuler-Zgraggen mais non du contentieux

fiscal.

A mes yeux, l'application de la jurisprudence Feldbrugge et

Deumeland conduit à exclure le cas d'espèce du champ de

l'article 6 par. 1 de la Convention. En effet, dans l'affaire

Feldbrugge et Deumeland, la Commission procède à un examen des éléments

de caractère public et privé qui affectent les bénéficiaires de la

sécurité sociale, et conclut à la prééminence des éléments de caractère

privé. Mais en ce qui concerne les contributions des employeurs, il

n'y a pas d'éléments de caractère privé. Il n'y a que l'obligation de

contribuer aux conditions établies par l'Etat en tant que sujet

d'imperium.

La doctrine Schuler-Zgraggen, après avoir rappelé les arrêts

Feldbrugge et Deumeland, met l'accent sur le fait que l'intéressée

était affectée non seulement dans ses relations avec les autorités

administratives mais qu'elle souffrait d'une interférence dans ses

moyens de subsistance. Or, la contribution de l'employeur n'affecte

pas directement ses moyens de subsistance, pas plus qu'elle ne serait

affectée par l'obligation de payer les impôts qui découlent de son

activité d'employeur.

L'activité déployée par un employeur génère l'obligation de payer

les impôts, les taxes et les contributions établis pour cette activité

précise. Et je ne vois pas pourquoi une contestation sur le paiement

d'une contribution fiscale serait exclue par l'article 6 de la

Convention et la contestation concernant une contribution sociale

obligatoire ne le serait pas.

N'oublions pas que certaines taxes fiscales peuvent avoir une

affectation bien déterminée - par exemple, les redevances TV - et que

les impôts dans les Etats modernes jouent un rôle redistributeur de la

rente des personnes.

C'est pour cette raison que le contentieux sur les cotisations

obligatoires des employeurs à la sécurité sociale ne peut être

distingué du contentieux relatif aux contributions fiscales.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

___________________________________________________________________

4 September 1991 Introduction of application

29 October 1991 Registration of application

Examination of admissibility

4 April 1992 Commission's decision to invite

the Government to submit their

observations on the

admissibility and merits of the

application

26 June 1992 Government's observations

17 September 1992 Applicant's observations in

reply

9 December 1992 Commission's decision to declare

the application admissible and

to invite the parties, if they

so wish, to submit further

observations on the merits

Examination of the merits

12 October 1993 Commission's deliberations on

the merits final vote and

adoption of the Report

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SCHOUTEN v. the NETHERLANDS

SCHOUTEN v. the NETHERLANDS

LEXI