EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 11540/85

Haim KARNI

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 15 December 1988)

TABLE OF CONTENTS

                                                                 page

I.      INTRODUCTION (paras. 1-14) ............................    1

        A.  The application (paras. 2-4) ......................    1

        B.  The proceedings (paras. 5-10) .....................    1

        C.  The present Report (paras. 11-14) .................    2

II.     ESTABLISHMENT OF THE FACTS (paras. 15-45) .............    3

        A.  The particular circumstances of the case

            (paras. 15-28) ....................................    3

        B.  Relevant domestic law (paras. 29-45) ..............    5

III.    SUBMISSIONS OF THE PARTIES (paras. 46-79) .............    11

        A.  The applicant (paras. 46-64) ......................    11

        B.  The Government (paras. 65-79) .....................    13

IV.     OPINION OF THE COMMISSION (paras. 80-97) ..............    17

        A.  Point at issue (para. 80) .........................    17

        B.  Article 6 of the Convention (paras. 81-97) ........    17

APPENDIX I      :  HISTORY OF THE PROCEEDINGS .................    20

APPENDIX II     :  DECISION ON THE ADMISSIBILITY ..............    21

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 Swedish citizen, born in 1917 and resident

at Trelleborg.  He is a doctor of medicine.  Before the Commission, he

is represented by Mr.  Kenneth Borin, a lawyer practising at

Trelleborg.

3.      The application is directed against Sweden.  The respondent

Government are represented by their Agent, Mr.  Hans Corell,

Ambassador, Under-Secretary at the Ministry for Foreign Affairs,

Stockholm.

4.      The case relates to the procedures engaged by the applicant, a

doctor, to ensure his affiliation to the social security system, and

the question whether he had any possibility of having the dispute

concerning the refusal to affiliate him examined by a tribunal

satisfying the conditions of Article 6 para. 1 of the Convention.

        B.  The proceedings

5.      The application was introduced on 20 February 1985 and

registered on 15 May 1985.  On 1 December 1986 the Commission decided,

in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to

give notice of the application to the respondent Government and to

invite them to present before 6 March 1987 their observations in

writing on the admissibility and merits of the application with regard

to Article 1 of Protocol No. 1 to the Convention and Article 6 para. 1

of the Convention.

        The Government's observations were dated 5 March 1987 and the

applicant's observations in reply, after an extension of the time-

limit to 30 May 1987, were dated 19 May 1987.  The applicant submitted

a further letter dated 15 September 1987.

6.      Legal aid under the Addendum to the Commission's Rules of

Procedure was granted by the President on 7 April 1987.

7.      On 8 March 1988 the Commission decided to declare inadmissible

the applicant's complaint of a violation of Article 1 of Protocol No.

1 of the Convention.  The remainder of the application (Article 6

para. 1 of the Convention) was declared admissible.

8.      The parties were then invited to submit any additional

observations on the merits of the application which they wished to

make.

        The applicant submitted further observations by letter of

8 June 1988 and the Government submitted further observations on

30 June 1988, arguing inter alia that the application should be

rejected as inadmissible.  The observations of each party were

communicated to the other party for information.  Additional

observations from the applicant were dated 11 August 1988.

9.      On 9 July 1988 the Commission considered the state of

proceedings of the case.

        On 6 and 15 December 1988 the Commission considered the

parties' submissions.  It found no basis for the application of Article

29 of the Convention.  The Commission then deliberated on the merits

and took the final votes in the case.

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

accordance with Article 28 (b) of the Convention, 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' reactions the Commission

now finds that there is no basis on which a friendly 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 in plenary session, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

        The text of the Report was adopted by the Commission on

15 December 1988 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

12.     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 of its obligations

             under the Convention.

13.     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.

14.     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.  The particular circumstances of the case

15.     The applicant moved from Switzerland to Sweden in 1982.  After

having retired in January 1983 the applicant decided to open a private

medical practice at Trelleborg since his income from his pension was

insufficient.

16.     On 21 August 1984 the applicant applied for affiliation to the

social security system.  According to the application the applicant

intended to carry on medical practice at Trelleborg.  He did not intend

to work full time but 30 hours a week.

        By letter of 17 September 1984, the Social Insurance Office of

Malmöhus (Malmöhus allmänna försäkringskassa) informed the applicant

that, as from 28 August to 31 December 1984, he had been entered on

the list of private medical practitioners within the Office's area,

who were affiliated to the social security system.  The applicant was

also informed of the fees he was entitled to charge his patients.

17.     Following his affiliation to the social security system the

applicant maintains that he set up his medical practice at Trelleborg.

He signed a contract for the premises for his practice and furnished

it with an electrocardiograph and other special instruments.  In all,

he invested some 90.000 SEK.

18.     By a letter dated 15 October 1984, the applicant received from

the Social Insurance Office a preliminary notice as regards his

affiliation to the social security system as from 1 January 1985.

It read as follows:

"In view of the fact that new rules concerning affiliation

to the social security system will enter into force as from

January 1985, the Social Insurance Office informs you as

follows.

The Social Insurance Office has found, after investigation,

that you do not fulfil the conditions for continued

affiliation to the rules on remuneration for medical care

under the social security system.  The Office therefore

intends to strike you off its list at the end of 1984.

In the annexed notice concerning the new rules an account is

given inter alia of the conditions for being entered on the

Insurance Office's list as from the coming year and of the

possible exemptions.

If, in view of the above, you intend to submit a request for

exemption or otherwise have any objection against the

Insurance Office's assessment you should make this known

immediately and at the latest within 14 days.  The

communication should be sent to the Social Insurance Office

together with the documents you wish to invoke.

You will be informed later of the decision on the question

of affiliation."

19.     On 26 October 1984 the applicant telephoned the Social

Insurance Office stating that he had made investments during the

autumn and would submit documents to show these investments.

20.     In an application of 27 November 1984 to the Insurance

Office, the applicant requested to be allowed to continue as a doctor

affiliated to the social insurance system also after 1 January 1985.

He referred to conversations and correspondence with the County

Council of the County of Malmöhus (Malmöhus läns landsting).  The

application also contained a copy of a letter from the applicant to

the County Council, dated 27 November 1984.

21.     In the letter to the County Council, the applicant requested

to be allowed to continue as affiliated to the insurance system after

1 January 1985.  Besides referring to a conversation during a visit to

the County Council on 22 October 1984, the applicant also stated that

he had been abroad and had only learned at the end of October 1984 of

the new regulations for affiliation after 1 January 1985 and also that

he had been granted affiliation without having been advised of the

impending changes.  He claimed that his arrangements for establishing

the practice were substantially complete by the end of October and

that he had invested considerable sums, including signing a year's

contract for premises and the purchase of expensive apparatus and

furniture.  He claimed that his medical practice was a vital necessity

for him.  He had no alternative, since he was not entitled to any form

of pension.

22.     The Social Insurance Office made no decision concerning the

applicant's affiliation after the decision notified in the preliminary

notice of 15 October 1984, and no decision was given on his

application of 27 November 1984.  There is no explanation as to the

reason for this silence.  Nor has the Office taken any other measures

concerning the applicant's affiliation.  The National Social Insurance

Board (riksförsäkringsverket) has not received any petition concerning

the applicant's affiliation, neither from the applicant himself nor

from the Insurance Office.

23.     According to records kept at the Insurance Office, the

applicant received insurance remuneration for 24 consultations during

the book-keeping period of November 1984 and for 11 consultations

during the book-keeping period of December 1984.  The total

remuneration amounted to just under 9,000 SEK.

24.     By letter of 20 December 1984 the applicant received

inter alia the following information from the County Council:

"Your application will be dealt with together with the other

applications for new establishments and applications for

continued private and leisure practice from the private and

leisure practitioners who do not fulfil the basic conditions

for continued affiliation to the Social Insurance Office.

Thus, the intention is to make an overall assessment of the

need of private medical care, the present medical resources

under private and public regime and the financial

consequences for the County Council.

Since the time-limit for applications for continued private

and leisure practice expires on 31 December 1984, the

examination of your application can only be made in the

beginning of 1985.  According to the guidelines of the

administrative committee, all applications shall have been

examined by 31 March 1985.

Awaiting the outcome of your application you have the

possibility to continue your practice from 1 January 1985

on the following conditions.  Remuneration will be paid

according to unchanged principles for a maximum of 200

consultations per month.  The remuneration will be paid by

the County Council and should therefore be accounted for

on a special form which will be sent to you shortly.

The above permission does not imply any stand as to

continued practice after 31 March 1985.  If the application

is rejected, no further prolongation will be granted."

25.     By letter of 25 January 1985 the applicant informed the County

Council that his affiliation to the social security system had been

granted without mentioning the subsequent reorganisation of the rules.

He also informed the Council of his investments in his practice.

26.     By letter of 14 February 1985 the applicant was informed that

on 13 February 1985 the Health and Social Delegation (hälso- och

sjukvårdsdelegationen) of the County Council had rejected his

application for an agreement on a medical practice implying his

affiliation to the social security system.

27.     The applicant closed down his practice immediately.

28.     On 17 February 1985 the applicant applied to the County

Council for a contribution towards the costs for the closing down of

his medical practice.  This request was rejected by the County Council

on 5 March 1985.

        B.  Relevant domestic law

29.     Medical attendance in Sweden is mainly a matter for the public

sector.  Of 21,000 doctors in 1985, 18,500 were employed at hospitals

and other medical institutions within the public sector.  Another 1,000

were employed within the occupational health service.  Of the remaining

group some 1,000 are estimated to work as private practitioners.

30.     Benefits for medical care are provided by the social insurance

system which also covers, for example, pensions and child allowances.

The legal basis for the system is the 1962 Social Insurance Act (lagen

om allmän försäkring).

31.     This Act applies to Swedish citizens and those who, although

not Swedish citizens, are resident in Sweden.  The administration of

the system is carried out by Social Insurance Offices and the National

Social Insurance Board.  Allowances for medical expenses are paid by

local Social Insurance Offices pursuant to Chapter 2 of the Act, and

include remuneration for out-patient medical care (läkarvård i öppen

vård).  Remuneration is paid if such care is provided by the State, a

county council or a municipal authority not part of a county council

(public medical care) or by a doctor affiliated to the social

insurance system (alternative medical care).  Most private

practitioners are affiliated to the system.  According to the Act

remuneration is paid on grounds stipulated by the Government.

32.     New rules came into force on 1 January 1985 regarding health

insurance benefits for out-patient care and regarding the affiliation

of private practitioners to the health insurance system.

33.     Prior to 1 January 1985 remuneration was paid for each visit

to the doctor.  This applied to both public care and alternative

care.  The patient paid a stipulated maximum patient's fee, and the

doctor affiliated to the social insurance system received a stipulated

sum for each patient's visit, directly from the social insurance

office.  If the doctor was employed within public medical care, for

instance by a County Council, the County Council received the

corresponding sum.

34.     The reform entailed the application of new rules for

remuneration as from 1 January 1985.  In order to limit social

insurance expenses, and to achieve better regional distribution of

care throughout Sweden and taking into consideration that the medical

care principal (sjukvårdshuvudmannen) had the responsibility for

medical care planning within its area, the previous form of

remuneration calculated on the number of patient's consultations was

replaced by a form of a more roughly estimated remuneration.

35.     In the new system the sum is calculated on the basis of the

number of inhabitants within the medical care area for which the

medical care principal is responsible and covers medical care provided

both by doctors employed by the medical care principals and by other

doctors.  The remuneration is paid to the medical care principal after

deduction of the sum paid per consultation to private practitioners

affiliated to the social insurance system.

36.     To enable joint planning of medical care, and since a

deduction is made on remuneration to the medical care principals for

private medical care, the rules were at the same time changed for

affiliation of private practitioners to the system.  Prior to

1 January 1985, any doctor could upon application be affiliated to the

social insurance system.  The Insurance Office entered the doctor on a

list kept by the Offices for this purpose.  Subsequent to 1 January

1985, private practitioners may in principle only be affiliated to the

system at the recommendation of the medical care principal (not

necessary in areas with very few doctors).

37.     However, any private practitioner already affiliated when the

new regulations came into force on 1 January 1985 was permitted to

remain within the system without recommendation from the medical care

authorities, provided the doctor's practice had been of a certain

magnitude.

38.     The reform was proposed in a Government Bill to the Parliament

in April 1984 (Bill No. 1983/84:190).  A main purpose of the reform was

to improve the possibilities for people living in those parts of

Sweden which are sparsely populated - for example wide areas in the

northern parts of Sweden - to get access to medical care.  The

Government saw this as a fulfilment of the aims set up in the 1982

Health and Medical Services Act (hälso- och sjukvårdslagen), which

stipulates that the aim for the health and medical care is good health

and medical care supplied on the same conditions to the whole

population.  In the sparsely populated areas there was a considerable

lack of doctors in the public as well as in the private care.  In the

city regions the case was the reverse.  In order to see to it that the

population within the area for which the medical care principal is

responsible gets access to good health and medical care, as prescribed

in the Health and Medical Services Act, the medical care principals

had to be made capable of estimating the range of the care supplied.

It was therefore deemed necessary that the activities of private

practitioners affiliated to the social insurance system were also

co-ordinated with the activities of the medical care principals as

far as planning was concerned.  The medical care principals therefore

were given a determining influence when deciding whether private

practitioners can be affiliated to the social insurance system.

39.     The Bill was approved by Parliament on 5 June 1984.  The

proposed reform had caused general debate in the newspapers and other

mass media.  By approving the Bill, Parliament authorised the

Government to regulate the basis for remuneration for medical

treatment and also to issue directives regarding the extent to which

private practitioners should be included in the lists kept by the

Social Insurance Offices and thus affiliated to the insurance system.

The amendments came into force on 1 January 1985.

40.     The basis for remuneration to medical care principals laid

down by the Government appear in the 1984 Ordinance on Remuneration to

Medical Care Principals from the Social Insurance under the Social

Insurance Act.  The basis for remuneration from the national social

security system to private practitioners is stipulated by the

Government in the 1974 Tariff of Medical Care Charges

(läkarvårdstaxan; hereinafter referred to as "the tariff"), as

amended.  The tariff states the conditions under which private

practitioners may join the social security system by being entered on

the Social Insurance Office list, thus being entitled to remuneration

from the insurance.  The tariff also stipulates the maximum fee which

a doctor may charge for a treatment or consultation.  Of that fee the

doctor receives a fixed sum directly from the patient (the patient's

fee in 1985 was 55 SEK).  The remaining part of what has been charged

is paid to the doctor from the Social Insurance Office.  Such

remuneration is paid to the doctor for each patient's visit even

subsequent to the reform.

41.     The new regulations in the tariff following the parliamentary

decision of 5 June 1984 were issued on 16 October 1984 (Ordinance No.

1984:767).  As from 1 January 1985, a private practitioner thus may

join the social insurance system only if recommended by the medical

care principal.  However, this requirement does not apply to a person

taking over a practice from a doctor who is already affiliated to the

system.  Neither does it apply to the establishment of new practices

in certain areas of Sweden in special need of doctors (Section 3 of

the tariff).  The areas concerned are the sparsely populated wide

areas situated mainly in the northern parts of Sweden.

42.     The Ordinance included certain transitional provisions

relating to doctors affiliated to the national insurance system at

the time when the new regulations came into force.  The transitional

provisions correspond to what was recommended in the Bill (pp. 32-33)

and approved by Parliament, and read as follows:

(Swedish)

"Denna förordning träder i kraft den 1 januari 1985.

1.  En läkare som vid utgången av år 1984 är uppförd på

förteckning hos allmän försäkringskassa skall från och med

den 1 januari 1985 av försäkringskassan föras av från

förteckningen om han inte uppfyller kraven för att stå kvar på

denna.

2.  En läkare som är uppförd på förteckningen vid utgången av

år 1984 och som inte är heltidsanställd hos sjukvårdshuvudman

skall även fortsättningsvis vara uppförd på förteckningen utan

krav på tillstyrkan från sjukvårdshuvudmannen.  En

förutsättning är att verksamheten bedrivs på samma ort och att

läkaren under tiden juli 1983 - mars 1984 har bedrivit

verksamheten i sådan omfattning att han fått ersättning från

den allmänna försäkringen motsvarande minst två månaders

heltidsverksamhet.  Har läkaren under denna tid på grund av

sjukdom varit förhindrad att i tillräcklig omfattning bedriva

verksamhet skall detta krav ändå anses uppfyllt.  Detsamma

gäller om verksamheten hindrats av annat skäl som godtas av

riksförsäkringsverket.

En läkare som börjat sin verksamhet så sent att han inte har

kunnat bedriva den i tillräcklig omfattning under den i första

stycket angivna tiden, men som före april 1984 gjort betydande

investeringar eller vidtagit andra långtgående åtgärder i

verksamheten, får efter särskild prövning av riksförsäkringsverket

medges att även fortsättningsvis vara uppförd på

förteckningen.

I de fall läkaren under år 1984 har övertagit en befintlig

praktik från en läkare som är uppförd på förteckning hos

försäkringskassan, får han åberopa den tidigare innehavarens

verksamhet för att uppfylla förut angivna förutsättningar.

3.  Läkare som avses under punkt 2, som inte är heltidsanställd

hos sjukvårdshuvudman och som inte uppfyller där angivna krav

för att även fortsättningsvis vara uppförd på försäkringskassans

förteckning, får vara kvar på denna tills vidare eller under

viss tid efter utgången av år 1984 om sjukvårdshuvudmannen

tillstyrker det."

        (English translation)

        "This Ordinance shall come into force on 1 January 1985.

        1.  A doctor who was included in the list kept by the social

        insurance office at the end of 1984 shall be deleted

        therefrom as from 1 January 1985, if he does not fulfil

        the requirements for remaining on the list.

        2.  A doctor who was included in the list at the end of

        1984, and who is not employed full-time by the medical

        care principal, may continue to be included in the list

        without having to be recommended by the medical care

        principal, provided the practice is run at the same

        place and that, over the period July 1983 to March 1984,

        the doctor has carried out his practice to such an extent

        that he has received remuneration from the social insurance

        office corresponding to at least two months full-time

        activity.  Should the doctor have been prevented by

        illness during this time from carrying on his practice

        to the extent required, this requirement shall in any

        case be considered to have been fulfilled.  The same

        applies in the event of the practice not having been

        carried on for some other reason accepted by the National

        Social Insurance Board.

        A doctor who established his practice too late to have

        been able to carry it on to a sufficient extent during

        the period stated in the first paragraph but who, prior

        to April 1984, has made considerable investments or taken

        other long-term measures regarding the practice may,

        upon special examination by the National Social Insurance

        Board, be permitted to remain on the list.

        In the event of a doctor having taken over an existing

        practice in 1984 from a doctor who is already on the

        Social Insurance Office list, he may refer to the

        activities of the previous owner in order to fulfil

        the stipulated requirements.

        3.  Doctors referred to under point 2, who are not

        employed full-time by a medical care principal and who

        do not fulfil the requirements stipulated therein for

        remaining on the Social Insurance Office list, may

        remain until further notice, or for a certain period

        after the end of 1984, if recommended by the medical

        care principal."

43.     In accordance with what was recommended in the Bill (p. 33),

doctors not fulfilling the requirements for automatically remaining in

the insurance system should be notified thereof as soon as possible

after 1 July 1984 and advised of the conditions for affiliation after

1 January 1985.  During autumn 1984 the National Social Insurance

Board issued information to the local Social Insurance Offices, and

the doctors affected were informed individually by these offices.

According to the National Social Insurance Board, information should

be issued from the local offices in the following manner:

        A preliminary notice from the Insurance Office should be sent

to the doctor stating that upon investigation it had been found that

the doctor did not fulfil the requirements for continued affiliation

to the insurance system and that the office therefore intended to

delete the doctor from its list at the expiry of 1984.  Information as

to the new regulations, including the transitional provisions, was to

be included with the notice.

        The notice stated that a petition for exemption or objections

to the assessment of the Insurance Office should be submitted

immediately or within 14 days and should be addressed to the local

Social Insurance Office.  The preliminary notice should state that a

decision concerning affiliation would be communicated later.

        The question of affiliation was then to be examined by

the Insurance Office.  Petitions for exemption from the

requirements stipulated by the transitional provisions point

2, regarding practice having been carried on prior to 1 April 1984,

were to be forwarded to the National Social Insurance Board

for examination.

        As to the question of affiliation of new private practitioners

to the insurance system during the period up to 1 January 1985, when

the Act came into force, the Bill stated that decisions to include

such practitioners in the Insurance Office's list after 1 July 1984

should only apply until the end of 1984 (the Bill p. 33).  A provision

to that effect was also included in an amendment to the transitional

provisions to the tariff.  In that provision, which entered into force

on 1 July 1984, it was stipulated that a decision to enter a private

practitioner on the list after 30 June 1984 was to apply only until

the end of 1984.  The establishment of new practices in areas in

special need of doctors was exempted from the provision.

44.     Pursuant to Chapter 20 Section 11 of the 1962 Social Insurance

Act appeals can be lodged with the Regional Social Insurance Court

(försäkringsrätten) against a decision of the Social Insurance Offices

and of the National Social Insurance Board.  Further appeals can be

addressed to the Supreme Social Insurance Court (försäkringsöver-

domstolen).  However, an appeal may not be filed against the decision

of a Social Insurance Office by an individual until the Insurance

Office has reconsidered its decision pursuant to Chapter 20 Section 10

of the Social Insurance Act.  An appeal lodged prior to the

reconsideration of the decision shall be deemed to be a request for

reconsideration.  These provisions also apply to decisions not to

include doctors in the list for doctors affiliated to the system.

45.     Chapter 7 Section 1 of the Local Government Act

(kommunallagen) provides that a decision by a Municipal Council or a

County Council is subject to a municipal appeal (kommunalbesvär) to

the Administrative Court of Appeal (kammarrätten) if the decision:

        (1)  has not been taken in accordance with the law,

        (2)  violates the law or any other statute,

        (3)  has been taken outside the legal authority of the

             Municipal Council or the County Council,

        (4)  violates the private rights of the claimant, or

        (5)  for some other reason must be considered unfair.

        Further appeals can be made to the Supreme Administrative

Court (regeringsrätten).

III.    SUBMISSIONS OF THE PARTIES

        A. The applicant

46.     In order to have patients it is necessary for the private

practitioner to be affiliated to the social insurance system.  Doctors

outside this system in Sweden of today are rare, if they exist at all.

The applicant realised the necessity to be affiliated to the system.

        Before 1985 a doctor could easily be affiliated to the social

insurance system.  He only had to notify the Insurance Office and he

was affiliated with no condition other than that he had to apply the

obligatory tariff.

47.     During 1984, not having got any temporary post, the applicant

spent part of the year with his daughter in Switzerland.  He notified

his affiliation to the social insurance system, which was accepted in

September 1984.  The applicant was not informed that the regulations

for the affiliation were to be changed.

48.     During September - October 1984 the applicant acquired

apparatus and furniture for his practice.  He also signed a contract

for the consultation room.  He invested an amount of about 100,000

SEK.  His affiliation was valid to the end of 1984.  Being informed by

some colleagues that such an affiliation was always given for the

running year only he was convinced that the affiliation would

automatically be prolonged.  He started his practice at the beginning

of November 1984.  Shortly thereafter he was informed in writing by the

Insurance Office that his affiliation would not be prolonged after the

end of 1985.  As a result of the rules of that time the applicant

considered the affiliation as a pure formality.  In order to secure

his affiliation after the new year 1985 he contacted persons in the

county administration who were competent to pass a resolution and

wrote petitions to the Social Insurance Office and to the County

Council.  All his measures resulted only in a limited prolongation of

the affiliation until 31 March 1985.  The applicant terminated his

practice in February 1985.  The activity, which had hardly begun, was

in a phase of building up and not of any considerable proportions.

49.     It is important to give the background of the personal life

situation of the applicant.  His dream was once more to get in contact

with patients of his speciality, cardiology.  For this purpose he

equipped his practice with expensive apparatus.  The applicant is today

71 years old.  One can easily imagine what kind of psychological

consequences the smashing of this dream had.  If he had been

20-30 years younger he would not have taken any legal steps but would

have tried once more.  However in his high age, and financially ruined,

a new start was simply impossible.  He strongly felt that the last

train had left him.  No single person is apparently responsible, but

the faceless bureaucracy can be made responsible for this severe hit

against a person of high character with a benevolent aim for his eyes.

50.     The applicant's petitions to the authorities were partly an

appeal against not being affiliated, partly an application to be

affiliated under the new rules valid from 1 January 1985.

51.     The applicant emphasises that the new rules had a very harmful

impact on the working conditions of the private doctors.  Prior to the

reform only an announcement was necessary for the affiliation.  Under

the new rules a recommendation of the County Council is necessary.  The

radical change of the rules for the affiliation to the insurance

system called for extensive transitional provisions.  The Ordinance

(the tariff) was issued on 16 October 1984.  According to the new

regulations all doctors who were registered as affiliated to the

social insurance system would be struck off the list if they did not

comply with the new conditions.

52.     The applicant had principally two possibilities to retain his

affiliation.  First, he could apply for a new affiliation according to

the new rules.  For this purpose it was necessary to have a

recommandation of the County Council.  Such a recommendation is a

political decision.  The County Council is not a court.  A decision to

refuse a recommendation cannot be appealed to a court for

reconsideration.  There is no right to complain.

53.     Another possibility was to request that under the transitional

provisions the applicant should continue to be affiliated.  Such issues

were dealt with by the National Social Insurance Board.  A decision of

this Board could be appealed to the Insurance Court.  According to the

transitional provisions an examination by a court was possible.  The

applicant has sent several applications to the County Council and to

the Social Insurance Office in order to have his affiliation

prolonged.  For some inexplicable reason these applications have never

been forwarded to the National Social Insurance Board.  It was the

duty and responsibility of the Council and of the Office to forward

these applications to the National Social Insurance Board.  There are

special regulations according to which the Social Insurance Office

has to forward applications to the competent body.  Consequently in

this case the authorities have without any reason failed to take a

decision.  Since no decision was given there was no decision to appeal

against.

54.     The way the authorities dealt with this case was strange,

especially having regard to the fact that the applicant was

extraordinarily active to maintain his rights.  He contacted personally

the authorities to which he described his situation.  The obstruction

the applicant was exposed to is so astounding that it can only be

explained by a conscious aversion against his person.

55.     The applicant received the preliminary notice of not being

affiliated after 1 January 1985 at the end of October 1984.  He

protested personally on 22 October 1984 to chairman Holgersson at the

County Council, who assured the applicant that he could count on a

continuation of his affiliation.  In November 1984 the applicant sent

applications to the Social Insurance Office and to the County Council.

None of these applications have been dealt with properly since they

have not been forwarded to the National Social Insurance Board.  His

letter of 25 January 1985 has not been treated properly either.

The submission "this means in fact that his application for

affiliation in a formal sense still remains unanswered by the office"

is very near the truth, namely, that damage has been caused to the

applicant during four years, because his request has not been

correctly handled.

56.     The applicant has not appealed against the decision of

September 1984 to affiliate him only to the end of 1984.  It was the

common practice to sign a contract for the running year only.  The

applicant supposed that the affiliation would be prolonged

automatically for the next year.

57.     The Government assert that it is insignificant that the

applicant did not have the final decision on his application for

continuation of the affiliation because he nevertheless does not

fulfil the conditions in the transitional provisions.  This is

incorrect.  Certain regulations make it possible that the applicant

continues to be affiliated.  In any case one does not know what would

have been the outcome if his applications had been dealt with by the

National Social Insurance Board or reconsidered by the Court.

58.     The applicant submits that, in his efforts to obtain

affiliation to the social insurance system after the expiry of 1984,

he was seeking a determination of his civil rights.

59.     The applicant has requested compensation for the financial

loss the treatment has caused him.  It is correct that the ordinary

courts may examine a compensation claim against the State.  In the

case of the applicant such a possibility does not exist, since there

is no administrative decision which could form the basis for such a

claim.  The applicant lacks the possibility to have his claim

examined.

60.     It is necessary to distinguish between the examination under

the transitional provisions and under the new legislation.  Under the

transitional provisions the applicant never received any final

decision and no notice of appeal.  His case was never transferred to

the National Social Insurance Board.  By failing to fulfil their

duties the authorities deprived the applicant of his right to have his

case examined.

61.     Under the new legislation the decision of the County Council

cannot be appealed to a court.  The County Council is not a court but

a political organ.

62.     Consequently, since the affiliation was important for his

practice and his possibility to earn a living this is a question of

his "civil rights".  The applicant has been prevented from working

in his profession as a result of the refusal of affiliation.  He

maintains that Article 6 of the Convention has been violated.

63.     In support of his application the applicant invokes the

Benthem case (Eur.  Court H.R., Benthem judgment of 23 October 1985,

Series A No. 97) and the van Marle case (Eur.  Court H.R., van Marle

and others judgment of 26 June 1986, Series A No. 101).

64.     The Government's reference to the possibility of lodging a

municipal appeal with the Administrative Court is in his view

misleading.  This special kind of appeal does not result in a

reconsideration of the case.  So in fact the decision of the County

Council cannot be appealed to a court in the meaning of Article 6 of

the Convention.

        B.  The Government

65.     In the Government's opinion it seems that the applicant

started his practice in the autumn of 1984 without having checked the

conditions for affiliation to the social insurance system or which

provisions were to be applied.

66.     Since the applicant never received any decision regarding his

application of 27 November 1984 he was never given an opportunity to

make use of his right to appeal.  It seems that the applicant was not

aware of his right to make appeals.  However, it would be useless for

the applicant to bring his case to the courts and to do this after

such a long time.  The law is clear and the transitional provisions do

not give the applicant any chance of having his application for

affiliation to the social system granted in the way he wished.  The

courts which have to apply the new legislation and the transitional

provisions thereto cannot possibly arrive at any other conclusion.

67.     According to the letter of 17 September 1984, the applicant

was affiliated to the national insurance system only for a limited

period, i.e. from 28 August to 31 December 1984.  During this period it

could be said that the applicant was given a right to be affiliated to

the system.  This decision could have been appealed to the Social

Insurance Court but this was never done.  With respect to this period

there seems to be no need to examine whether this right could be

regarded as a civil right within the meaning of the Convention.

68.     The question which then arises is whether after the expiry of

1984 it could be said that the sets of proceedings which took place

were concerned with a determination of any right of the applicant and,

if so, if such a right could be regarded as a civil right.  Here the

Government point out that from the expiry of 1984 the applicant had no

right at all under the Swedish legislation to remain affiliated to the

national insurance system.  The matter was closed by the decision

taken by the office in its letter of 17 September 1984.  This appears

from the fact that the transitional provisions were not applicable to

the applicant's case.  These provisions took aim at those

practitioners who were affiliated to the insurance system without any

time-limit and who would have remained affiliated if the reform had

never been introduced.  This is not the case regarding the applicant.

Since he did not fulfil the requirements of the transitional

provisions, it was not necessary to notify the applicant as was done

by the preliminary notice of 15 October 1984.

69.     The applicant's right to be affiliated to the social insurance

system expired at the end of 1984.  From that date he had no such

right.  The communication from the County Council of 20 December 1984

did not alter this situation.  The information given in that letter

could be described as a proposal for an ex gratia agreement awaiting

the outcome of the application to the County Council for a cooperation

agreement concerning the applicant's private practice.  The letter did

not imply that the applicant was affiliated to the social insurance

system, only that he would be paid by the County Council for a limited

period according to the same grounds.  It is evident that a proposal

of this kind cannot, if accepted, be said to give rise to a prolonged

right.

70.     Thus the sets of proceedings that have taken place after the

letter of 17 September 1984 deal only with a right to be affiliated

which the applicant wanted to acquire after 1 January 1985 and not

with a right that he still enjoyed.  For that reason the applicant's

efforts to obtain affiliation to the social insurance system after the

expiry of 1984 cannot be regarded as if he was seeking a

determination of any of his rights regardless of whether they shall be

considered to be of a "civil" character or not.

71.     A parallel could be drawn with a number of cases in which the

exercise of various activities requiring a licence or an authorisation

of some kind was at issue.  Reference is made i.a. to the König case

(Eur.  Court H.R., König judgment of 28 June 1978, Series A No. 27),

the case of Le Compte and others (Eur.  Court H.R., Le Compte, Van

Leuven and De Meyere judgment of 23 June 1981, Series A No. 43), the

Benthem case (Eur.  Court H.R., Benthem judgment of 23 October 1985,

Series A No. 97) and the Pudas case (Eur.  Court H.R., Pudas judgment

of 27 October 1987, Series A No. 125-A).  In all these cases the Court

found that a dispute pertaining to a civil right was at issue and thus

that Article 6 was applicable.  But in those cases there was a

question of withdrawing a licence or interfering with a commercial

activity already being exercised and there was no time-limit for

the licence or authorisation.  It has always been a question of

changing the conditions in an existing situation.  In the Benthem

case, for instance, the Court must be understood as having attached

importance to the fact that the licence had in fact already been made

use of.  It was against this background that the Court found that

there existed direct links between the granting of the licence and the

entirety of the applicant's commercial activities (see the Benthem

judgment, loc. cit.).  There seems to be no case decided by the Court

in which the granting of an application for a new licence or

authorisation has been regarded as a determination of the individual's

civil rights.

72.     The present case must be looked upon in the same way as if a

person applies for a licence required for a special kind of economic

activity without having carried out such an activity before.  Thus, it

is no question of prolonging an existing right to be affiliated but of

deciding whether a new right shall be granted.  In any case the

Government contest that such a right, i.e. a right to be affiliated to

the social insurance system, could be regarded as a civil right.

73.     It could be argued that the way the Social Insurance Office

has handled the matter was not quite correct from a formal point of

view.  The applicant's request for affiliation, made to the Social

Insurance Office by letter of 27 November 1984, should have been dealt

with by the Office.  Having heard the County Council, the Office

should have taken a decision on the matter, which decision could have

been examined by a tribunal as stipulated in Article 6 para. 1.

74.     The examination which the Commission has to make in the

present case thus concerns a way of dealing with the matter which was

not intended by the legislator.

75.     If the Commission takes the view that the proceedings before

the Social Insurance Office involved a determination of the

applicant's civil rights, the Government admit that no formal decision

was taken by the Office neither following the notice of 15 October

1984 nor in response to the applicant's request of 27 November 1984.

The Government have not obtained any explanation to this by the

authority concerned.  The way the Social Insurance Office has dealt

with the applicant's request is a matter that could be examined by the

Parliamentary Ombudsman or the Chancellor of Justice.  As far as it is

known to the Government the applicant has taken no initiative in that

direction.  Nor has he insisted on a decision of the Office which

could then be appealed to the Regional Social Insurance Court.  This

means that his application for affiliation in a formal sense still

remains unanswered by the Office.

76.     Regarding the decision of the County Council of 14 February 1985

the Government refer to Chapter 7 of the Local Government Act.  If the

applicant was not satisfied with the decision of the County Council he

could lodge a municipal appeal provided he was a member of the County

Council of Malmö.  This he should have been, since he lived within a

municipality under that County Council.  Even if a court examination

under this provision aims at ensuring the legality of a decision such an

examination should satisfy the requirements laid down in Article 6

para. 1 of the Convention.

77.     The Government conclude that the decision only to affiliate

the applicant to the social insurance system up to the expiry of 1984

could have been appealed to an impartial tribunal within the meaning

of Article 6 para. 1.  The applicant's request for affiliation after

the expiry of 1984 does not seem to have been handled quite correctly.

However, neither the proceedings before the Social Insurance Office,

nor those before the County Council were concerned with a

determination of the applicant's civil rights.  For that reason

Article 6 does not apply to any of these proceedings.  The decision

that ought to have been taken by the Social Insurance Office could

have been reviewed by an impartial tribunal as stipulated in Article 6

para. 1.  The decision taken by the County Council could also have

been reviewed by a court in accordance with Article 6 para. 1.  The

applicant has not made use of this right to appeal.

78.     In view of the scope of the examination which the Commission

has laid down in its decision on the admissibility the Government

still maintain that the complaints under Article 6 should be declared

inadmissible, as far as the proceedings before the County Council are

concerned, for failure to exhaust domestic remedies, and, regardless

hereof, ratione materiae, since none of these concerned a

determination of the applicant's civil rights.

79.     If this view is not accepted by the Commission the Government

maintain that the complaints under Article 6 para. 1 are manifestly

ill-founded, there being no violation of Article 6 in any of these

proceedings.

IV.     OPINION OF THE COMMISSION

        A.  Point at issue

80.     The only issue to be decided is whether or not Article 6

para. 1 (Art. 6-1) of the Convention is applicable in the present case and, if

so, whether or not there has been a violation of that provision.

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

81.     The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of

the Convention in that he was refused continued affiliation to the social

security system without legal process.  The Government submit that this

complaint is ill-founded either on the ground that Article 6 para. 1 (Art. 6-1)

was not applicable or on the ground that sufficient remedies were available to

the applicant.

82.     Article 6 para. 1 (Art. 6-1) first sentence reads:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

83.     Article 6 para. 1 (Art. 6-1) of the Convention would only apply if the

applicant were seeking a determination of a dispute (French:

"contestation") over a "right" and if that "right" were "civil" in

character.

84.     In the examination of whether Article 6 para. 1 (Art. 6-1) is

applicable in the present case the Commission has first examined whether there

was a dispute ("contestation") over a "right".

85.     The "rights" referred to in Article 6 para. 1 (Art. 6-1) are those

which can be said, at least on arguable grounds, to be recognised under

domestic law.  The provision does not in itself guarantee any particular

content of the substantive rights recognised in the laws of the Contracting

States (cf.  Eur.  Court H.R., Lithgow and Others judgment of 8 July 1986,

Series A no. 102, p. 70, para. 192).

86.     It follows from the case-law of the Convention organs in

regard to Article 6 para. 1 (Art. 6-1) that the dispute which gives a right to a

determination by a court must be "genuine and of a serious nature"

(see Eur.  Court H.R., Benthem judgment of 23 October 1985, Series A

no. 97, p. 14, para. 32).  The dispute may relate not only to the

actual existence of a right but also to its scope or the manner in

which it may be exercised.  The dispute may concern both questions of

fact and questions of law (cf.  Eur.  Court H.R., van Marle and Others

judgment of 26 June 1984, Series A no. 101, p. 11, para. 32).

87.     In the present case, the question is therefore whether the

applicant could, at least on arguable grounds, claim a right under

Swedish law to be affiliated to the social security system as from

1 January 1985 and whether there existed a genuine dispute of a

serious nature regarding his right to be affiliated to that system.

88.     The Commission recalls that the applicant was affiliated to

the social security system from 28 August 1984 and that on this basis

he set up his medical practice at Trelleborg.  However, his affiliation

was expressly limited until 31 December 1984 in accordance with the

transitional provisions to the medical care tariff which had entered

into force on 1 July 1984 and which provided that a decision to enter

a private medical practitioner on the Social Insurance Office's list

after 30 June 1984 was to apply only to the end of 1984.  It follows

that the applicant could not from this affiliation to the social

security system derive any right to remain affiliated after

31 December 1984.

89.     Moreover, when the applicant was affiliated to the system in

the autumn 1984, it was already known which new rules would apply as

from 1 January 1985.  New legislation on this matter had been adopted

by Parliament on 5 June 1984 on the basis of a Government Bill

submitted to Parliament in April 1984.

90.     Under the new rules which were contained in the amended

medical care tariff of 16 October 1984, a medical practitioner would -

with certain exceptions which are not relevant here - only be

affiliated to the social security system upon recommendation of the

medical care principal.  However, according to the transitional

provisions, medical practitioners who had already been affiliated to

the social security system and who satisfied certain conditions could

remain affiliated to the system.

91.     The conditions for continued affiliation, which were laid down

in point 2 of the transitional provisions, were that the medical

practitioner should have performed work corresponding to at least two

months' full-time work during the period July 1983 - March 1984 or

that he had, before April 1984, made important investments or taken

other long-term measures in connection with his medical practice.  It

is clear that the applicant did not satisfy these requirements and

that he could not therefore base a "right" to continue being

affiliated to the system on this transitional provision.

92.     It is true that point 3 of the transitional provisions stated

that medical practitioners not falling within any of the specified

categories could nevertheless, if recommended by the medical care

principal, remain affiliated to the social security system until

further notice or for a limited time after 1 January 1985.  However,

leaving aside the prolongation of the applicant's affiliation until

31 March 1985, the applicant had not, before 1 January 1985, obtained

any such recommendation from the medical care principal.  The reply

which he subsequently received to his request on this matter implies

that his affiliation could not be recommended.  Consequently, the

applicant did not satisfy the conditions in point 3 of the

transitional provisions.

93.     Given the applicant's situation it follows that the question

whether the applicant could be affiliated to the social security

system after 1 January 1985 was wholly dependent on whether the

medical care principal accepted it.  The applicant does not even claim

that he fulfilled the conditions for continued affiliation.  In any

event, he has not alleged that, under the new legislation, the refusal

to accept his continued affiliation was unlawful under Swedish law.

94.     It follows that there was not any "genuine" and "serious"

dispute concerning any "right" under Swedish law.

95.     Finally, the fact that the applicant's petitions were not

properly dealt with by the competent Swedish authorities, although

being a disturbing element, cannot affect the issue of the

applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the present

case.

96.     Consequently, Article 6 para. 1 (Art. 6-1) is not applicable.  It

follows that there can be no violation of the said provision.

        Conclusion

97.     The Commission concludes, by 14 votes to 1, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

   Secretary to the Commission            President of the Commission

          (H. C. KRUGER)                        (C. A. NØRGAARD)

APPENDIX I

HISTORY OF THE PROCEEDINGS

        Date                               Item

________________________________________________________________________

20 February 1985                Introduction of the application

15 May 1985                     Registration of the application

Examination of admissibility

1 December 1986                Commission's deliberations and decision

                                to invite the Government to submit

                                observations on the admissibility and

                                merits of the application

5 March 1987                   Government's observations

19 May 1987                     Applicant's reply

8 March 1988                   Commission's further deliberations and

                                decision to declare the application

                                partly admissible and partly inadmissible

Examination of the merits

8 June 1988                    Applicant's letter containing

                                observations on the merits

30 June 1988                    Government's observations on the merits

9 July 1988                    Commission's consideration of state

                                of proceedings

11 August 1988                  Letter from applicant containing further

                                observations on the merits

6 December 1988                Commission's deliberations on the merits

15 December 1988                Commission's deliberations on the

                                merits, final votes and adoption of

                                the Report