Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33838/96

by M.A.M VAN DEN MAAGDENBERG

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 May 1996 by

M.A.M VAN DEN MAAGDENBERG against the Netherlands and registered on

15 November 1996 under file No. 33838/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1940, and resides in

Breda, the Netherlands.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Pursuant to a Royal Decree (Koninklijk Besluit) of 2 April 1982,

the Decree on Podotherapists (Podotherapeutenbesluit) entered into

force on 6 May 1982. As from 6 May 1982, it was only possible to

exercise as a podotherapist when holding the required qualifications

or on the basis of a permission granted under Article 39 of the Act on

Paramedical Professions (Wet op de paramedische beroepen). Pursuant to

Article 39 of that Act, the Deputy Minister of Welfare, Health and

Cultural Affairs (Staatssecretaris van Welzijn, Volksgezondheid en

Cultuur; hereinafter referred to as "the Deputy Minister") could grant

persons, who had been practising as podotherapists before 6 May 1982,

permission to continue to practise as such where there were sufficient

guarantees that this would not damage public health.

As, at the relevant time, the applicant was in fact working as

a podotherapist, but without holding the qualifications required under

the Decree on Podotherapists, he filed a request to the Deputy Minister

to be allowed to practise as a podotherapist.

By letter of 19 April 1983, the Deputy Minister rejected the

applicant's request to be granted permission to exercise the profession

of podotherapist. The Deputy Minister considered that the applicant did

not hold the required professional qualifications. The applicant and

a number of other persons concerned filed an appeal with the Crown

(Kroonberoep).

By Royal Decree of 23 June 1986, concerning an appeal filed by

another person in a similar situation, the Crown quashed the Ministry's

refusal to grant this person permission to practise as a podotherapist,

holding that the Ministry should allow the appellant to take an

appropriate test for the purposes of Article 39 of the Act on

Paramedical Professions.

On 30 March 1987, the applicant and a number of other persons

concerned were tested on the authority and under responsibility of the

Deputy Minister. On 21 May 1987, the Deputy Minister informed the

applicant and a number of others that they had failed their test and

that their requests for permission to practise as podotherapists were

rejected. The applicant and a number of others lodged an administrative

appeal raising complaints in respect of their test results.

In a final decision of 22 January 1992, the Administrative

Disputes Division of the Council of State (Afdeling Geschillen van

Bestuur van de Raad van State) held that the Deputy Minister had failed

to set the test in a careful manner and ordered that the appellants be

given the chance to take a new test.

The applicant took his new test on 24 March 1993. As the

competent Examination Commission considered that the applicant's

results in one subject area were insufficient, he was given the

opportunity to take a further test as regards that particular subject

area on 17 April 1993.

As the applicant's test results of 17 April 1993 were also found

unsatisfactory, the Deputy Minister rejected his request to be allowed

to practise as a podotherapist by decision of 19 November 1993.

The applicant filed an appeal with the Administrative Law

Division of the Council of State (Afdeling Bestuursrechtspraak van de

Raad van State), complaining that the professional profile of a

podotherapist between May and November 1982 was not clear, that the

Deputy Minister had failed to clarify the interpretation given to

Article 39 of the Act on Paramedical Professions; that he was ill when

he took the test on 17 April 1993; that there was confusion during that

test in that the test patient was not a real patient but a student in

podotherapy; that the test results had been unjustly assessed; that

members of the Examination Commission only qualified as podotherapists

after 1982 and that the President of the test Commission was biased.

After having considered the parties' written submissions and the

oral submissions made in the course of a hearing held on

28 September 1995, the Administrative Law Division rejected the

applicant's appeal on 21 November 1995. It noted, inter alia, that the

test at issue had been prepared in the course of extensive oral and

written consultations with a representative of a group of interested

persons, which group included the applicant, and held, inter alia, that

the way in which the applicant had been tested was in conformity with

the relevant rules and that there was no indication that the findings

of the test Commission could be regarded as unreasonable.

COMPLAINT

The applicant complains that the refusal of his request for

permission to practise as a podotherapist is contrary to Article 6 of

the Convention in that it took an unacceptable long time before the

Deputy Minister provided him with a proper opportunity to be tested.

THE LAW

The applicant complains that the refusal of his request for

permission to practise as a podotherapist is contrary to Article 6

(Art. 6) of the Convention in that it was not before 23 March 1993 that

the Deputy Minister provided him with a proper opportunity to be

tested.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission notes that the proceedings at issue, which ended

with the decision of 21 November 1995 by the Administrative Law

Division of the Council of State, basically concerned the question

whether or not the applicant complied with the professional

requirements under Article 39 of the Act on Paramedical Professions for

practising as a podotherapist and whether or not the finding that he

did not comply with these requirements after having failed his test had

been duly reached.

The Commission recalls that for Article 6 para. 1 (Art. 6-1) of

the Convention under its "civil" head to be applicable, there must be

a "dispute" (contestation in the French text) over a "right" which can

be said, at least on arguable grounds, to be recognised under domestic

law. The "dispute" must be genuine and serious; it may relate not only

to the actual existence of a right, but also to its scope and the

manner of its exercise. The outcome of the proceedings must be directly

decisive for the right in question, mere tenuous connections or remote

consequences not being sufficient to bring it within the scope of

Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur Court HR,

Masson and Van Zon v. the Netherlands judgment of 28 September 1995,

Series A no. 327-A, p. 17, para. 44).

The Commission further recalls that an assessment of professional

qualifications, evaluating knowledge and experience for exercising a

profession under a particular title, is akin to a school or university

examination and is so far removed from the exercise of the normal

judicial function that the safeguards in Article 6 (Art. 6) cannot be

taken as covering resultant disagreements (cf. Eur. Court HR, Van Marle

and Others v. the Netherlands judgment of 26 June 1986, Series A no.

101, p. 12, para. 36).

The Commission notes in the first place that the applicant's

right to a test was determined by the Royal Decree of 23 June 1986 and

that there is no dispute as to the existence of this right. The

Commission further notes that the applicant does not dispute that the

professional qualifications of podotherapists, working as such before

the entry into force of the Decree on Podotherapists and wishing to

continue to practise as such after the entry into force of this Decree,

were to be assessed on the basis of a test. The Commission finally

notes that his present complaint concerns, in essence, the way in which

this test was organised.

The Commission considers that the determination of modalities of

the test at issue did not, as such, constitute a determination of the

applicant's civil rights and obligations within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention and that, consequently,

this determination falls outside the scope of Article 6 (Art. 6) of the

Convention.

Insofar as the outcome of the proceedings before the

Administrative Law Division may be regarded as decisive for the

applicant's civil rights and obligations within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds

no indication that these proceedings fell short of the requirements of

this provision.

It follows that the application must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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VAN DEN MAAGDENBERG v. THE NETHERLANDS

VAN DEN MAAGDENBERG v. THE NETHERLANDS

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