Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30932/96

by Landelijke Specialisten Vereniging

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 30 November 1995

by Landelijke Specialisten Vereniging against the Netherlands and

registered on 2 April 1996 under file No. 30932/96;

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 an association of recognised medical specialists

practising in the Netherlands. It has its statutory seat and registered

offices in Utrecht. Its aims include the promotion of its members'

social-economic interests, insofar as these are not directly related

to an employment agreement, and its members' other social interests.

Before the Commission, it is represented by Mr. I.G.F. Cath, a lawyer

practising in The Hague.

The facts of the case, as submitted by the applicant association,

may be summarised as follows.

1. General background

In 1982, the Health Care Tariffs Act (Wet Tarieven Gezondheids-

zorg; hereinafter referred to as "WTG") entered into force. This Act

aims at a balanced system of determining health care tariffs in order

to control the escalation of health care costs.

Pursuant to the WTG, health care tariffs are determined through

negotiations between, on the one hand, the health care insurers (public

health services and private medical insurance companies) and, on the

other hand, medical institutions (such as, inter alia, hospitals,

convalescent hospitals and maternity clinics) and medical service

providers (such as, inter alia, physicians, dentists, medical

specialists and pharmacists).

In order to avoid having to negotiate with an ever increasing

number of parties, the public authorities have fixed criteria for

selection based on the notion of representativeness of organisations.

Participation in tariff negotiations is limited to the organisations

that have been recognised as "representative" by the Ministry of

Welfare, Public Health and Cultural Affairs (Ministerie van Welzijn,

Volksgezondheid en Cultuur; hereinafter referred to as the "Ministry

of Public Health"), pursuant to Article 3 of the WTG.

The applicant association has been recognised as a representative

organisation for the purposes of tariff negotiations under the WTG.

The results of the tariff negotiations are transmitted to the

Central Organ for Health Care Tariffs (Centraal Orgaan Tarieven Gezond-

heidszorg; hereinafter referred to as "COTG"), which approves or

adjusts the tariffs ex officio.

The COTG is a public body, whose independent members are

appointed by the Government; one third of its members are directly

appointed by the Minister of Public Health in consultation with the

Minister of Economic Affairs (Minister van Economische Zaken) and two

thirds of its members are appointed in consultation with recognised

representative organisations of employers, labour unions and medical

service providers (Article 20 of the WTG).

The COTG may further issue guidelines (richtlijnen) as to the

amount, structure and means of calculation of tariffs. These guidelines

are subject to approval by the Minister of Public Health in

consultation with the Minister of Economic Affairs and the Minister of

Social Affairs (Minister van Sociale Zaken). In the event of

disagreement between the COTG and the Minister of Public Health, the

latter has the final say.

Pursuant to Article 14 of the WTG, the Ministry of Public Health

can further issue ex officio binding directives (aanwijzingen) to the

COTG as regards the contents of COTG guidelines. These directives are

to be converted by the COTG into guidelines. If the COTG fails to do

so within three months as from receipt of the directive, the Ministry

may establish such guidelines itself.

The Minister of Public Health may, pursuant to Article 17 of the

WTG, issue General Administrative Measures (Algemene Maatregelen van

Bestuur) establishing maximum tariffs.

Article 35 of the WTG provides for an appeal with the Industrial

Appeals Tribunal (College van Beroep voor het Bedrijfsleven) against

decisions taken by the COTG on tariffs proposed or established ex

officio. Such an appeal may be lodged by individual health service

providers or health care insurers, or representative organisations

thereof.

According to Article 2 of the WTG, it is a criminal offence to

charge a tariff that has not been approved or determined by the COTG.

2. The determination of health care tariffs in the present case

On 11 December 1989, the so-called "Five Parties Agreement" (Vijf

Partijen Akkoord; hereinafter referred to as "VPA") was concluded

between five representative organisations, including the applicant

association. In this agreement it was stated that the tariffs for

medical services provided by certain categories of medical specialists

were either too high or too low and did not reflect the required

balance between the costs of these services and the pertaining

remuneration. The VPA aimed at correcting this unbalance by lowering

the tariffs of six categories of specialists, increasing the tariffs

of six other categories. The tariffs of fourteen categories of

specialists could remain unchanged. The idea was to limit the costs for

services by medical specialists for the years 1990, 1991 and 1992 to

the costs made in 1989. This amount was referred to as the "macro-

budget". The agreement entered into force on 1 January 1990 and

remained in force until 31 December 1992.

In the Financial Overview Care (Financieel Overzicht Zorg) 1993

published in September 1992, in which the Government determined the

reasonable level of costs for public health care, it was noted that the

VPA macro-budget had been surpassed in 1990 and 1991 by NLG. 48 million

and NLG. 384 million, respectively.

On 6 November 1992, the Minister of Public Health issued a

directive, setting maximum tariffs for medical specialists on a

service-by-service basis. This directive entailed that the guideline

to be adopted was to bring about a downward adaptation of the tariffs

concerned by NLG. 151, 158 and 60 million respectively. In this

directive it was noted that the VPA macro-budget had been exceeded

considerably in 1990 and 1991.

This directive was converted by the COTG into a guideline on

21 December 1992, entering into force on 1 January 1993.

On 15 February 1993, after having heard the applicant association

on 22 January 1993, the COTG, referring to the contents of the

guidelines concerning tariffs of medical specialists, issued the tariff

decisions, establishing the maximum tariffs at which the various

medical specialist services could be offered. These decisions entered

into force on 1 April 1993.

These maximum tariffs were set by applying a reduction on a

percentage basis, differing according to the various specialist

services involved, to the pre-existing tariffs. Furthermore a

differentiated reduction on a percentage basis was applied to the

various specialist services as offered to the type of health care

insurers; the reduction applied to services offered to public health

services being on average slightly higher than the ones offered to

private medical insurance companies.

On 12 March 1993, the applicant association filed five objections

(bezwaarschriften) against five decisions issued by the COTG on

15 February 1993.

Following a hearing held on 12 May 1993, the COTG rejected the

appeals on 5 July 1993 and upheld its decisions of 15 February 1993.

The COTG held, inter alia, that the applicant association's suggestion

to use certain specific data provided by certain categories of

specialists was not taken up, as the consequential changes strongly

differ from data per specialisation known by the public health services

and the private health insurance sector. It further held that,

according to the guideline, the basic premise for a possible

differentiation between specialisations was the realisation of a

reduction of NLG. 309 million on the tariffs and that the guideline

gave no space for an increase in the macro-budget or for a lower

reduction of cost increases allegedly not imputable to the medical

specialists.

The applicant association and a number of private individuals

concerned filed an appeal with the Industrial Appeals Tribunal.

Following both written and oral adversarial proceedings, the Industrial

Appeals Tribunal rejected the appeal on 3 July 1995.

The Industrial Appeals Tribunal found, inter alia, that the

directive at issue was in compliance with the law, both as regards its

contents and the procedure followed.

As regards the argument that the directive was unreasonable,

arbitrary and contrary to a number of the general principles of proper

administration (algemene beginselen van behoorlijke bestuur), the

Industrial Appeal Tribunal held:

[Translation]

"The Tribunal cannot and will not separately discuss each of the

arguments submitted by the appellants in support of these

allegations, as it disagrees with the premises stated below on

which the appellants have based their argumentation.

The Tribunal does not share the appellants' opinion that, in the

examination of the directive, the VPA should be disregarded, nor

their opinion that, in the examination of the tariff decreases

introduced as per 1 April 1993, the correctness of the tariffs

valid in the previous period must be used as a touchstone.

Further no general validity can be claimed for the premise that

an increase in productivity (increase of the number of

interventions per medical specialist) should go hand in hand with

an increase in income."

The Industrial Appeals Tribunal went on to explain the relevance

of the VPA in connection with the directive, the reasons why it could

not accept the premise that the previously valid tariffs were correct,

why it rejected the alleged link between productivity and income and

the reasons for its finding that the absence of a differentiation in

tariff reductions between different categories of medical

specialisations could not be regarded as so disproportionate that the

directive should be denied binding force.

The explicitly invoked general principles of proper

administration which, according to the applicant association, were

violated by the directive were the principle of equality ("égalité

devant les charges publiques"), the prohibition of discrimination, the

prohibition of arbitrariness, the principle of proportionality, the

principle of balancing of interests and the principle that decisions

should be duly reasoned.

COMPLAINT

The applicant association complains under Article 6 para. 1 of

the Convention that it did not receive a fair trial in that the

Industrial Appeals Tribunal did not give a specific and express reply

to each specifically mentioned general principle of proper

administration allegedly violated by the directive at issue, but

restricted itself to a general response to the alleged violations of

the principles invoked.

THE LAW

The applicant association complains that in the proceedings

before the Industrial Appeals Tribunal it did not receive a fair trial

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

in that the Tribunal failed to deal with each alleged breach of the

general principles of proper administration.

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

relevant, reads:

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

... everyone is entitled to a fair ... hearing ... by a ...

tribunal established by law..."

The Commission notes in the first place that the proceedings at

issue did not concern the income of the applicant association, but the

income of its members. The question therefore arises whether, in these

circumstances, the proceedings at issue can be considered as

constituting a determination of the applicant association's civil

rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

However, the Commission does not find it necessary to determine

this issue as the application is in any event inadmissible on the

following grounds.

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

Convention obliges the courts to give reasons for their judgments, but

cannot be understood as requiring a detailed answer to every argument.

The extent to which this duty to give reasons applies may vary

according to the nature of the decision. The question whether a court

has failed to fulfil the obligation to state reasons, deriving from

Article 6 (Art. 6) of the Convention, is to be determined in the light

of the circumstances of the case (cf. Eur. Court HR, Ruiz Torija v.

Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29;

Hiro Balani judgment of 9 December 1994, Series A no. 303-B, pp. 29-30,

para. 27; and No. 16717/90, Dec. 9.1.95, D.R. 80, p. 24).

Unlike the situation examined by the Court in the cases of Ruiz

Torija and Hiro Balani, where an appellate court failed to address a

submission made at first instance, the Industrial Appeals Tribunal did

in fact consider the applicant association's complaint that the general

principles of proper administration had not been complied with. It

rejected the applicant association's argument that certain of the

general principles of proper administration had been violated holding

that it could not agree with the premises on which the applicant

association had based its argumentation in respect of the allegedly

breached principles and gave reasons why it could not agree with these

premises.

In these circumstances, the Commission is of the opinion that,

even assuming that the proceedings at issue can be regarded as

constituting a determination of the applicant association's civil

rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, the Industrial Appeals Tribunal has given

sufficient reasons for its decision to reject this element of the

applicant association's appeal.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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LANDELIJKE SPECIALISTEN VERENIGING v. THE NETHERLANDS

LANDELIJKE SPECIALISTEN VERENIGING v. THE NETHERLANDS

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