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AS TO THE ADMISSIBILITY OF

Application No. 20028/92

by Paulina Anna Matthea Maria DUPONT and

Anton Cornelis VAN IDSINGA

against the Netherlands

The European Commission of Human Rights sitting in private on 18

October 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

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

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

Mr. H.C. KRÜGER, Secretary to the Commission

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 March 1992 by

Paulina Anna Matthea Maria DUPONT and Anton Cornelis VAN IDSINGA

against the Netherlands and registered on 22 May 1992 under file No.

20028/92;

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 first applicant is a Dutch citizen, born in 1945, and

resident in Tilburg. She is a midwife by profession. The second

applicant is a Dutch citizen, born in 1948, and resident in Rotterdam.

He is a physiotherapist by profession. The applicants are represented

before the Commission by Mrs. J. Hermelink-Kramer, a lawyer employed

by the Stichting Rechtsbijstand Gezondheidszorg (Foundation for Legal

Assistance in Health Care) at Utrecht.

The facts as submitted by the parties may be summarised as

follows.

In Dutch social security law, for instance in Section 5 of the

Sickness Benefits Act (Ziektewet), there is a provision according to

which certain work relationships are to be assimilated to employment.

In such cases insurance is compulsory against working disability,

illness and unemployment, and the employer must deduct the insurance

premiums from the employee's salary.

The administration of the insurance system is entrusted to the

Industrial Insurance Board (Bedrijfsvereniging) which determines the

premiums.

For a long time, the Industrial Insurance Board for Health,

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

Geestelijke en Maatschappelijke Belangen, abbreviated hereafter

"B.V.G.") considered that certain work relationships such as those

between the applicants and their colleagues did not fall under the

social security law. However, in August 1984 the Board changed its

policy. Consequently, on 23 December 1985 the second applicant, and

on 25 August 1986 the first applicant, were requested to pay social

security premiums.

Under the Social Security Appeals Act (Beroepswet) it is possible

to appeal against such decisions to an Appeals Tribunal (Raad van

Beroep), which is an independent court, but only after the appellant

has obtained a formal decision (voor beroep vatbare beslissing) by the

Industrial Insurance Board. The first applicant requested the B.V.G.

to issue such a decision on 14 September 1986, but it was not issued

until almost two and a half years later, on 3 March 1989. The second

applicant asked for a decision on 27 January 1986, but it was not

issued until almost three years and four months later, on 17 May 1989.

The first applicant's appeal of 22 March 1989 to the Appeals

Tribunal of 's-Hertogenbosch was rejected on 2 August 1990 and her

further appeal was rejected by the Central Appeals Tribunal (Centrale

Raad van Beroep) on 2 October 1991. The second applicant's appeal of

5 June 1989 to the Appeals Tribunal of Rotterdam was rejected on 20

August 1990 and his further appeal was rejected by the Central Appeals

Tribunal on 2 October 1991.

COMPLAINTS

The applicants complain of violations of Article 6 para. 1 of the

Convention in that they did not have a fair hearing before a court

within a reasonable time. They point out that they could not appeal

to the Appeals Tribunal until they had received a formal decision from

the Industrial Insurance Board, and they consider it unreasonable that

the Board should require a period of two and a half years and over

three years respectively to issue such a decision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 March 1992 and registered

on 22 May 1992.

On 6 January 1993 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.

The Government's observations were submitted on 19 March 1993 and

the applicants' observations in reply were submitted on 21 June 1993.

THE LAW

The applicants complain of violations of Article 6 para. 1

(Art. 6-1) of the Convention in that they did not have a fair hearing

before a court within a reasonable time. They submit that they could

not appeal to the Appeals Tribunal until they had received a formal

decision from the Industrial Insurance Board, and they consider it

unreasonable that the Board should require a period of two and a half

years and over three years respectively to issue such a decision.

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

relevant, provides as follows:

"1. In the determination of his civil rights and

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

within a reasonable time by an independent and impartial

tribunal established by law."

The Government first submit that Article 6 para. 1 (Art. 6-1) of

the Convention was not applicable to the proceedings concerned, since

these proceedings did not involve the determination of a civil right.

They point out that the proceedings concerned the obligation to pay

contributions under the Sickness Benefits Act (Ziektewet), the

Unemployment Insurance Act (Werkloosheidswet), the Health Insurance Act

(Ziekenfondswet) and the Labour Disablement Insurance Act (Wet op de

Arbeidsongeschiktheidsverzekering). In respect of the Sickness Benefits

Act, the Government note that the European Court of Human Rights has

found Article 6 (Art. 6) to be applicable to proceedings concerning the

entitlement to benefits, whereas there is no similar decision in regard

to the benefits under the other Acts. According to the Government,

proceedings regarding the payment of contributions under the said

social security schemes should be excluded, in the same way as taxation

proceedings, from the application of Article 6 (Art. 6) of the

Convention.

In respect of the applicants' suggestion that it would have been

in their interest to have had earlier recourse to the courts, the

Government note that the applicants neither requested the B.V.G. to

expedite the issue of the formal decision, nor complained about this

to the Social Insurance Council (Sociale Verzekeringsraad), which organ

monitors the implementation of social security legislation and rules

on complaints against administering organs, including the B.V.G. The

Government further submit that the applicants could have instituted

summary proceedings (kort geding) before the civil courts in order to

compel the B.V.G. to expedite the issue of the formal decisions

requested.

As regards the question whether the cases were decided within a

reasonable time, the Government state that Article 6 para. 1

(Art. 6-1) of the Convention seems to refer only to the actual court

proceedings and not to administrative matters prior to their

commencement. Concerning the proceedings before the Appeals Tribunal

and the Central Appeals Tribunal, the Government find no indication

that their length was excessive. Even if the time required by the

B.V.G. to issue formal decisions should be taken into account, the

Government are of the opinion that the reasonable time provision of

Article 6 para. 1 (Art. 6-1) has been respected.

The Government refute the applicants' complaint that there is a

deficiency in the legal protection of persons required to pay the

social security contributions in question, in that such persons are

barred from appealing against such a decision as long the B.V.G. has

not issued a formal decision. The Government submit that, apart from

the possibility of summary proceedings before a civil court mentioned

above, the appeal courts in fact assess any delay in giving a formal

decision in the light of the general principles of proper

administration (algemene beginselen van behoorlijk bestuur), notably

the duty of care and the principle of fair play. The Central Appeals

Tribunal has held that long delays in giving formal decisions may

seriously restrict the right of access to the courts. However, if the

person concerned has failed to take sufficient steps to prompt the

administering body to expedite the issue of the formal decision, the

Tribunal would assume that the appellant had no urgent interest in a

prompt conclusion of the matter and would reject an appeal based on an

alleged breach of the duty of care.

The Government conclude that the application is inadmissible as

being incompatible with the provisions of the Convention or,

alternatively, as being manifestly ill-founded.

The applicants submit that Article 6 para. 1 (Art. 6-1) of the

Convention is applicable to proceedings concerning the social security

legislation at issue. They contend that, having regard to the fact

that the payment of social security contributions is a personal

obligation of an economic nature, there is a direct connection between

the assumed or fictitious employment relations and the contributions

to be paid. They also contend that the social security schemes for

employees, for which contributions have to be paid, resemble private

insurance for which premiums must also be paid. Litigation over the

latter would attract the protection of Article 6 para. 1 (Art. 6-1).

This provision is, therefore, equally applicable to proceedings

concerning the payment of contributions to the social security schemes

in question in the present case.

The applicants submit that the reasonable time requirement of

Article 6 para. 1 (Art. 6-1) of the Convention also applies to the

administrative procedure prior to the court proceedings. Thus in the

present case a calculation of the length of the proceedings for the

purposes of this requirement would encompass the undue delay in the

preparation of the B.V.G.'s formal decisions. In this respect the

applicants doubt whether a complaint to the Social Insurance Council

or summary proceedings before the civil courts would have been

effective, since the delay was apparently due to the large number of

pending requests before the B.V.G. to issue formal decisions.

The Commission finds that the present application requires a

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

is applicable to the proceedings at issue and, if so, whether the

applicants had a fair court hearing within a reasonable time as

required by that provision.

After an examination of these questions in the light of the

parties' submissions, the Commission considers that they raise issues

of fact and law of such complexity that their determination requires

an examination of the merits of the application as a whole. The

Commission concludes, therefore, that the application is not manifestly

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

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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DUPONT AND VAN IDSINGA v. THE NETHERLANDS

DUPONT AND VAN IDSINGA v. THE NETHERLANDS

LEXI