Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19005/91

by Johannes SCHOUTEN

against the Netherlands

The European Commission of Human Rights sitting in private on 9

December 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 4 September 1991

by Johannes SCHOUTEN against the Netherlands and registered on 29

October 1991 under file No. 19005/91;

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 citizen, born in 1927 and resident at

Zoetermeer, the Netherlands. He submits the application in his

capacity of the only director of the company Praktijk mevrouw Breevaart

B.V. He is represented before the Commission by Mr. P.J.A. Høvig, a

lawyer practising at Zwijndrecht, the Netherlands.

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

summarised as follows.

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

(hereinafter called "the company") was to provide physiotherapeutic

treatment. It also put its equipment at the disposal of other

physiotherapists who could make use of it against payment of part of

their turnover. The conditions were laid down in a standard contract

between the company and the physiotherapists and the latter were

originally regarded by the taxation and social security authorities as

independent professionals.

The implementation of the social insurance schemes for employed

physiotherapists is entrusted to the Industrial Insurance Board for

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

Gezondheid, Geestelijke en Maatschappelijke Belangen, abbreviated

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

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

physiotherapists, there was no obligation to insure the

physiotherapists under the various social insurance schemes applicable

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

considered that the physiotherapists should be compulsorily insured

retroactively from 1 January 1984.

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

company to pay social security contributions for the years 1984, 1985,

1986 and 1987. By letter of 27 March 1987, the company objected to the

payment of contributions and asked for a formal decision against which

it could lodge an appeal. The B.V.G. issued such a decision on 9

December 1988.

The company then appealed to the Appeals Board (Raad van Beroep)

in Rotterdam which, on 13 December 1989, rejected the appeal. A

further appeal lodged by the company was rejected on 10 July 1991 by

the Central Appeals Board (Centrale Raad van Beroep) in Utrecht.

COMPLAINTS

1. The applicant first alleges a violation of Article 6 para. 1 of

the Convention in that the company did not have a fair hearing. The

B.V.G., which is a party in the appeal proceedings, has the possibility

to prevent a complainant from appealing for a long time by not issuing

a formal decision. In the present case, the company asked for a formal

decision by letter of 27 March 1987, but the B.V.G. did not comply with

this request until one year and eight months later, i.e. on 9 December

1988. This violates the principle of the equality of the parties,

since the B.V.G. had possibilities which the company did not have. It

is theoretically possible that the B.V.G. pursues a policy of first

issuing formal decisions in those cases in which it can expect the

Appeals Board to develop a case-law favourable to the B.V.G. If the

company had been allowed to appeal at an earlier stage, before the

case-law had been well established, it would have stood a better chance

of success, but it was deprived of this chance by the failure of the

B.V.G. to provide it with the decision without which it could not lodge

any appeal.

2. The applicant alleges a further violation of Article 6 para. 1

of the Convention in that the company did not have a hearing within a

reasonable time. Its appeal was delayed during a period of one year

and eight months due to the failure of the B.V.G. to issue a formal

decision, which was a violation of the reasonable time requirement.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 September 1991 and registered

on 29 October 1991.

On 2 April 1992 the Commission decided to communicate the

application to the Netherlands Government and to request the

Government's observations on the admissibility and merits of the

application.

The Government submitted their observations on 26 June 1992 and

the applicant his observations in reply on 17 September 1992.

THE LAW

The applicant alleges violations of Article 6 para. 1

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

hearing and in that it did not have a hearing within a reasonable time.

He points out, in particular, that the B.V.G., which was a party to the

proceedings, prevented the company for a long time from appealing by

not issuing a formal decision, which made the proceedings unfair and

made it impossible for the company to be heard by a court within a

reasonable time.

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

not applicable to the proceedings concerned, since these proceedings

did not concern 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 Arbeidsongeschiktheids-

verzekering). As regards 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 regarding the entitlement to

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

benefits under the other Acts. In the Government's opinion,

proceedings regarding the payment of contributions under the said

social security schemes should be considered to be excluded, in the

same way as taxation proceedings, from the application of

Article 6 (Art. 6).

The Government further maintain that the applicant did not suffer

any prejudice as a result of the fact that the formal decision was

rendered late and note that the applicant could have instituted summary

proceedings (kort geding) before the civil judge in order to force the

B.V.G. to render its decision at an earlier stage.

As regards the question whether the case was decided within a

reasonable time, the Government state that Article 6 (Art. 6) seems to

refer only to the actual court proceedings and not to the time before

these proceedings started. In the proceedings before the Appeals Board

and the Central Appeals Board, the Government find no indication that

the reasonable time was exceeded. Even if the time it took the B.V.G.

to deliver a formal decision should be taken into account, the

Government are of the opinion that the reasonable time rule has not

been violated.

Consequently, 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 applicant submits that Article 6 (Art. 6) of the Convention

is applicable not only to proceedings relating to the Sickness Benefits

Act but also to proceedings regarding the other Dutch social security

schemes at issue in this case. He notes that the payment of

contributions is closely connected with the right to receive benefits

and considers that both these aspects of the schemes fall under the

provisions of Article 6 (Art. 6). The reasonable time rule in Article

6 also applies to an administrative procedure preceding the court

proceedings and during such a period there was in the present case

undue delay in the preparation by the B.G.V. of a formal decision. The

applicant makes no complaint as to delays in the proceedings before the

Appeals Board and the Central Appeals Board.

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

applicant had a fair court hearing within a reasonable time as required

by that provision.

After examination of these issues in the light of the parties'

submissions, the Commission considers that they raise questions of fact

and law of such complexity that their determination requires an

examination of the merits. The application cannot, therefore, be

declared inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds of inadmissibility have been established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. NØRGAARD)

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SCHOUTEN v. THE NETHERLANDS

SCHOUTEN v. THE NETHERLANDS

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