Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17112/90

by M.S.

against the Netherlands

The European Commission of Human Rights sitting in private on 30

November 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

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 9 July 1990 by

M.S. against the Netherlands and registered on 3 September 1990 under

file No. 17112/90;

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 1941 and residing in

Muiderberg, the Netherlands. Before the Commission, she is represented

by Mrs. M. van Laar, a lawyer practising in Utrecht.

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

summarised as follows.

Until 13 April 1981, when the applicant fell ill, she worked in

a canteen for thirty hours a week. In June 1981 she underwent surgery

on her back, which was unsuccessful.

On the basis of the Sickness Benefits Act (Ziektewet) she

received a benefit for one year. As from 12 April 1982 this benefit

was replaced by combined disability benefits under the General Labour

Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet -

hereinafter referred to as "AAW") and the Labour Disablement Insurance

Act (Wet op de Arbeidsongeschiktheidsverzekering - hereinafter referred

to as "WAO"), on the basis of complete incapacity to work.

By letter of 20 December 1982, the Industrial Insurance Board

for the building industry (Bedrijfsvereniging voor de Bouwnijverheid)

informed the applicant of its decision to withdraw the benefits it had

awarded to the applicant under the AAW and WAO as from 1 January 1983,

as she was considered able to perform light work.

The applicant filed an appeal against this decision with the

Appeals Tribunal (Raad van Beroep). On 4 October 1983 the Appeals

Tribunal quashed the decision by the Industrial Insurance Board in

respect of the withdrawal of the applicant's benefits under the WAO and

declared the remainder of the appeal ill-founded.

Both the Industrial Insurance Board and the applicant filed an

appeal against this decision with the Central Appeals Tribunal

(Centrale Raad van Beroep).

On 25 March 1986 the Central Appeals Tribunal requested Mr. v.

G., a medical expert, to examine the applicant and to submit his

recommendation. Mr. v. G. examined the applicant on 15 September 1987.

He submitted his report on 24 October 1989 to the Central Appeals

Tribunal. In the meantime the applicant's representative had urged the

Central Appeals Tribunal several times, both by telephone and in

writing, to inform her of the state of affairs in the applicant's case

and to press Mr. v. G. to submit his report in view of the continuation

of the proceedings.

Following a hearing before the Central Appeals Tribunal on

15 December 1989, it decided on 12 January 1990 to quash the decision

of 4 October 1983 in favour of the applicant.

Subsequently the applicant was retroactively granted disability

benefits under the AAW and WAO as from 1 January 1983 and received a

payment of about 70,000 Dutch guilders in July 1990.

RELEVANT DOMESTIC LAW

a. General Features

Concerning health and disability insurance, social security in

the Netherlands is managed jointly by the State, which in general

confines itself to establishing the legal framework of the scheme and

to seeing to co-ordination, by employers and by employees.

The branches of the economy are divided into sectors, each with

an Industrial Insurance Board (bedrijfsvereniging) responsible for the

implementation of the social security legislation.

These Boards are legal persons within the meaning of Article I

of Book II of the Civil Code; the method of their establishment, their

structure and their powers are laid down in the Social Security

Organisation Act 1952 (Organisatiewet Sociale Verzekeringen). They are

subject to approval by the Minister for Social Affairs and Employment

on the basis of their representative character. The Minister may also

decide of his own motion to set up such a Board; in that event, he

determines and amends their articles of association as needed and he

appoints, suspends and dismisses the members of their governing boards.

In addition, he stipulates the assurances to be given for the discharge

of the duties of the Industrial Insurance Boards and he receives from

each of them an annual report and an annual statement of their

accounts.

The Industrial Insurance Boards are semi-public institutions and

operate like private insurance companies.

They may entrust to a common administrative office

(Gemeenschappelijk Administratiekantoor), recognised by the Minister,

the administrative work resulting from the application of social

security law.

A Social Insurance Council (Sociale Verzekeringsraad), set up by

the Government and comprising representatives of the State (/),

employers (/) and employees (/), supervises the proper implementation

of the legislation in question.

The statutory social insurances can be divided into two main

groups, on the one hand the general insurances (volksverzekeringen),

covering all persons residing in the Netherlands, and on the other hand

the employees' insurances (werknemersverzekeringen), covering persons

bound by an employment contract with a private of public employer or

who can be assimilated to this category.

b. The General Labour Disablement Benefits Act

The General Disablement Benefits Act (AAW), which came into force

on 1 October 1976, insures every person, residing in the Netherlands,

between the ages of 15 and 65 against negative financial consequences

of incapacity for work which has lasted for more than one year.

The AAW premiums are fixed by the Board of the General Labour

Disablement Insurance Fund (Algemeen Arbeidsongeschiktheidsfonds)

subject to the approval of the Minister for Social Affairs and

Employment following consultation with the Social Insurance Council.

Until 1 January 1990 the AAW premiums were paid by the employers on the

basis of a percentage of paid wages. As from 1 January 1990 the

premiums are collected through income tax.

Benefits awarded by the Industrial Insurance Board under the AAW

are charged to the General Disablement Insurance Fund and are

calculated according to a fixed base figure, which is linked to the

statutory minimum wage, and to the degree of disability. It therefore

only provides a basic benefit, which is not linked to the income earned

before disablement.

c. The Labour Disablement Insurance Act

Under the Disablement Insurance Act (WAO), which came into force

on 1 July 1967, insurance against incapacity to work lasting more than

one year is compulsory for persons under 65, who are bound by a

contract of employment with a public or private employer or who can be

assimilated to this category.

The WAO premiums are fixed by the Board of the Disablement

Insurance Fund (Arbeidsongeschiktheidsfonds) subject to the approval

of the Minister of Social Affairs and Employment following consultation

with the Social Insurance Council. The premiums are calculated on the

basis of an employee's salary and are paid to the Industrial Insurance

Board, in part by the employees themselves and in part by their

employers.

Benefits awarded by the Industrial Insurance Board under the WAO

are charged to the Disablement Insurance Fund and are of a

supplementary nature to benefits awarded under the AAW. The amount of

this supplementary benefit is calculated on the basis of the income

earned before disablement and the degree of disability.

In regard to persons bound by a contract of employment, the

benefits under the AAW and WAO are usually awarded in one combined

decision by the competent Industrial Insurance Board, against whose

decision an administrative appeal can be lodged with the Appeals

Tribunal and subsequently the Central Appeals Tribunal.

COMPLAINTS

The applicant complains that the Central Appeals Tribunal failed

to determine her case concerning disability benefits within a

reasonable time as required by Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 July 1990 and registered on

3 September 1990.

On 9 November 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application.

The Government's observations were submitted on 21 March 1991 and

the applicant's observations in reply were submitted on 5 June 1991.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the Central Appeals Tribunal did not decide her case

concerning disability benefits within a reasonable time.

Article 6 para. 1 (Art. 6-1) of the Convention, in so far as

relevant, provides:

"In the determination of his civil rights and

obligations (...) everyone is entitled to a

(...) hearing within a reasonable time by a

(...) tribunal (...)".

The Government contend, referring to the criteria set out in the

Feldbrugge and Deumeland judgments of 29 May 1986 (Eur. Court H.R.,

Series A nos. 99 and 100), that entitlement to AAW benefits cannot be

deemed a civil right within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention, so that this provision is not applicable to the

judicial proceedings concerning the determination of a person's

entitlement to benefits under this Act. In respect of the WAO the

Government are of the opinion that the conclusion on the applicability

of Article 6 para. 1 (Art. 6-1) of the Convention to proceedings under

this Act depends on the weight attached to the criteria set out in the

Feldbrugge and Deumeland judgments. The Netherlands Government

consider that a clarification of the case-law on this point is highly

desirable.

The Government finally admit that, if Article 6 para. 1

(Art. 6-1) is to be considered applicable to the present proceedings,

the delay in the proceedings at issue in the present case was

unreasonably long and that the State may be held accountable for the

excessive time taken by these proceedings.

The Commission notes that the applicant complains of the length

of the proceedings before the Central Appeals Tribunal concerning her

entitlement to AAW/WAO benefits.

The Commission considers that the issues to be decided are

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

to the proceedings at issue, and, if so, whether the "reasonable time"

requirement within the meaning of this provision has been complied

with.

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

submissions, the Commission considers that they raise questions of fact

and law which are of such a complex nature 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 for inadmissibility have been established.

For these reasons, the Commission unanimously

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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M.S. v. THE NETHERLANDS

M.S. v. THE NETHERLANDS

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