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HAYE ; SMEULDERS v. THE NETHERLANDS

Doc ref: 15673/89 • ECHR ID: 001-755

Document date: October 11, 1990

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HAYE ; SMEULDERS v. THE NETHERLANDS

Doc ref: 15673/89 • ECHR ID: 001-755

Document date: October 11, 1990

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 15673/89

by Johan Arend Frederik HAYE and

Ludovicus Petrus Antonius Marie SMEULDERS

against the Netherlands

The European Commission of Human Rights sitting in private

on 11 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

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 RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 7 August 1989

by Johan Arend Frederik HAYE and Ludovicus Petrus Antonius Marie

SMEULDERS against the Netherlands and registered on 23 October 1989

under file No. 15673/89;

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 applicants are Dutch nationals born in 1925 and in 1941

respectively. They are both dentists and live respectively in Haarlem

and Dongen, the Netherlands.

Before the Commission they are represented by Mr. Albert W.

Maris, a lawyer practising in Benschop.

On 1 October 1986 it became obligatory for all dentists to

charge fees for dental treatment for private patients on the basis of

the Health Care Fees Act (Wet Tarieven Gezondheidszorg) of 7 February

1982. This act seeks to set up a balanced system of tariffs

concerning health care, inter alia, for the purpose of controlling

the escalation of health care costs. Before that date, dentists could

charge private patients freely for treatment performed on them, in

contrast with the fixed fees for patients for whom the National Health

Service (Ziekenfonds) pays. Now it has become obligatory to charge

private patients according to the Uniform Private Patient Fee (Uniform

Particulier Tarief, UPT). This is a system of set fees, fixed by law,

corresponding to specific dental treatments. The UPT needs to be

approved of by the Central Body for Health Care Fees (Centraal Orgaan

Tarieven Gezondheidszorg, COTG).

The list of set fees was drawn up in consultation with the

Dutch Society for the Promotion of Dentistry (Nederlandse Maatschappij

tot Bevordering van de Tandheelkunde, NMT), a professional

organisation which represents approximately 80% of Dutch dentists.

Membership of the NMT is not obligatory.

Section 3 of the Health Care Fees Act regards as

representative organisations, those organisations which, at their

request, are considered to be representative by the Minister of Public

Health and Environmental Affairs.

The applicants appealed against the COTG before the Industrial

Appeals Board (College van Beroep voor het Bedrijfsleven).

On 28 February 1989 the Industrial Appeals Board dismissed the

appeal, inter alia, on the grounds that, at the time when the

system of set fees was fixed, the COTG did not receive any reactions

from dentists deviating from the acceptation expressed by the majority

of dentists, represented by the NMT. Furthermore, it was within the

scope of the Act that the fees for private patients were made uniform

to the fees for public health care patients.

COMPLAINTS

1. The applicants complain that the decision of the Industrial

Appeals Board dismissing the appeal is a breach of their right to a

fair trial and their civil right to practice dentistry.

They invoke Article 6 para. 1 of the Convention.

2. Furthermore, the fact that the NMT is regarded as the

representative of all dentists is, according to the applicants a

violation of the right to freedom of association, which includes in

the applicants' view the freedom not to associate.

They invoke Article 11 of the Convention.

3. Finally, the applicants also complain that the Health Care

Fees Act violates the applicants' right to the peaceful enjoyment of

their possessions, because the fees are fixed. Before that, there was

freedom of contract.

The applicants invoke Article 1 of Protocol No. 1.

THE LAW

1. The applicants complain that, in the determination of their

civil rights, their right to a fair hearing was breached by the

decision of the Industrial Appeals Board. They allege a violation of

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

Article 6 para. 1 (Art. 6-1) guarantees a right to a fair

trial in the determination of civil rights and obligations. The

applicants failed to substantiate in what way the procedure before the

Industrial Appeals Board discloses any appearance of a violation of

rights set out in Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

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

Convention.

2. The applicants also complain that by considering the NMT as

the representative of all dentists where the Health Care Fees Act is

concerned, the Government have infringed on their right to freedom of

association as laid down in Article 11 (Art. 11) of the Convention, which

includes in the applicants' view, the freedom not to associate.

It is apparent from the file that dentists are not forced to

join the NMT. Section 3 of the Health Care Fees Act regards as

representative organisations those organisations which, at their

request, are considered to be representative by the Minister of Public

Health and Environmental Affairs. Nothing prevents dentists from

associating in order to promote their interests. Furthermore, the

European Court of Human Rights stated in its judgment of 27 October

1975 on the National Union of Belgian Police case (Series A no. 19,

para. 41) that a general policy of restricting the number of

organisations to be consulted is not incompatible with the freedom of

association.

It follows that this part of the application is manifestly

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

Convention.

3. Finally the applicants complain that there has been an

interference with their right to the peaceful enjoyment of their

possessions, namely their dental practice. The fees are now arranged

by law, while before there was freedom of contract.

However, a dentist's claim for fees can only be considered as

a possession within the meaning of Article 1 of Protocol No. 1 (P1-1)

when such a claim has in a particular matter come into existence on

the ground of services rendered by the dentist. The mere expectation

of future claims cannot be considered as a property right (No.

8410/78, Dec. 13.12.1979, D.R. 18 p. 216).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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