AS TO THE ADMISSIBILITY OF

                         Application No. 11540/85

                         by Haim KARNI

                         against Sweden

        The European Commission of Human Rights sitting in private

on 8 March 1988, 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

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 20 February

1985 by Haim Karni against Sweden and registered on 15 May 1985 under

file N° 11540/85;

        Having regard to:

  -     the first report provided for in Rule 40 of the Rules of

        Procedure of the Commission;

  -     the Commission's decision of 1 December 1986 to invite the

        Government to present written observations on the

        admissibility and merits of the application;

  -     the Government's observations dated 5 March 1987 and the

        applicant's reply dated 19 May 1987;

  -     the second report provided for in Rule 40 of the Rules of

        Procedure;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as they appear from the parties'

submissions, may be summarised as follows.

        The applicant is a Swedish citizen, born in 1917 and resident

at Trelleborg.  He is a doctor of medicine.

        Particular facts of the case

        The applicant moved from Switzerland to Sweden in 1982.  After

having retired in January 1983, and as his income from his pension was

not sufficient, the applicant decided to open a private medical

practice at Trelleborg.

        On 21 August 1984 the applicant applied for affiliation to the

social security system.  According to the application the applicant

intended to carry on medical practice at Trelleborg.  The owner of the

intended practice was Läkargruppen ABC-kliniken.  The applicant did

not intend to work full time but 30 hours a week.  By letter of

17 September 1984, the Social Insurance Office of Malmöhus (Malmöhus

allmänna försäkringskassa) informed the applicant that, as from

28 August to 31 December 1984, he had been entered on the list of private

medical practitioners within the Office's area, who were affiliated to

the social security system.  The applicant was also informed of the fees

he was entitled to charge his patients.

        Following the affiliation to the social security system the

applicant maintains that he set up his medical practice at Trelleborg.

He signed a contract for the premises for his practice.  He furnished

it with an electrocardiograph and other special instruments.  In all,

he invested some 90.000 SEK.

        By a letter dated 15 October 1984, the applicant received from

the Social Insurance Office a preliminary notice as regards his

affiliation to the social security system as from 1 January 1985.

It read as follows:

"In view of the fact that new rules concerning affiliation

to the social security system will enter into force as from

January 1985 the Social Insurance Office informs you as

follows.

The Social Insurance Office has found, after investigation,

that you do not fulfil the conditions for continued

affiliation to the rules on remuneration for medical care

under the social security system.  The Office therefore

intends to strike you off its list at the end of 1984.

In the annexed notice concerning the new rules an account is

inter alia given of the conditions for being entered on the

Insurance Office's list after the new year and of the

possible exemptions.

If, in view of the above, you intend to submit a request

for exemption or otherwise have any objection against the

Insurance Office's assessment you should do so immediately

and at the latest within 14 days.  It should be sent to the

Social Insurance Office together with the documents you wish

to invoke.

You will be informed later of the decision on the question

of affiliation."

        On 26 October 1984 the applicant telephoned the Social

Insurance Office stating that he had made investments during the

autumn and would submit documents to show these investments.

        In an application of 27 November 1984 to the Insurance

Office, the applicant requested to be allowed to continue as a doctor

affiliated with the social insurance system also after 1 January 1985.

He referred to conversations and correspondence with the County

Council of the County of Malmöhus (Malmöhus läns landsting).  The

application also contained a copy of a letter from the applicant to

the County Council, dated 27 November 1984.

        In the letter to the County Council, the applicant requested

to be allowed to continue as affiliated to the insurance system after

1 January 1985.  Besides referring to a conversation during a visit to

the County Council on 22 October 1984, the applicant also stated that

he had been abroad and had only learned of the new regulations for

affiliation after 1 January 1985 at the end of October 1984, and also

that he had been granted affiliation without having been advised of

the impending changes.  He claimed that his arrangements for

establishing the practice were substantially complete by the end of

October and that he had invested considerable sums, including signing

a year's contract for premises and the purchase of expensive apparatus

and furniture.  He claimed that his medical practice was a vital

necessity for him; he had no alternative, since he was not entitled to

any form of pension.

        The Social Insurance Office made no decision concerning the

applicant's affiliation after the decision notified in the preliminary

notice of 15 October 1984, and no decison has followed his application

of 27 November 1984.  There is no explanation as to the reason for

this silence.  Nor has the Office taken any other measures concerning

the applicant's affiliation.  The National Social Insurance Board

(riksförsäkringsverket) has not received any petition concerning the

applicant's affiliation, neither from the applicant himself nor from

the Insurance Office.

        According to records kept at the Insurance Office, the

applicant received insurance remuneration for 24 consultations during

the book-keeping period of November 1984 and for 11 consultations

during the book-keeping period of December 1984.  The total

remuneration amounted to just under 9,000 SEK.

        By letter of 20 December 1984 the applicant received

inter alia the following information from the County Council:

"Your application will be dealt with together with the other

applications for new establishments and applications for

continued private and leisure practice from the private and

leisure practitioners who do not fulfil the basic conditions

for continued affiliation to the Social Insurance Office.

Thus, the intention is to make an overall assessment of the

need of private medical care, the present medical resources

under private and public regime and the financial

consequences for the County Council.

Since the time limit for applications for continued private

and leisure practice expires on 31 December 1984, the

examination of your application can only be made in the

beginning of 1985.  According to the guidelines of the

administrative committee, all applications shall have been

examined by 31 March 1985.

Awaiting the outcome of your application you have the

possibility to continue your practice from 1 January 1985

on the following conditions.  Remuneration will be paid

according to unchanged principles for a maximum of 200

consultations per month.  The remuneration will be paid by

the County Council and should therefore be accounted for

on a special form which will be sent to you shortly.

The above permission does not imply any stand as to

continued practice after 31 March 1985.  If the application

is rejected, no further prolongation will be granted."

        By letter of 25 January 1985 the applicant informed the County

Council that his affiliation to the social security system had been

granted without mentioning the subsequent reorganisation of the rules.

He also informed the Council of his investments in his practice.

        By letter of 14 February 1985 the applicant was informed that

on 13 February 1985 the Health and Social Delegation of the County

Council had rejected his application for an agreement on a medical

practice implying his affiliation to the social security system.

        The applicant closed down his practice immediately.

        On 17 February 1985 the applicant applied to the County

Council for a contribution towards the costs for the closing down of

his medical practice.  This request was rejected by the County Council

on 5 March 1985.

        Legislation relevant to the application

        Medical attendance in Sweden is mainly a matter for the public

sector.  Of 21,000 doctors in 1985, 18,500 were employed at hospitals

and other medical institutions within the public sector.  Another 1,000

were employed within the occupational health service.  Of the remaining

group some 1,000 are estimated to work as private practitioners.

        Benefits for medical care are provided by the social insurance

system which also covers, for example, pensions and child allowances.

The system enables people with small economic resources and extensive

medical care needs to take advantage of health care services on the

same basis as others.  The legal basis for the system is the 1962

Social Insurance Act (lagen om allmän försäkring).

        This Act applies to Swedish citizens and those who, although

not Swedish citizens, are resident in Sweden.  The administration of

the system is carried out by Social Insurance Offices and the National

Social Insurance Board.  Allowances for medical expenses are paid by

local Social Insurance Offices pursuant to Chapter 2 of the Act, and

include remuneration for out-patient medical care (läkarvård i öppen

vård).  Remuneration is paid if such care is provided by the State, a

county council or a municipal authority not part of a county council

(public medical care) or by a doctor affiliated to the social

insurance system (alternative medical care).  Most private

practitioners are affiliated to the system.  According to the Act

remuneration is paid on grounds stipulated by the Government.

        New rules came into force on 1 January 1985 regarding health

insurance benefits for out-patient care and regarding the affiliation

of private practitioners to the health insurance system.

        Prior to 1 January 1985 remuneration was paid for each visit

to the doctor.  This applied to both public care and alternative

care.  The patient paid a stipulated maximum patient's fee, and the

doctor affiliated to the social insurance system received a stipulated

sum for each patient's visit, directly from the social insurance

office.  If the doctor was employed within public medical care, for

instance by a County Council, the County Council received the

corresponding sum.

        The reform entailed the application of new rules for

remuneration as from 1 January 1985.  In order to limit social

insurance expenses, and to achieve better regional distribution of

care throughout Sweden and taking into consideration that the medical

care principal (sjukvårdshuvudmannen) had the responsibility for

medical care planning within its area, the previous form of

remuneration calculated on the number of patient's consultations was

replaced by a form of a more roughly estimated remuneration.

        In the new system the sum is calculated on the basis of the

number of inhabitants within the medical care area for which the

medical care principal is responsible and covers medical care provided

both by doctors employed by the medical care principals and by other

doctors.  The remuneration is paid to the medical care principal after

deduction of the sum paid per consultation to private practitioners

affiliated to the social insurance system.

        To enable joint planning of medical care, and since a

deduction is made on remuneration to the medical care principals for

private medical care, the rules were at the same time changed for

affiliation of private practitioners to the system.  Prior to

1 January 1985, any doctor could upon application be affiliated to the

social insurance system.  The Insurance Office entered the doctor on a

list kept by the offices for this purpose.  Subsequent to 1 January

1985, private practitioners may in principle only be affiliated to the

system at the recommendation of the medical care principal (not

necessary in areas with very few doctors).

        However, any private practitioner already affiliated when the

new regulations came into force on 1 January 1985 was permitted to

remain within the system without recommendation from the medical care

authorities, provided the doctor's practice had been of a certain

magnitude.

        The reform was proposed in a Government Bill to the Parliament

in April 1984 (Bill No. 1983/84:190).  A main reason for the reform was

to improve the possibilities for people living in those parts of

Sweden which are sparsely populated - for example wide areas in the

northern parts of Sweden - to get access to medical care.  The

Government saw this as a fulfilment of the aims set up in the 1982

Health and Medical Services Act (hälso-och sjukvårdslagen), which

stipulates that the aim for the health and medical care is good health

and medical care supplied on the same conditions to the whole

population.  In the sparsely populated areas there was a considerable

lack of doctors in the public as well as in the private care.  In the

city regions the case was the reverse.  In order to see to it that the

population within the area for which the medical care principal is

responsible gets access to good health and medical care, as prescribed

in the Health and Medical Services Act, the medical care principals

had to be made capable of estimating the range of the care supplied.

It was therefore deemed necessary that also the activities of private

practitioners affiliated to the social insurance system were

co-ordinated with the activities of the medical care principals as

far as planning was concerned.  The medical care principals therefore

were given a determining influence when deciding whether private

practitioners can be affiliated to the social insurance system.

        The Bill was approved by the Parliament on 5 June 1984.

The proposed reform at that time had caused general debate in the

newspapers and other massmedia.  By approving the Bill the Parliament

authorised the Government to regulate the basis for remuneration for

medical treatment and also to issue directives as to what extent

private practitioners shall be included in the lists kept by the

Social Insurance Offices and thus affiliated to the insurance system.

The amendments came into force on 1 January 1985.

        The basis for remuneration to medical care principals laid

down by the Government appear in the 1984 Ordinance on Certain

Remuneration to Medical Care Principals from the Social Insurance

under the Social Insurance Act.  The basis for remuneration from the

national social security system to private practitioners is stipulated

by the Government in the 1974 Tariff of Medical Care Charges, as

amended (läkarvårdstaxan), below referred to as "the tariff".  The

tariff states the conditions under which private practitioners may

join the social security system by being entered on the Social

Insurance Office list, thus being entitled to remuneration from the

insurance.  The tariff also stipulates the maximum fee which a doctor

may charge for a treatment or consultation.  Of that fee the doctor

receives a fixed sum directly from the patient (the patient's fee in

1985 was 55 SEK).  The remaining part of what has been charged is paid

to the doctor from the Social Insurance Office.  Such remuneration is

paid to the doctor for each patient's visit even subsequent to the

reform.

        The new regulations in the tariff following the Parliamentary

decision of 5 June 1984 were issued on 16 October 1984 (Ordinance No.

1984:767).  As from 1 January 1985, a private practitioner thus may

join the social insurance system only if recommended by the medical

care principal.  However, this requirement does not apply to a person

taking over a practice from a doctor who is already affiliated to the

system.  Neither does it apply to the establishment of new practices

in certain areas of Sweden in special need of doctors (Section 3 of

the tariff).  The areas concerned are the sparsely populated wide

areas situated mainly in the northern parts of Sweden.

        The Ordinance included certain transitional provisions

relating to doctors affiliated to the national insurance system at

the time when the new regulations came into force.  The transitional

provisions correspond to what was recommended in the Bill (pp. 32-33)

and approved by Parliament, and read as follows:

        "This legislation shall come into force on 1 January 1985.

        1.  A doctor who was included in the list kept by the social

        insurance offfice at the end of 1984 shall be deleted

        therefrom as from 1 January 1985, if he does not fulfil

        the requirements for remaining on the list.

        2.  A doctor who was included in the list at the end of

        1984, and who is not employed full-time by the medical

        care principal, may continue to be included in the list

        without having to be recommended by the medical care

        principal, provided the practice is run at the same

        place and that, over the period July 1983 to March 1984,

        the doctor has carried out his practice to such an extent

        that he has received remuneration from the social insurance

        office corresponding to at least two months full-time

        activity.  Should the doctor have been prevented by

        illness during this time from carrying on his practice

        to the extent required, this requirement shall in any

        case be considered to have been fulfilled.  The same

        applies in the event of the practice not having been

        carried on for some other reason accepted by the National

        Social Insurance Board.

        A doctor who established his practice too late to have

        been able to carry it on to a sufficient extent during

        the period stated in the first paragraph but who, prior

        to April 1984, has made considerable investments or taken

        other long-term measures regarding the practice may,

        upon special examination by the National Social Insurance

        Board, be permitted to remain on the list.

        In the event of a doctor having taken over an existing

        practice in 1984 from a doctor who is already on the

        Social Insurance Office list, he may refer to the

        activities of the previous owner in order to fulfil

        the stipulated requirements.

        3.  Doctors referred to under point 2, who are not

        employed full-time by a medical care principal and who

        do not fulfil the requirements stipulated therein for

        remaining on the Social Insurance Office list, may

        remain until further notice, or for a certain period

        after the end of 1984, if recommended by the medical

        care principal."

        In accordance with what was recommended in the Bill (p. 33),

doctors not fulfilling the requirements for automatically remaining in

the insurance system should be notified thereof as soon as possible

after 1 July 1984 and advised of the conditions for affiliation after

1 January 1985.  During autumn 1984 the National Social Insurance

Board issued information to the local Social Insurance Offices, and

the doctors affected were informed individually by these offices.

According to the National Social Insurance Board, information should

be issued from the local offices as follows.

        A preliminary notice from the Insurance Office should be sent

to the doctor stating that upon investigation it had been found that

the doctor did not fulfil the requirements for continued affiliation

to the insurance system and that the office therefore intended to

delete the doctor from its list at the expiry of 1984.  Information as

to the new regulations, including the transitional provisions, was to

be included with the notice.

        The notice stated that a petition for exemption or objections

to the assessment of the Insurance Office should be submitted

immediately or within 14 days and should be addressed to the local

Social Insurance Office.  The preliminary notice should state that a

decision concerning affiliation would be notified later.

        The question of affiliation was examined by the insurance

office.  Petitions for exemption from the requirements stipulated by

the transitional provisions point 2, regarding practice having been

carried on prior to 1 April 1984, were forwarded to the National

Social Insurance Board for examination.

        As to the question of affiliation of new private practitioners

to the insurance system during the period up to 1 January 1985, when

the Act came into force, the Bill stated that decisions to include

such practitioners in the Insurance Office's list after 1 July 1984

should apply only until the end of 1984 (the Bill p. 33).  A provision

to that effect was also included in an amendment to the transitional

provisions to the tariff.  In that provision, which entered into force

on 1 July 1984, it was stipulated that a decision to enter a private

practitioner on the list after 30 June 1984 was to apply only until

the end of 1984.  The establishment of new practices in areas in

special need of doctors was exempted from the provision.

        Pursuant to Chapter 20 Section 11 of the 1962 Social Insurance

Act appeals can be lodged with the Regional Social Insurance Court

(försäkringsrätten) against a decision of the Social Insurance Offices

and of the National Social Insurance Board.  Further appeals can be

addressed to the Supreme Social Insurance Court (försäkringsöver-

domstolen).  However, an appeal may not be filed against the decision

of a Social Insurance Office by an individual until the insurance

office has reconsidered its decision pursuant to Chapter 20 Section 10

of the Social Insurance Act.  An appeal lodged prior to the

reconsideration of the decision shall be deemed to be a request for

reconsideration.  These provisions apply also to decisions not to

include doctors in the list for doctors affiliated to the system.

COMPLAINTS

        The applicant complains that his exclusion from the social

security system was inconsiderate and inhuman.  By refusing him

remuneration the authorities became responsible for the applicant's

financial troubles and misery.  The applicant submits that the measures

of the authorities preventing him from exercising his profession

involved a punishment without a legal process.

        The applicant invokes Article 1 of Protocol No. 1 and Article

6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 20 February 1985 and

registered on 15 May 1985.

        On 1 December 1986 the Commission decided to communicate the

application to the Government and to invite them to submit written

observations on the admissibility and merits of the application.

        The Government's observations were received by letter dated

5 March 1987 and the applicant's observations were dated 19 May 1987.

        On 7 April 1987 the applicant was granted legal aid.

SUBMISSIONS OF THE PARTIES

A.      The Government

1.      The facts

        During autumn 1984 the Social Insurance Office at Lund had

notifications sent out to the doctors affiliated during the period

July 1983 to March 1984 (the period under point 2 of the transitional

provisions), but who had received preliminary notice that they did not

fulfil the minimum activity required.  The doctors who had been

carrying on their practice during the period, although not to a

sufficient extent under the transitional provisions of point 2, were

allowed to remain affiliated to the insurance system until 30 June

1985, in accordance with point 3 of the transitional provisions due to

a recommendation from the County Council.  Those who had been

affiliated to the system during this period, but who had not been

active received notification that they would be deleted from the list

of affiliated doctors as from 1 January 1985.

        The applicant did not belong to any of these categories, since

he was not at all affiliated during the period in question.  The

applicant was affiliated only for a limited period of time during a

later period.  Consequently, he did not receive any corresponding

notification or decision.

        The Government point out that the temporary permission from

the County Council granted in the letter of 20 December 1984 did not

entail an affiliation of the applicant to the insurance system.  The

County Council may only recommend or disapprove of an application for

affiliation to the system.  The decision only meant that the applicant

was remunerated over a certain period in accordance with corresponding

principles.  It was not based on the transitional provisions.  The

remuneration received by the applicant for 1985 amounted to 3,587 SEK

for 14 personal or telephone consultations.  The administration of the

remuneration from the County Council was effected by the Insurance

Office.

        It could be argued that the Insurance Office ought to have let

its preliminary notice of 15 October 1984 be followed by some kind of

message to the applicant about the final position taken by the Social

Insurance Office.  The applicant could also have been informed of the

position taken by the Insurance Office in relation to his

application to the Office of 27 November 1984 after the County Council

had decided not to recommend his affiliation.  However, any such

notification would have meant that he could not be affiliated to the

system after 31 December 1984.  If the applicant had been informed, he

could have made use of the right to appeal to the Regional Social

Insurance Court, a right to which he was entitled.  However, it should

be noted that such an appeal would have meant no alteration of the

Insurance Office's decision, since the applicant did not fulfil any of

the requirements prescribed in the transitional provisions for being

affiliated to the national insurance system after the expiry of 1984.

His application was depending on recommendations from the County

Council, and he had not received any such recommendation.

        To sum up, the first application for affiliation submitted to

the Insurance Office was granted with a certain time limit which

expired at the end of 1984.  The applicant was given no assurances or

information indicating that the time limit was to be extended.  This

decision was in conformity with the new transitional provisions of the

tariff.  By that decision the question was finally decided upon, and

it was not really necessary to notify the applicant by the preliminary

notice of 15 October 1984 as was done.  No appeal has been brought

against that decision.

        The second application of 27 November 1984 has not been

examined and decided upon by the Social Insurance Office.  However,

since the County Council had not recommended an affiliation, there was

no legal possibility to grant such an application.

        Even if the transitional provisions would apply, the applicant

did not fulfil the requirements prescribed therein.

        In the Government's opinion it seems that the applicant

started his practice in the autumn of 1984 without having checked the

conditions for affiliation to the social insurance system or which

provisions were to be applied.

2.      The admissibility

        Appeals can be made against decisions of the social insurance

offices to a court.  The applicant has filed no appeal against the

first decision in September 1984 which limited his affiliation to the

expiry of 1984.  Since the applicant never received any decision

regarding his application of 27 November 1984 he was never given an

opportunity to make use of his right to appeal.  It seems that the

applicant was not aware of his right to make appeals.  However, it

would be useless for the applicant to bring his case to the courts and

to do this after such a long time.  The law is clear and the

transitional provisions do not give the applicant any chance of having

his application for affiliation to the social system granted in the

way he wished.  The courts which have to apply the new legislation and

the transitional provisions thereto cannot possibly arrive at any

other conclusion.

        In these circumstances the Government leave it to the

Commission to decide whether the domestic remedies have been exhausted

in this case.

        The Government maintain with reference to what is said below

that the application should be declared inadmissible, as far as

Article 6 is concerned, for being manifestly ill-founded and, as far as

Article 1 of Protocol No. 1 is concerned, as being incompatible

ratione materiae with the Convention for falling outside the scope of

this provision or as being manifestly ill-founded.

3.      The merits

        3.1. Article 6 of the Convention

        The applicant complains that the measures taken by the

authorities, preventing him from exercising his profession, involved a

punishment without a legal process.

        The Government find no sort of punishment involved in not

affiliating the applicant to the social insurance system after the

expiry of 1984, and refer to the legislation.  A procedure satisfying

the conditions of Article 6 exists according to the Swedish

legislation.

        Thus, decisions concerning applications for affiliation to the

social insurance system can be brought before the Regional Social

Insurance Courts and further before the Supreme Social Insurance

Court.  These courts are independent and impartial tribunals,

established by law, and competent to alter or revoke decisions of the

Social Insurance Offices which they find not to be in accordance with

law or for some other reason incorrect.  In view of this the

Government do not find it necessary to take any position as to the

question whether the examination according to this procedure involves

a determination of civil rights.

        A remuneration claim for economic losses can always be examined

by the general courts.

        For these reasons the Government maintain that there has been

no violation of Article 6 and that the applicant's complaint in this

regard is manifestly ill-founded.

        3.2. Article 1 of Protocol No. 1 to the Convention

        The primary aim of the social insurance system is to secure

everyone a satisfactory medical care at a reasonable price or free of

charge.  Since most private practitioners are affiliated to the system

and thus depending on it to obtain a sufficient income, changes in the

system can affect their financial situation.  However, the right to

work as a physician is not regulated in the social insurance system.

Nothing prevents a physician from practising his occupation without

being affiliated to the system, and the reform is not aimed at

preventing any doctor from exercising his profession.  In the Bill

(p. 12) it is expressly stated that the reform does not entail any change

in the right of private practitioners to practise their profession.

        A physician not affiliated to the system must of course charge

a fee from his patients which covers all his costs and gives him an

income which is sufficient.  This means that it becomes more expensive

for the patient to visit a physician who is not affiliated to the

social insurance system.  However, there are some private practitioners

exercising their occupation without being affiliated to the system,

mainly specialists.

        In order to establish whether Article 1 of Protocol No. 1 is

applicable to the applicant's situation the meaning of the expression

possessions must be examined, and whether there has been some kind of

interference with the applicant's right in this regard.

        Until the new legislation entered into force the applicant's

income from the social insurance system amounted to a sum less than

9,000 SEK.  That income has not been affected by the new legislation.

        The new legislation affects only the income from fees which

the applicant expected to receive as being affiliated to the social

insurance system after the expiry of 1984.  In other cases (for

instance No. 8410/78, Dec. 13.12.79, D.R. 18 p. 216) the Commission

has stated that a claim for fees can only be considered a possession

within the meaning of Article 1 of Protocol No. 1 when such a claim

has come into existence in a particular matter on the ground of

services rendered on the basis of existing regulations on fees.  A

mere expectation that existing regulations on fees will not be changed

in the future cannot be considered as a property right.

        The case referred to concerned a notary's claim for fees

regulated in the legislation of the State concerned.  The Government

are of the opinion that the same argument would apply to the

applicant's case.  The new legislation had no effect on services

rendered by the applicant before 1 January 1985 when it entered into

force.  The fact that the applicant's expectation to be affiliated to

the social insurance system also after the expiry of 1984, was not

fulfilled does not imply an interference with the peaceful enjoyment

of his possessions.  This conclusion may be drawn since the provision

in question protects only existing property and not the right to acquire

property.

        In the case of van Marle and others (Eur.  Court H.R., van

Marle and others judgment of 26 June 1986, Series A no. 101) the Court

as well as the Commission found that Article 1 of Protocol No. 1 was

applicable in principle.  In that case (p. 13, para. 41) the Court

emphasised that "by dint of their own work, the applicants had built

up a clientèle" which according to the Court constituted an asset and

thus a possession within the meaning of Article 1.  The measures taken

by the State in that case had, the Court found, radically affected the

conditions of their professional activities and the scope of those

activities was reduced.  Their income fell as did the value of their

clientèle.

        Section 2 of the transitional provisions in the present case

aims precisely at protecting those private practitioners who had built

up a clientèle before the reform entered into force.  That category of

practitioners could remain affiliated to the system, provided their

occupation during a preceding period had a certain volume.

        In the Government's opinion the position taken by the Court in

the van Marle case can apply only if the clientèle built up has

reached a certain level and given the person concerned a certain level

of income on a fairly regular basis.  A clientèle consisting only of

a few persons or a clientèle from which only limited payments are

received must not necessarily constitute a possession within the

meaning of Article 1.  In the case of van Marle and others the

applicants had carried out their profession for several years during

which they had built up their clientèle giving them an income of which

they must have been dependent for their support when their

applications for registration as certified accountants were rejected.

The applicant in the case now before the Commission had carried out

his practice for about two months, during which he received less than

9,000 SEK from the Insurance Office.  That income was based on fees

for a total of 35 consultations.  It is unknown to the Government

whether these patients had visited him on a regular basis and intended

to do so in the future, or whether they had visited him only occasionally.

The facts submitted by the applicant are not sufficient to draw any

conclusions in this regard.

        With reference to the above the Government maintain that the

applicant's complaint falls outside the scope of Article 1 of Protocol

No. 1.

        If the Commission would be of the opinion that the refusal to

affiliate the applicant to the social insurance system, with the

consequence that his patients would have to pay him the whole fee

charged and that the number of patients would therefore decrease,

would imply a deprivation of the applicant's possessions, it must be

examined whether this deprivation has been made in the public interest

and subject to conditions provided for by law and by general

principles of international law.  The Government submit that this is

the case.

        The conditions for affiliation of private practitioners to

the social insurance system are provided by law.  The conditions for

private practitioners, affiliated to the system when the new legislation

entered into force, to remain affiliated have been regulated in detail

in the transitional provisions to the new legislation.

        The most important aims of the reform have been described.

From this it appears that the reform was made in the public interest.

        It remains to examine whether there is a fair balance between

the measures taken by the authorities and the rights of the

individual.

        The legislation provides that private practitioners affiliated

to the system prior to the reform, and who had built up a practice

which gave them an income of a certain level or made large investments

in a practice before a certain date, can remain affiliated to the

social insurance system.  Among those who were refused affiliation

after the reform were those who had started their practice shortly

before the legislation entered into force, like the applicant, or

those who applied for affiliation after that date and could not get a

recommendation from the medical care principal when such a

recommendation was required.  These practitioners had and still have

the possibility to be affiliated to the system, provided that they

open up practice in a district where a recommendation of the medical

care principal is not required.  This possibility is still open to the

applicant.  A refusal to affiliate a doctor only applies for those

counties in which the medical care principals are entitled to and

actually do refuse to give a recommendation for affiliation.

        Thus, the reform has only entailed a limitation of the right

of a private practitioner to be affiliated to the system.  He can no

longer be affiliated at any place where he wants to open his practice.

In view of the purpose of the reform such an interference in the

individual's rights must be regarded as justified.

        Regarding the applicant's case the Government emphasise the

following.  Already when he started his practice, the applicant had

been informed that he had been affiliated to the social insurance

system only until the end of 1984, all in accordance with the

applicable provisions of the tariff.  He was given no information

indicating that he could count on affiliation after that day; as

already mentioned this was not possible according to the new

legislation.  The applicant must have been fully aware of this time

limit and he had no reason to believe that he would have his

affiliation renewed.  It seems as if the applicant has started his

practice without having checked the conditions for being affiliated to

the system according to the new legislation.  Even if the applicant was

living abroad, the Government find it remarkable that the applicant in

the beginning of the autumn of 1984 had no idea of the reform.  The

decision had already been taken and had caused a lively debate in the

mass media and among Swedish doctors.  In view of this and the limited

income the applicant had received from his practice, the Government

maintain, should the Commission arrive at the conclusion that an

interference with possessions has taken place in the applicant's case,

that this interference was justified.

        For these reasons the Government contest the applicant's

allegation that there has been a violation of Article 1 of Protocol

No. 1.  The complaint is also in this regard manifestly ill-founded.

        4. Conclusions

        The Government conclude:

        - concerning the admissibility that the application should

be declared inadmissible, if not for failure to exhaust domestic

remedies, for being manifestly ill-founded, alternatively, as far as

Article 1 of Protocol No. 1 is concerned, for being incompatible

ratione materiae with the provisions of the Convention, and

        - concerning the merits that there has been no violation of

the Convention.

        B. The applicant

        1. The facts

        The applicant had worked as a physician in Switzerland.  He

returned to Sweden and acquired a small house outside Trelleborg.  His

daughter stayed in Switzerland for her schooling.  The applicant

visited occasionally Switzerland in order to keep contact with his

daughter.

        The applicant has studied in Sweden and he is a Swedish doctor

of medicine.  He was also a senior lecturer in internal medicine at

the Karolinska Institute in Stockholm.  He is a specialist in internal

medicine.

        Because of his long stay abroad his pension was very small

since January 1983.  Being still vital he wished to continue his work

as a doctor.  In order to earn his living and to be able to support his

daughter he decided to start a small private practice of internal

medicine at Trelleborg.  His aim was to work about 75% of full time.

        Trelleborg is a small industrial town with a population of

about 25,000 inhabitants.  In order to have patients it is necessary

for the private practitioner to be affiliated to the social insurance

system.  Doctors outside this system in Sweden of today are rare, if

any.  The applicant realised the necessity to be affiliated to the

system.

        Before 1985 a doctor could easily be affiliated to the social

insurance system.  He only had to make an announcement to the

Insurance Office and he was affiliated with no condition other than

the necessity to apply the obligatory tariff.

        During 1984, not having got any temporary post, the applicant

spent a part of the year with his daughter.  He announced his

affiliation to the social insurance system, which was accepted in

September 1984.  The applicant was not informed that the regulations

for the affiliation were to be changed.  During September - October 1984

he acquired apparatus and furniture for his planned practice.  He also

signed a contract for the consultation room.  He invested an amount of

about 100,000 SEK.  His affiliation was valid to the end of 1984.

Being informed by some colleagues that such an affiliation was always

given for the running year only he was convinced that the affiliation

would automatically be prolonged.  He started his practice at the

beginning of November 1984.  Shortly thereafter he was informed in

writing by the Insurance Office that his affiliation would not be

prolonged after the end of 1985.  The applicant became anxious.  As a

result of the rules of that time he considered the affiliation as a

pure formality.  In order to have his affiliation secured after the

new year 1985 he took contact with persons in the county

administration who had the competence to pass a resolution and wrote

petitions to the Regional Insurance Office and to the County Council.

All his measures resulted only in a limited prolongation of the

affiliation until 31 March 1985.  The applicant terminated his

practice in February 1985.  The activity, which had hardly begun, was

in a phase of building up and not of any considerable proportions.

        The applicant's petitions to the authorities were partly an

appeal against not being affiliated, partly an application to be

affiliated under the new rules valid from 1 January 1985.

     2. The new legislation

        Practically all medical care was and is still at the expense

of the public administration.  Swedish citizens consider this as

natural because of the high taxes.  They do not want to pay much for

the medical care irrespective of whether they consult a private doctor

or one engaged in the public health care.  It is also considered as a

natural right of the citizen to choose his doctor.

        During the early 1980's the volume of the private care

increased considerably.  The main aim of the 1985 reform was to limit the

activity of the private practitioners and to favour the public care.

The purpose was to socialise the medical care.  The reform was much

discussed in the media.  However, the applicant was not informed about

the Government Bill in connection with the start of his practice.  As

previously mentioned the applicant stayed part of the time in

Switzerland with his daughter.  With the reform the authorities aimed

at limiting the competition of the private doctors in two ways.

First, the rules regarding State subsidies to the County Council were

changed.  A lump sum had to cover all medical care, public as well as

private, instead of paying for the number of consultations.  Secondly,

the free regulations for the affiliation to the social insurance

system were restricted since a recommendation from the County Council

was required.

        The applicant emphasises that the new rules had a very harmful

impact on the working conditions of the private doctors.  Prior to the

reform only an announcement was necessary for the affiliation.  Under

the new rules a recommendation of the County Council is necessary.  As

a result of the payment of a lump sum the financial situation of the

County Council has been impaired.  The radical change of the rules for

the affiliation to the insurance system called for extensive

transitional provisions.  The Ordinance (the Tariff) was issued on

16 October 1984.  According to the new regulations all doctors who

were registered as affiliated to the social insurance system would be

struck off the list if they did not comply with the new conditions.

        The applicant had principally two possibilities to retain his

affiliation.  First, he could apply for a new affiliation according to

the new rules.  For this purpose it was necessary to have a

recommandation of the County Council.  Such a recommendation is a

political decision.  The County Council is not a court.  A refused

recommendation cannot be appealed to a court for reconsideration.

There is no right to complain.  The applicant has sent applications to

the Regional Insurance Office and to the County Council.

           Another possibility was to request that the transitional

provisions would apply for a continued affiliation.  Such issues were

dealt with by the National Social Insurance Board.  A decision of this

Board could be appealed to the Insurance Court.  According to the

transitional provisions an examination by a court was possible.  The

applicant has sent several applications to the County Council and to

the Regional Insurance Office in order to have his affiliation

prolonged.  For some inexplicable reason these applications have never

been forwarded to the National Social Insurance Board.  It was the

duty and responsibility of the Council and of the Office to forward

these applications to the National Social Insurance Board.  There are

special regulations according to which the Regional Insurance Office

has to forward applications to the competent body.  Consequently in

this case the authorities have without any reason failed to take a

decision.  This is very grave, because his case could not be examined.

Since no decision was given there was no decision to appeal against.

The way the authorities dealt with this case was strange, especially

having regard to the fact that the applicant was extraordinarily

active to maintain his rights.  He contacted personally the authorities

to which he described his situation.  He has also sent a petition to

the Minister of Social Affairs and to each leader of the political

parties.  Against this background it is completely exceptional that

his case was not even dealt with by the authorities.  The obstruction

the applicant was exposed to is so astounding that it can only be

explained by a conscious aversion against his person.

        From the above it can be concluded that the views of the

Government concerning the possibility to appeal and have examined the

case as well as to complain to a court are misleading and partly

wrong.

        The applicant had announced his aim to start a private

practice when he was affiliated.  At that time he was not informed of

the new regulations.  However, these were well known to the authorities

at the Insurance Office.  Nevertheless, they failed to inform the

applicant about the new rules.  It is obvious that if he had been

correctly informed he would not have made those investments and

efforts for the practice activity for only a couple of months in 1984.

        The applicant received the preliminary notice of not being

affiliated after 1 January 1985 at the end of October 1984.  He

protested personally on 22 October 1984 to chairman Holgersson at the

County Council, who assured the applicant that he could count on a

continuation of his affiliation.  In November 1984 the applicant sent

applications to the Regional Insurance Office and to the County

Council.  None of these applications have been dealt with properly

since they have not been forwarded to the National Social Insurance

Board.  His letter of 25 January 1985 has not been treated properly

either.

        The applicant has not appealed against the decision of

September 1984 to affiliate him only to the end of 1984.  It was the

common practice to sign a contract for the running year only.  The

applicant supposed that the affiliation would be prolonged

automatically for the next year.  Despite his efforts through letters

and personal contacts, he has not been informed of the content of the

transitional provisions.

        The Government assert that it is insignificant that the

applicant did not have the final decision on his application for

continuation of the affiliation because he nevertheless does not

fulfil the conditions in the transitional provisions.  This is wrong.

Certain regulations allow a possibility for continuation of the

affiliation in the case of the applicant.  In any case it is not

possible to know the outcome if his applications had been dealt with

by the National Social Insurance Board or reconsidered by the Court.

        The applicant has requested remuneration for the financial

loss the treatment has caused him.  It is correct that the ordinary

courts may examine a remuneration claim against the State.  In the

case of the applicant such a possibility does not exist, since there

is no decision as a basis for the remuneration claim.  The applicant

lacks the possibility to have his remuneration claim examined.

     3. The admissibility

        Regarding the question of exhaustion of domestic remedies it

is necessary to distinguish between the examination under the

transitional provisions and under the new legislation.  As to the

transitional provisions the applicant never received any final

decision and no notice of appeal which is obligatory.  In spite

of all efforts his case was never transferred to the National Social

Insurance Board.  By neglecting their responsibility the authorities

deprived the applicant of his right to have his case examined.

This is remarkable.

        Regarding the new legislation the decision of the County

Council cannot be appealed to a court.  Under the new rules such a

case cannot be examined by a court.  The County Council is not a court

but a political organ.

        Consequently, the application is well-founded.  Since the

affiliation was important for his practice and his possibility to earn

a living this is a question of his "civil rights".  Consequently the

applicant has been prevented from working in his profession.  He

maintains that Article 6 of the Convention and Article 1 of Protocol

No. 1 have been violated.

        The applicant invokes in support of his application the Benthem

case (Eur.  Court H.R., Benthem judgment of 23 October 1985, Series A

no. 97) and the van Marle case (quoted above).

THE LAW

1.      The applicant alleges a violation of Article 1 of Protocol

No. 1 (P1-1) to the Convention in that he was excluded from affiliation to

the social security system, and no remuneration was paid for his

having to close down his medical practice.  The Government submit that

the complaint is incompatible ratione materiae with the provisions of

the Convention, or manifestly ill-founded.

        Article 1 of Protocol No. 1 (P1-1) reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions.  No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalities."

        The Commission considers that the vested interests in the

applicant's medical practice may be regarded as "possessions" within

the meaning of Article 1 of Protocol No. 1 (P1-1).  The question of

affiliation to the social insurance system was a decisive element for

the running of the practice.  However, the affiliation which had been

granted to the applicant was limited until the end of 1984.  The first

issue which arises is whether the fact that the applicant's

affiliation was not prolonged after 1984 can be regarded as an

interference with his rights under Article 1 of Protocol No. 1 (P1-1).

        However, the Commission considers that it can leave open this

question because, even if it is assumed that the facts of the case

constituted an interference with the applicant's rights under Article 1

of Protocol No. 1 (P1-1), any such interference would be justified under

that provision for the following reasons.

        The interference cannot be regarded as a "deprivation" of

property.  The provisions of the Health and Medical Services Act and

the Tariff lay down, inter alia, regulations as to the provision of

medical services in general and the affiliation of private

practitioners to the social security system.  The refusal of an

affiliation does not prevent the doctor from practising privately.  It

only means that the costs of the consultations given by the doctor

will not be covered by the social security system, the effect being

that the patients will have to pay the full fee for the consultations.

Although the question of affiliation to the social security system may

be decisive for the possibility of running a profitable practice, any

interference resulting from a refused affiliation must, in the

Commission's view, be characterised as a "control (of) the use of

property" and not as a "deprivation" of property.  Accordingly, it is

the second paragraph of Article 1 of Protocol No. 1 (P1-1) which is

material (cf. mutatis mutandis Comm.  Report, 10.11.87, Tre Traktörer

Aktiebolag v.  Sweden, paras. 111-114).

        Under the second paragraph of Article 1 (P1-1-2) the

Commission must examine whether the refusal to prolong the applicant's

affiliation to the social security system was "necessary to control

the use of property in accordance with the general interest".  The

task of the Commission in this context is to examine the lawfulness,

purpose and proportionality of the measures taken by the domestic

authorities (cf. e.g.  No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235).

The question of proportionality requires a determination as to whether

there was a reasonable relationship between the means employed and the

aim sought to be realised or, in other words, whether a fair balance

has been struck between the demands of the general interest and the

interest of the individual.  In determining whether a fair balance

exists, the State enjoys a wide margin of appreciation with regard

both to choosing means of enforcement and to ascertaining whether the

consequences of enforcement are justified in the general interest for

the purpose of achieving the object of the measure in question (see

Eur.  Court H.R., Agosi judgment of 24 October 1986, Series A no. 108,

p. 18, para. 52).

        The new legislation which is at issue was adopted by

Parliament on 5 June 1984 following a Government Bill presented in

April the same year.  The provisions concerning affiliation to the

social insurance system after 1984 were contained in the amended

medical care tariff which was issued on 16 October 1984.  The

provisions correspond to what was proposed in the above-mentioned Bill

(pp. 32-33).  Moreover, a transitional provision to the tariff, which

had entered into force on 1 July 1984, provided that a decision to

enter a private practitioner on the Social Insurance Office's list

after 30 June 1984 was to apply only to the end of 1984.

        Point 3 of the transitional provisions provided that a doctor,

in the applicant's situation, could be entered on the Social Insurance

Office's list after the end of 1984 only if he had been recommended by

the medical care prinicpal, i.e. the County Council.  The applicant

has not been so recommended.

        The Commission is satisfied that the non-affiliation of the

applicant was lawful under Swedish law and that it was in the "general

interest" as part of a more comprehensive reform of the health and

medical services.

        As regards the proportionality, the Commission recalls that

the original affiliation of the applicant was limited in time, and

under the applicable law there was no guarantee of a prolongation of

the affiliation after 1984.  Even if the applicant was not actually

informed of the situation, he could have been so if he had taken

appropriate advice before setting up his practice.  The Commission

considers that, in these circumstances, and having regard to the wide

margin of appreciation enjoyed by States in this regard, the

non-affiliation of the applicant under the new legislation was not

disproportionate to the aims pursued.

        Accordingly, any interference, by the non-affiliation, with

the applicant's right to the peaceful enjoyment of his possessions was

justified under the terms of the second paragraph of  1 of

Protocol No. 1 (P1-1).

        It follows that, in this respect, the application is manifestly

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

Convention.

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

6-1) of the Convention, in that he was refused continued affiliation

to the social security system without legal process.  The Government

submit that this complaint is manifestly ill-founded.

        Article 6 para. 1 (Art. 6-1) first sentence reads:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

        The Commission considers that there are three different sets

of proceedings which must be taken into account in the examination of

the above complaint under Article 6 (Art. 6) of the Convention:

    -   the Social Insurance Office's preliminary notice of 15 October

        1984 which was not, contrary to the text of the notice,

        followed by a final decision on the question of the

        applicant's affiliation to the social security system after

        1984;

    -   the applicant's request to the Social Insurance Office of

        27 November 1984 for affiliation to the social security system

        after 1984;

    -   the applicant's request to the County Council of 27 November

        1984 for affiliation to the social security system ater 1984.

        The first issue which arises is whether in one or more of

these proceedings the applicant was seeking a determination of his

"civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.  If this were so, it would then have to be decided

whether the applicant had the possibility of bringing any dispute

relating to his "civil rights" before a tribunal within the meaning of

Article 6 para. 1 (Art. 6-1).

        The Commission has made a preliminary examination of these

issues in the light of the parties' submissions.  It considers that

these issues raise questions of fact and law which are of such an

important and complex nature that their determination requires an

examination of the merits.  This complaint is therefore admissible,

no other ground for declaring it inadmissible having been established.

        For these reasons, the Commission

        DECLARES INADMISSIBLE the complaint of a violation of

        the right to property (Article 1 of Protocol No. 1 (P1-1) to

        the Convention);

        DECLARES ADMISSIBLE, without pre-judging the merits, the

        remainder of the application.

        Secretary to the Commission      President of the Commission

             (H. C. KRUGER)                  (C. A. NØRGAARD)