AS TO THE ADMISSIBILITY OF
Application No. 12947/87
by the Association of General Practitioners
against Denmark
The European Commission of Human Rights sitting in private
on 12 July 1989, the following members being present:
MM. S. TRECHSEL, Acting President
C. A. NØRGAARD
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 5 May 1987
by the Association of General Practitioners against Denmark and
registered on 22 May 1987 under file No. 12947/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant is the Danish Association of General
Practitioners (Praktiserende Lægers Organisation) which has its
headquarters in Copenhagen. Before the Commission it is represented by
Mr. Jørgen Grønborg of the law firm Bornstein & Grønborg.
The applicant is in charge of organising the services of all
general practitioners in Denmark, approximately 2,900, who are working
in the primary health care sector. General practice in Denmark is run
as part of the National Health Service (Den offentlige Sygesikring).
All the detailed conditions governing general practice as to
establishment, organisation and administration, services, fees,
discipline and sanctions, etc. are laid down in contracts between the
applicant and the National Health Service.
The contract between the applicant and the National Health
Service at issue (hereafter referred to as "the Contract") was
concluded on 30 March 1976 and approved by the Minister of the
Interior according to section 26 sub-section 2 of the Public Health
Security Act (Lov om Offentlig Sygesikring). The Contract has been
amended a number of times, each time with the approval of the Minister
of the Interior. Of special relevance to this application is the
amendment of 5 January 1984 which was approved by the Minister of the
Interior on 25 April 1984.
The provision of the Contract, which is at issue in this
application, is article 78 dealing with the adjustment of the general
practitioners' basic fees. Article 78 establishes two regulators.
One part, equal to 25% of the basic fee and once considered roughly
to cover the costs of running a practice, is regulated according to
the official price index. The remaining 75%, supposed to be the net
part of the basic fee, is regulated in accordance with the salaries to
public officials holding higher posts. The adjustment becomes
effective every year as of 1 April and 1 October.
The Contract may be terminated according to article 106 by
each party giving at least three months notice to the first day of a
month.
Through 1983 the applicant and representatives of the National
Health Service negotiated a number of amendments to the Contract on
proposals made by each party. Neither of the parties suggested any
amendment to article 78 and the final appendix to the Contract, which
was agreed upon and signed on 5 January 1984, did not include any such
amendment.
In a letter of 25 April 1984 the Minister of the Interior
expressed hesitations as to some of the amendments agreed upon, but
finally, taking it as a whole, approved the appendix of 5 January
1984. However, the Minister informed the parties that the Government
at the same time had introduced a bill, which, if passed by
Parliament, would become effective on 1 June 1984 and from this date
suspend article 78 of the Contract and freeze the fees at the level in
force on 31 March 1984, i.e. before the adjustment of the fees as of 1
April 1984.
The bill was introduced on 26 April 1984 and passed by
Parliament on 23 May 1984 as Act No. 235. The relevant part of the Act
reads as follows:
(Translation)
"Act on the Limitation of increase of Fees and on the Change
in the regulations governing the Adjustment of Fees laid down
in the Public Health Security Agreements, etc.
Section 1. In the agreements reached in pursuance of
section 26 sub-section 2 of the Public Health Security Act
between the negotiating committee of the National Health
Service and the medical associations and others, the
adjustments of fees are annulled which were to be effected
during the period 1 April 1985 to 1 April 1987 as a result of
changes in the wage-regulating index and changes in the
salaries in the civil service sector cf., however, section 2.
Section 2. As regards the following agreements the
adjustments of fees are annulled which were to be effected
during the period 1 June 1984 to 1 April 1987 as a result of
changes in the wage-regulating index and changes in salaries
in the civil service sector:
(1) the national agreement on general practice of medicine of
30 March 1976 between the negotiating committee of the
National Health Service and the Association of General
Practitioners, as amended latest by agreement of
5 January 1984...
...
After 1 June 1984 and until changed by agreement in accordance
with section 26 sub-section 2 of the Public Health Security
Act, the fees etc. comprised by section 2 sub-section 1 hereof
shall be such amounts as were applicable on 31 March 1984.
Section 3. From 26 April 1984 the agreements referred to
in sections 1 and 2 may be terminated, to expire on
1 April 1985 at the earliest.
Section 4. In the event that the services referred to in
sections 6, 8 and 9 of the Public Health Security Act are not
governed by an agreement between the negotiating committee of
the National Health Service and the relevant associations
approved by the Minister of the Interior, any increase of fees
etc. can, during the period from 26 April 1984 to 1 April
1987, be made solely by entering into an agreement in
accordance with section 26 sub-section 2 of the Public Health
Security Act.
The Minister of the Interior can lay down rules for the
entering into force of the provisions of sub-section 1.
Section 5. Any fixing of fees, etc. in excess of what is
permitted under section 4 sub-section 1 shall be punishable by
fines."
The Government's aim by introducing the above Act was to
reduce the continuing increase of public spending within the sphere of
the National Health Service, in particular in the light of the
country's critical economic situation. It was part of the State's
general policy to reduce public spending, which was implemented by a
whole range of measures.
When the Act entered into force on 1 June 1984 it had
immediate effect as regards the adjustment of fees which had already
become effective as of 1 April 1984. This adjustment was now annulled
with the effect that subsequent fees should be calculated on the basis
of the level prior to the adjustment of 1 April 1984.
The adjustment of 1 April 1984 amounted to 1.75% of the gross
fees in force prior to that date. Applied to the typical example of a
general practitioner, having a 1984 gross income of 700,000 Danish
crowns the adjustment per 1 April 1984 would amount to approximately
12,000 Danish crowns annually for this general practitioner. The
adjustment per 1 October 1984 would have, had it not been annulled,
amounted to 2.5% of the gross income. Applied to the same example the
annual value of the adjustment would have been approximately 17,800
Danish crowns.
At the end of 1984 negotiations were reopened between the
National Health Service and the applicant. On 17 December 1984 an
agreement was reached upon an appendix to the Contract which included
an amendment of article 78 to the effect that the above adjustments of
fees as per 1 April and 1 October 1984 were suspended forever. The
adjustment of the fees would, however, commence again as of 1 April
1985 based upon the level that was "frozen" by Act no. 235 of
23 May 1984, i.e. the level in force before 1 April 1984. Apart from
the fact that the two fee adjustments mentioned above were taken away,
the fee adjustment clause in article 78 was maintained exactly as it
was before, including the split between the cost part and the net part
of the fee and the respective regulators for each part.
The appendix of 17 December 1984 was approved by the Minister
of the Interior on 20 December 1984 in accordance with section 26
sub-section 2 of the Public Health Security Act.
In the meantime, on 17 August 1984, the applicant had brought
a lawsuit against the Ministry of the Interior before the High Court
of Eastern Denmark (Østre Landsret) claiming that the Ministry be
found liable to recognise (anerkendelsessøgsmål) that Act no. 235 of
23 May 1984 constituted an act of expropriation, which could only be
implemented against full compensation, in relation to:
in the first alternative, the adjustment of fees according to
article 78 of the Contract as per 1 April and 1 October 1984, however
confined to the period from 1 June 1984 to 31 March 1985,
in the second alternative, the adjustment of fees according to
article 78 of the Contract as per 1 April 1984, however confined to
the period from 1 June 1984 to 31 March 1985, and
in the third alternative, the adjustment of fees according to
article 78 of the Contract as per 1 April 1984, however confined to
the period from 1 June to 31 July 1984.
In its judgment of 30 May 1985 the High Court ruled in favour
of the Ministry as to the applicant's two first claims but in favour
of the applicant with regard to its third claim. The Court found that
the adjustment of fees, which according to the Contract had already
become effective, should, in respect of the period within which the
Contract could not be terminated by giving notice, be considered as a
possession, protected by Article 73 of the Danish Constitution
(Grundloven), which through the Act had been transferred to the
Public. The Court found that the Act was of an extraordinary
character, that it only affected a small group and should therefore be
considered as being of an expropriative character.
The Ministry of the Interior appealed against the judgment to
the Supreme Court (Højesteret) where the applicant abandoned the first
claim but maintained the two alternative claims.
In its judgment of 10 November 1986 the Supreme Court, sitting
in plenum, ruled unanimously in favour of the Government. The Court
stated that the said Act had to be considered as part of the
legislator's general income policy and that, therefore, there was no
basis for holding that the consequences of this Act amounted to
expropriation. The Supreme Court ordered the applicant to pay costs in
the amount of 250,000 Danish crowns to the Ministry of the Interior.
COMPLAINTS
General
As to the scope of the application the applicant submits that
this is confined to the fee adjustment according to article 78 of the
Contract per 1 April 1984. This is the adjustment, amounting to 1.75%
of the gross fee, which was paid to the general practitioners for the
months of April and May 1984, but then withdrawn as from 1 June 1984.
As to the period in question the applicant maintains that the
deprivation of the right to the above adjustment per 1 April 1984 for
the period of 1 June 1984 to 31 March 1985 constitutes an
expropriation. This submission is based upon the combined effect of
sections 2 and 3 of Act no. 235 of 23 May 1984, depriving the
applicants of their right to the said adjustment as well as of their
right to terminate the Contract before 1 April 1985.
In the alternative the applicant claims that the period from
1 June to 31 July 1984 is the minimum period for which the deprivation
of the adjustment per 1 April should be considered as an
expropriation. The basis for this allegation is that, on 26 April 1984
when the bill was introduced, the National Health Service could have
chosen to give 3 months notice according to article 106 of the
Contract in order to terminate the Contract as of 1 August 1984. The
position of the general practitioners should be no different because
the Government chose to interfere by legislation from the situation
which would have existed if the provisions of the Contract had been
followed.
Article 1 of Protocol No. 1 to the Convention
The applicant is of the opinion that contractual rights,
arising out of continuing contracts, like the Contract in this case,
constitute "possessions" within the meaning of Article 1 para. 1 of
Protocol No. 1 to the Convention and that the general practitioners
have been "deprived" of such possessions within the meaning of the
second sentence of paragraph 1.
The applicant contends that the deprivation of the general
practitioners' rights to an adjustment of fees, which had already
become effective and workable, without even giving notice as agreed
upon in the Contract, and at the same time making the Contract
interminable on the part of the applicant, is an interference which is
not justifiable as being in the public interest.
The Act has a very narrow scope, affecting only 2,900 general
practitioners. It did not form an integral part of an economic reform
policy which would likewise affect other groups in Danish society
whose situation judged upon objective criteria of e.g. income was
comparable to that of the general practitioners. On the contrary the
coinciding interference with the adjustment of salaries to civil
servants and private employees deviated substantially from the
interference with that of the general practitioners, whereas literally
all other groups of self-employed persons, including those in liberal
professions, were not subjected to any measures at all. The withdrawal
by legislation of an adjustment, whether it be a fee or a salary,
which had already become effective, is unprecedented in Danish law.
The only purpose of the interference was to reduce public spending
which cannot in itself justify a breach - without compensation - of a
contract which is legally binding and effective between the parties.
The reasons given by the Government when introducing the bill are
partly manifestly ill-founded, partly just without any serious weight.
There is a lack of proportionality in the unique measure applied,
despite the fact that amendments to the Contract had just been
negotiated and approved by the Ministry of the Interior without any
demand being made for an amendment of the adjustment clause in
article 78.
Taken as a whole the applicant finds that Act no. 235 of 23
May 1984 does not strike a fair balance between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights. In reaching this
conclusion the applicant is underlining that the Act included no
transitional provisions by which the situation of the general
practitioners could have been modified so as to ensure a fair balance.
Thus, the Government imposed upon the general practitioners an
individual and excessive burden without taking any steps which could
have rendered such burden legitimate.
Article 14 of the Convention
The applicant contends that by sections 2 and 3 of the Act the
general practitioners have been subjected to discrimination without an
objective and reasonable justification.
The treatment of the general practitioners differed
substantially from the treatment of other groups in Danish society who
were in analogous situations such as dentists, midwives and others,
who were covered by section 1 of the Act only, but not by sections 2
and 3.
Furthermore, since 1961 the contracts between the applicant
and the National Health Service had included adjustment provisions
like article 78 of the Contract which made an adjustment of the net
part of the fees dependent on and closely related to increases in the
salaries of higher salaried public officials and at the same time
allowed full price index based adjustment of the cost part, thus
establishing a complete analogy between the general practitioners and
e.g. a head of section as to income adjustment. This analogy was
confirmed by the legislator in 1979. Nevertheless Act no. 235 of 23
May 1984 treated a general practitioner totally differently from a
head of section in as far as the latter's salary was not decreased nor
was he deprived of any right at all to future adjustments and he
retained his right to full compensation for increase in cost related
to the work.
The applicant maintains that no reasonable and objective
justification for this difference of treatment exists and that there
is no relationship of proportionality between the means employed and
the aim sought to be realised.
THE LAW
1. The applicant has complained that the introduction in 1984 of
the legislation in Denmark concerning the limitation of increase in
fees etc. laid down in agreements between the National Health Service
and itself involves a breach of Article 1 of Protocol No. 1 (P1-1) to
the Convention which 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 penalties."
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission can receive an application from a person, non-governmental
organisation or group of individuals only if such person,
non-governmental organisation or group of individuals can claim to be
a victim of a violation by one of the High Contracting Parties of the
rights set forth in the Convention. Moreover, the Commission is
competent to examine the compatibility of domestic legislation with
the Convention only with respect to its application in a concrete
case, while it is not competent to examine in abstracto its
compatibility with the Convention (cf. for example No. 11045/84, Dec.
8.3.85, D.R. 42 p. 247).
In the present case the question arises whether the applicant
may claim to be a victim within the meaning of Article 25 (Art. 25) of
the Convention although the legislation does not deprive the applicant
itself of any possessions (cf. No. 9900/82, Dec. 4.5.83, D.R. 32 p.
261 and No. 9939/82, Dec. 4.7.83, D.R. 34 p. 213). However, the
Commission does not find it necessary to determine this issue since
the complaints submitted are in any event manifestly ill-founded for
the following reasons.
The applicant submits that the contractual rights obtained in
this case constitute a possession within the meaning of Article 1 of
Protocol No. 1 (P1-1) to the Convention and that the general practitioners
have been deprived of their possessions when their right to an
adjustment of their fees was annulled by the legislation in question.
Furthermore the applicant maintains that the interference with this
property right was not justifiable as being in the public interest.
The Commission recalls that the applicant subsequently
negotiated an agreement with the National Health Service which inter
alia included an adjustment of the fees twice a year, 1 April and
1 October. For the year 1984 these adjustments were annulled whereas
the agreement reached continued as from 1 April 1985. Furthermore it
recalls that the Contract contained in article 106 a clause by which
it could be terminated by either side, giving three months notice. In
determining the scope of this case the Commission thus finds that the
general practitioners had no legitimate expectation of any adjustment
of fees going beyond, in the present case, 31 July 1984. As the
general practitioners in fact received the adjusted fees for the
months of April and May 1984 they were accordingly deprived of a sum
of money equivalent to 1/6 of 1.75% of their gross salary, which in
the example submitted would amount to approximately 2.000 Danish
crowns.
The Commission would not exclude that the contractual right to
this amount was a possession within the meaning of Article 1 of
Protocol No. 1 (P1-1) to the Convention and it must therefore be
determined whether the deprivation of the property was "in the public
interest" and "subject to the conditions provided for by law" and "by
the general principles of international law".
As regards the general principles of international law, the
Commission recalls that this condition does not apply to the taking by
a State of the property of its own nationals (Eur. Court H.R., Lithgow
and Others judgment of 8 July 1986, Series A No. 102, p. 50, para.
119). Consequently, this condition is not applicable in the present
case. Furthermore it is clear that the deprivation of the possession
was provided for by law, namely Act No. 235 of 23 May 1984, and it
thus remains to be determined whether the deprivation of the property
was in the public interest.
The Commission recalls that the taking of property in
pursuance of legitimate social, economic or other policies may be in
the public interest, even if the community at large has no direct use
or enjoyment of the property (see Eur. Court H.R., James and Others
judgment of 21 February 1986, Series A no. 98, p. 32, para. 45). In
the James and Others judgment, the Court also made the following
statement as to the Convention organs' supervision of the condition
"in the public interest" (p. 32, para. 46):
"Because of their direct knowledge of their society and its
needs, the national authorities are in principle better placed
than the international judge to appreciate what is 'in the
public interest'. Under the system of protection established
by the Convention, it is thus for the national authorities to
make the initial assessment both of the existence of a problem
of public concern warranting measures of deprivation of
property and of the remedial action to be taken (see, mutatis
mutandis, the Handyside judgment of 7 December 1976, Series A
No. 24, p. 22, para. 48). Here, as in other fields to which the
safeguards of the Convention extend, the national authorities
accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of 'public interest' is necessarily
extensive. In particular, as the Commission noted, the
decision to enact laws expropriating property will commonly
involve consideration of political, economic and social issues
on which opinions within a democratic society may reasonably
differ widely. The Court, finding it natural that the margin
of appreciation available to the legislature in implementing
social and economic policies should be a wide one, will
respect the legislature's judgment as to what is 'in the
public interest' unless that judgment be manifestly without
reasonable foundation."
In the present case the Commission finds it established that
the background and purpose of the enactment of the legislation
complained of was the State's wish to reduce public spending. This may
in principle be considered to be in the public interest. There must,
however, also be a reasonable relationship of proportionality between
the means employed and the aim sought to be realised and in this
respect the Commission finds that the sum of money involved was not
disproportionate to this aim.
Consequently, the Commission considers that the respondent
State cannot be said to have gone beyond its margin of appreciation
when it withdrew the April 1984 fee adjustment in the interest of
reducing public spending. This measure was in the public interest and
did not violate the principle of proportionality.
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 applicant has also complained that the general
practitioners have been subjected to discrimination without an
objective and reasonable justification and referred in this respect to
Article 14 (Art. 14) of the Convention which reads:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
The Commission finds that it is not every distinction which
amounts to discrimination and in particular it is not sufficient for
an applicant to complain merely that he, rather than others, has been
affected, but he must show that the burden in question operates to
distinguish between him and others on discriminatory grounds.
Furthermore, as indicated above, in the field of social, economic or
other policies it is for the national authorities to make the initial
assessment of the aims and the means by which they are pursued. Their
margin of appreciation must be wider in such areas than it is in many
others.
In this case the Commission recalls that the background for
the measures taken was the aim of reducing public spending. Not only
the general practitioners were affected thereby, although the
implementation could create marginal situations, but their burden was
one part of a whole range of measures implemented by the State in
order to achieve this aim. Their situation should also be seen in the
light of their special position within the Danish society.
In view of this and the above general considerations the
Commission finds that the measure in question can be said to fall
within the margin of appreciation accorded to the national
authorities; that the difference in treatment, as complained of by the
applicant in the present case, had an objective and reasonable
justification in the aim pursued by the State; and that the test of
proportionality is satisfied.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (S. TRECHSEL)
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