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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