AS TO THE ADMISSIBILITY OF
Application No. 30932/96
by Landelijke Specialisten Vereniging
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 November 1995
by Landelijke Specialisten Vereniging against the Netherlands and
registered on 2 April 1996 under file No. 30932/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an association of recognised medical specialists
practising in the Netherlands. It has its statutory seat and registered
offices in Utrecht. Its aims include the promotion of its members'
social-economic interests, insofar as these are not directly related
to an employment agreement, and its members' other social interests.
Before the Commission, it is represented by Mr. I.G.F. Cath, a lawyer
practising in The Hague.
The facts of the case, as submitted by the applicant association,
may be summarised as follows.
1. General background
In 1982, the Health Care Tariffs Act (Wet Tarieven Gezondheids-
zorg; hereinafter referred to as "WTG") entered into force. This Act
aims at a balanced system of determining health care tariffs in order
to control the escalation of health care costs.
Pursuant to the WTG, health care tariffs are determined through
negotiations between, on the one hand, the health care insurers (public
health services and private medical insurance companies) and, on the
other hand, medical institutions (such as, inter alia, hospitals,
convalescent hospitals and maternity clinics) and medical service
providers (such as, inter alia, physicians, dentists, medical
specialists and pharmacists).
In order to avoid having to negotiate with an ever increasing
number of parties, the public authorities have fixed criteria for
selection based on the notion of representativeness of organisations.
Participation in tariff negotiations is limited to the organisations
that have been recognised as "representative" by the Ministry of
Welfare, Public Health and Cultural Affairs (Ministerie van Welzijn,
Volksgezondheid en Cultuur; hereinafter referred to as the "Ministry
of Public Health"), pursuant to Article 3 of the WTG.
The applicant association has been recognised as a representative
organisation for the purposes of tariff negotiations under the WTG.
The results of the tariff negotiations are transmitted to the
Central Organ for Health Care Tariffs (Centraal Orgaan Tarieven Gezond-
heidszorg; hereinafter referred to as "COTG"), which approves or
adjusts the tariffs ex officio.
The COTG is a public body, whose independent members are
appointed by the Government; one third of its members are directly
appointed by the Minister of Public Health in consultation with the
Minister of Economic Affairs (Minister van Economische Zaken) and two
thirds of its members are appointed in consultation with recognised
representative organisations of employers, labour unions and medical
service providers (Article 20 of the WTG).
The COTG may further issue guidelines (richtlijnen) as to the
amount, structure and means of calculation of tariffs. These guidelines
are subject to approval by the Minister of Public Health in
consultation with the Minister of Economic Affairs and the Minister of
Social Affairs (Minister van Sociale Zaken). In the event of
disagreement between the COTG and the Minister of Public Health, the
latter has the final say.
Pursuant to Article 14 of the WTG, the Ministry of Public Health
can further issue ex officio binding directives (aanwijzingen) to the
COTG as regards the contents of COTG guidelines. These directives are
to be converted by the COTG into guidelines. If the COTG fails to do
so within three months as from receipt of the directive, the Ministry
may establish such guidelines itself.
The Minister of Public Health may, pursuant to Article 17 of the
WTG, issue General Administrative Measures (Algemene Maatregelen van
Bestuur) establishing maximum tariffs.
Article 35 of the WTG provides for an appeal with the Industrial
Appeals Tribunal (College van Beroep voor het Bedrijfsleven) against
decisions taken by the COTG on tariffs proposed or established ex
officio. Such an appeal may be lodged by individual health service
providers or health care insurers, or representative organisations
thereof.
According to Article 2 of the WTG, it is a criminal offence to
charge a tariff that has not been approved or determined by the COTG.
2. The determination of health care tariffs in the present case
On 11 December 1989, the so-called "Five Parties Agreement" (Vijf
Partijen Akkoord; hereinafter referred to as "VPA") was concluded
between five representative organisations, including the applicant
association. In this agreement it was stated that the tariffs for
medical services provided by certain categories of medical specialists
were either too high or too low and did not reflect the required
balance between the costs of these services and the pertaining
remuneration. The VPA aimed at correcting this unbalance by lowering
the tariffs of six categories of specialists, increasing the tariffs
of six other categories. The tariffs of fourteen categories of
specialists could remain unchanged. The idea was to limit the costs for
services by medical specialists for the years 1990, 1991 and 1992 to
the costs made in 1989. This amount was referred to as the "macro-
budget". The agreement entered into force on 1 January 1990 and
remained in force until 31 December 1992.
In the Financial Overview Care (Financieel Overzicht Zorg) 1993
published in September 1992, in which the Government determined the
reasonable level of costs for public health care, it was noted that the
VPA macro-budget had been surpassed in 1990 and 1991 by NLG. 48 million
and NLG. 384 million, respectively.
On 6 November 1992, the Minister of Public Health issued a
directive, setting maximum tariffs for medical specialists on a
service-by-service basis. This directive entailed that the guideline
to be adopted was to bring about a downward adaptation of the tariffs
concerned by NLG. 151, 158 and 60 million respectively. In this
directive it was noted that the VPA macro-budget had been exceeded
considerably in 1990 and 1991.
This directive was converted by the COTG into a guideline on
21 December 1992, entering into force on 1 January 1993.
On 15 February 1993, after having heard the applicant association
on 22 January 1993, the COTG, referring to the contents of the
guidelines concerning tariffs of medical specialists, issued the tariff
decisions, establishing the maximum tariffs at which the various
medical specialist services could be offered. These decisions entered
into force on 1 April 1993.
These maximum tariffs were set by applying a reduction on a
percentage basis, differing according to the various specialist
services involved, to the pre-existing tariffs. Furthermore a
differentiated reduction on a percentage basis was applied to the
various specialist services as offered to the type of health care
insurers; the reduction applied to services offered to public health
services being on average slightly higher than the ones offered to
private medical insurance companies.
On 12 March 1993, the applicant association filed five objections
(bezwaarschriften) against five decisions issued by the COTG on
15 February 1993.
Following a hearing held on 12 May 1993, the COTG rejected the
appeals on 5 July 1993 and upheld its decisions of 15 February 1993.
The COTG held, inter alia, that the applicant association's suggestion
to use certain specific data provided by certain categories of
specialists was not taken up, as the consequential changes strongly
differ from data per specialisation known by the public health services
and the private health insurance sector. It further held that,
according to the guideline, the basic premise for a possible
differentiation between specialisations was the realisation of a
reduction of NLG. 309 million on the tariffs and that the guideline
gave no space for an increase in the macro-budget or for a lower
reduction of cost increases allegedly not imputable to the medical
specialists.
The applicant association and a number of private individuals
concerned filed an appeal with the Industrial Appeals Tribunal.
Following both written and oral adversarial proceedings, the Industrial
Appeals Tribunal rejected the appeal on 3 July 1995.
The Industrial Appeals Tribunal found, inter alia, that the
directive at issue was in compliance with the law, both as regards its
contents and the procedure followed.
As regards the argument that the directive was unreasonable,
arbitrary and contrary to a number of the general principles of proper
administration (algemene beginselen van behoorlijke bestuur), the
Industrial Appeal Tribunal held:
[Translation]
"The Tribunal cannot and will not separately discuss each of the
arguments submitted by the appellants in support of these
allegations, as it disagrees with the premises stated below on
which the appellants have based their argumentation.
The Tribunal does not share the appellants' opinion that, in the
examination of the directive, the VPA should be disregarded, nor
their opinion that, in the examination of the tariff decreases
introduced as per 1 April 1993, the correctness of the tariffs
valid in the previous period must be used as a touchstone.
Further no general validity can be claimed for the premise that
an increase in productivity (increase of the number of
interventions per medical specialist) should go hand in hand with
an increase in income."
The Industrial Appeals Tribunal went on to explain the relevance
of the VPA in connection with the directive, the reasons why it could
not accept the premise that the previously valid tariffs were correct,
why it rejected the alleged link between productivity and income and
the reasons for its finding that the absence of a differentiation in
tariff reductions between different categories of medical
specialisations could not be regarded as so disproportionate that the
directive should be denied binding force.
The explicitly invoked general principles of proper
administration which, according to the applicant association, were
violated by the directive were the principle of equality ("égalité
devant les charges publiques"), the prohibition of discrimination, the
prohibition of arbitrariness, the principle of proportionality, the
principle of balancing of interests and the principle that decisions
should be duly reasoned.
COMPLAINT
The applicant association complains under Article 6 para. 1 of
the Convention that it did not receive a fair trial in that the
Industrial Appeals Tribunal did not give a specific and express reply
to each specifically mentioned general principle of proper
administration allegedly violated by the directive at issue, but
restricted itself to a general response to the alleged violations of
the principles invoked.
THE LAW
The applicant association complains that in the proceedings
before the Industrial Appeals Tribunal it did not receive a fair trial
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
in that the Tribunal failed to deal with each alleged breach of the
general principles of proper administration.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by a ...
tribunal established by law..."
The Commission notes in the first place that the proceedings at
issue did not concern the income of the applicant association, but the
income of its members. The question therefore arises whether, in these
circumstances, the proceedings at issue can be considered as
constituting a determination of the applicant association's civil
rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
However, the Commission does not find it necessary to determine
this issue as the application is in any event inadmissible on the
following grounds.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention obliges the courts to give reasons for their judgments, but
cannot be understood as requiring a detailed answer to every argument.
The extent to which this duty to give reasons applies may vary
according to the nature of the decision. The question whether a court
has failed to fulfil the obligation to state reasons, deriving from
Article 6 (Art. 6) of the Convention, is to be determined in the light
of the circumstances of the case (cf. Eur. Court HR, Ruiz Torija v.
Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29;
Hiro Balani judgment of 9 December 1994, Series A no. 303-B, pp. 29-30,
para. 27; and No. 16717/90, Dec. 9.1.95, D.R. 80, p. 24).
Unlike the situation examined by the Court in the cases of Ruiz
Torija and Hiro Balani, where an appellate court failed to address a
submission made at first instance, the Industrial Appeals Tribunal did
in fact consider the applicant association's complaint that the general
principles of proper administration had not been complied with. It
rejected the applicant association's argument that certain of the
general principles of proper administration had been violated holding
that it could not agree with the premises on which the applicant
association had based its argumentation in respect of the allegedly
breached principles and gave reasons why it could not agree with these
premises.
In these circumstances, the Commission is of the opinion that,
even assuming that the proceedings at issue can be regarded as
constituting a determination of the applicant association's civil
rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention, the Industrial Appeals Tribunal has given
sufficient reasons for its decision to reject this element of the
applicant association's appeal.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy