AS TO THE ADMISSIBILITY OF
Application No. 17112/90
by M.S.
against the Netherlands
The European Commission of Human Rights sitting in private on 30
November 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 9 July 1990 by
M.S. against the Netherlands and registered on 3 September 1990 under
file No. 17112/90;
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 a Dutch citizen, born in 1941 and residing in
Muiderberg, the Netherlands. Before the Commission, she is represented
by Mrs. M. van Laar, a lawyer practising in Utrecht.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Until 13 April 1981, when the applicant fell ill, she worked in
a canteen for thirty hours a week. In June 1981 she underwent surgery
on her back, which was unsuccessful.
On the basis of the Sickness Benefits Act (Ziektewet) she
received a benefit for one year. As from 12 April 1982 this benefit
was replaced by combined disability benefits under the General Labour
Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet -
hereinafter referred to as "AAW") and the Labour Disablement Insurance
Act (Wet op de Arbeidsongeschiktheidsverzekering - hereinafter referred
to as "WAO"), on the basis of complete incapacity to work.
By letter of 20 December 1982, the Industrial Insurance Board
for the building industry (Bedrijfsvereniging voor de Bouwnijverheid)
informed the applicant of its decision to withdraw the benefits it had
awarded to the applicant under the AAW and WAO as from 1 January 1983,
as she was considered able to perform light work.
The applicant filed an appeal against this decision with the
Appeals Tribunal (Raad van Beroep). On 4 October 1983 the Appeals
Tribunal quashed the decision by the Industrial Insurance Board in
respect of the withdrawal of the applicant's benefits under the WAO and
declared the remainder of the appeal ill-founded.
Both the Industrial Insurance Board and the applicant filed an
appeal against this decision with the Central Appeals Tribunal
(Centrale Raad van Beroep).
On 25 March 1986 the Central Appeals Tribunal requested Mr. v.
G., a medical expert, to examine the applicant and to submit his
recommendation. Mr. v. G. examined the applicant on 15 September 1987.
He submitted his report on 24 October 1989 to the Central Appeals
Tribunal. In the meantime the applicant's representative had urged the
Central Appeals Tribunal several times, both by telephone and in
writing, to inform her of the state of affairs in the applicant's case
and to press Mr. v. G. to submit his report in view of the continuation
of the proceedings.
Following a hearing before the Central Appeals Tribunal on
15 December 1989, it decided on 12 January 1990 to quash the decision
of 4 October 1983 in favour of the applicant.
Subsequently the applicant was retroactively granted disability
benefits under the AAW and WAO as from 1 January 1983 and received a
payment of about 70,000 Dutch guilders in July 1990.
RELEVANT DOMESTIC LAW
a. General Features
Concerning health and disability insurance, social security in
the Netherlands is managed jointly by the State, which in general
confines itself to establishing the legal framework of the scheme and
to seeing to co-ordination, by employers and by employees.
The branches of the economy are divided into sectors, each with
an Industrial Insurance Board (bedrijfsvereniging) responsible for the
implementation of the social security legislation.
These Boards are legal persons within the meaning of Article I
of Book II of the Civil Code; the method of their establishment, their
structure and their powers are laid down in the Social Security
Organisation Act 1952 (Organisatiewet Sociale Verzekeringen). They are
subject to approval by the Minister for Social Affairs and Employment
on the basis of their representative character. The Minister may also
decide of his own motion to set up such a Board; in that event, he
determines and amends their articles of association as needed and he
appoints, suspends and dismisses the members of their governing boards.
In addition, he stipulates the assurances to be given for the discharge
of the duties of the Industrial Insurance Boards and he receives from
each of them an annual report and an annual statement of their
accounts.
The Industrial Insurance Boards are semi-public institutions and
operate like private insurance companies.
They may entrust to a common administrative office
(Gemeenschappelijk Administratiekantoor), recognised by the Minister,
the administrative work resulting from the application of social
security law.
A Social Insurance Council (Sociale Verzekeringsraad), set up by
the Government and comprising representatives of the State (/),
employers (/) and employees (/), supervises the proper implementation
of the legislation in question.
The statutory social insurances can be divided into two main
groups, on the one hand the general insurances (volksverzekeringen),
covering all persons residing in the Netherlands, and on the other hand
the employees' insurances (werknemersverzekeringen), covering persons
bound by an employment contract with a private of public employer or
who can be assimilated to this category.
b. The General Labour Disablement Benefits Act
The General Disablement Benefits Act (AAW), which came into force
on 1 October 1976, insures every person, residing in the Netherlands,
between the ages of 15 and 65 against negative financial consequences
of incapacity for work which has lasted for more than one year.
The AAW premiums are fixed by the Board of the General Labour
Disablement Insurance Fund (Algemeen Arbeidsongeschiktheidsfonds)
subject to the approval of the Minister for Social Affairs and
Employment following consultation with the Social Insurance Council.
Until 1 January 1990 the AAW premiums were paid by the employers on the
basis of a percentage of paid wages. As from 1 January 1990 the
premiums are collected through income tax.
Benefits awarded by the Industrial Insurance Board under the AAW
are charged to the General Disablement Insurance Fund and are
calculated according to a fixed base figure, which is linked to the
statutory minimum wage, and to the degree of disability. It therefore
only provides a basic benefit, which is not linked to the income earned
before disablement.
c. The Labour Disablement Insurance Act
Under the Disablement Insurance Act (WAO), which came into force
on 1 July 1967, insurance against incapacity to work lasting more than
one year is compulsory for persons under 65, who are bound by a
contract of employment with a public or private employer or who can be
assimilated to this category.
The WAO premiums are fixed by the Board of the Disablement
Insurance Fund (Arbeidsongeschiktheidsfonds) subject to the approval
of the Minister of Social Affairs and Employment following consultation
with the Social Insurance Council. The premiums are calculated on the
basis of an employee's salary and are paid to the Industrial Insurance
Board, in part by the employees themselves and in part by their
employers.
Benefits awarded by the Industrial Insurance Board under the WAO
are charged to the Disablement Insurance Fund and are of a
supplementary nature to benefits awarded under the AAW. The amount of
this supplementary benefit is calculated on the basis of the income
earned before disablement and the degree of disability.
In regard to persons bound by a contract of employment, the
benefits under the AAW and WAO are usually awarded in one combined
decision by the competent Industrial Insurance Board, against whose
decision an administrative appeal can be lodged with the Appeals
Tribunal and subsequently the Central Appeals Tribunal.
COMPLAINTS
The applicant complains that the Central Appeals Tribunal failed
to determine her case concerning disability benefits within a
reasonable time as required by Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 July 1990 and registered on
3 September 1990.
On 9 November 1990 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application.
The Government's observations were submitted on 21 March 1991 and
the applicant's observations in reply were submitted on 5 June 1991.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Central Appeals Tribunal did not decide her case
concerning disability benefits within a reasonable time.
Article 6 para. 1 (Art. 6-1) of the Convention, in so far as
relevant, provides:
"In the determination of his civil rights and
obligations (...) everyone is entitled to a
(...) hearing within a reasonable time by a
(...) tribunal (...)".
The Government contend, referring to the criteria set out in the
Feldbrugge and Deumeland judgments of 29 May 1986 (Eur. Court H.R.,
Series A nos. 99 and 100), that entitlement to AAW benefits cannot be
deemed a civil right within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention, so that this provision is not applicable to the
judicial proceedings concerning the determination of a person's
entitlement to benefits under this Act. In respect of the WAO the
Government are of the opinion that the conclusion on the applicability
of Article 6 para. 1 (Art. 6-1) of the Convention to proceedings under
this Act depends on the weight attached to the criteria set out in the
Feldbrugge and Deumeland judgments. The Netherlands Government
consider that a clarification of the case-law on this point is highly
desirable.
The Government finally admit that, if Article 6 para. 1
(Art. 6-1) is to be considered applicable to the present proceedings,
the delay in the proceedings at issue in the present case was
unreasonably long and that the State may be held accountable for the
excessive time taken by these proceedings.
The Commission notes that the applicant complains of the length
of the proceedings before the Central Appeals Tribunal concerning her
entitlement to AAW/WAO benefits.
The Commission considers that the issues to be decided are
whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable
to the proceedings at issue, and, if so, whether the "reasonable time"
requirement within the meaning of this provision has been complied
with.
After an examination of these issues in the light of the parties'
submissions, the Commission considers that they raise questions of fact
and law which are of such a complex nature that their determination
requires an examination of the merits. The application cannot,
therefore, be declared inadmissible as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
No other grounds for inadmissibility have been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy