EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 17112/90
M.S.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 12 October 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-5) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 6-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-37). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 16-23) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 24-37) . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 38-51). . . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6
C. Applicability of Article 6 para. 1
of the Convention
(paras. 40-48) . . . . . . . . . . . . . . . . . . . . . 6
D. Alleged violation of Article 6 para. 1
(paras. 49-51) . . . . . . . . . . . . . . . . . . . . . 9
Conclusion
(para. 52) . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . 9
APPENDIX II : DECISION ON THE ADMISSIBILITY OF THE APPLICATION. .10
I. INTRODUCTION
1 The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2 The applicant is a Dutch citizen, born in 1941 and residing in
Muiderberg, the Netherlands. Before the Commission the applicant is
represented by Mrs. M.C.M. van Laar, a lawyer practising in Utrecht,
the Netherlands.
3 The application is directed against the Netherlands, whose
Government are represented by their Agent, Mr. Karel de Vey Mestdagh
of the Netherlands Ministry of Foreign Affairs.
4 The application concerns the length of proceedings concerning the
applicant's claim for disablement benefits.
5 Before the Commission the applicant invokes Article 6 para. 1 of
the Convention.
B. The proceedings
6 The application was introduced on 9 July 1990 and registered on
3 September 1990.
7 On 9 November 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
8 The Government's observations were submitted on 21 March 1991 and
the applicant's observations in reply were submitted on 5 June 1991.
9 On 30 November 1992 the Commission declared the application
admissible.
10 After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. In the light of the parties'
reaction, the Commission now finds that there is no basis on which such
a settlement can be effected.
C. The present Report
11 The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
J. C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.F. REFFI
M. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
12 The text of the Report was adopted on 12 October 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 1 of the Convention.
13 The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts
found disclose a breach by the State concerned
of its obligations under the Convention.
14 A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
15 The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
16 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.
17 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.
18 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.
19 On 7 January 1983 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.
20 Both the Industrial Insurance Board and the applicant filed an
appeal against this decision with the Central Appeals Tribunal
(Centrale Raad van Beroep).
21 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.
22 Having held a hearing on 15 December 1989, the Central Appeals
Tribunal decided on 12 January 1990 to quash the decision of
4 October 1983 in favour of the applicant.
23 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.
B. Relevant domestic law
a. General Features
24 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.
25 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.
26 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.
27 The Industrial Insurance Boards are semi-public institutions and
operate like private insurance companies.
28 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.
29 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.
30 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 or public employer or
who can be assimilated to this category.
b. The General Labour Disablement Benefits Act
31 The General Labour 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.
32 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 paid by all residents in the Netherlands who are eligible
to pay income tax. The premiums are calculated on the basis of a
percentage of the taxable income and are collected by the income tax
authorities.
33 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. Not only employed persons are entitled to receive
benefits under the AAW. Also self-employed persons, persons having
become incapacitated for work at a young age, students and persons
having taken on the care for close relatives can claim benefits under
the AAW. AAW benefits are paid as long as the person concerned is
incapacitated for work but not beyond the age of 65. After having
reached the age of 65 the person concerned receives a statutory old-age
pension.
c. The Labour Disablement Insurance Act
34 Under the Labour 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.
35 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 by, and are collected by, the Industrial
Insurance Board. The premiums are paid in part by the employees
themselves and in part by their employers.
36 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. WAO benefits
are paid as long as the person concerned is incapacitated for work but
not beyond the age of 65.
37 In regard to persons bound by a contract of employment, the AAW
benefits and the supplementary WAO benefits are awarded in general 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
38 The Commission has declared admissible the applicant's complaint
that her civil rights and obligations have not been determined within
a reasonable time in view of the length of the proceedings before the
Central Appeals Tribunal concerning entitlement to disability benefits.
B. Point at issue
39 Accordingly, the issue to be determined is whether there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that
the length of those proceedings exceeded the "reasonable time" referred
to in this provision.
C. The applicability of Article 6 para. 1 (Art. 6-1)
of the Convention
40 Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations
(...) everyone is entitled to a (...) hearing within a
reasonable time by a (...) tribunal (...)."
41 The Commission notes that the proceedings at issue concerned the
applicant's entitlement to benefits under the AAW and supplementary
benefits under the WAO for being incapacitated for work.
42 The applicant submits that Article 6 para. 1 (Art. 6-1) of the
Convention is applicable to the proceedings at issue, since, having
regard to the fact that AAW/WAO benefits provide the necessary means
of subsistence when income is cut off as a result of incapacity for
work, an entitlement to benefits for incapacity for work is of a
personal, economic and individual nature. In the case of an employed
person who has become incapacitated for work - like the applicant - the
difference between the AAW and WAO are merely formal. The combined
benefits are awarded in one and the same decision and there is only one
appeal procedure.
43 The Government submits that, if the entitlement to benefits under
the AAW and WAO respectively is examined separately, given the criteria
set out in the Feldbrugge and Deumeland judgments of 29 May 1986 (Eur.
Court H.R., Series A nos. 99 and 100), the entitlement to AAW benefits
cannot be regarded as a "civil right" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. The AAW carries a number of
public law features; there is not necessarily a connection with a
contract of employment and entitlement to AAW benefits, a similarity
with private insurance agreements is in fact absent on essential points
- such as in the determination and collection of premiums by the tax
authorities, the absence of a relation between the payer of the
premiums and the recipient of the benefits and the irrelevance of the
question whether or not premiums have been paid by a recipient of
benefits -, and payment of AAW premiums cannot be regarded as a payment
under a contributory pension scheme. Article 6 para. 1 (Art. 6-1)
therefore does not apply to proceedings concerning benefits under the
AAW.
44 As to proceedings concerning entitlement to WAO benefits the
Government submit that the applicability of Article 6 para. 1
(Art. 6-1) of the Convention depends on the weight attached to the
criteria set out in the Feldbrugge and Deumeland judgments (loc. cit.).
The case-law on this point should be clarified.
45 The Commission recalls that the Court in the case of Schuler-
Zgraggen v. Switzerland (Eur. Court H.R., judgment of 24 June 1993, to
be published in Series A no. 263) stated in para. 46 of its judgment:
" The Court is here once again confronted with the issue
of the applicability of Article 6 § 1 (Art. 6-1) to social-
security disputes. The question arose earlier in the cases
of Feldbrugge v. the Netherlands and Deumeland v. Germany,
in which it gave judgment on 29 May 1986 (Series A nos. 99
and 100). At that time the Court noted that there was great
diversity in the legislation and practice of the member
States of the Council of Europe as regards the nature of
the entitlement to insurance benefits under social-security
schemes. Nevertheless, the development in the law that was
initiated by those judgments and the principle of equality
of treatment warrant taking the view that Article 6 § 1
(Art. 6-1) does apply in the field of social insurance,
including even welfare assistance (see the Salesi v. Italy
judgment of 26 February 1993, Series A no. 257-E, pp.
59-60, § 193).
As in the two cases decided in 1986, State
intervention is not sufficient to establish that Article 6
§ 1 (Art. 6-1) is inapplicable; other considerations argue
in favour of the applicability of Article 6 § 1 (Art. 6-1)
in the instant case. The most important of these lies in
the fact that despite the public-law features pointed out
by the Government, the applicant was not only affected in
her relations with the administrative authorities as such
but also suffered an interference with her means of
subsistence; she was claiming an individual, economic right
following from specific rules laid down in a federal
statute (...).
In sum, the Court sees no convincing reason for
distinguishing between Mrs Schuler-Zgraggen's right to an
invalidity pension and the rights to social-insurance
benefits asserted by Mrs Feldbrugge and Mr Deumeland.
Article 6 § 1 (Art. 6-1) therefore applies in the
present case."
46 Having regard to the Court's above findings, namely that
Article 6 para. 1 (Art. 6-1) of the Convention applies in the field of
social insurance, including welfare assistance - which is a unilateral
benefit granted by the State (Eur. Court H.R., Salesi judgment of
26 February 1993, Series A no. 257-E) -, the Commission considers that
no distinction can be made between entitlement to benefits under the
AAW and under the WAO in respect of the applicability of Article 6
para. 1 (Art. 6-1).
47 The Commission further considers that, like Mrs. Schuler-
Zgraggen, the applicant was not only affected in her relations with the
administrative authorities as such, acting in the exercise of
discretionary powers, but she also suffered an interference with her
means of subsistence. She did in fact claim an individual, economic
right on the basis of specific rules laid down in the AAW and WAO
respectively.
48 The Commission, therefore, finds that the proceedings at issue
involved a determination of a civil right within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention, which is thus
applicable to the present case.
D. The alleged violation of Article 6 para. 1 (Art. 6-1)
of the Convention
49 The Government admit that, if Article 6 para. 1 (Art. 6-1) of the
Convention applies to the proceedings at issue, the delay in the
proceedings before the Central Appeals Tribunal was unreasonably long
and that the State may be held accountable for the excessive time taken
by these proceedings.
50 Having found that Article 6 para. 1 (Art. 6-1) of the Convention
applies to the proceedings at issue, the Commission, with the
Government, finds that the delay between 25 March 1986, when the
Central Appeals Tribunal requested the opinion of a medical expert, and
24 October 1989, when the expert submitted his report, was unreasonably
long. In this connection the Commission observes that the expert was
working in the context of judicial proceedings supervised by the
Tribunal, which remained responsible for the conduct of the case (cf.
mutatis mutandis Eur Court H.R., Billi judgment of 26 February 1993,
Series A no. 257-G, para. 19). It further notes that during this period
the applicant requested the Central Appeals Tribunal on several
occasions to expedite the proceedings.
51 The Commission therefore considers that the length of the
proceedings complained of was excessive and failed to satisfy the
"reasonable time" requirement contained in Article 6 para. 1
(Art. 6-1) of the Convention.
Conclusion
52 The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
9 July 1990 Introduction of application
3 September 1990 Registration of application
Examination of admissibility
9 November 1990 Commission's decision to invite
the Government to submit their
observations on the
admissibility and merits of the
application
21 March 1991 Government's observations
5 June 1991 Applicant's observations in
reply
30 November 1992 Commission's decision to declare
the application admissible and
to invite the parties, if they
so wish, to submit further
observations on the merits
Examination of the merits
12 October 1993 Commission's deliberations on
the merits final vote and
adoption of the Report
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