FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48047/99
by Toma Dimitrov POPOV and Others
against Bulgaria
lodged on 15 April 1999
Application no. 48961/99
by Mariana Ilieva VAKARELOVA
against Bulgaria
lodged on 11 May 1999
Application no. 50786/99
by Nikolai Markov MARKOV
against Bulgaria
lodged on 22 February 1999
Application no. 50792/99
by Georgi Hristov BANKOV
against Bulgaria
lodged on 11 August 1999
The European Court of Human Rights (First Section), sitting on 6 November 2003 as a Chamber composed of
MrC.L. Rozakis, President,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above applications,
Having deliberated, decides as follows:
THE FACTS
All applicants are practising medical doctors. Some of them are members of the Bulgarian Doctors’ Union („Български лекарски съюз“ – “BDU”), established in July 1998 by the Professional Organisations of Doctors and Dentists Act („Закон за съсловните организации на лекарите и стоматолозите“ – “PODDA” or “Act”), while some have refused to become such members.
The applicants in the first application (no. 48047/99), Mr Toma Dimitrov Popov, Mr Marcel Haim Levy, Mr Ivan Yordanov Chalakov and Mr Velko Vladimirov Kalaydjiev, are Bulgarian nationals who were born in 1949, 1960, 1947 and 1964 respectively and live in Sofia. They were represented before the Court by Ms Z. Kalaydjieva and Ms N. Sedefova, lawyers practising in Sofia.
The applicant in the second application (no. 48961/99), Ms Mariana Ilieva Vakarelova, is a Bulgarian national who was born in 1959 and lives in Sofia. She was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia.
The applicant in the third application (no. 50786/99), Mr Nikolai Markov Markov, is a Bulgarian national who was born in 1952 and lives in Sofia. He was represented before the Court by Mr E. Nikolov, a lawyer practising in Sofia.
The applicant in the fourth application (no. 50792/99), Mr Georgi Hristov Bankov, is a Bulgarian national who was born in 1967 and lives in Veliko Tarnovo. He was represented before the Court by Ms V. Terzieva and Mr Y. Grozev, lawyers practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Historical Background
The BDU was originally established in 1901 as a professional association of medical doctors. During World War II membership in the union became compulsory. After the war the union was liquidated.
Similarly, the Union of Dentists in Bulgaria („Съюз на стоматолозите в България“ – “UDB”) was established in 1905 as a professional association of dentists and ceased to exist after World War II.
2. Events giving rise to the present application
In 1991 an organisation named BDU was founded by a group of medical doctors. It was registered as a not‑for‑profit association under the Persons and Family Act (the statute governing this type of organisations). The association was active on the whole territory of Bulgaria and had numerous members. The applicant in application no. 48961/99, Ms Vakarelova, was one of its members. Between 1991 and 1993 she chaired the regional section of the BDU in the Fourteenth Regional Hospital.
On 8 July 1998 the Bulgarian Parliament adopted PODDA. The Act was published in the State Gazette on 21 July 1998 and entered into force on 25 July 1998. It established two organisations: the BDU and the UDB, and provided, in paragraph 9 of its transitional and concluding provisions, that the two organisations were the respective successors of the BDU of 1901 and the UDB of 1905. By virtue of PODDA all practising medical doctors and dentists in the country were obliged to become members of, respectively, the newly established BDU and UDB. Those medical doctors and dentists who were not practising could, but were not obliged to, become members. PODDA introduced amendments to the Labour Code and Criminal Code whereby a medical doctor or a dentist working under an employment contract who had not become a member of the respective union was liable to be dismissed from work without notice and became criminally liable if he or she continued to practise.
In August 1998 sixty Members of Parliament requested the Constitutional Court to declare PODDA unconstitutional. They argued that compulsory membership in the BDU and the UDB went against Article 44 of the Constitution, enshrining, inter alia, negative freedom of association. They further submitted that the Act infringed Article 48 of the Constitution, guaranteeing the right to work, and also the principle that government functions should not be entrusted to public organisations without their express consent. They also maintained that the Act created undue privileges for the two unions to the detriment of other organisations and that it regulated matters which should have been left to the discretion of the unions’ governing bodies. Finally, the MPs asserted that section 34(1)(7) of PODDA was vague and could lead to unjustified gathering of irrelevant information about BDU and UDB members.
The Constitutional Court gave judgment on 11 November 1998. In respect of the allegation that PODDA infringed the medical doctors’ and dentists’ negative freedom of association it held as follows:
“...
Through PODDA the legislature regulated the structure, the organisation and the activities of the professional organisations of the medical doctors and the dentists, the conditions for practising medicine and odontology, and the responsibility for breaches of professional ethics. According to section 1(2) of the Act the professional organisation of medical doctors is the BDU, and that of dentists – the UDB. Section 3(1) provides that all medical doctors and dentists who practise their profession must be members of the BDU or the UDB, respectively.
The [Members of Parliament] who filed the request maintain that the above provisions contravene Article 12 § 1, Article 44 § 1 and Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, as well as international treaties ... which ... are part of the domestic law of the country... It is submitted that by requiring all practising medical doctors and dentists to be members of the BDU and the UDB the Act infringes the constitutionally protected freedom of association (Article 44 of the Constitution), because it brings about an element of compulsion which is irreconcilable with that freedom.
In addition, according to the request, the provisions of the challenged Act run counter to Article 48 §§ 1 and 3 of the Constitution of the Republic of Bulgaria, which proclaims on the one hand the citizens’ right to work and on the other – the obligation for the State to create the conditions for the realisation of that right.
The Constitutional Court finds that these submissions and the arguments presented in support of the request are ill‑founded.
I.1. PODDA does not contain a provision which excludes the right of other organisations, including professional and trade‑union type, founded by medical doctors and dentists, to exist alongside the BDU and the UDB. It does not proscribe the establishment of associations by medical doctors and dentists under the Persons and Family Act or another statute. Therefore, the Act does not run counter to Article 44 § 1 of the Constitution. It does not affect the constitutionally protected freedom of association, because that freedom pertains to private‑law associations, including trade unions under Article 49 of the Constitution. This constitutionally recognised freedom includes not only the freedom to take up the initiative and to form an association, respectively to become a member of an existing one, but also the so‑called “negative freedom”, i.e. the right to not become a member of an existing association.
2. PODDA does not lie on the plane of Article 44 § 1 of the Constitution. It is an Act which creates public‑law corporations with compulsory membership of medical doctors and dentists. These corporations are endowed with certain public‑law functions: to organise, control and discipline medical doctors and dentists. Accordingly, freedom of association, proclaimed by Article 44 § 1 of the Constitution, does not apply to them: they are created by statute and not through the free will of their members.
The Constitutional Court considers that, when deciding on the applicability of Articles 12 and 44 of the Constitution to public‑law corporations, it must have regard to the case‑law of the European Court of Human Rights and the interpretation of Article 11 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [(“ECHR”)]. This provision corresponds to Article 44 § 1 of our Constitution. This is so, because [ECHR] is part of domestic law and, according to its Article 46, the judgments of the European Court of Human Rights [and the interpretations of the ECHR contained therein] are binding on all State bodies in the country.
[In] a judgment of the European Court of Human Rights in Strasbourg of 27 May 1981, the issue [was] whether the compulsory membership of medical doctors in a public‑law corporation – “Ordre des médecins” –, created by act of the king of Belgium, ran counter to Article 11 § 1 of the ECHR (which corresponds to Article 44 § 1 of our Constitution). That corporation’s aim was to protect the citizens’ health by exercising control over the practice of medicine. This function led to [the giving] a number of administrative powers to the “Ordre [des médecins]”, including the power to discipline the medical doctors registered with it. According to the unanimous judgment of the European Court of Human Rights, the corporation of Belgian medical doctors “Ordre [des médecins]” could not be considered as an association within the meaning of Article 11 of the ECHR and [compulsory membership in it] did not run counter to this Article.
3. It should be pointed out that a similar opinion was expressed by the German Federal Constitutional Court and by the prevailing German doctrine in respect of the various public‑law corporations (the so‑called “chambers”) which exist in Germany, such as: the lawyers’, notaries’, medical doctors’, dentists’, pharmacists’, handicraftsmen’s, etc. chambers. According to this opinion, the compulsory membership of the persons who practise the respective professions in these chambers does not contravene Article 9 § 1 of the Constitution of the Federal Republic of Germany which proclaims freedom of association, because that Article concerns the formation of not‑for‑profit associations and of companies, which are of private‑law character and thus do not fall in the category of public‑law corporations. For this reasons these corporations [were] not [considered] unconstitutional...
4. In order to better understand the fundamental difference between a public‑law corporation with compulsory membership of all persons who practise the respective profession and a voluntary private‑law association, regard must be had to the European Court of Human Right’s judgment of 13 August 1981 in the case of Young, James and Webster [v. the United Kingdom, series A no. 44]. Its subject‑matter was an agreement for the compulsory membership of employees in a trade union. Since Article 11 § 1 of the ECHR (corresponding to Article 44 § 1 of our Constitution) applies to trade unions, the European Court in Strasbourg found in favour of the applicants, because it found that the freedom of association in trade unions could not be restricted through compulsory membership in a given trade union under the threat of dismissal from work of an employee who was not a member.
The above‑mentioned judgments of the European Court of Human Rights draw a sharp distinction between public‑law corporations, which have compulsory membership, and private‑law associations, including trade unions. Article 11 § 1 of the ECHR, corresponding to Article 44 § 1 of our Constitution, applies only to private‑law associations. The conclusion drawn by the Constitutional Court is that PODDA does not contravene Article 44 § 1 of the Constitution.
5. A decisive argument in support of this conclusion is Article 134 of the Constitution. Article 134 provides that the Bar is self‑governing and provides for the adoption of a special statute on its organisation and activities. It is common knowledge that in many countries, and in our country even before the Constitution of 1991, the practising of the legal profession was subject to membership in the respective lawyers’ organisation, i.e. registration of the person wishing to practise as a lawyer in this organisation. It is therefore beyond question that the Bar is a telling example of a public‑law corporation. These elements abound in our Bar Act [of 1991]. It is true that the Constitution does not expressly provide that the medical doctors’ and dentists’ unions should be corporations with public‑law elements. But this is by no means necessary. The formation of various corporations with public‑law elements is a matter of legislative discretion and is not dependent upon an express constitutional command. By its very nature the Constitution cannot and should not exhaustively enumerate the permissible forms of organisation. But when it regulates the Bar, it clearly indicates that organisations like it are compatible with the Constitution. Such an organisation is also the Notaries Chamber (see the Notaries Act [of 1996]). Such is also the Act challenged before the Court.
6. Through this Act the State performs its obligation under Article 52 § 3 of the Constitution to protect the citizens’ health and to provide them with high‑quality health care. By entrusting to medical doctors and dentists themselves the supervision of the two professions through corporations ran by them, the challenged Act manages to achieve in the most expedient manner the observance of the Professional Ethics Code and the Rules of Good Medical Practice, as well the regulation of the profession. Otherwise these functions would have to be entrusted to civil servants who would not be as competent and would cost considerable amounts of money to the State budget. This explains why the manner of organisation of medical doctors and dentists used by PODDA is also used in a number of European countries such as Austria, Belgium, Germany, Greece, Italy, Spain, Iceland, Poland, Slovenia, Croatia, the Czech Republic, [and] France.
7. PODDA is necessary also because of the inseverable link between it and the Health Security Act [of 1998 („Закон за здравното осигуряване“ – “HSA”)], because health insurance, guaranteed by Article 52 § 1 of the Constitution, may function only if the organisations of medical doctors and dentists created by PODDA exist. These organisations are parties to the National Framework Agreement concluded for the purpose of carrying out the activities under HSA. By section 55 of HSA, the National Framework Agreement regulates the conditions for and the manner of selecting medical service providers, the forms, conditions and manner in which medical services are dispensed, the amount, prices and method of payment for the medical services and drugs, as well as all other matters relating to health security. In other words, not a single health security activity could be carried out without this Agreement, which would deprive the citizens of the possibility to exercise their constitutionally guaranteed (Article 52 § 1 [of the Constitution]) right to health security. This convincingly demonstrates that not only does PODDA not contravene the Constitution, but that it is in fact mandated by the Constitution, so that the right guaranteed by Article 52 § 1 of the Constitution becomes a social reality.
...”
As regards the allegation that section 34(1)(7) of PODDA was vague and allowed the gathering and retention of personal information, the Constitutional Court held:
“... it is true that point 7 [of section 34(1)] has a blanket wording. However, it is sufficient to connect this provision with section 32 of [PODDA] in order to see that the term “other circumstances” means a number of facts set forth in section 32(3), without being expressly referred to in section 34(1) points 1 to 6, but which should nevertheless be entered in the register (e.g. length of service, indication that a doctor is a foreign national, [and] criminal record). If sections 32 and 34 are construed in connection with one another, the conclusion could and should be that “other circumstances” means exactly the facts mentioned in section 32. Thus, the blanket wording of point 7 of section 34(1) becomes clear and the alleged infringement of the rights set forth by Article 32 of the Constitution is excluded.”
Five judges dissented from the Constitutional Court’s judgment, each writing an individual dissenting opinion.
The dissenting judges were of the opinion, inter alia, that the BDU and the UDB could not be considered as falling outside the scope of Article 44 of the Constitution. The argument that they had been created by law was not persuasive because PODDA had merely branded two not‑for‑profit associations “professional organisations” and had endowed them with certain public‑law functions without declaring their liquidation or transformation or annulling the court’s decisions for their registration; it was doubtful whether this could be done by an Act of Parliament. The unions were essentially private‑law associations, much like the one at issue in the case of Sigurður A. Sigurjónsson v. Iceland (judgment of 30 June 1993, Series A no. 264). Also, the notion of public‑law functions was not unambiguous and could not serve as a basis for excluding the unions in question from the ambit of Article 44 of the Constitution. Indeed, by section 5(1) of PODDA, the two unions represented their members and protected their professional rights and interests, which were functions of a typical association or trade union.
B. Relevant domestic law
1. The Constitution:
Article 12
“1. Citizens’ associations shall serve for fulfilling and protecting citizens’ interests.
2. Citizens’ associations, including trade unions, may not pursue political goals or carry out political activities that are characteristic solely of political parties.”
Article 32 § 1
“The private life of the citizens shall be inviolable. Everyone shall have the right to be protected against illegal interference in his private or family life and against encroachments on his honour, dignity and reputation.”
Article 44
“1. Citizens may associate freely.
2. Organisations whose activity is directed against the sovereignty, the territorial integrity of the country [or] the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity, towards the infringement of the citizens’ rights and freedoms, as well as organisations which seek to achieve their goals through violence, shall be prohibited.”
2. Structure, organisation and activities of the BDU and the UDB
The structure, the organisation and the activities of the professional organisations of the doctors and dentists – the BDU and the UDB –, are regulated by PODDA (section 1(1)).
By section 3 of the Act, all practising medical doctors and dentists must be members of the respective union, whereas the membership of non‑practising doctors and dentists is optional.
PODDA provides that the functions of the BDU and the UDB are as follows: a) to represent their members and protect their professional rights and interests; b) to represent their members as parties to the National Framework Agreement with the National Health Security Fund; c) to draft a Professional Ethics Code for medical doctors, respectively dentists, and to exercise control for compliance with that Code; d) to adopt, together with the National Health Insurance Fund, Rules for Good Medical Practice, to submit them for approval by the Minister of Health and to exercise control for compliance with them; e) to impose the sanctions which PODDA provides for medical malpractice; f) to draw up and keep a national and regional registers of their members; g) to participate in the organisation and conducting of professional qualification courses for doctors and dentists; h) to appoint representatives to the High Medical Council at the Ministry of Health; i) to express opinions on draft bills and regulations in the area of public health; j) to cooperate with other organisations and institutions in the country and abroad; k) to provide assistance to their members and their families in case they need it; l) to carry out any other activity which their statutes provide for (section 5).
PODDA provides that the BDU and the UDB are legal persons and sets forth their structure and bodies. By section 18 of the Act, the BDU and the UDB have regional sections in all municipalities of the country. All practising medical doctors and dentists within a given municipality must be members of the regional section of the BDU or the UDB, respectively. The central bodies of the BDU and the UDB are their conventions (consisting of the elected representatives of their regional sections – section 8(1)), their managing boards (consisting of a chairperson, deputy‑chairpersons, secretary‑general and members – section 11), their control commissions (consisting of a chairperson and members – section 15(1)), and their professional ethics commissions (consisting of a chairperson and members – section 16(1)). The regional bodies of the unions are the general meetings of all practising doctors, respectively dentists, in the region (consisting of the delegates – at a one to ten rate – of all doctors or dentists within the given region – section 20(1)), the managing boards of the regional sections (consisting of a chairperson, deputy‑chairpersons, secretary‑general and members – section 23(1)), the control commissions of the regional sections (consisting of a chairperson and members – section 26(1)), and the professional ethics commissions of the regional sections (consisting of a chairperson and members – section 28(1)). The Act describes in detail the powers of each of the bodies.
3. The national system of health security
Under HSA, health coverage for all Bulgarian citizens and foreigners permanently residing on the territory of Bulgaria is provided by the National Health Security Fund („Национална здравноосигурителна каса“)(section 33 of HSA). The Fund, which receives monthly payments in respect of all persons with health coverage (section 40 of HSA), enters into a National Framework Agreement with the BDU and the UDB, as established by PODDA (section 54 of HSA). The National Framework Agreement sets forth, inter alia, the types of medical services to which all persons with health coverage are entitled, the manner of their dispensing, and the prices that the medical service providers (hospitals and medical doctors and dentists) can charge the Fund and the patients for these services (a patient pays a minimal amount every time he or she uses medical services and the remainder is paid directly by the Fund)(section 55(2) of HSA). The Agreement between the Fund and the BDU and the UDB is renegotiated every year (section 55(1) of HSA). Thus, the BDU and the UDB represent all medical doctors and dentists for the purpose of negotiating the terms of the Agreement and therefore the prices hospitals and doctors and dentists can charge the Fund for providing medical services to persons with health coverage and the manner of providing such services. The Agreement must be countersigned by the Minister of Health and is subject to control by the Supreme Administrative Court in the same manner as is delegated legislation (решение № 8145 от 18 август 2003 г. по адм. д. № 3896/ 2003 г., V чл. с‑в на ВАС, обн. ДВ, бр. 76 от 2003 г.).
All hospitals, other medical institutions and individually practising medical doctors and dentists enter into individual contracts with the local branches of the Fund pursuant to the National Framework Agreement (section 59(1) of HSA). These contracts cannot deviate from the terms of the National Framework Agreement (section 59(2) and (8) of HSA).
4. The Public Health Act of 1973 and the Medical Institutions Act of 1999
Section 25a(4)(4) of the Public Health Act of 1973 („Закон за народното здраве“), as in force until 1999, and section 40(6) of the Medical Institutions Act of 1999 („Закон за лечебните заведения“), which superseded it, provide that in order to register private practice a medical doctor or a dentist has to produce a certificate to the effect that he or she has been registered with the BDU or the UDB, respectively.
5. The Criminal Code
Article 324 § 2 of the Criminal Code, as amended by PODDA, provides that a medical doctor or a dentist who practises his or her profession in violation of the law is punishable with up to three years’ imprisonment or a fine from one to three hundred Bulgarian levs.
6. The Labour Code
By Article 330 § 2 (2) of the Labour Code, as amended by PODDA, a medical doctor or a dentist may be dismissed from work without notice if he or she had been struck off the registers kept respectively by the BDU or the UDB.
7. Circumstances which are subject to entering in the registers kept by the BDU and the UDB
Section 34(1) of PODDA enumerates the kinds of information which should be entered in the registers of medical doctors and dentists kept by the regional sections of the BDU and the UDB. While points 1 to 6 of section 34(1) set forth specific types of information (e.g. name, address, education, speciality), point 7 of that section provides that in the register shall be entered “other circumstances”.
Section 32(3) of PODDA provides that the application for membership in the BDU, respectively the UDB, should be accompanied by a diploma, a document certifying that in case of a career interruption of more than five years the medical doctor or dentist has successfully passed a validation examination, a scientific degree certificate (if the doctor or dentist has one), a document certifying the place of work and the length of service, and, for foreign nationals – a residence permit and a document certifying that have passed the requisite examinations, as well as a criminal record.
In 2002 Parliament adopted the Protection of Personal Data Act („Закон за защита на личните данни“), the purpose of which was to guarantee the integrity of the person and the private life by protecting the individuals from illegal processing of personal data relating to them and to regulate the right of access to such data (section 1(2) of the Protection of Personal Data Act).
COMPLAINTS
1. All applicants complained under Article 11 of the Convention that their negative freedom of association had been infringed in that they were required to become members of the BDU in order to be able to continue to practice medicine. They considered that the BDU, respectively the UDB, were trade‑union‑type organisations, the membership in which should be voluntary.
2. The applicant in application no. 48961/99, Ms Vakarelova, complained under Article 11 of the Convention that her right to freedom of association as a member of the BDU before July 1998 had been infringed as a result of the alleged transformation of the Union, which had been a purely private‑law association before the adoption of PODDA, into a public entity.
3. The applicants in application no. 48047/99, Mr Popov, Mr Levy, Mr Chalakov and Mr Kalaydjiev, and the applicant in application no. 50786/99, Mr Markov, complained under Article 13 of the Convention that they could not challenge PODDA before the Constitutional Court with a view to declaring it contrary to certain provisions of the Constitution.
4. The applicant in application no. 50786/99, Mr Markov, complained under Article 6 of the Convention that the organisation, the competence and the functioning of the professional ethics commissions of the BDU were not regulated in sufficient detail by PODDA, and that these commissions were therefore not “established by law”. He further submitted that the hearings before these commissions were not public, in breach of Article 6.
5. He also complained under Article 8 of the Convention that section 34(1)(7) of PODDA could, because of its vagueness, lead to the compulsory gathering and retention of personal information.
6. Finally, Mr Markov raised a complaint under Article 14 of the Convention, arguing that, under PODDA, any medical doctor could arbitrarily be denied the possibility to practice his or her profession on account of his or her opinions or activities.
THE LAW
1. Having regard to the fact that the applicants in the four applications are all practising medical doctors and raise similar complaints, the Court finds it convenient to join the applications (Rule 42 (former 43) § 1 of the Rules of Court).
2. All applicants complained under Article 11 of the Convention that their negative freedom of association had been infringed in that they were required to become members of the BDU or stop practising their profession.
Article 11 provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The first question the Court has to determine is whether the BDU and the UDB are associations for the purposes of Article 11 of the Convention and whether their establishment prevents medical doctors and dentists from forming or joining professional associations (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, pp. 26‑27, §§ 62‑66).
The applicants submitted that the BDU and the UDB were private‑law associations falling within the scope of Article 11 of the Convention. They conceded that the two organisations were endowed with certain public‑law functions, such as enforcing the professional rules of conduct and of keeping the register of medical doctors and dentists. However, in the applicants’ view, the BDU and the UDB also performed other functions which were characteristic of trade unions: to protect their members’ professional rights and interests and, more importantly, to represent their members as parties to the National Framework Agreement with the National Health Security Fund. The applicants maintained that the National Framework Agreement resembled a collective bargaining agreement setting forth the terms and conditions under which hospitals, medical doctors and dentists who had concluded individual contracts with the local branches of the Fund would operate. In particular, the Agreement laid down the remuneration they would receive for the medical services they provide and the quantity, quality and manner of dispensing these services. It was true that medical doctors and dentists were not obliged to enter into individual contracts with the local branches of the Fund. However, in view of the fact that all Bulgarian citizens and residing foreigners were subject to health coverage by the system of health security, almost all medical doctors and dentists would in practice be obliged to enter into such contracts and thus be bound in their daily work by the terms and conditions of the National Framework Agreement, negotiated and concluded between the National Health Security Fund and the BDU and the UDB.
As regards the possibility to form and participate in other trade unions, the applicants argued that, while in theory there was no impediment for them to do so under Bulgarian law, in practice such a move would be futile. In particular, it was only the BDU and the UDB that were authorised to negotiate the National Framework Agreement with the National Health Security Fund. If a trade union was to operate effectively, it would have to be able to participate in these negotiations; otherwise its existence would be purely formal.
The Court starts by noting that the Convention organs have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of Article 11 of the Convention (see Le Compte, Van Leuven and De Meyere, cited above, pp. 26‑27, §§ 64‑65, as regards the Belgian Ordre des médecins; Revert and Legallais v. France, nos. 14331/88 and 14332/88, Commission decision of 8 September 1989, Decisions and Reports (DR) 62, p. 309, as regards the French Ordre des architectes; A. and Others v. Spain, no. 13750/88, Commission decision of 2 July 1990, DR 66, p. 188, as regards the Spanish bar association; Vialas Simón v. Spain, no. 16685/90, Commission decision of 8 July 1992, unreported, as regards the Spanish Ordres des médecins; O.V.R. v. Russia (dec.), no. 44319/98, ECHR 2001‑V, as regards the Russian notary chambers). As a rule, the object of these bodies, established by legislation, is to regulate and promote the professions whilst exercising important public‑law functions for the protection of the public. They cannot, therefore, be likened to private‑law associations or trade unions, but remain integrated within the structures of the State.
The Court must examine in concreto whether in the present case the BDU and the UDB – as characterised by their functions, structure and membership – are associations falling within the purview of Article 11 of the Convention or rather public‑law institutions, the compulsory membership in which does not constitute an interference with the applicants’ freedom of association.
The Court observes that the Constitutional Court held that under Bulgarian law the BDU and the UDB are considered as public‑law corporations. However, the question is not so much how they are classified by Bulgarian law, but whether they are associations for the purposes of Article 11 of the Convention. The term “association” possesses an autonomous meaning; the classification in national law has only relative value and constitutes no more than a starting‑point (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III).
The Court notes that, much like the Belgian Ordre des médecins, the BDU and the UDB pursue aims which are in the general interest, namely the protection of health, by exercising under the relevant legislation a form of public control over the practice of medicine. In particular, they keep the registers of medical doctors and dentists and are endowed with rule‑making and disciplinary powers: they draw up the Professional Ethics Codes for medical doctors and dentists, adopt Rules for Good Medical Practice together with the National Health Insurance Fund, and impose the administrative sanctions which PODDA provides for medical malpractice. It may thus be concluded that the BDU and the UDB employ processes of a public authority, which militates in favour of a finding that they fall outside the scope of Article 11 of the Convention.
The applicants in the present case relied on one additional and, in their view, crucial argument to support their contention that the BDU and the UDB are private‑law associations. They submitted that the BDU and the UDB, unlike similar organisations in other countries, came within the ambit of Article 11 of the Convention by reason of the fact that they alone were empowered to negotiate and conclude the National Framework Agreement with the National Health Security Fund. In their view, the Agreement was akin to a collective bargaining agreement setting forth the conditions under which doctors and dentists work and the remuneration they receive. This, the applicants submitted, was a trade union function; therefore the BDU and the UDB were trade‑union type organisations coming within the scope of Article 11 of the Convention.
However, the Court notes that the National Framework Agreement does not regulate such matters as wages and conditions of work. It rather concerns the amounts that the medical service providers – doctors, dentists and hospitals – can charge the National Health Security Fund for the services they provide to the persons with health coverage at the Fund and the quality, quantity and manner of dispensing of these services. Thus, it is more akin to a price control mechanism, not to a collective bargaining agreement. Indeed, if one takes the example of a hospital which concludes an individual contract with the National Health Security Fund on the basis of the National Framework Agreement, it can hardly be argued that the relations between them resemble those between an employee and an employer. It is true that the contracts individual doctors and dentists enter into with the National Health Security Fund influence to a large extent the manner in which they work and the prices they can charge patients with health coverage, but again, they cannot be likened to employment agreements, as they are merely setting forth the terms under which patients should be serviced and the amounts which the doctors and dentists may charge the Fund for providing medical services.
Moreover, it should be noted that the prices and conditions set forth in the National Framework Agreement concern only services provided to patients with medical coverage provided by the National Health Security Fund. Medical services provided by doctors or dentists to patients with other types of health insurance or without health insurance are not regulated by the Agreement.
Finally, the Court notes that in a recent decision the Supreme Administrative Court considered that the Agreement was akin to a statutory instrument and was subject to judicial review.
In these circumstances, the Court finds that the negotiating and the concluding of the National Framework Agreement cannot be equated to a trade‑union function performed by the BDU and the UDB.
As regards the structure of the BDU and the UDB, the Court notes that it is described in ample detail by PODDA. The Act lays down the structure and the functions of the central and regional bodies of both unions and the members of those bodies. The statutes of the unions are left to regulate only minor matters such as the exact number of members of some of the bodies and the technical details of the procedure for constituting the bodies.
As regards the membership of the BDU and the UDB, the Court notes that compulsory membership in them stems from an individual’s decision to practise a profession which by its nature requires particular legal regulation and not from other factors, such as owning land (see, a contrario, Chassagnou and Others, cited above, opinion of the Commission, § 89).
Having regard to all of the above, the Court concludes that the BDU and the UDB cannot be considered as associations within the meaning of Article 11 of the Convention.
However, there is a further requirement: if there is not to be an interference with the applicants’ freedom of association, the setting up of the BDU and the UDB must not prevent medical doctors and dentists from forming together or joining professional associations. In this connection, the Court notes that the Bulgarian Constitutional Court expressly observed that there are no legal impediments for them to form or join such associations or unions. Insofar as the applicants submit that the formation of other trade unions will be futile, given that only the BDU and the UDB may negotiate the National Framework Agreement with the National Health Security Fund, the Court notes that the Convention does not per se guarantee to trade unions the right to collective bargaining (see Wilson & the National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 44, ECHR 2002‑V). Furthermore, the fact that trade unions formed by medical doctors and dentists will not be able to directly negotiate the terms and conditions of the National Framework Agreement does not automatically mean that there is no scope for such unions to act and voice the demands of their members. The BDU and UDB being legally regulated corporations whose decisions and acts are the product of voting in collective bodies, it is obvious that trade unions may act by mobilising their members so as to achieve a particular decision or position to be taken by the BDU or the UDB.
In sum, the Court concludes that the applicants’ complaint falls outside the scope of Article 11 of the Convention and that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
3. The applicant in application no. 48961/99, Ms Vakarelova, complained under Article 11 of the Convention that her right to freedom of association as a member of the BDU before July 1998 had been infringed as a result of the alleged transformation of the Union. She submitted that the “previous BDU”, which was a private‑law association, was wholly transformed by PODDA without the consent of its governing bodies or members.
The Court finds that the applicant’s allegation that PODDA had interfered with her freedom of association as a member of the not‑for‑profit association BDU as it existed before July 1998 is not supported by the facts of the case. It is doubtful whether PODDA in fact operated to overturn the registration of the association BDU (which was registered in 1991) or merely created a new entity having the same name as the exiting one and being the successor of the BDU of 1901. The applicant has not substantiated how, in her view, the court registration of the BDU of 1991 was affected by the Act. Also, it does not appear that the applicant or any other member of the BDU, as it existed before July 1998, have tried to continue their organisational activities within the association or that the authorities have hindered such an attempt in any way and in particular on the ground that the Union had ceased to exist and had been replaced by the new, statute‑created BDU.
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicants in application no. 48047/99, Mr Popov, Mr Levy, Mr Chalakov and Mr Kalaydjiev, and the applicant in application no. 50786/99, Mr Markov, complained under Article 13 of the Convention that they could not challenge PODDA before the Constitutional Court.
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court will proceed on the assumption that the applicants’ complaint under Article 11 of the Convention is arguable and that Article 13 is thus applicable. It reiterates, however, that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal rules (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 47, § 85 and Gustafsson v. Sweden, judgment of 25 April 1996, Reports of Judgments and Decisions 1996‑II, p. 658, § 70).
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicant in application no. 50786/99, Mr Markov, complained under Article 6 of the Convention that the organisation, the competence and the functioning of the professional ethics commissions of the BDU were not regulated in sufficient detail by PODDA, and that these commissions were therefore not “established by law”. He also complained about the fact that PODDA did not specify that the commissions would not deal with anonymous complaints. Finally, in the applicant’s view, it the fact that the commissions’ hearings were held in chambers fell foul of the requirements of Article 6.
Article 6 of the Convention provides, as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by a ... tribunal established by law.”
The Court recalls that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 17‑18, § 33).
The Court notes that the applicant has not been subject to any proceedings before the professional ethics commissions of the BDU. His complaints are therefore not related to an alleged breach of his fair trial rights under Article 6 of the Convention; they are rather directed against the provisions of the law as such.
It follows that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention and that this complaint must be declared inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
6. Mr Markov also complained under Article 8 of the Convention that section 34(1)(7) of PODDA could, because of its vagueness, lead to the compulsory gathering and retention of personal information.
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The applicant submitted that the blanket wording of section 34(1)(7) of PODDA created a real risk of extensive interpretation and arbitrary implementation, thus potentially leading to collection of information relating to his private life.
The Court reiterates that it is not its task to rule on legislation in abstracto (see Fédération Chrétienne des Témoins de Jéhovah v. France (dec.), no. 53430/99, ECHR 2001‑XI). In the instant case, the applicant does not specify whether any information relating to his private life has been gathered upon his becoming a member of the BDU or after that. There thus arises the question whether he may claim to be a victim within the meaning of Article 34 of the Convention. However, having regard to its findings below, the Court considers that it is not necessary to determine this point and proceeds on the assumption that the applicant may claim to be a victim of a violation of his rights under Article 8 of the Convention.
The Court notes that an allegation identical to that now before it was raised in the proceedings before the Constitutional Court. That court found that, read alone, section 34(1)(7) was indeed a blanket provision, but that it should be construed in the light of section 32(3) of PODDA. Read together, these two provisions made clear what “other circumstances” meant and that it was not just any kind of information, including one relating to the private life of a member of the BDU or the UDB, but information strictly relevant to the practising of the profession of a doctor or a dentist. It appears that further guarantees against abuse of personal data are provided by the Protection of Personal Data Act of 2002.
In these circumstances, absent information that in practice arbitrary acts occurred, the Court finds that the complaint is unsubstantiated and therefore manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
7. Finally, Mr Markov complained that under PODDA any medical doctor could arbitrarily be denied the possibility to practice his or her profession on account of his or her opinions or activities. He relied on Article 14 of the Convention.
The Court considers that this complaint falls to be examined under Article 10 of the Convention (see Vogt v. Germany, judgment of 26 September 1995, Series A no. 323). However, it notes that the applicant has not been struck off the register kept by the BDU and cannot pretend to be directly affected by any measures of implementation of the provisions allegedly violative of the Convention.
In these circumstances, it follows that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention and that this complaint must be declared inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy