EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19005/91
Johannes Schouten
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. 16-38). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 16-19) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 20-38) . . . . . . . . . . . . . . . . . . . . . 3
III. OPINION OF THE COMMISSION
(paras. 39-69). . . . . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6
B. Points at issue
(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 6
C. Applicability of Article 6 para. 1 of the Convention
(paras. 41-52) . . . . . . . . . . . . . . . . . . . . . 6
D. Alleged violations of Article 6 para. 1
(paras. 53-69) . . . . . . . . . . . . . . . . . . . . . 8
1. Length of the proceedings
(paras. 53-62) . . . . . . . . . . . . . . . . . . 8
Conclusion
(para. 63) . . . . . . . . . . . . . . . . . . . . 9
2. Fair hearing
(paras. 64-68) . . . . . . . . . . . . . . . . . .10
Conclusion
(para. 69) . . . . . . . . . . . . . . . . . . . .10
E. Recapitulation
(paras. 70-71) . . . . . . . . . . . . . . . . . . . . .10
PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, H.G. SCHERMERS
MRS. G.H. THUNE, J. LIDDY, MM. I. CABRAL BARRETO, B. CONFORTI
AND N. BRATZA . . . . . . . . . . . . . . . . . . . . . . . .11
DISSENTING OPINION OF MR. M.F. MARTINEZ. . . . . . . . . . .12
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .13
APPENDIX II : DECISION ON THE ADMISSIBILITY OF THE APPLICATION. .14
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 1927 and resident at
Zoetermeer, the Netherlands. He has submitted the application in his
capacity as Director of the company Praktijk Mevrouw Breevaart B.V.
Before the Commission the applicant is represented by Mr. P.J.A. Høvig,
a lawyer practising at Zwijndrecht, 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 proceedings relating to the above
company's obligation to pay social security contributions. These
proceedings began on 27 March 1987, when the company requested the
competent Industrial Insurance Board to issue a formal decision, and
ended on 10 July 1991 when the Central Appeals Tribunal determined the
company's appeal.
5 Before the Commission the applicant complains under
Article 6 para. 1 of the Convention of both the unfairness and the
length of the proceedings.
B. The proceedings
6 The application was introduced on 4 September 1991 and registered
on 29 October 1991.
7 On 2 April 1992 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 26 June 1992 and
the applicant's observations in reply were submitted on
17 September 1992.
9 On 9 December 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 The task of the company Praktijk mevrouw Breevaart B.V.
(hereinafter called "the company"), of which the applicant is the only
director, was to provide physiotherapeutic treatment. It also put its
equipment at the disposal of physiotherapists who could make use of it
against payment of part of their turnover. The conditions were laid
down in a standard contract between the company and the
physiotherapists and the latter were originally regarded by the
taxation and social security authorities as independent professionals.
17 The implementation of the social insurance schemes for employed
physiotherapists is entrusted to the Industrial Insurance Board for
Health, Mental and Social Well-Being (Bedrijfsvereniging voor de
Gezondheid, Geestelijke en Maatschappelijke Belangen, abbreviated
"B.V.G."). Until August 1984, the B.V.G. considered that, where there
was a contract of the kind the company had concluded with the
physiotherapists, there was no obligation to insure the
physiotherapists under the various social insurance schemes applicable
to employees. However, in August 1984 the B.V.G. changed its view and
considered that the physiotherapists should be compulsorily insured
retroactively as from 1 January 1984.
18 In accordance with its new practice, the B.V.G. invited the
company to pay social security contributions in respect of the Sickness
Benefits Act (Ziektewet, ZW), the Health Insurance Act (Ziekenfondswet,
ZFW), the Unemployment Insurance Act (Werkloosheidswet, WW) and the
Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheids-
verzekering, WAO) for the years 1984, 1985, 1986 and 1987. By letter
of 27 March 1987, the company objected to the payment of contributions
and asked for a formal decision (voor beroep vatbare beslissing)
against which it could lodge an appeal. The B.V.G. issued such a
decision on 9 December 1988.
19 On 21 December 1988 the company appealed to the Appeals Tribunal
(Raad van Beroep) in Rotterdam and requested an adjournment until
1 June 1989 in order to amplify the grounds of appeal. An adjournment
was granted until 15 September 1989. On 13 December 1989 the Appeals
Tribunal rejected the appeal. A further appeal lodged by the company
was rejected on 10 July 1991 by the Central Appeals Tribunal (Centrale
Raad van Beroep) in Utrecht.
B. Relevant domestic law
a. General features
20 As regards unemployment, 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 ensuring co-ordination, by employers and by employees.
21 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.
22 These Boards are legal persons within the meaning of Article 1
of Book 2 of the Civil Code (Burgerlijk Wetboek). 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 (Minister van Sociale Zaken en
Werkgelegenheid) on the basis of their representative character. They
are semi-public institutions and operate like private insurance
companies.
23 They may entrust the administrative work resulting from the
application of social security schemes to a common administrative
office (Gemeenschappelijk Administratiekantoor), recognised by the
Minister.
24 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.
25 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.
26 The decisions of the Industrial Insurance Boards as regards
contributions to the social security schemes and benefits from those
schemes can be appealed to an Appeals Tribunal. An appeal cannot be
lodged until a formal decision has been issued by the Industrial
Insurance Board concerned. Against the decision of an Appeals Tribunal
there is a further appeal to the Central Appeals Tribunal.
b. The Sickness Benefits Act
27 Under the Sickness Benefits Act (ZW) insurance against sickness
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.
28 The ZW premiums are fixed by the Industrial Insurance Board and
differ per economic sector. 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.
29 Benefits awarded under the ZW are paid by the Industrial
Insurance Board. These benefits are calculated on the basis of the
insured's salary. ZW benefits are paid for a maximum period of one
year, but not beyond the age of 65, as from that age a person becomes
eligible for a statutory old-age pension.
c. The Health Insurance Act
30 Under the Health Insurance Act (ZFW) insurance against medical
expenses 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 and whose income does not exceed a certain
amount. This amount is fixed by law yearly. Under certain conditions
also persons having reached the age of 65 and unemployed persons can
be insured.
31 The ZFW premiums for compulsorily insured employed persons are
fixed by the Minster of Welfare, Health and Cultural Affairs (Minister
van Welzijn, Volksgezondheid en Cultuur) and the Minister of Social
Affairs and Employment together. The premiums are calculated on the
basis of an employee's salary by, and are collected by, the Industrial
Insurance Board, which transfers the funds thus received to the General
Account (Algemene Kas) of one of the National Health Service Funds
(Ziekenfonds). The premiums are paid in part by the employees
themselves and in part by their employers.
32 Under the ZFW, insured medical expenses are paid directly to the
providers of medical care by the National Health Service.
d. The Unemployment Insurance Act
33 Under the Unemployment Insurance Act (WW) insurance against
involuntary unemployment 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.
34 The WW premiums are fixed by Order in Council (Algemene Maatregel
van Bestuur). 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. By Order in Council it can also be decided that the
State pays a part of the WW premiums.
35 Benefits awarded under the WW are paid by the Industrial
Insurance Board. These benefits are calculated on the basis of the
period the insured has worked and the salary earned before becoming
unemployed. The duration of the benefits differs in each case as it
depends on a number of elements, but does not exceed five years, and
benefits are not paid to persons having reached the age of 65.
e. The Labour Disablement Insurance Act
36 Under the Labour Disablement Insurance Act (WAO) 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.
37 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.
38 Benefits awarded by the Industrial Insurance Board under the WAO
are charged to the Disablement Insurance Fund. The benefits are
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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
39 The Commission has declared admissible the applicant's complaint
that in the determination of his civil rights and obligations he did
not receive a fair hearing within a reasonable time.
B. Points at issue
40 Accordingly, the issues to be determined are:
- whether the applicant's civil obligations were determined
within a reasonable time, and
- whether the applicant has had a fair hearing in the
determination of his civil obligations.
C. The applicability of Article 6 para. 1 (Art. 6-1)
of the Convention
41 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 fair (...) hearing within
a reasonable time by a (...) tribunal (...)."
42 The Commission notes that the proceedings at issue concerned the
applicant's obligation as an employer to pay contributions under four
different social security schemes.
43 The applicant submits that Article 6 para. 1 (Art. 6-1) of the
Convention applies not only to proceedings relating to the Sickness
Benefits Act but also to proceedings concerning the other social
security schemes at issue. The payment of contributions is closely
connected with the right to receive benefits and both aspects of the
schemes come within the scope of this Article.
44 The Government submit that Article 6 para. 1 (Art. 6-1) does not
apply to the proceedings concerned, since they did not concern the
determination of a civil right. They concerned the obligation to pay
contributions under the Sickness Benefits Act, the Unemployment
Insurance Act, the Health Insurance Act and the Labour Disablement
Insurance Act. As regards the Sickness Benefits Act, the European Court
of Human Rights has found Article 6 (Art. 6) to be applicable to
proceedings regarding the entitlement to benefits, whereas there is no
such decision in regard to the benefits under the other Acts.
45 In the Government's opinion, proceedings regarding the payment
of contributions under the said social security schemes are excluded
from the scope of Article 6 (Art. 6), in the same way as taxation
proceedings. The obligation to contribute to the social security
schemes at issue is laid down in law, rests not only on the insured but
also on the insured's employer, an employer's failure to contribute
does not affect an insured's right to receive benefits, and the rules
relating to the deduction of contributions and transfers by the
employer and regarding the records to be kept in this respect are in
line with those relating to the levying of taxes.
46 The Commission recalls that the Court in the case of Schuler-
Zgraggen v. Switzerland (Eur. Court H.R., judgment of 24 June 1993,
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, § 19).
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."
47 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
Article 6 para. 1 (Art. 6-1) of the Convention is applicable to
proceedings concerning the right to benefits under the social security
schemes at issue in the present case.
48 It is true that the proceedings at issue in the present case did
not concern the right to benefits under these social security schemes,
but the obligation to pay contributions under those schemes.
49 However, unlike the Government, the Commission finds no basis for
distinguishing, as regards the applicability of Article 6 para. 1
(Art. 6-1), between a right to benefits and the obligation to
contribute under the same social security schemes. It notes that
Article 6 para. 1 (Art. 6-1) covers civil "rights" and "obligations"
alike.
50 In support of this view the Commission notes that all the private
law elements the European Court found in the Feldbrugge case (loc.cit.)
to characterise the right to benefits under the Sickness Benefits
Act - the personal and economic nature of the benefits, their
connection with a contract of employment and the affinities of the
scheme with private insurance - are mutatis mutandis also present in
respect of the obligation to pay contributions. Contributions to the
social security schemes are of the same individual and economic nature
as the benefits and are equally connected with a contract of employment
or a contract regarded as such. Moreover the schemes under which
contributions are paid are the same as those under which benefits are
awarded and their affinities with private insurances are the same.
51 Furthermore, recalling the Court's statements that it is
sufficient for the applicability of Article 6 para. 1 (Art. 6-1) of the
Convention that proceedings are "pecuniary" in nature and that the
action is founded on an alleged infringement of rights which were
likewise pecuniary rights (cf. Eur. Court H.R., Editions Périscope
judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40) or that
the outcome is "decisive for private rights and obligations" (cf. Eur.
Court H.R., H. v. France judgment of 24 October 1989, Series A
no. 162-A, p. 20 para. 47 with further references), the Commission
notes that the outcome of the proceedings at issue determined, inter
alia, whether or not the relation between the applicant and the
physiotherapists concerned could be assimilated to a contract of
employment and consequently whether or not the applicant was under an
obligation to pay social security contributions. The Commission finds
that the proceedings at issue were therefore "pecuniary" in nature and
were decisive for the applicant's private obligations.
52 The Commission consequently finds that the proceedings at issue
involved a determination of civil obligations within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention, which is thus
applicable to the present case.
D. Alleged violations of Article 6 para. 1 (Art. 6-1)
of the Convention
1. Length of the proceedings
53 The applicant considers that the delay in the issue of a formal
decision should be taken into account in the assessment of the total
length of the proceedings. He submits that his legal counsel, in view
of experiences in other similar cases in which he had acted as counsel
and where requests to expedite the proceedings had remained without
result, refrained from requesting the B.V.G. to expedite the issue of
the formal decision, considering that this would be of no avail.
54 The Government consider that the reasonable time requirement
contained in Article 6 para. 1 (Art. 6-1) of the Convention does not
apply to the stage preceding appeal proceedings under the Social
Security Appeals Act (Beroepswet). If one would include the delay in
the issuing of the formal decision by the B.V.G in the total length of
the proceedings, the Government admit that the issue of the formal
decision by the B.V.G. took too long, but they do not find that the
applicant has urged the B.V.G. to issue its formal decision speedily
although he was informed that this could take some time.
55 The Government finally argue that the matter was complex, that
the applicant delayed the hearing of his case by at least twelve months
and that, during the period in question, the B.V.G. was confronted with
a great number of applications for formal decisions in similar cases.
In view of these circumstances it cannot be said that the proceedings
at issue violated the reasonable time requirement of Article 6 para. 1
(Art. 6-1).
56 The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of each
case and having regard to the following criteria: the complexity of the
case, the conduct of the applicant and that of the authorities dealing
with the case (cf. Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
57 As regards the period to be considered, the Commission notes that
the applicant could not obtain any examination by a tribunal until he
had obtained a formal decision from the B.V.G. and finds that the
proceedings began on 27 March 1987, when the applicant requested the
B.V.G. to issue a formal decision against which he could lodge an
appeal, and ended on 10 July 1991, when the Central Appeals Tribunal
rejected the applicant's appeal. The period to be examined thus lasted
four years and over three months.
58 The Commission notes that the proceedings at issue concerned
matters of a certain complexity and that apart from the adjournment
before the Appeals Tribunal, which was granted at the applicant's
request, no delay in the proceedings is imputable to the applicant.
59 Concerning the applicant's failure to request the B.V.G. to
expedite the issue of a formal decision, the Commission does not find
it established that such a request would have been effective in the
circumstances of the present case.
60 Concerning the conduct of the administrative authorities, the
Commission finds that the period between 27 March 1987, when the
applicant requested the B.V.G. to issue a formal decision, and
9 December 1988, when the B.V.G. issued the formal decision, was
unreasonably long and unduly delayed the proceedings.
61 As for the argument relating to the numerous other applications
for a formal decision pending before the B.V.G., the Commission recalls
that it is for Contracting States to organise their legal systems in
such a way that the requirement under Article 6 para. 1 (Art. 6-1) of
the Convention, that everyone has the right to a final decision within
a reasonable time in the determination of his civil rights and
obligations, can be met (cf. Eur. Court H.R. Vocaturo judgment of
24 May 1991, Series A no. 206-C, p. 32, para. 17).
62 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
63 The Commission concludes, by eighteen votes to one, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
in that the applicant's civil obligations were not determined within
a reasonable time.
2. Fair hearing
64 The applicant complains that he did not have a fair hearing in
that the B.V.G., which was the opposite party in the proceedings,
prevented him for a long time from appealing by not issuing a formal
decision.
65 The Government do not find that the delay in the issue of a
formal decision by the B.V.G. affected the fairness of the proceedings
in that it was not to the applicant's detriment. The Government do not
accept that in case of an earlier recourse to the Appeals Tribunal the
outcome would or could have been different, since in a similar case in
which the applicant's counsel also acted as counsel, the Central
Appeals Tribunal had already concluded that insurance was compulsory.
Furthermore, the Government find no indication that the applicant had
insufficient opportunity to argue his case during the B.V.G.'s
preparations for the formal decision or during the appeal proceedings.
66 The Commission recalls that the right to a fair hearing implies
that the interested party must be able to present his case under
conditions which do not place him at a substantial disadvantage vis-à-
vis his opponent (cf. No. 9938/82, Dec. 15.7.86, D.R. 48, p. 21).
67 The Commission notes that in the proceedings concerned the B.V.G.
played the double role of the body which issued the first decision
against which an appeal was lodged and as a party to the appeal
proceedings. In these circumstances, the fact that the B.V.G., by
failing for a considerable time to issue a formal decision, could delay
the introduction of an appeal means that there was a lack of equality
between the applicant and his opponent in the appeal proceedings.
68 The Commission, therefore, considers that the applicant did not
have a fair hearing in the determination of his civil obligations as
required by Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
69 The Commission concludes, by eleven votes to eight, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
in that the applicant did not have a fair hearing in the determination
of his civil obligations.
E. Recapitulation
70 The Commission concludes, by eighteen votes to one, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
in that the applicant's civil obligations were not determined within
a reasonable time (para. 63).
71 The Commission concludes, by eleven votes to eight, that there
has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention
in that the applicant did not have a fair hearing in the determination
of his civil obligations (para. 69).
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
(Or. English)
PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, H.G. SCHERMERS
MRS. G.H. THUNE, J. LIDDY, MM. I. CABRAL BARRETO, B. CONFORTI
AND N. BRATZA
We share the view of the majority of the Commission that there
has been a breach of Article 6 para. 1 of the Convention in the present
case by reason of the length of the proceedings, but we are unable to
agree with the conclusion of the majority that there has been a
separate breach of this provision by reason of the lack of fairness of
the proceedings.
In so concluding the majority rely on what is described as the
double role of the BVG, which both rendered the decision against which
the applicant's appeal to the Appeals Tribunal was lodged and
participated as a party before the Tribunal. It is the view of the
majority that, in these circumstances, the BVG, by failing for a
considerable time to arrive at a formal decision could delay the
introduction of an appeal and that this meant that there was a lack of
equality between the applicant and his opponent in the appeal
proceedings.
We do not consider that the "double role" of the BVG, a role
which is by no means unusual in litigation between administrative
agencies and private parties, has been shown to have affected the
fairness of the proceedings before the Tribunal. Moreover, insofar as
the fairness of the proceedings may be said to have been affected by
the delay of the BVG in issuing its decision, this complaint is in our
view subsumed in the Commission's finding of a violation in relation
to the length of proceedings.
(Or. français)
OPINION DISSIDENTE DE M. F. MARTINEZ
A mon avis, les procédures relatives à l'obligation des
employeurs de payer les contributions à la sécurité sociale ne
concernent pas des contestations sur des droits et obligations de
caractère civil au sens de l'article 6 de la Convention.
La majorité de la Commission s'appuie sur les arrêts Feldbrugge,
Deumeland et Schuler-Zgraggen pour arriver à la conclusion contraire.
Mais, d'autre part, la Commission a toujours exclu l'application de
l'article 6 au contentieux fiscal.
Je crois que le cas d'espèce doit être distingué de la doctrine
Feldbrugge, Deumeland et Schuler-Zgraggen mais non du contentieux
fiscal.
A mes yeux, l'application de la jurisprudence Feldbrugge et
Deumeland conduit à exclure le cas d'espèce du champ de
l'article 6 par. 1 de la Convention. En effet, dans l'affaire
Feldbrugge et Deumeland, la Commission procède à un examen des éléments
de caractère public et privé qui affectent les bénéficiaires de la
sécurité sociale, et conclut à la prééminence des éléments de caractère
privé. Mais en ce qui concerne les contributions des employeurs, il
n'y a pas d'éléments de caractère privé. Il n'y a que l'obligation de
contribuer aux conditions établies par l'Etat en tant que sujet
d'imperium.
La doctrine Schuler-Zgraggen, après avoir rappelé les arrêts
Feldbrugge et Deumeland, met l'accent sur le fait que l'intéressée
était affectée non seulement dans ses relations avec les autorités
administratives mais qu'elle souffrait d'une interférence dans ses
moyens de subsistance. Or, la contribution de l'employeur n'affecte
pas directement ses moyens de subsistance, pas plus qu'elle ne serait
affectée par l'obligation de payer les impôts qui découlent de son
activité d'employeur.
L'activité déployée par un employeur génère l'obligation de payer
les impôts, les taxes et les contributions établis pour cette activité
précise. Et je ne vois pas pourquoi une contestation sur le paiement
d'une contribution fiscale serait exclue par l'article 6 de la
Convention et la contestation concernant une contribution sociale
obligatoire ne le serait pas.
N'oublions pas que certaines taxes fiscales peuvent avoir une
affectation bien déterminée - par exemple, les redevances TV - et que
les impôts dans les Etats modernes jouent un rôle redistributeur de la
rente des personnes.
C'est pour cette raison que le contentieux sur les cotisations
obligatoires des employeurs à la sécurité sociale ne peut être
distingué du contentieux relatif aux contributions fiscales.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
___________________________________________________________________
4 September 1991 Introduction of application
29 October 1991 Registration of application
Examination of admissibility
4 April 1992 Commission's decision to invite
the Government to submit their
observations on the
admissibility and merits of the
application
26 June 1992 Government's observations
17 September 1992 Applicant's observations in
reply
9 December 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
Full & Egal Universal Law Academy