CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 15673/89                       by Johan Arend Frederik HAYE and                       Ludovicus Petrus Antonius Marie SMEULDERS                       against the Netherlands             The European Commission of Human Rights sitting in private on 11 October 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 7 August 1989 by Johan Arend Frederik HAYE and Ludovicus Petrus Antonius Marie SMEULDERS against the Netherlands and registered on 23 October 1989 under file No. 15673/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are Dutch nationals born in 1925 and in 1941 respectively.   They are both dentists and live respectively in Haarlem and Dongen, the Netherlands.           Before the Commission they are represented by Mr.   Albert W. Maris, a lawyer practising in Benschop.           On 1 October 1986 it became obligatory for all dentists to charge fees for dental treatment for private patients on the basis of the Health Care Fees Act (Wet Tarieven Gezondheidszorg) of 7 February 1982.   This act seeks to set up a balanced system of tariffs concerning health care, inter alia, for the purpose of controlling the escalation of health care costs.   Before that date, dentists could charge private patients freely for treatment performed on them, in contrast with the fixed fees for patients for whom the National Health Service (Ziekenfonds) pays.   Now it has become obligatory to charge private patients according to the Uniform Private Patient Fee (Uniform Particulier Tarief, UPT).   This is a system of set fees, fixed by law, corresponding to specific dental treatments.   The UPT needs to be approved of by the Central Body for Health Care Fees (Centraal Orgaan Tarieven Gezondheidszorg, COTG).           The list of set fees was drawn up in consultation with the Dutch Society for the Promotion of Dentistry (Nederlandse Maatschappij tot Bevordering van de Tandheelkunde, NMT), a professional organisation which represents approximately 80% of Dutch dentists. Membership of the NMT is not obligatory.           Section 3 of the Health Care Fees Act regards as representative organisations, those organisations which, at their request, are considered to be representative by the Minister of Public Health and Environmental Affairs.           The applicants appealed against the COTG before the Industrial Appeals Board (College van Beroep voor het Bedrijfsleven).           On 28 February 1989 the Industrial Appeals Board dismissed the appeal, inter alia, on the grounds that, at the time when the system of set fees was fixed, the COTG did not receive any reactions from dentists deviating from the acceptation expressed by the majority of dentists, represented by the NMT.   Furthermore, it was within the scope of the Act that the fees for private patients were made uniform to the fees for public health care patients.   COMPLAINTS   1.       The applicants complain that the decision of the Industrial Appeals Board dismissing the appeal is a breach of their right to a fair trial and their civil right to practice dentistry.           They invoke Article 6 para. 1 of the Convention.   2.       Furthermore, the fact that the NMT is regarded as the representative of all dentists is, according to the applicants a violation of the right to freedom of association, which includes in the applicants' view the freedom not to associate.           They invoke Article 11 of the Convention.   3.       Finally, the applicants also complain that the Health Care Fees Act violates the applicants' right to the peaceful enjoyment of their possessions, because the fees are fixed.   Before that, there was freedom of contract.           The applicants invoke Article 1 of Protocol No. 1.   THE LAW   1.       The applicants complain that, in the determination of their civil rights, their right to a fair hearing was breached by the decision of the Industrial Appeals Board.   They allege a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           Article 6 para. 1 (Art. 6-1) guarantees a right to a fair trial in the determination of civil rights and obligations.   The applicants failed to substantiate in what way the procedure before the Industrial Appeals Board discloses any appearance of a violation of rights set out in Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants also complain that by considering the NMT as the representative of all dentists where the Health Care Fees Act is concerned, the Government have infringed on their right to freedom of association as laid down in Article 11 (Art. 11) of the Convention, which includes in the applicants' view, the freedom not to associate.           It is apparent from the file that dentists are not forced to join the NMT.   Section 3 of the Health Care Fees Act regards as representative organisations those organisations which, at their request, are considered to be representative by the Minister of Public Health and Environmental Affairs.   Nothing prevents dentists from associating in order to promote their interests.   Furthermore, the European Court of Human Rights stated in its judgment of 27 October 1975 on the National Union of Belgian Police case (Series A no. 19, para. 41) that a general policy of restricting the number of organisations to be consulted is not incompatible with the freedom of association.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       Finally the applicants complain that there has been an interference with their right to the peaceful enjoyment of their possessions, namely their dental practice.   The fees are now arranged by law, while before there was freedom of contract.           However, a dentist's claim for fees can only be considered as a possession within the meaning of Article 1 of Protocol No. 1 (P1-1) when such a claim has in a particular matter come into existence on the ground of services rendered by the dentist.   The mere expectation of future claims cannot be considered as a property right (No. 8410/78, Dec. 13.12.1979, D.R. 18 p. 216).           It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission              President of the Commission            (H.C. KRÜGER)                               (C.A. NØRGAARD)