CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1992

.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. 19005/91                       by Johannes SCHOUTEN                       against the Netherlands         The European Commission of Human Rights sitting in private on 9 December 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  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                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 September 1991 by Johannes SCHOUTEN against the Netherlands and registered on 29 October 1991 under file No. 19005/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant is a Dutch citizen, born in 1927 and resident at Zoetermeer, the Netherlands.   He submits the application in his capacity of the only director of the company Praktijk mevrouw Breevaart B.V.   He is represented before the Commission by Mr. P.J.A. Høvig, a lawyer practising at Zwijndrecht, the Netherlands.         The facts of the case, as submitted by the parties, may be summarised as follows.         The task of the company Praktijk mevrouw Breevaart B.V. (hereinafter called "the company") was to provide physiotherapeutic treatment.   It also put its equipment at the disposal of other 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.         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 from 1 January 1984.         In accordance with its new practice, the B.V.G. requested the company to pay social security contributions 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 against which it could lodge an appeal.   The B.V.G. issued such a decision on 9 December 1988.         The company then appealed to the Appeals Board (Raad van Beroep) in Rotterdam which, on 13 December 1989, rejected the appeal.   A further appeal lodged by the company was rejected on 10 July 1991 by the Central Appeals Board (Centrale Raad van Beroep) in Utrecht.     COMPLAINTS   1.     The applicant first alleges a violation of Article 6 para. 1 of the Convention in that the company did not have a fair hearing.   The B.V.G., which is a party in the appeal proceedings, has the possibility to prevent a complainant from appealing for a long time by not issuing a formal decision.   In the present case, the company asked for a formal decision by letter of 27 March 1987, but the B.V.G. did not comply with this request until one year and eight months later, i.e. on 9 December 1988.   This violates the principle of the equality of the parties, since the B.V.G. had possibilities which the company did not have.   It is theoretically possible that the B.V.G. pursues a policy of first issuing formal decisions in those cases in which it can expect the Appeals Board to develop a case-law favourable to the B.V.G.   If the company had been allowed to appeal at an earlier stage, before the case-law had been well established, it would have stood a better chance of success, but it was deprived of this chance by the failure of the B.V.G. to provide it with the decision without which it could not lodge any appeal.   2.     The applicant alleges a further violation of Article 6 para. 1 of the Convention in that the company did not have a hearing within a reasonable time.   Its appeal was delayed during a period of one year and eight months due to the failure of the B.V.G. to issue a formal decision, which was a violation of the reasonable time requirement.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 September 1991 and registered on 29 October 1991.         On 2 April 1992 the Commission decided to communicate the application to the Netherlands Government and to request the Government's observations on the admissibility and merits of the application.         The Government submitted their observations on 26 June 1992 and the applicant his observations in reply on 17 September 1992.     THE LAW         The applicant alleges violations of Article 6 para. 1 (Art. 6-1) of the Convention in that his company did not have a fair hearing and in that it did not have a hearing within a reasonable time. He points out, in particular, that the B.V.G., which was a party to the proceedings, prevented the company for a long time from appealing by not issuing a formal decision, which made the proceedings unfair and made it impossible for the company to be heard by a court within a reasonable time.         The Government first submit that Article 6 para. 1 (Art. 6-1) was not applicable to the proceedings concerned, since these proceedings did not concern the determination of a civil right.   They point out that the proceedings concerned the obligation to pay contributions under the Sickness Benefits Act (Ziektewet), the Unemployment Insurance Act (Werkloosheidswet), the Health Insurance Act (Ziekenfondswet) and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheids- verzekering).   As regards the Sickness Benefits Act, the Government note that 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 similar decision in regard to the benefits under the other Acts.   In the Government's opinion, proceedings regarding the payment of contributions under the said social security schemes should be considered to be excluded, in the same way as taxation proceedings, from the application of Article 6 (Art. 6).           The Government further maintain that the applicant did not suffer any prejudice as a result of the fact that the formal decision was rendered late and note that the applicant could have instituted summary proceedings (kort geding) before the civil judge in order to force the B.V.G. to render its decision at an earlier stage.         As regards the question whether the case was decided within a reasonable time, the Government state that Article 6 (Art. 6) seems to refer only to the actual court proceedings and not to the time before these proceedings started.   In the proceedings before the Appeals Board and the Central Appeals Board, the Government find no indication that the reasonable time was exceeded.   Even if the time it took the B.V.G. to deliver a formal decision should be taken into account, the Government are of the opinion that the reasonable time rule has not been violated.         Consequently, the Government conclude that the application is inadmissible as being incompatible with the provisions of the Convention or, alternatively, as being manifestly ill-founded.         The applicant submits that Article 6 (Art. 6) of the Convention is applicable not only to proceedings relating to the Sickness Benefits Act but also to proceedings regarding the other Dutch social security schemes at issue in this case.   He notes that the payment of contributions is closely connected with the right to receive benefits and considers that both these aspects of the schemes fall under the provisions of Article 6 (Art. 6).   The reasonable time rule in Article 6 also applies to an administrative procedure preceding the court proceedings and during such a period there was in the present case undue delay in the preparation by the B.G.V. of a formal decision.   The applicant makes no complaint as to delays in the proceedings before the Appeals Board and the Central Appeals Board.         The Commission finds that the present application requires a determination of whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue and, if so, whether the applicant had a fair court hearing within a reasonable time as required by that provision.         After examination of these issues in the light of the parties' submissions, the Commission considers that they raise questions of fact and law of such complexity that their determination requires an examination of the merits.   The application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds of inadmissibility have been established.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION ADMISSIBLE.     Secretary to the Commission          President of the Commission           (H.C. Krüger)                       (C.A. NØRGAARD)