CEDH · CASELAW;REPORTS;ENG — 12 octobre 1993

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 17112/90                                    M.S.                                   against                               the Netherlands                          REPORT OF THE COMMISSION                        (adopted on 12 October 1993)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-5) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 6-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-37). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 16-23) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 24-37) . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 38-51). . . . . . . . . . . . . . . . . . . . . . . . 6         A.    Complaint declared admissible            (para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6         B.    Point at issue            (para. 39) . . . . . . . . . . . . . . . . . . . . . . . 6         C.    Applicability of Article 6 para. 1            of the Convention            (paras. 40-48) . . . . . . . . . . . . . . . . . . . . . 6         D.    Alleged violation of Article 6 para. 1            (paras. 49-51) . . . . . . . . . . . . . . . . . . . . . 9              Conclusion            (para. 52) . . . . . . . . . . . . . . . . . . . . . . . 8   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . 9   APPENDIX II   :   DECISION ON THE ADMISSIBILITY OF THE APPLICATION. .10   I.     INTRODUCTION   1      The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2      The applicant is a Dutch citizen, born in 1941 and residing in Muiderberg, the Netherlands.   Before the Commission the applicant is represented by Mrs. M.C.M. van Laar, a lawyer practising in Utrecht, the Netherlands.   3      The application is directed against the Netherlands, whose Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4      The application concerns the length of proceedings concerning the applicant's claim for disablement benefits.   5      Before the Commission the applicant invokes Article 6 para. 1 of the Convention.   B.     The proceedings   6      The application was introduced on 9 July 1990 and registered on 3 September 1990.   7      On 9 November 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.   8      The Government's observations were submitted on 21 March 1991 and the applicant's observations in reply were submitted on 5 June 1991.   9      On 30 November 1992 the Commission declared the application admissible.   10     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11     The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  J. C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C. L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.F. REFFI                  M. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA   12     The text of the Report was adopted on 12 October 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   13     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         (1)   to establish the facts, and         (2)   to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   14     A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   15     The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   16     Until 13 April 1981, when the applicant fell ill, she worked in a canteen for thirty hours a week.   In June 1981 she underwent surgery on her back, which was unsuccessful.   17     On the basis of the Sickness Benefits Act (Ziektewet) she received a benefit for one year.   As from 12 April 1982 this benefit was replaced by combined disability benefits under the General Labour Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet - hereinafter referred to as "AAW") and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering - hereinafter referred to as "WAO"), on the basis of complete incapacity to work.   18     By letter of 20 December 1982, the Industrial Insurance Board for the building industry (Bedrijfsvereniging voor de Bouwnijverheid) informed the applicant of its decision to withdraw the benefits it had awarded to the applicant under the AAW and WAO as from 1 January 1983, as she was considered able to perform light work.   19     On 7 January 1983 the applicant filed an appeal against this decision with the Appeals Tribunal (Raad van Beroep).   On 4 October 1983 the Appeals Tribunal quashed the decision by the Industrial Insurance Board in respect of the withdrawal of the applicant's benefits under the WAO and declared the remainder of the appeal ill-founded.   20     Both the Industrial Insurance Board and the applicant filed an appeal against this decision with the Central Appeals Tribunal (Centrale Raad van Beroep).   21     On 25 March 1986 the Central Appeals Tribunal requested Mr. v. G., a medical expert, to examine the applicant and to submit his recommendation.   Mr. v. G. examined the applicant on 15 September 1987. He submitted his report on 24 October 1989 to the Central Appeals Tribunal.   In the meantime the applicant's representative had urged the Central Appeals Tribunal several times, both by telephone and in writing, to inform her of the state of affairs in the applicant's case and to press Mr. v. G. to submit his report in view of the continuation of the proceedings.   22     Having held a hearing on 15 December 1989, the Central Appeals Tribunal decided on 12 January 1990 to quash the decision of 4 October 1983 in favour of the applicant.   23     Subsequently the applicant was retroactively granted disability benefits under the AAW and WAO as from 1 January 1983 and received a payment of about 70,000 Dutch guilders in July 1990.   B.     Relevant domestic law   a.     General Features   24     Concerning health and disability insurance, social security in the Netherlands is managed jointly by the State, which in general confines itself to establishing the legal framework of the scheme and to seeing to co-ordination, by employers and by employees.   25     The branches of the economy are divided into sectors, each with an Industrial Insurance Board (bedrijfsvereniging) responsible for the implementation of the social security legislation.   26     These Boards are legal persons within the meaning of Article I of Book II of the Civil Code; the method of their establishment, their structure and their powers are laid down in the Social Security Organisation Act 1952 (Organisatiewet Sociale Verzekeringen).   They are subject to approval by the Minister for Social Affairs and Employment on the basis of their representative character.   The Minister may also decide of his own motion to set up such a Board; in that event, he determines and amends their articles of association as needed and he appoints, suspends and dismisses the members of their governing boards. In addition, he stipulates the assurances to be given for the discharge of the duties of the Industrial Insurance Boards and he receives from each of them an annual report and an annual statement of their accounts.   27     The Industrial Insurance Boards are semi-public institutions and operate like private insurance companies.   28     They may entrust to a common administrative office (Gemeenschappelijk Administratiekantoor), recognised by the Minister, the administrative work resulting from the application of social security law.   29     A Social Insurance Council (Sociale Verzekeringsraad), set up by the Government and comprising representatives of the State (/), employers (/) and employees (/), supervises the proper implementation of the legislation in question.   30     The statutory social insurances can be divided into two main groups, on the one hand the general insurances (volksverzekeringen), covering all persons residing in the Netherlands, and on the other hand the employees' insurances (werknemersverzekeringen), covering persons bound by an employment contract with a private or public employer or who can be assimilated to this category.   b.     The General Labour Disablement Benefits Act   31     The General Labour Disablement Benefits Act (AAW), which came into force on 1 October 1976, insures every person, residing in the Netherlands, between the ages of 15 and 65 against negative financial consequences of incapacity for work which has lasted for more than one year.   32     The AAW premiums are fixed by the Board of the General Labour Disablement Insurance Fund (Algemeen Arbeidsongeschiktheidsfonds) subject to the approval of the Minister for Social Affairs and Employment following consultation with the Social Insurance Council. Until 1 January 1990 the AAW premiums were paid by the employers on the basis of a percentage of paid wages.   As from 1 January 1990 the premiums are paid by all residents in the Netherlands who are eligible to pay income tax. The premiums are calculated on the basis of a percentage of the taxable income and are collected by the income tax authorities.   33     Benefits awarded by the Industrial Insurance Board under the AAW are charged to the General Disablement Insurance Fund and are calculated according to a fixed base figure, which is linked to the statutory minimum wage, and to the degree of disability.   It therefore only provides a basic benefit, which is not linked to the income earned before disablement. Not only employed persons are entitled to receive benefits under the AAW. Also self-employed persons, persons having become incapacitated for work at a young age, students and persons having taken on the care for close relatives can claim benefits under the AAW. AAW benefits are paid as long as the person concerned is incapacitated for work but not beyond the age of 65. After having reached the age of 65 the person concerned receives a statutory old-age pension.   c.     The Labour Disablement Insurance Act   34     Under the Labour Disablement Insurance Act (WAO), which came into force on 1 July 1967, insurance against incapacity to work lasting more than one year is compulsory for persons under 65, who are bound by a contract of employment with a public or private employer or who can be assimilated to this category.   35     The WAO premiums are fixed by the Board of the Disablement Insurance Fund (Arbeidsongeschiktheidsfonds) subject to the approval of the Minister of Social Affairs and Employment following consultation with the Social Insurance Council.   The premiums are calculated on the basis of an employee's salary by, and are collected by, the Industrial Insurance Board. The premiums are paid in part by the employees themselves and in part by their employers.   36     Benefits awarded by the Industrial Insurance Board under the WAO are charged to the Disablement Insurance Fund and are of a supplementary nature to benefits awarded under the AAW.   The amount of this supplementary benefit is calculated on the basis of the income earned before disablement and the degree of disability. WAO benefits are paid as long as the person concerned is incapacitated for work but not beyond the age of 65.   37     In regard to persons bound by a contract of employment, the AAW benefits and the supplementary WAO benefits are awarded in general in one combined decision by the competent Industrial Insurance Board, against whose decision an administrative appeal can be lodged with the Appeals Tribunal and subsequently the Central Appeals Tribunal.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   38     The Commission has declared admissible the applicant's complaint that her civil rights and obligations have not been determined within a reasonable time in view of the length of the proceedings before the Central Appeals Tribunal concerning entitlement to disability benefits.   B.     Point at issue   39     Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the length of those proceedings exceeded the "reasonable time" referred to in this provision.   C.     The applicability of Article 6 para. 1 (Art. 6-1)       of the Convention   40     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:         "In the determination of his civil rights and obligations       (...) everyone is entitled to a (...) hearing within a       reasonable time by a (...) tribunal (...)."   41     The Commission notes that the proceedings at issue concerned the applicant's entitlement to benefits under the AAW and supplementary benefits under the WAO for being incapacitated for work.   42     The applicant submits that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue, since, having regard to the fact that AAW/WAO benefits provide the necessary means of subsistence when income is cut off as a result of incapacity for work, an entitlement to benefits for incapacity for work is of a personal, economic and individual nature. In the case of an employed person who has become incapacitated for work - like the applicant - the difference between the AAW and WAO are merely formal. The combined benefits are awarded in one and the same decision and there is only one appeal procedure.   43     The Government submits that, if the entitlement to benefits under the AAW and WAO respectively is examined separately, given the criteria set out in the Feldbrugge and Deumeland judgments of 29 May 1986 (Eur. Court H.R., Series A nos. 99 and 100), the entitlement to AAW benefits cannot be regarded as a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The AAW carries a number of public law features; there is not necessarily a connection with a contract of employment and entitlement to AAW benefits, a similarity with private insurance agreements is in fact absent on essential points - such as in the determination and collection of premiums by the tax authorities, the absence of a relation between the payer of the premiums and the recipient of the benefits and the irrelevance of the question whether or not premiums have been paid by a recipient of benefits -, and payment of AAW premiums cannot be regarded as a payment under a contributory pension scheme. Article 6 para. 1 (Art. 6-1) therefore does not apply to proceedings concerning benefits under the AAW.   44     As to proceedings concerning entitlement to WAO benefits the Government submit that the applicability of Article 6 para. 1 (Art. 6-1) of the Convention depends on the weight attached to the criteria set out in the Feldbrugge and Deumeland judgments (loc. cit.). The case-law on this point should be clarified.   45     The Commission recalls that the Court in the case of Schuler- Zgraggen v. Switzerland (Eur. Court H.R., judgment of 24 June 1993, to be published in Series A no. 263) stated in para. 46 of its judgment:         "     The Court is here once again confronted with the issue       of the applicability of Article 6 § 1 (Art. 6-1) to social-       security disputes. The question arose earlier in the cases       of Feldbrugge v. the Netherlands and Deumeland v. Germany,       in which it gave judgment on 29 May 1986 (Series A nos. 99       and 100). At that time the Court noted that there was great       diversity in the legislation and practice of the member       States of the Council of Europe as regards the nature of       the entitlement to insurance benefits under social-security       schemes. Nevertheless, the development in the law that was       initiated by those judgments and the principle of equality       of treatment warrant taking the view that Article 6 § 1       (Art. 6-1) does apply in the field of social insurance,       including even welfare assistance (see the Salesi v. Italy       judgment of 26 February 1993, Series A no. 257-E, pp.       59-60, § 193).              As in the two cases decided in 1986, State       intervention is not sufficient to establish that Article 6       § 1 (Art. 6-1) is inapplicable; other considerations argue       in favour of the applicability of Article 6 § 1 (Art. 6-1)       in the instant case. The most important of these lies in       the fact that despite the public-law features pointed out       by the Government, the applicant was not only affected in       her relations with the administrative authorities as such       but also suffered an interference with her means of       subsistence; she was claiming an individual, economic right       following from specific rules laid down in a federal       statute (...).              In sum, the Court sees no convincing reason for       distinguishing between Mrs Schuler-Zgraggen's right to an       invalidity pension and the rights to social-insurance       benefits asserted by Mrs Feldbrugge and Mr Deumeland.              Article 6 § 1 (Art. 6-1) therefore applies in the       present case."   46     Having regard to the Court's above findings, namely that Article 6 para. 1 (Art. 6-1) of the Convention applies in the field of social insurance, including welfare assistance - which is a unilateral benefit granted by the State (Eur. Court H.R., Salesi judgment of 26 February 1993, Series A no. 257-E) -, the Commission considers that no distinction can be made between entitlement to benefits under the AAW and under the WAO in respect of the applicability of Article 6 para. 1 (Art. 6-1).   47     The Commission further considers that, like Mrs. Schuler- Zgraggen, the applicant was not only affected in her relations with the administrative authorities as such, acting in the exercise of discretionary powers, but she also suffered an interference with her means of subsistence. She did in fact claim an individual, economic right on the basis of specific rules laid down in the AAW and WAO respectively.   48     The Commission, therefore, finds that the proceedings at issue involved a determination of a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which is thus applicable to the present case.   D.     The alleged violation of Article 6 para. 1 (Art. 6-1)       of the Convention   49     The Government admit that, if Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue, the delay in the proceedings before the Central Appeals Tribunal was unreasonably long and that the State may be held accountable for the excessive time taken by these proceedings.   50     Having found that Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue, the Commission, with the Government, finds that the delay between 25 March 1986, when the Central Appeals Tribunal requested the opinion of a medical expert, and 24 October 1989, when the expert submitted his report, was unreasonably long. In this connection the Commission observes that the expert was working in the context of judicial proceedings supervised by the Tribunal, which remained responsible for the conduct of the case (cf. mutatis mutandis Eur Court H.R., Billi judgment of 26 February 1993, Series A no. 257-G, para. 19). It further notes that during this period the applicant requested the Central Appeals Tribunal on several occasions to expedite the proceedings.   51     The Commission therefore considers that the length of the proceedings complained of was excessive and failed to satisfy the "reasonable time" requirement contained in Article 6 para. 1 (Art. 6-1) of the Convention.         Conclusion   52     The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Commission              President of the Commission      (H.C. Krüger)                              (C.A. Nørgaard)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                    Item   ___________________________________________________________________   9 July 1990                             Introduction of application   3 September 1990                        Registration of application   Examination of admissibility   9 November 1990                         Commission's decision to invite                                        the Government to submit their                                        observations on the                                        admissibility and merits of the                                        application   21 March 1991                           Government's observations   5 June 1991                             Applicant's observations in                                        reply   30 November 1992                        Commission's decision to declare                                        the application admissible and                                        to invite the parties, if they                                        so wish, to submit further                                        observations on the merits   Examination of the merits   12 October 1993                         Commission's deliberations on                                        the merits final vote and                                        adoption of the Report