CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 30932/96                       by Landelijke Specialisten Vereniging                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 30 November 1995 by   Landelijke Specialisten Vereniging against the Netherlands and registered on 2 April 1996 under file No. 30932/96;        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 an association of recognised medical specialists practising in the Netherlands. It has its statutory seat and registered offices in Utrecht. Its aims include the promotion of its members' social-economic interests, insofar as these are not directly related to an employment agreement, and its members' other social interests. Before the Commission, it is represented by Mr. I.G.F. Cath, a lawyer practising in The Hague.        The facts of the case, as submitted by the applicant association, may be summarised as follows.   1.    General background        In 1982, the Health Care Tariffs Act (Wet Tarieven Gezondheids- zorg; hereinafter referred to as "WTG") entered into force. This Act aims at a balanced system of determining health care tariffs in order to control the escalation of health care costs.        Pursuant to the WTG, health care tariffs are determined through negotiations between, on the one hand, the health care insurers (public health services and private medical insurance companies) and, on the other hand, medical institutions (such as, inter alia, hospitals, convalescent hospitals and maternity clinics) and medical service providers (such as, inter alia, physicians, dentists, medical specialists and pharmacists).        In order to avoid having to negotiate with an ever increasing number of parties, the public authorities have fixed criteria for selection based on the notion of representativeness of organisations. Participation in tariff negotiations is limited to the organisations that have been recognised as "representative" by the Ministry of Welfare, Public Health and Cultural Affairs (Ministerie van Welzijn, Volksgezondheid en Cultuur; hereinafter referred to as the "Ministry of Public Health"), pursuant to Article 3 of the WTG.        The applicant association has been recognised as a representative organisation for the purposes of tariff negotiations under the WTG.        The results of the tariff negotiations are transmitted to the Central Organ for Health Care Tariffs (Centraal Orgaan Tarieven Gezond- heidszorg; hereinafter referred to as "COTG"), which approves or adjusts the tariffs ex officio.        The COTG is a public body, whose independent members are appointed by the Government; one third of its members are directly appointed by the Minister of Public Health in consultation with the Minister of Economic Affairs (Minister van Economische Zaken) and two thirds of its members are appointed in consultation with recognised representative organisations of employers, labour unions and medical service providers (Article 20 of the WTG).        The COTG may further issue guidelines (richtlijnen) as to the amount, structure and means of calculation of tariffs. These guidelines are subject to approval by the Minister of Public Health in consultation with the Minister of Economic Affairs and the Minister of Social Affairs (Minister van Sociale Zaken). In the event of disagreement between the COTG and the Minister of Public Health, the latter has the final say.        Pursuant to Article 14 of the WTG, the Ministry of Public Health can further issue ex officio binding directives (aanwijzingen) to the COTG as regards the contents of COTG guidelines. These directives are to be converted by the COTG into guidelines. If the COTG fails to do so within three months as from receipt of the directive, the Ministry may establish such guidelines itself.        The Minister of Public Health may, pursuant to Article 17 of the WTG, issue General Administrative Measures (Algemene Maatregelen van Bestuur) establishing maximum tariffs.        Article 35 of the WTG provides for an appeal with the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) against decisions taken by the COTG on tariffs proposed or established ex officio. Such an appeal may be lodged by individual health service providers or health care insurers, or representative organisations thereof.        According to Article 2 of the WTG, it is a criminal offence to charge a tariff that has not been approved or determined by the COTG.   2.    The determination of health care tariffs in the present case        On 11 December 1989, the so-called "Five Parties Agreement" (Vijf Partijen Akkoord; hereinafter referred to as "VPA") was concluded between five representative organisations, including the applicant association. In this agreement it was stated that the tariffs for medical services provided by certain categories of medical specialists were either too high or too low and did not reflect the required balance between the costs of these services and the pertaining remuneration. The VPA aimed at correcting this unbalance by lowering the tariffs of six categories of specialists, increasing the tariffs of six other categories. The tariffs of fourteen categories of specialists could remain unchanged. The idea was to limit the costs for services by medical specialists for the years 1990, 1991 and 1992 to the costs made in 1989. This amount was referred to as the "macro- budget". The agreement entered into force on 1 January 1990 and remained in force until 31 December 1992.        In the Financial Overview Care (Financieel Overzicht Zorg) 1993 published in September 1992, in which the Government determined the reasonable level of costs for public health care, it was noted that the VPA macro-budget had been surpassed in 1990 and 1991 by NLG. 48 million and NLG. 384 million, respectively.        On 6 November 1992, the Minister of Public Health issued a directive, setting maximum tariffs for medical specialists on a service-by-service basis. This directive entailed that the guideline to be adopted was to bring about a downward adaptation of the tariffs concerned by NLG. 151, 158 and 60 million respectively. In this directive it was noted that the VPA macro-budget had been exceeded considerably in 1990 and 1991.        This directive was converted by the COTG into a guideline on 21 December 1992, entering into force on 1 January 1993.        On 15 February 1993, after having heard the applicant association on 22 January 1993, the COTG, referring to the contents of the guidelines concerning tariffs of medical specialists, issued the tariff decisions, establishing the maximum tariffs at which the various medical specialist services could be offered. These decisions entered into force on 1 April 1993.        These maximum tariffs were set by applying a reduction on a percentage basis, differing according to the various specialist services involved, to the pre-existing tariffs. Furthermore a differentiated reduction on a percentage basis was applied to the various specialist services as offered to the type of health care insurers; the reduction applied to services offered to public health services being on average slightly higher than the ones offered to private medical insurance companies.        On 12 March 1993, the applicant association filed five objections (bezwaarschriften) against five decisions issued by the COTG on 15 February 1993.        Following a hearing held on 12 May 1993, the COTG rejected the appeals on 5 July 1993 and upheld its decisions of 15 February 1993. The COTG held, inter alia, that the applicant association's suggestion to use certain specific data provided by certain categories of specialists was not taken up, as the consequential changes strongly differ from data per specialisation known by the public health services and the private health insurance sector. It further held that, according to the guideline, the basic premise for a possible differentiation between specialisations was the realisation of a reduction of NLG. 309 million on the tariffs and that the guideline gave no space for an increase in the macro-budget or for a lower reduction of cost increases allegedly not imputable to the medical specialists.        The applicant association and a number of private individuals concerned filed an appeal with the Industrial Appeals Tribunal. Following both written and oral adversarial proceedings, the Industrial Appeals Tribunal rejected the appeal on 3 July 1995.        The Industrial Appeals Tribunal found, inter alia, that the directive at issue was in compliance with the law, both as regards its contents and the procedure followed.        As regards the argument that the directive was unreasonable, arbitrary and contrary to a number of the general principles of proper administration (algemene beginselen van behoorlijke bestuur), the Industrial Appeal Tribunal held:   [Translation]      "The Tribunal cannot and will not separately discuss each of the      arguments submitted by the appellants in support of these      allegations, as it disagrees with the premises stated below on      which the appellants have based their argumentation.        The Tribunal does not share the appellants' opinion that, in the      examination of the directive, the VPA should be disregarded, nor      their opinion that, in the examination of the tariff decreases      introduced as per 1 April 1993, the correctness of the tariffs      valid in the previous period must be used as a touchstone.      Further no general validity can be claimed for the premise that      an increase in productivity (increase of the number of      interventions per medical specialist) should go hand in hand with      an increase in income."        The Industrial Appeals Tribunal went on to explain the relevance of the VPA in connection with the directive, the reasons why it could not accept the premise that the previously valid tariffs were correct, why it rejected the alleged link between productivity and income and the reasons for its finding that the absence of a differentiation in tariff reductions between different categories of medical specialisations could not be regarded as so disproportionate that the directive should be denied binding force.        The explicitly invoked general principles of proper administration which, according to the applicant association, were violated by the directive were the principle of equality ("égalité devant les charges publiques"), the prohibition of discrimination, the prohibition of arbitrariness, the principle of proportionality, the principle of balancing of interests and the principle that decisions should be duly reasoned.     COMPLAINT        The applicant association complains under Article 6 para. 1 of the Convention that it did not receive a fair trial in that the Industrial Appeals Tribunal did not give a specific and express reply to each specifically mentioned general principle of proper administration allegedly violated by the directive at issue, but restricted itself to a general response to the alleged violations of the principles invoked.     THE LAW        The applicant association complains that in the proceedings before the Industrial Appeals Tribunal it did not receive a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention in that the Tribunal failed to deal with each alleged breach of the general principles of proper administration.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing ... by a ...      tribunal established by law..."        The Commission notes in the first place that the proceedings at issue did not concern the income of the applicant association, but the income of its members. The question therefore arises whether, in these circumstances, the proceedings at issue can be considered as constituting a determination of the applicant association's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        However, the Commission does not find it necessary to determine this issue as the application is in any event inadmissible on the following grounds.        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. The question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 (Art. 6) of the Convention, is to be determined in the light of the circumstances of the case (cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29; Hiro Balani judgment of 9 December 1994, Series A no. 303-B, pp. 29-30, para. 27; and No. 16717/90, Dec. 9.1.95, D.R. 80, p. 24).        Unlike the situation examined by the Court in the cases of Ruiz Torija and Hiro Balani, where an appellate court failed to address a submission made at first instance, the Industrial Appeals Tribunal did in fact consider the applicant association's complaint that the general principles of proper administration had not been complied with. It rejected the applicant association's argument that certain of the general principles of proper administration had been violated holding that it could not agree with the premises on which the applicant association had based its argumentation in respect of the allegedly breached principles and gave reasons why it could not agree with these premises.        In these circumstances, the Commission is of the opinion that, even assuming that the proceedings at issue can be regarded as constituting a determination of the applicant association's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Industrial Appeals Tribunal has given sufficient reasons for its decision to reject this element of the applicant association's appeal.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber