ASHINGDANE V. the UNITED KINGDOMJUGDMENT

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ASHINGDANE v. THE UNITED KINGDOMJUGDMENT

COURT (PLENARY)

CASE OFFELDBRUGGE v. THE NETHERLANDS

(Application no. 8562/79)

JUDGMENT

STRASBOURG

29 May 1986

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FELDBRUGGE v. THE NETHERLANDSJUGDMENT

In the Feldbrugge case,

The European Court of Human Rights, taking its decision in plenarysession in pursuance of Rule 50 of the Rules of Court and composed ofthe following judges:

Mr. R. Ryssdal, President,

Mr. G. Wiarda,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mr. W. Ganshof van der Meersch,

Mrs. D. Bindschedler-Robert,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

SirVincent Evans,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 31 May, 1 and 2 October 1985 and21 to 23 April 1986,

Delivers the following judgment, which was adopted on thelast-mentioned date:

PROCEDURE

1. The present case was referred to the Court by the EuropeanCommission of Human Rights ("the Commission") on 12 October 1984,within the period of three months laid down by Article 32 para. 1 andArticle 47 (art. 32-1, art. 47) of the Convention for the Protectionof Human Rights and Fundamental Freedoms ("the Convention").The caseoriginated in an application (no. 8562/79) against the Kingdom of theNetherlands lodged with the Commission on 16 February 1979 underArticle 25 (art. 25) by a citizen of that State, Mrs. Geziena HendrikaMaria Feldbrugge.

The Commission’s request referred to Articles 44 and 48 (art. 44,art. 48) and to the Netherlands declaration recognising the compulsoryjurisdiction of the Court (Article 46) (art. 46).The object of therequest was to obtain a decision by the Court as to whether the factsof the case disclose a breach by the respondent State of itsobligations under Article 6 para. 1 (art. 6-1).

2. In response to the inquiry made in accordance with Rule 33para. 3 (d) of the Rules of Court, Mrs. Feldbrugge stated that shewished to take part in the proceedings pending before the Court anddesignated the lawyer who would represent her (Rule 30).

3. The Vice-President of the Court, acting as President, decided on15 October 1984 that, in the interests of the proper administration ofjustice, both the present case and the case of van Marle and Othersshould be heard by a single Chamber (Rule 21 para. 6).The Chamber ofseven judges to be constituted included, as ex officio members,Mr. G. Wiarda, the elected judge of Netherlands nationality(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal,Vice-President of the Court (Rule 21 para. 3 (b)).On 22 October 1984,Mr. Wiarda, in his capacity as President of the Court, drew bylot, in the presence of the Registrar, the names of the five othermembers, namely Mr. J. Cremona, Mr. J. Pinheiro Farinha,Sir Vincent Evans, Mr. R. Bernhardt and Mr. J. Gersing (Article 43in fine of the Convention and Rule 21 para. 4) (art. 43).

4. Having assumed the office of President of the Chamber (Rule 21para. 5), Mr. Ryssdal granted the lawyer for the applicant leave touse the Dutch language in the proceedings (Rule 27 para. 3).

5. Through the Registrar, the President consulted the Agent of theNetherlands Government ("the Government"), the Delegate of theCommission and the lawyer for the applicant on the need for a writtenprocedure (Rule 37 para. 1).On 11 December 1984, he directed thatthe Agent and the lawyer should each have until 31 January 1985 tofile a memorial, and that the Commission’s Delegate should be entitledto reply in writing within two months of the date on which theRegistrar transmitted to him whichever of the two memorials shouldlast be filed.On 12 February 1985, he extended the former time-limitto 29 March 1985.

6. On 27 February 1985, the Chamber decided to relinquish jurisdictionforthwith in favour of the plenary Court (Rule 50).

7. The applicant’s memorial was received at the registry on 21 Januaryand the Government’s on 9 April.On 24 April, the Secretary to theCommission informed the Registrar that the Delegate would present hissubmissions at the hearing.

8. On 8 March, after consulting, through the Registrar, the Agentof the Government, the Delegate of the Commission and the lawyer forthe applicant (Rule 38), the President directed that the oralproceedings should open on 29 May 1985.

9. The hearing was held in public at the Human Rights Building,Strasbourg, on the appointed day, the Court having held a preparatorymeeting on the previous day.

There appeared before the Court:

- for the Government

Mr. G.W. Maas Geesteranus, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mr. E. Korthals Altes, Landsadvocaat, Counsel,

Mr. J.A. van Angeren, Ministry of Justice,

Mr. C.J. van den Berg, Ministry of SocialAffairs and Employment,

Advisers;

- for the Commission

Mr. B. Kiernan, Delegate;

- for the applicant

Mr. L.K.F. Schuitemaker, advocaat, Counsel.

The Court heard addresses by Mr. Maas Geesteranus, Mr. KorthalsAltes and Mr.van Angeren for the Government, by Mr. Kiernan for theCommission and by Mr. Schuitemaker for the applicant, as well astheir replies to questions put by the Court and several of itsmembers.

10. By letter received on 11 July, the Agent of the Governmentprovided information on a point of fact raised at the hearing.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

11. Mrs. Geziena Hendrika Maria Feldbrugge was born in 1945 and isresident at Anna Paulowna.She is of Netherlands nationality.

In or about 1978, although she had been unemployed for some time,Mrs. Feldbrugge ceased to register at the Regional Employment Exchange(Gewestelijk Arbeidsbureau).This was because she had fallen ill anddid not consider herself sufficiently recovered to be fit to work.On 11 April 1978, the Governing Board of the Occupational Associationof the Banking and Insurance, Wholesale Trade and Self-EmploymentSector (Bedrijfsvereniging voor Bank-en Verzekeringswezen, Groothandel en Vrije Beroepen) in Amsterdam decided that as from 24 March 1978 shewas no longer entitled to the sickness allowances she had beenreceiving until then, as the Association’s consulting doctor hadjudged her fit to resume work on that date.

12. She appealed to the Appeals Board (Raad van Beroep) in Haarlem.

The President of the Appeals Board sought the opinion of one of thepermanent medical experts attached to the Board, a gynaecologistpractising at Alkmaar, who examined the patient and gave her theopportunity to comment.After consulting three other doctors (agynaecologist and two general practitioners, includingMrs. Feldbrugge’s), the expert concluded on 1 June 1978 that,gynaecologically speaking, she had been fit for work since 24 March;however, he felt it necessary also to consult an orthopaedicspecialist.

On 18 August 1978, another permanent medical expert, an orthopaedicsurgeon, examined the applicant and offered her the opportunity tocomment.He also sought the views of the three practitioners mentionedabove.In his report of 22 August 1978, he too found thatMrs. Feldbrugge had been fit to resume employment as from 24 March ofthat year.

On the basis of these two reports, the President of the Appeals Boardruled against the applicant.

13. The applicant filed an objection (verzet), alleging that she hadnot been given a fair hearing.

On 17 November 1978, the Appeals Board declared the objectioninadmissible as it fulfilled none of the grounds laid down in section142 (1) of the Appeals Act (Beroepswet - see paragraph 19 below).Inan obiter dictum, it stated that the case had been given a fairhearing, in that two permanent medical experts had examined theapplicant and allowed her to state her objections orally.

14. Mrs. Feldbrugge challenged this decision before the CentralAppeals Board (Centrale Raad van Beroep) at Utrecht.In particular,she maintained that the limitations imposed by sections 141 and 142 ofthe above-mentioned Act infringed the principle of a fair trialenunciated in Article 6 (art. 6) of the Convention.

On 13 February 1980, the Central Appeals Board declared the appealinadmissible by virtue of section 75 (2) of the Health Insurance Act(see paragraph 20 below).

II. RELEVANT LEGISLATION

1. In general

15. As far as health insurance is concerned, social security in theNetherlands is managed jointly by the State - which in generalconfines itself to establishing the legal framework of the scheme andto seeing to co-ordination -, by employers and by employees.

The branches of the economy, including the liberal professions, aredivided into sectors, each with an occupational association(bedrijfsvereniging) responsible for implementation of the socialsecurity legislation.

These associations are legal persons within the meaning of Article Iof Book II of the Civil Code; the method of their establishment,their structures and their powers are laid down in the Social SecurityOrganisation Act 1952 (Organisatiewet Sociale Verzekeringen).Theyare subject to approval by the Minister for Social Affairs andEmployment on the basis of their representative character.TheMinister may also decide of his own motion to set up such anassociation; in that event, he determines and amends their articlesof association as needed and he appoints, suspends and dismisses themembers of their governing boards.In addition, he stipulates theassurances to be given for the discharge of the duties of theoccupational associations and he receives from each of them an annualreport and an annual statement of their accounts.

The occupational associations are semi-public institutions and operatelike private insurance companies.

They may entrust to a common administrative office (GemeenschappelijkAdministratiekantoor), recognised by the Minister, the administrativework resulting from the application of social security law.

A Social Insurance Council (Sociale Verzekeringsraad), set up by theGovernment and comprising representatives of the State, employers andemployees, supervises the proper implementation of the legislation inquestion.

2. Health Insurance Act 1913

16. Under the Health Insurance Act 1913 (Ziektewet), as amended in1967, insurance against sickness is compulsory for persons under 65who are bound by a contract of employment with a public or privateemployer, or who can be assimilated to this category(sections 3 and 20).Persons formerly bound by a contract ofemployment who are unemployed and in receipt of unemployment benefitsare also treated as salaried employees for this purpose.Self-employed workers may take out policies with private companies.

Sickness includes accidents, whether related to the employment or not.In case of unfitness for work through sickness, an employed personreceives an allowance of 80 per cent of his daily pay.He or sheapplies directly to the occupational association to which his or heremployer belongs.

The entitlement to an allowance flows directly from the Act(section 19).

17. The scheme is administered by the occupational associations (seeparagraph 15 above), and the funding is provided entirely by employersand employees.The Act specifies the rates of contributions, whichare at present 1 per cent for the employee and 5.05 per cent for theemployer, calculated on a maximum daily wage of 262 guilders.

3. Appeals Act 1955

18. Disputes arising out of the application of the Health InsuranceAct 1913 are governed by the Appeals Act 1955 (as last amended on17 October 1978).For disputes concerning fitness or unfitness forwork, there exists a simplified procedure known as thepermanent-medical-expert procedure (vaste deskundige procedure) (sections 131 to 144).The expert - a doctor who is a specialist or ageneral practitioner - is appointed for a year by the Minister ofJustice and he is placed under oath.

On the lodging of an appeal of this kind, the President of the AppealsBoard (there are twelve in the Netherlands) may immediately instructits permanent medical expert to carry out an enquiry (onderzoek) intothe matter (section 135).

Within three days of notification of the appeal, the authority thatdelivered the decision which is challenged must submit all relevantfiles on the case (section 136).

The permanent medical expert consults the private practitioner of theperson concerned and the relevant occupational association doctor,except where the file shows that they share his opinion(section 137 (2)).He summons and examines the appellant(section 137 (3)); he may consult another practitioner (section 138).Finally, he makes a written report to the President of the AppealsBoard (section 140).

The President - who is a judge appointed for life - gives a reasoneddecision (beschikking) which refers to the conclusions of the medicalexpert.

19. An appeal against the President’s decision lies to the fullAppeals Board, but solely on one or more of the following four grounds(section 142(1): that the expert knew the patient in another capacityor failed to comply with the requirements of section 137 (seeparagraph 18 above); that the President’s decision does not bear uponthe dispute or has not followed the expert’s advice.Unless theAppeals Board declares the appeal inadmissible or unfounded, thenormal procedure applies.The parties then have the opportunity ofstudying the case-file on the premises of the Appeals Board at a timedetermined by the clerk or of receiving copies.The President mayhowever decide, in the mental or physical interest of the appellant,that he or she shall not have access to the medical reports but shallbe informed of their contents and may designate a competent person,such as his or her private practitioner or lawyer, to inspect them onthe premises (section 142 (2) in conjunction with section 114 (4)and (5)).

The Appeals Board gives its ruling after written pleadings have beenfiled and oral submissions heard.

20. Its decision is not subject to appeal before the Central AppealsBoard (section 75 (2) of the Health Insurance Act).However,according to that Board’s established case-law, an exception is madewhere rules of a formal nature have not been observed.

PROCEEDINGS BEFORE THE COMMISSION

21. In her application (no. 8562/79) lodged with the Commission on16 February 1979, Mrs. Feldbrugge relied on Article 6 para. 1(art. 6-1) of the Convention.She claimed that, in the determinationof her right to health insurance allowances, she had not received afair trial before the President of the Appeals Board in Haarlem.

22. The Commission declared the application admissibleon 15 November 1983.In its report of 9 May 1984 (Article 31)(art. 31), it concluded that Article 6 para. 1 (art. 6-1) was notapplicable to the facts of the present case, that it was not necessaryto determine whether the proceedings compained of had complied withthat Article and, by eight votes to six, that the Article had not beenbreached.

The full text of the Commission’s opinion and of the two separateopinions contained in the report is reproduced as an annex to thepresent judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

23. In their memorial, the Government requested the Court "to decidethat there [had] been no violation of the Convention in the presentcase".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

24. Article 6 para. 1 (art. 6-1) of the Convention reads as follows:

"In the determination of his civil rights and obligations ...,everyone is entitled to a fair and public hearing within a reasonabletime by an independent and impartial tribunal established by law...."

The applicant claimed that she did not receive a fair hearing by atribunal in the determination of her right to sickness allowances.

In view of the submissions made, the first issue to be decidedconcerns the applicability of paragraph 1 of Article 6 (art. 6-1), thisbeing a matter disputed by the majority of the Commission and by theGovernment.

A. Applicability of Article 6 para. 1 (art. 6-1)

1. Existence of a "contestation" (dispute) over a right

25. As to the existence of a "contestation" (dispute) over a right,the Court would refer to the principles enunciated in its case-law andsummarised in its Benthem judgment of 23 October 1985 (Series Ano. 97, pp. 14-15, para. 32).

In the present case, it appears clear that a "contestation" (dispute)arose following the decision taken on 11 April 1978 by the GoverningBoard of the Occupational Association of the Banking and Insurance,Wholesale Trade and Self-Employment Sector in Amsterdam (seeparagraph 11 above).This "contestation" was genuine and serious, andconcerned the actual existence of the right asserted by the applicantto continue receiving a sickness allowance.The outcome of therelevant proceedings was capable of leading - and in the event didlead - to confirmation of the decision being challenged, namely therefusal of the President of the Haarlem Appeals Board to grant theclaimed allowance; it was thus directly decisive for the right inissue.

The President of the Appeals Board thus had to determine acontestation (dispute) concerning a right claimed by Mrs. Feldbrugge.

2. Whether the right at issue was a civil right

(a) Introduction

26. According to the case-law of the Court, "the notion of ‘civilrights and obligations’ cannot be interpreted solely by reference tothe domestic law of the respondent State" (see the König judgment of28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89).In addition,Article 6 (art. 6) does not cover only "private-law disputes in thetraditional sense, that is disputes between individuals or between anindividual and the State to the extent that the latter had been actingas a private person, subject to private law", and not "in itssovereign capacity" (see the same judgment, loc. cit., p. 30,para. 90). "The character of the legislation which governs how thematter is to be determined ... and that of the authority which isinvested with jurisdiction in the matter ... are ... of littleconsequence": the latter may be an "ordinary court, [an]administrative body, etc."(see the Ringeisen judgment of16 July 1971, Series A no. 13, p. 39, para. 94). "Only the characterof the right at issue is relevant" (see the above-mentioned Königjudgment, Series A no. 27, p. 30, para. 90).

27. As in previous cases, the Court does not consider that it has togive on this occasion an abstract definition of the concept of "civilrights and obligations".

This being the first time that the Court has had to deal with thefield of social security, and more particularly the sickness insurancescheme in the Netherlands, the Court must identify such relevantfactors as are capable of clarifying or amplifying the principlesstated above.

(b) Supplementary factors disclosed by the subject matter of thelitigation

28. Under Netherlands legislation, the right in issue is treated as apublic-law right (see paragraphs 16-17 above).This classification,however, provides only a starting point (see notably, mutatismutandis, the Engel and Others judgment of 8 June 1976, Series Ano. 22, p. 35, para. 82); it cannot be conclusive of the matterunless corroborated by other factors.In its König judgmentof 28 June 1978, the Court stated in particular:

"Whether or not a right is to be regarded as civil ... must bedetermined by reference to the substantive content and effects of theright - and not its legal classification - under the domestic law ofthe State concerned.In the exercise of its supervisory functions,the Court must also take account of the object and purpose of theConvention and of the national legal systems of the other ContractingStates ... ." (Series A no. 27, p. 30, para. 89)

29. There exists great diversity in the legislation and case-law ofthe member States of the Council of Europe as regards the juridicalnature of the entitlement to health insurance benefits under socialsecurity schemes, that is to say as regards the category of law towhich such entitlement belongs.Some States - including theNetherlands - treat it as a public-law right, whereas others, on thecontrary, treat it as a private-law right; others still would appearto operate a mixed system.What is more, even within the same legalorder differences of approach can be found in the case-law.Thus, insome States where the public-law aspect is predominant, some courtdecisions have nonetheless held Article 6 para. 1 (art. 6-1) to beapplicable to claims similar to the one in issue in the present case(for example, the judgment of 11 May 1984 by the Brussels LabourCourt, Journal des Tribunaux 1985, pp. 168-169).Accordingly, thereexists no common standard pointing to a uniform European notion inthis regard. 30.An analysis of the characteristics of the Netherlandssystem of social health insurance discloses that the claimedentitlement comprises features of both public law and private law.