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You are here: BAILII >> Databases >> European Court of Human Rights >> CASES OF SCHOUTEN AND MELDRUM v. THE NETHERLANDS - 19005/91;19006/91 [1994] ECHR 44 (9 December 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/44.html Cite as: [1994] ECHR 44, (1995) 19 EHRR 432, 19 EHRR 432 |
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In the cases of Schouten and Meldrum v. the Netherlands*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A**, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr B. Walsh,
Mr A. Spielmann,
Mr S.K. Martens,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr P. Jambrek,
Mr K. Jungwiert,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 21 June and 22 November 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The cases are numbered 48/1993/443/522 and 49/1993/444/523
respectively. The first number in each of these sets of numbers is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers in each set
indicate the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding originating
applications to the Commission.
** Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The cases were referred to the Court by the European Commission
of Human Rights ("the Commission") on 9 December 1993 and by the
Netherlands Government ("the Government") on 24 February 1994, within
the three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. They originated in two
applications (nos. 19005/91 and 19006/91) against the Kingdom of the
Netherlands lodged with the Commission under Article 25 (art. 25) by
two Netherlands nationals, Mr Johannes Schouten, acting in his capacity
as sole managing director of Praktijk mevrouw Breevaart B.V., a limited
liability company (besloten vennootschap met beperkte
aansprakelijkheid) under Netherlands law, and Mr Hendrik Alexander
Meldrum, on 4 September 1991.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Articles 44 and 48
(art. 44, art. 48). The object of the request and of the application
was to obtain a decision as to whether the facts of the cases disclosed
a breach by the respondent State of its obligations under Article 6
(art. 6) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that
they did not wish to take part in the proceedings.
3. On 13 January 1994 the President of the Court decided, under
Rule 21 para. 6 and in the interests of the proper administration of
justice, that a single Chamber should be constituted to consider both
cases.
4. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 28 January 1994, in
the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr R. Bernhardt, Mr B. Walsh,
Mr A. Spielmann, Mr J. De Meyer, Mr A.N. Loizou, Mr P. Jambrek and
Mr K. Jungwiert (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently Mr A.B. Baka, substitute
judge, replaced Mr De Meyer, who was unable to take part in the further
consideration of the cases (Rules 22 para. 1 and 24 para. 1).
5. On 20 April 1994 the Chamber decided that the cases should be
joined (Rule 37 para. 3); it also decided to dispense with a hearing
in the cases, having satisfied itself that the conditions for this
derogation from its usual procedure had been met (Rules 26 and 38).
6. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government and
the Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
a document setting out the applicants' claims under Article 50
(art. 50) was received at the registry on 17 May 1994 and the
Government's memorial on 19 May. On 31 May the registry received a
document filed by the Delegate of the Commission and on 14 June further
written observations submitted by the Government.
AS TO THE FACTS
I. Particular circumstances of the cases
A. Mr Schouten
7. Mr Schouten is a Netherlands national who lives in Zoetermeer.
He made his application in his capacity as sole managing director of
Praktijk mevrouw Breevaart B.V. ("Breevaart"), a limited liability
company under Netherlands law which has its registered office in
Hendrik Ido Ambacht. The Government, the Commission and the company
Breevaart having apparently accepted that for present purposes
Mr Schouten may be identified with the company, the Court will
hereinafter generally refer to Mr Schouten only.
8. Breevaart owned a physiotherapy practice, including the
practice's premises and equipment. When Breevaart's then sole managing
director and shareholder died in 1984, the practice was carried on by
three physiotherapists who had been her associates. Mr Schouten,
having apparently become managing director of the company, entered into
an arrangement with the physiotherapists. Under this arrangement,
Mr Schouten concluded contracts with the various health-insurance funds
(ziekenfondsen) but the physiotherapists themselves invoiced the
health-insurance funds. Mr Schouten was entitled to 35% of each fee
for making the premises and equipment available to the
physiotherapists. The physiotherapists were entitled to separate
remuneration for the day-to-day running of the practice; the funds made
their payments to Mr Schouten, from whom the physiotherapists received
the sums due to them.
In March 1987 the physiotherapists bought the practice,
including the premises and the equipment, from the company, and in June
of that year they formed a partnership. Both these operations were
made retrospectively effective from 1 January 1987. The arrangement
with Mr Schouten thus ceased to be valid.
9. In March 1987 the Occupational Association for Health and
Mental and Social Well-being (Bedrijfsvereniging voor de Gezondheid,
Geestelijke en Maatschappelijke Belangen - "the BVG") sent Mr Schouten
a demand for payment of contributions in respect of the
physiotherapists under the Health Insurance Act (Ziektewet), the
Medical Assistance Fund Act (Ziekenfondswet), the Unemployment
Insurance Act (Werkloosheidswet) and the Occupational Disability
Insurance Act (Wet op de arbeidsongeschiktheidsverzekering) for the
years 1984, 1985, 1986 and 1987.
10. On 27 March 1987 Mr Schouten lodged an objection to the BVG's
demand and requested formal confirmation (voor beroep vatbare
beschikking) of its decision, with a view to lodging an appeal.
11. The BVG gave such confirmation on 9 December 1988 with the
reasons for its decision.
Basing itself on the circumstances outlined in paragraph 8
above, the BVG took the view that, although the contractual
relationship between the physiotherapists and Mr Schouten could not be
classified as a contract of employment, it was the "social equivalent"
(maatschappelijk gelijkgesteld) of such a contract.
The physiotherapists were thus regarded not as independent
practitioners but as employees of Mr Schouten, who consequently was
under a legal obligation to pay social-security contributions for them.
As to the year 1987, the BVG did not consider itself bound by the
retrospective effect of the two agreements.
12. Mr Schouten appealed to the Rotterdam Appeals Tribunal (Raad
van Beroep) on 21 December 1988, without setting out any grounds. He
asked for an extension of time for submitting such grounds until
1 June 1989; the reasons given were, firstly, that in view of the
December holidays it would not be possible to prepare the necessary
documents and, secondly, that proceedings in another case pending
before the Central Appeals Tribunal (Centrale Raad van Beroep) raised
very similar issues and he wished to be able to amend his reasoning in
the light of the judgment in that case.
An extension was granted until 15 September 1989.
The BVG withdrew its claims concerning the year 1987 in a
letter of 10 July 1989.
13. Mr Schouten supplemented his notice of appeal with a statement
of grounds on 11 September 1989. In addition to making submissions
relating to the independence of the physiotherapists he argued that the
BVG's decision was vitiated because Article 6 (art. 6) of the
Convention had been violated: firstly, the lapse of time - one year and
nine months - between the request for formal confirmation of the BVG's
initial decision and delivery of that confirmation had been longer than
could be considered "reasonable", and secondly, the fact that by
withholding formal confirmation an occupational association
(bedrijfsvereniging) could delay an appellant's access to a tribunal
indefinitely constituted a breach of the principle of "fair play".
14. The Appeals Tribunal held a hearing on 13 December 1989 and
delivered its judgment on the same day.
It held that, although the contractual relationship between
Mr Schouten and the physiotherapists could not be classified as an
"employment relationship", it should, under the case-law of the Central
Appeals Tribunal, be considered the "social equivalent" of one; the
physiotherapists were therefore to be regarded as Mr Schouten's
"employees" for the purposes of the relevant social-security
legislation and Mr Schouten was therefore required to pay contributions
for them.
As to Mr Schouten's arguments based on Article 6 (art. 6) of
the Convention, the Appeals Tribunal held that it was wrong for an
administrative authority to withhold formal confirmation without good
reason, especially if it did so for a very long time, as the BVG had
done in the instant case. Nevertheless, even if Article 6 (art. 6)
were applicable and had been violated, the applicant could not derive
from it rights which were at variance with binding provisions of
Netherlands law (dwingend recht).
15. Mr Schouten lodged a notice of appeal with the Central Appeals
Tribunal on 15 January 1990, requesting an extension of time for filing
his arguments; the reason given for this request was the need to obtain
and study a copy of a judgment of the Central Appeals Tribunal itself
which had been cited in the judgment of the Appeals Tribunal.
16. Mr Schouten filed his written arguments with the Central
Appeals Tribunal on 25 April 1990. He argued, inter alia, that the
Appeals Tribunal had erred in not considering the case under Article 6
(art. 6); the Convention was directly applicable in the Netherlands,
taking precedence over national law, and not only had formal
confirmation not been provided within a "reasonable time" but the fact
that appellants were subject to strict time-limits to request formal
confirmation whereas occupational associations were subject to none for
responding resulted in clear procedural inequality. The conduct of the
BVG, which was open to criticism, should be sanctioned and the obvious
sanction was to quash its decision.
17. The Central Appeals Tribunal gave judgment on 10 July 1991.
It found that at the material time the physiotherapists could
properly be treated as "employees" for the purposes of the relevant
social-security legislation.
Referring to its previous case-law, it further held that it was
unnecessary to address the question of the applicability of Article 6
(art. 6) of the Convention. The wording of the Article (art. 6) was
of no help in the matter, and the tribunal was not aware of "any
relevant decision of the European Court of Human Rights". In any case,
where formal confirmation of a decision had been delayed, the Central
Appeals Tribunal had regard primarily to general principles of good
governance (algemene beginselen van behoorlijk bestuur) and, where
necessary, to the principle of "fair play".
The Central Appeals Tribunal agreed with Mr Schouten that it
had taken the BVG a very long time to provide formal confirmation of
its decision. The excuses advanced by the BVG - an investigation into
Mr Schouten's practice, and in general an excessive number of cases
involving physiotherapy practices - were not in themselves sufficient;
since the Appeals Act (Beroepswet) did not provide for interim measures
or an appeal in the event of failure to react within a reasonable time,
such delay seriously impeded access to a tribunal. However, it did not
appear from the case file that Mr Schouten had sought to obtain the
formal confirmation sooner.
Mr Schouten had not in his appeal relied on a general interest
in legal certainty or cited a financial interest, namely that the BVG
could claim interest (rente) on the sums due. In any event, while
those sums remained unpaid, any interest payable to the BVG was to some
extent offset by the - admittedly lower - interest that Mr Schouten
could obtain on the sums in question in the meantime.
The right of access to a tribunal was relevant only in relation
to the dispute over the fixing of the social-security contributions.
The right in question "could not automatically be transposed" in such
a way as to deprive the BVG of the right to fix such contributions.
Mr Schouten's application to have the decision in question set aside,
despite the fact that the contributions themselves had been fixed in
due time, therefore had to be refused.
Finally, the Central Appeals Tribunal found no violation of the
principles of "fair play" and "equality of arms", since it did not
appear that while the BVG was preparing its decision or in the course
of the proceedings Mr Schouten had not had sufficient opportunity to
put forward his arguments. The inequality as regards time-limits did
not in itself constitute a breach of those principles as in such cases
decisions had to be taken with due care.
The appeal was therefore dismissed.
B. Mr Meldrum
18. Mr Meldrum is a Netherlands citizen born in 1947. He lives in
Dordrecht where he works as a physiotherapist.
19. Until 1 December 1986 Mr Meldrum had an arrangement with a
number of other physiotherapists which in its essentials was identical
with that of Mr Schouten (see paragraph 8 above).
On 1 December 1986 a contract of employment between Mr Meldrum
and the other physiotherapists entered into force and the above
arrangement came to an end.
20. In October 1987 the BVG sent Mr Meldrum a demand for payment
of contributions in respect of the other physiotherapists under the
Health Insurance Act, the Medical Assistance Fund Act, the Unemployment
Insurance Act and the Occupational Disability Insurance Act for the
years 1984, 1985 and 1986.
21. In a letter of 4 December 1987 Mr Meldrum lodged an objection
to the BVG's demand and requested formal confirmation of its decision,
with a view to lodging an appeal.
22. The BVG gave this confirmation on 1 May 1989. Its reasoning
did not differ materially from that indicated in the case of
Mr Schouten (see paragraph 11 above).
23. Mr Meldrum appealed to the Rotterdam Appeals Tribunal on
18 May 1989, asking to be allowed until 15 September 1989 to supplement
his notice of appeal. The reasons he gave were, firstly, that he
wished to submit figures calculated by an accountant and to refer to
a judgment in a case then pending before the Central Appeals Tribunal
in which similar questions were being addressed and, secondly, the
approach of the summer holidays. This request was allowed. Mr Meldrum
supplemented his notice of appeal on 11 September 1989.
The BVG submitted its reply on 16 November 1989.
24. At the Appeals Tribunal hearing (the date of which is not
known) the applicant stated that he expected the case to be taken to
the European Court of Human Rights and he requested the tribunal to
give as detailed a judgment as possible.
25. The Appeals Tribunal gave judgment on 2 July 1990.
Referring to the Central Appeals Tribunal's case-law, the
Appeals Tribunal ruled that under the relevant social-security
legislation Mr Meldrum was liable to pay contributions for the other
physiotherapists.
The delay in question had not, in the Appeals Tribunal's view,
caused Mr Meldrum any prejudice, and the principles of "fair play" and
a "fair hearing" had therefore not been violated.
As regards Mr Meldrum's arguments concerning the determination
of his rights within a "reasonable time", the Appeals Tribunal inferred
that he assumed that under Article 6 (art. 6) time-limits were
"absolute". However, the case-law of the European Court indicated that
the factual situation was of relevance in deciding whether a given
decision had been taken within a reasonable time. Exceeding what might
generally be considered a reasonable time in the determination of a
dispute could not have the effect that an administrative authority
which complied with legal time-limits was deprived of its right to
claim social-security contributions. In any case, although a speedier
decision would have been preferable, the lapse of time in issue did not
go beyond what was reasonable for the purposes of Article 6 (art. 6).
The Appeals Tribunal added that the approach adopted by the BVG
in cases of this nature had given rise to an unnecessary number of
appeals, partly because of the "persistent attitude of the interested
parties", but that it did not appear, in this case or others, that the
BVG had made statements or acted in such a way as to create legitimate
expectations on the basis of which the Appeals Tribunal could decide
that rights to demand payment of social-security contributions over the
relevant period had lapsed.
The appeal was accordingly dismissed.
26. Mr Meldrum lodged an appeal with the Central Appeals Tribunal
on 26 July 1990.
He contested the assertion that the delay in sending him formal
confirmation of the BVG's decision had caused him no prejudice. He
submitted that by the time he was finally allowed access to the Appeals
Tribunal, the case-law had already been established and was difficult
to change; the case-law in relation to physiotherapists might have
developed differently if the right arguments had been adduced at an
earlier stage. If he had been one of the first to appeal, the
substance of his arguments would have been addressed and would not have
met with a standardised response.
Lastly, he reiterated his arguments based on the principle of
"fair play". Since an appellant had to observe a time-limit of only
two months, whereas the defendant administrative authority could stall
proceedings indefinitely, it was possible for the latter to choose
"pilot cases" which would then form the basis of a body of case-law
favourable to the defendant administrative authority and providing
precedent for other cases.
27. Following a hearing on 6 February 1991, at which Mr Meldrum was
not represented, the Central Appeals Tribunal gave judgment on
13 March 1991.
It rejected Mr Meldrum's arguments concerning the independence
of the other physiotherapists and found that the relationship between
them and Mr Meldrum was such as to require him to pay social-security
contributions for them.
As to Mr Meldrum's arguments based on Article 6 (art. 6), it
left open the question whether the case concerned "civil rights and
obligations"; in cases of this nature the reasonable time requirement
did not apply to the phase preceding appeal to an administrative
tribunal under the Appeals Act. It recognised that procrastination by
an administrative authority might possibly hinder an appellant's access
to a tribunal but expressed no opinion as to whether such a right of
access flowed directly from Article 6 (art. 6).
There was nothing in the file to suggest that the applicant had
taken any action to expedite delivery of the formal confirmation. In
view, inter alia, of the necessity for further investigations and
correspondence and the fact that it appeared that the delay was
connected with the large number of requests for formal confirmation,
the Central Appeals Tribunal came to the conclusion that the BVG, in
not providing such formal confirmation until 1 May 1989 - far too long
after the applicant's request - could not be said to have actually
hindered any attempts by the applicant to obtain access to a tribunal
earlier.
As to the argument that the delay in providing formal
confirmation had been prejudicial to his procedural position, the
Central Appeals Tribunal noted that Mr Meldrum's case raised no issues
that had not been addressed in earlier cases.
Furthermore, the BVG's demands for payment of contributions for
1984, 1985 and 1986, based as they were on binding legal provisions,
did not violate any general principle of good governance in such a way
that the BVG should thereby have divested itself of its legal
obligation to make such demands.
The appeal was accordingly dismissed. However, the Appeals
Tribunal's judgment had been based on figures which were corrected by
the BVG of its own motion in the course of the proceedings before the
Central Appeals Tribunal, so that as a matter of form the judgment of
the Appeals Tribunal had to be partly set aside.
II. Relevant domestic law and practice
A. Occupational associations
28. Pursuant to section 2 of the Social Security (Organisation) Act
(Organisatiewet sociale verzekeringen) it falls to the occupational
associations to implement the Health Insurance Act, the Medical
Assistance Fund Act, the Unemployment Insurance Act and the
Occupational Disability Insurance Act.
One occupational association exists for each of the various
sectors of economic life. An occupational association is an
association (vereniging) under private law set up by employers' and
employees' organisations considered by the Minister of Social Affairs
and Employment (Minister van Sociale Zaken en Werkgelegenheid) to be
sufficiently representative of the sector concerned; its purpose is
defined as being to implement the relevant social-security legislation,
it must be a non-profit-making body and its statutes must satisfy
certain requirements (section 4(1) of the Social Security
(Organisation) Act).
An employer is automatically a member of the occupational
association corresponding to the sector of the economy to which the
work carried out by his employees belongs (section 7(1) of the Social
Security (Organisation) Act).
29. The occupational associations are supervised by the Social
Security Council (Sociale Verzekeringsraad). This body has legal
personality under public law (section 35(1) of the Social Security
(Organisation) Act). Its president and one-third of its members are
appointed directly by the Minister of Social Affairs and Employment for
a term of three years; one-third of its members are appointed for the
same term by employers' organisations and one-third by employees'
organisations, the organisations in both instances being those
considered by the Minister to be sufficiently representative
(section 35(2)-(6) of the Social Security (Organisation) Act).
The Social Security Council is empowered to adopt regulations
for co-ordinating the implementation of the social-security legislation
(section 48 of the Social Security (Organisation) Act); it also has the
power to recommend to the Minister of Social Affairs and Employment the
suspension or annulment of decisions of occupational associations
(section 49). It is responsible to the Minister and must follow his
instructions (section 41).
30. Employers must provide the occupational associations with
information concerning the wages (loon) paid to their employees; the
occupational associations then determine the contributions to be paid
under the relevant social-security legislation in respect of each
employee. These contributions are paid by the employers to their
respective occupational association (section 11 of the Social Security
(Co-ordination) Act - Coördinatiewet Sociale Verzekeringen). Section 4
of the Social Security (Co-ordination) Act gives the following
definition of "wages":
"1. Everything enjoyed under an employer/employee relationship
(dienstbetrekking) shall constitute wages.
2. Wages shall include entitlements - whether conditional or
coming into existence in the course of time - to one or more
benefits or grants (uitkeringen of verstrekkingen), in so far
as these are not covered by contributions paid by the
employee."
This definition is virtually identical with that given in
section 10 of the Wages (Tax Deduction) Act (Wet op de loonbelasting),
the only difference being that the latter Act also includes in its
definition everything enjoyed under an employer/employee relationship
which no longer exists.
31. If, for whatever reason, the employer does not pay the
contributions within a time-limit set by the occupational associations,
the latter may charge interest on the outstanding amount. This
interest is calculated at the statutory rate, which in recent years has
fluctuated between 8 and 12% (section 14 of the Social Security
(Co-ordination) Act).
According to the case-law of the Central Appeals Tribunal, the
interest is to be calculated from the day on which the occupational
association fixed the amount to be paid, not the day on which the
amount was notified to the employer (judgment of the Central Appeals
Tribunal of 5 January 1976, Rechtspraak sociaal verzekeringsrecht,
(Social security reports - RSV) 1976, no. 184).
32. At the relevant time, section 5(d) of the Health Insurance Act,
section 5(d) of the Unemployment Insurance Act, section 5(d) of the
Occupational Disability Insurance Act, and section 3(1) of the Medical
Assistance Fund Act taken in conjunction with section 5(d) of the
Health Insurance Act empowered the Minister of Social Affairs and
Employment to define as work relationships, by delegated legislation,
several types of relationship that could be considered the "social
equivalent" thereof. In pursuance of these provisions, the Minister
defined as a work relationship the relationship involving someone who
regularly performs work in person for at least two days a week in
return for a gross income exceeding a given proportion of the statutory
minimum wage (section 2(1) of the Royal Decree of 14 December 1973,
Staatsblad - Official Gazette - 627).
B. Social-security legislation
33. The Health Insurance Act sets up an insurance scheme
(verzekering) which is compulsory for all employees (section 20).
Under this scheme, the employee has a right to sick-pay (ziekengeld)
in the event of inability to perform his or her work due to illness,
pregnancy or disability (section 19). The employee may receive
sick-pay for a period of up to fifty-two weeks (section 29(2)), or for
sixteen weeks (which do not count towards the period of fifty-two
weeks) in the case of pregnancy (section 29(7)).
34. The insurance scheme set up by the Medical Assistance Fund Act
is compulsory for all employees whose wages do not exceed a certain
annual figure (section 3); its benefits are also enjoyed by their
spouses and dependants (section 4). To be entitled to the benefits,
the employee must apply for registration with a health insurance fund,
which is under an obligation to register him (section 5(1)).
The health insurance funds pay for medical assistance provided
by medical practitioners, hospitals and some private institutions; for
certain medicines prescribed by doctors; and transport by ambulance
(sections 8 - 8i), in so far as these costs are not borne by other
bodies under other legislation.
35. The insurance scheme set up under the Unemployment Insurance
Act, to which people employed in the Netherlands belong as of right,
confers an entitlement to unemployment pay on employees who, for a
reason not connected with abnormal natural occurrences such as floods
or extremes of cold, lose their employment or a significant part of it
along with their right to wages in respect of the employment lost and
who are available for employment (sections 15, 16 and 18).
36. The Occupational Disability Insurance Act provides compulsory
insurance for an employee who, through illness or disability, is wholly
or partly unable to earn through work an income comparable to that
which a healthy person with similar training and experience might earn
at the employee's place of employment or last place of employment or
in the vicinity thereof (section 18(1)). The entitlement to disability
pay begins fifty-two weeks after the employee becomes disabled
(section 19(1)), payments during the intervening period normally being
made under the Health Insurance Act (see paragraph 33 above).
37. Contributions to all the above schemes are fixed by and paid
to the occupational associations. Although some of the Acts involved
lay down that contributions are due in whole or in part by the
employee, it is in all cases the employer who is responsible to the
occupational association for making the payments (and who must
therefore deduct the employee's share from his pay).
C. Procedural provisions
38. At the material time, a common feature of all the above
social-security legislation was the rule that an interested party who
wished to contest a decision of an occupational association concerning
contributions must request formal confirmation in writing. Such formal
confirmation, which included the grounds on which the decision was
based, was an admissibility requirement for an appeal to a tribunal.
39. None of these Acts specified time-limits for requesting formal
confirmation. However, the Central Appeals Tribunal ruled that this
should be done within a "reasonable time", which that tribunal
construed to mean generally within two months (see, inter alia, its
judgment of 19 March 1974, RSV 1974, no. 288). An occupational
association might declare inadmissible such a request if it was filed
too late. A decision of the occupational association declaring a
request for formal confirmation inadmissible was itself a decision of
which formal confirmation might be requested with a view to an appeal.
There was no statutory time-limit within which formal
confirmation had to be given.
40. In a case concerning the Work Centres Act (Wet op de sociale
werkplaatsen) - an Act which provided that decisions on certain
applications should be taken within five weeks - the plaintiff
instituted summary proceedings when, two months after the time-limit,
the municipality of Amsterdam had still not given a decision. His
purpose was to obtain a judgment ordering the municipality to give a
decision on his application. The action was eventually dismissed on
appeal. The Supreme Court, in its judgment of 21 June 1985, upheld
this dismissal, holding that the mere fact of exceeding the time-limit
was not sufficient to render the municipality liable in negligence.
Furthermore, the municipality was entitled to invoke its financial
constraints and inadequate staffing levels as an excuse for its
inability to deal with the plaintiff's request.
The author of a commentary on the judgment as reported in
Nederlandse Jurisprudentie (Netherlands Law Reports - NJ) 1986, 526,
Professor M. Scheltema, observed that the Supreme Court had much
reduced the effectiveness of summary proceedings as a remedy against
failure by a public authority to give a decision in a case in which the
Appeals Act applied.
41. When formal confirmation had been given, an appeal lay to the
Appeals Tribunal. It had to be lodged within one month (section 83 of
the Appeals Act).
From the Appeals Tribunal a further appeal lay to the Central
Appeals Tribunal (section 145 of the Appeals Act); it too had to be
lodged within one month.
D. Subsequent changes to the applicable procedure
42. On 1 January 1994 the General Administrative Code entered into
force (see the Van de Hurk v. the Netherlands judgment of
19 April 1994, Series A no. 288, p. 15, para. 39). It lays down new
uniform rules of administrative procedure which apply also to cases
such as the present one.
Anyone wishing to challenge a decision of an occupational
association concerning contributions under social-security schemes may
lodge an administrative objection (bezwaarschrift) with that body,
provided that he or she does so within six weeks (section 6:7).
If the occupational association fails to decide within a
reasonable time, or refuses to do so, the party seeking review may
lodge an appeal with the Regional Court (arrondissementsrechtbank)
without waiting any longer for a decision (sections 6:2, 6:12 and
8.1.1.1). It is thus no longer necessary to request formal
confirmation of a decision of an occupational association.
A further appeal lies to the Central Appeals Tribunal
(section 18 of the Appeals Act).
PROCEEDINGS BEFORE THE COMMISSION
43. Mr Schouten and Mr Meldrum each lodged an application
(no. 19005/91 and no. 19006/91 respectively) with the Commission on
4 September 1991. They alleged a violation of Article 6 para. 1
(art. 6-1) of the Convention on two counts. Firstly, they alleged a
breach of the principle of "equality of arms" enshrined in
Article 6 para. 1 (art. 6-1), since the BVG was able to delay the start
of judicial proceedings indefinitely. Secondly, they complained that
their cases had not been dealt with within a "reasonable time" in view
of the excessive lapse of time before the BVG provided formal
confirmation of its decisions.
44. On 9 December 1992 the Commission declared the applications
admissible. In its reports of 12 October 1993 (Article 31) (art. 31),
it expressed the opinion, by eighteen votes to one in the case of
Mr Schouten and unanimously in the case of Mr Meldrum, that the
applicants' cases had not been dealt with within a "reasonable time"
and, by eleven votes to eight in the case of Mr Schouten and eleven
votes to seven in the case of Mr Meldrum, that there had been breaches
of the principle of "equality of arms".
The full text of the Commission's opinions in the two cases and
of the separate opinions contained in the reports is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 304 of Series A
of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
45. In their memorials in each of the two cases, the Government
concluded that Article 6 para. 1 (art. 6-1) could not be held to apply
to the present cases and - should the Court reach a different
conclusion - that Article 6 para. 1 (art. 6-1) had not been violated.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION
46. The applicants submitted that by reason of the BVG's delay in
providing formal confirmation of its decisions, their cases had not
been dealt with within a "reasonable time". They also alleged that,
since the BVG was able to delay the institution of proceedings before
a tribunal indefinitely by withholding formal confirmation, they had
been deprived of a fair trial. They relied on Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing within a reasonable
time by [a] ... tribunal ..."
The Government disputed these contentions but the Commission
accepted them.
A. Applicability of Article 6 para. 1 (art. 6-1)
1. Arguments before the Court
47. In its reports in the two cases, the Commission expressed the
opinion that the proceedings in question involved the determination of
"civil rights and obligations" and that Article 6 para. 1 (art. 6-1)
was accordingly applicable.
In the light of the Court's case-law, notably the Feldbrugge
v. the Netherlands judgment of 29 May 1986 (Series A no. 99), the
Salesi v. Italy judgment of 26 February 1993 (Series A no. 257-E) and
the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993 (Series A
no. 263) - in all of which Article 6 (art. 6) had been held to apply
in the field of social insurance, including welfare benefits - the
Commission considered that Article 6 para. 1 (art. 6-1) was applicable
to proceedings concerning the entitlement to benefits under the
social-security schemes at issue in the present cases. It was true
that the proceedings in the instant cases related to the obligation to
pay contributions under these schemes but in its opinion there was no
distinction of principle to be drawn between civil "rights" and
"obligations" and therefore none either between social-security
benefits and contributions. The Feldbrugge judgment was particularly
relevant, since the private-law features - the "personal and economic"
nature of the benefits, their connection with a contract of employment,
the affinities of the scheme with private insurance - which in that
case led the Court to hold Article 6 (art. 6) applicable to benefits
under the Health Insurance Act, also applied, mutatis mutandis, to the
obligation to pay contributions.
Finally, the Commission referred to the Court's judgment of
26 March 1992 in the case of Editions Périscope v. France (Series A
no. 234-B), in which the Court had held Article 6 (art. 6) to be
applicable to an action whose subject-matter was "pecuniary" in nature
and which was founded on an alleged infringement of rights that were
likewise pecuniary rights, and to the judgment of 24 October 1989 in
the case of H. v. France (Series A no. 162-A), in which the Court found
that for Article 6 (art. 6) to apply it was sufficient that the outcome
of the proceedings should be "decisive for private rights and
obligations".
48. The Government, on the other hand, submitted that Article
6 para. 1 (art. 6-1) did not apply to contributions under
social-security schemes.
Firstly, the contributions in question were, in their view,
akin to taxation and therefore did not come within the concept of
"civil rights and obligations". In this connection, moreover, they
cited the consistent practice of the Commission according to which
proceedings relating to the levying of taxes did not fall within the
scope of Article 6 (art. 6). They pointed to similarities between the
payment of contributions under social-security schemes and taxation.
In particular, they argued that the obligation to pay contributions
derived not from any agreement but from law, as did the amount thereof;
this obligation was incumbent not only on the potential beneficiary but
on a third party (the employer) as well; the obligation was unconnected
with the entitlement to benefits, so that even if the employer did not
pay the relevant contributions, the employee remained entitled to the
benefits; and the rules governing the deduction and payment of
contributions had been brought into line with those concerning the
deduction of tax from wages.
They observed, furthermore, that the case-law of the Court, in
so far as Article 6 (art. 6) had been held to apply in the field of
social security, related to benefits and not to contributions; the fact
that Article 6 para. 1 (art. 6-1) was applicable as regards the former
did not mean that it was applicable as regards the latter. The
decisive consideration for holding Article 6 (art. 6) to be applicable
to disputes relating to benefits under social-security schemes was that
such disputes had a direct bearing on the beneficiary's means of
subsistence; disputes relating to an employer's obligation under these
schemes, however, concerned an incidental financial obligation and did
not bear directly on his means of subsistence.
Finally, they pointed to differences between the facts in the
instant cases and those of the Editions Périscope case, which had
concerned a claim for compensation. Nor was the case of H. v. France
relevant; it was not unusual for the assessment of an underlying
question of private law to have a decisive influence on the outcome of
taxation disputes, but in their submission this could not support the
conclusion that Article 6 (art. 6) was applicable to such disputes.
2. Approach to be adopted
49. This is the first time the Court has had to rule on the
applicability of Article 6 para. 1 (art. 6-1) to a dispute concerning
contributions under social-security schemes, as distinct from
entitlement to benefits under such schemes.
50. The Court agrees with the Government that the approaches to
benefits and to contributions are not necessarily the same. In the
Schuler-Zgraggen judgment the Court stated that "as a general rule"
Article 6 para. 1 (art. 6-1) applied in the field of social insurance
and that State intervention was not sufficient to establish that that
provision was inapplicable (loc. cit., p. 17, para. 46). However, it
went on to hold that in that case the most important consideration
militating in favour of applicability was that the applicant had
suffered "an interference with her means of subsistence" and was
claiming "an individual, economic right flowing from specific rules
laid down in domestic law". The Court's reasoning in the Salesi
judgment (loc.cit., p. 59, para. 19), which concerned welfare
assistance, was similar. Such reasoning cannot automatically be
applied to disputes concerning the obligation to pay contributions
under social-security schemes.
Nor is it in itself sufficient to show that a dispute is
"pecuniary" in nature. There may exist "pecuniary" obligations
vis-à-vis the State or its subordinate authorities which, for the
purpose of Article 6 para. 1 (art. 6-1), are to be considered as
belonging exclusively to the realm of public law and are accordingly
not covered by the notion of "civil rights and obligations". Apart
from fines imposed by way of "criminal sanction", this will be the
case, in particular, where an obligation which is pecuniary in nature
derives from tax legislation or is otherwise part of normal civic
duties in a democratic society.
51. In the Court's view, although the Feldbrugge case concerned
benefits and not contributions, the method of analysis adopted in that
judgment is appropriate in the present cases also. The Court will
therefore analyse in turn the various features of public and private
law which are undoubtedly contained in the social-security legislation
in issue, in order to determine whether the contested "obligation" can
be regarded as a "civil" one for the purposes of Article 6 para. 1
(art. 6-1).
The Feldbrugge case concerned only the scheme established by
the Health Insurance Act, which is just one of the
social-security schemes in issue here. Nevertheless, in view of the
essential similarities, as far as contributions are concerned, between
that scheme and those set up under the other relevant Acts - the
Medical Assistance Fund Act, the Unemployment Insurance Act and the
Occupational Disability Insurance Act - it would serve no purpose for
the Court to differentiate between them. Hereinafter the Court will
therefore refer to the four schemes collectively as "the
social-security schemes".
3. Features of public law
52. The first feature of public law to consider is the character
of the legislation. In this regard, the following was stated in the
Feldbrugge judgment (loc. cit., pp. 13-14, para. 32):
"The legal rules governing social-security benefits in the
context of health insurance differ in many respects from the
rules which apply to insurance in general and which are part
of civil law. The Netherlands State has assumed the
responsibility of regulating the framework of the health
insurance scheme and of overseeing the operation of that
scheme. To this end, it specifies the categories of
beneficiaries, defines the limits of the protection afforded,
lays down the rates of the contributions and the allowances,
etc. ... [S]uch intervention cannot suffice to bring within
the sphere of public law the right asserted by the applicant."
Likewise the fact of State intervention is not in itself
sufficient to make contributions payable under the social-security
schemes fall within the sphere of public law. The Government,
moreover, did not so argue.
53. The second feature of relevance is the compulsory nature of the
social-security schemes. The Government pointed out that the
obligation to contribute to the social-security schemes derived not
from an agreement but from the law itself.
In its Feldbrugge judgment (loc. cit., p. 14, para. 33), the
Court answered a similar argument as follows:
"Comparable obligations can be found in other fields.
Examples are provided by the rules making insurance cover
compulsory for the performance of certain activities - such as
driving a motor vehicle - or for householders. Yet the
entitlement to benefits to which this kind of insurance
contract gives rise cannot be qualified as a public-law right.
The Court does not therefore discern why the obligation to
belong to a health insurance scheme should change the nature
of the corresponding right."
On that reasoning, contributions under the social-security
schemes are so similar to premiums for compulsory insurance that the
inability of those concerned to avoid paying them does not in itself
warrant the conclusion that the obligation concerned is one of public
law.
54. The last feature of public law considered by the Court in its
Feldbrugge judgment (loc. cit., p. 14, para. 34) was the assumption by
the State or by public or semi-public institutions of full or partial
responsibility for ensuring social protection. Such an assumption of
responsibility is reflected in the fact that the social-security
schemes are operated by semi-public institutions (see the Feldbrugge
judgment referred to above, p. 9, para. 15): although the occupational
associations have legal personality under private law, they are subject
to Government approval and are supervised by a public-law body which
is subject to instructions from the Government (see paragraphs 28
and 29 above). Such a factor implies, prima facie, an extension of the
public-law domain.
On the other hand, in the field of contributions as in that of
benefits, the social-security schemes have affinities with insurance
under private law. Indeed, private insurance covering largely the same
risks as those covered by the social-security schemes is available in
the Netherlands to those not compulsorily affiliated to, or entitled
to benefit from, those schemes, which are primarily intended to benefit
those likely to find private insurance beyond their means.
55. As to the fact, relied on by the Government, that the rules
governing the deduction and payment of contributions correspond to
those governing the deduction of tax from wages, it is in the nature
of things that the means resorted to by government agencies to ensure
payment of compulsory contributions should bear some resemblance to the
levying of taxes. It cannot be concluded from this that those
contributions necessarily belong to the domain of public law.
4. Features of private law
56. The Commission laid particular stress on the private-law
features which in the Feldbrugge judgment had been found to be inherent
in the right to benefits under the Health Insurance Act.
57. The first of these was the alleged "personal and economic
nature" of that right. In the Feldbrugge judgment, after stating that
Mrs Feldbrugge had suffered an interference with her means of
subsistence and was claiming a right flowing from specific rules laid
down by the legislation in force, the Court went on to hold (loc.cit.,
p. 15, para. 37):
"For the individual asserting it, such a right is often of
crucial importance; this is especially so in the case of
health insurance benefits when the employee who is unable to
work by reason of illness enjoys no other source of income.
In short, the right in question was a personal, economic and
individual right, a factor that brought it close to the civil
sphere."
As noted in paragraph 50 above with reference to the
Schuler-Zgraggen and Salesi judgments, this reasoning cannot be
transposed to the present cases, which concern contributions for whose
payment the employer is made responsible and which as a rule are not
of crucial importance to his very livelihood. Although the obligations
in issue are certainly "personal, economic and individual", the same
may be said of all "pecuniary" obligations vis-à-vis the State or its
subordinate authorities, even those which must be considered to belong
exclusively to the realm of public law. This factor cannot therefore
be decisive in this instance.
58. A feature of greater import is the link between the
social-insurance schemes and the contract of employment. As the Court
held in the Feldbrugge judgment (loc.cit., p. 15, para. 38):
"Whilst it is true that the insurance provisions derived
directly from statute and not from an express clause in the
contract, these provisions were in a way grafted onto the
contract. They thus formed one of the constituents of the
relationship between employer and employee."
The same reasoning may be said to apply in the present cases.
59. The final feature of relevance is the similarity between the
social-security schemes and private insurance. As was mentioned in the
Feldbrugge judgment, the occupational associations use risk-covering
techniques and management methods inspired by those current in the
private insurance market; they also conduct their dealings in a similar
way (loc. cit., p. 15, para. 39).
More significantly, as has already been mentioned (in
paragraph 54 above), private insurance is available to cover largely
the same risks as those covered by the social-security schemes. For
those who participate in these schemes, optional extensions of cover
are available privately.
In the Court's opinion, greater weight should be attached to
the similarities between the social-security schemes and private
insurance than to the difference adverted to by the Government, namely
the lack of a direct connection between payment of contributions and
entitlement to benefits. It may be that an employer's failure to
fulfil his obligations under the social-security schemes does not
affect the employee's entitlement to benefits under those schemes.
That, however, is a specific feature of social security which follows
from its very nature as a special legal relationship; although "grafted
onto" the contract of employment, it essentially derives from
employees' perceived need of social protection and, consequently, is
designed to ensure such protection.
5. Conclusion
60. The foregoing examination of the relative cogency of the
features of public and private law present in the instant cases leads
the Court to find that the private-law features are of greater
significance than those of public law. On balance, the disputes in
issue are to be regarded as having involved "the determination of civil
rights and obligations" and Article 6 para. 1 (art. 6-1) is therefore
applicable.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Reasonable time
(a) Periods to be taken into consideration
61. The Commission took the view that the periods to be taken into
consideration had begun when the applicants requested formal
confirmation of the BVG's decision.
The Government, on the other hand, argued that in disputes
relating to the determination of "civil rights and obligations" only
proceedings before tribunals were to be taken into account. They
submitted that in any dispute between two parties concerning a
financial claim some time always elapsed between the moment that one
party notified his claim to the other and the dispute's being brought
before a court; this time was often taken up by negotiations and
attempts to reach an out-of-court settlement. In addition, one of the
parties might have a legitimate interest in postponing the start of
court proceedings.
62. The formal confirmation by the BVG of its decision was an
indispensable condition for the institution of proceedings before the
Appeals Tribunal (see paragraph 38 above). Although, as the Government
pointed out, the emergence of a dispute concerning civil rights and
obligations is often not followed immediately by the institution of
court proceedings, this is not decisive in the circumstances of the
present case. A plaintiff is usually able to decide when to bring a
civil action without having to wait for formalities affecting the
admissibility of his claim to be completed by his opponent. The delay
caused in each case by the BVG's failure, over a significant period,
to provide formal confirmation of its decision is consequently relevant
to assessing the reasonableness of the length of the proceedings.
The Court therefore agrees with the Commission that in both
cases the period to be taken into consideration began when the
applicants requested formal confirmation.
In Mr Schouten's case the period ran from 27 March 1987 until
10 July 1991, thus amounting to more than four years and three months.
In Mr Meldrum's case, it ran from 4 December 1987 until 13 March 1991,
thus amounting to approximately three years and three months.
(b) Reasonableness of the length of the proceedings
63. The reasonableness of the length of proceedings is to be
assessed in the light of the circumstances of the case, having regard
to the criteria developed in the Court's case-law, in particular the
complexity of the case and the conduct of the applicant and of the
relevant authorities.
64. No criticism can be levelled against the national authorities
in respect of the proceedings before the Appeals Tribunal and the
Central Appeals Tribunal, which took approximately two years and six
months in Mr Schouten's case and nearly one year and ten months in
Mr Meldrum's case. Moreover, in both cases extensions of time for the
filing of documents were granted at the applicants' request.
The Court is thus concerned only with the time which elapsed
before the BVG gave formal confirmation of its decision, which was one
year, ten months and twelve days in Mr Schouten's case and one year,
four months and twenty-seven days in Mr Meldrum's case.
65. The issue involved in both cases was whether the applicants
could, for the purposes of the relevant social-security legislation,
be equated with "employers" notwithstanding the fact that the terms
of their contracts with the other physiotherapists were different from
those of a normal contract of employment. This was a problem
considered by both the Commission and the Government to be one of some
complexity; the Government submitted that it required the BVG to
investigate the facts and the persons involved.
In addition, the Government argued that, even after the BVG had
informed the applicants that formal confirmation was likely to be
delayed for a considerable time, neither applicant had asked the BVG
as a matter of urgency to decide sooner or instituted summary
proceedings before the President of the Regional Court to obtain a
judgment ordering the BVG to provide formal confirmation within a
certain time.
Finally, the Government pleaded the BVG's workload. At the
time of the events complained of, the BVG was faced with a large number
of requests for formal confirmation in cases similar to the
applicants'.
66. While the Court, like the Commission and the Government,
accepts that the case was of some complexity, it does not consider this
sufficient to explain the delays in question.
67. Nor is the Court satisfied that it would have availed the
applicants to make urgent requests to the BVG to speed up the formal
confirmation; the evidence adduced does not indicate that the BVG
would, or even could, have complied with such a request.
As to the possibility of bringing summary proceedings before
the President of the Regional Court, the judgment of the Netherlands
Supreme Court of 21 June 1985 (NJ 1986, 526), to which the Government
themselves referred, appears for all practical purposes to have
deprived this remedy of whatever usefulness it might have had in theory
(see paragraph 40 above). That the applicants did not avail themselves
of this remedy cannot therefore be held against them.
On the matter of the BVG's workload, it is settled case-law
that Article 6 para. 1 (art. 6-1) obliges Contracting States to
organise their judicial systems in such a way that their courts can
meet each of its requirements (see, as the most recent authority, the
Muti v. Italy judgment of 23 March 1994, Series A no. 281-C, p. 57,
para. 15).
68. Finally, the Court notes that interest was due on the sums
claimed by the BVG even for the period before the latter had given
formal confirmation of its decision (see paragraph 31 above); moreover,
that interest, calculated at the statutory rate, was acknowledged by
the domestic tribunals to be higher than that which the applicants
could have negotiated on the financial markets (see paragraph 17
above).
69. There has, accordingly, been a violation of Article 6 para. 1
(art. 6-1) in both cases in that the applicants' "civil rights and
obligations" were not determined within a "reasonable time".
2. Fairness of the proceedings
70. The applicants further argued that the proceedings had not been
"fair", in that the BVG had been able to delay their access to a
tribunal for a period determined by the BVG itself. In their
submission, the BVG had thus been able to select among the pending
cases those which would be brought before the Appeals Tribunal and the
Central Appeals Tribunal first; this had given it the opportunity to
influence the case-law of those tribunals in a way that was, on the
whole, favourable to their position.
The Commission accepted the applicants' contention in
substance, whereas the Government denied it.
71. The Court does not find it established that the applicants'
position before the tribunals would have been any different had the
delays in question not occurred. In so deciding, the Court has had
regard to the finding of the Central Appeals Tribunal in Mr Meldrum's
case that there were no aspects to his case which had not been
addressed in earlier cases (see paragraph 27 above). Nor, in any
event, does it appear that the applicants were prevented from
presenting whatever arguments they wished. No violation of Article 6
(art. 6) has therefore been made out in this respect.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
72. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Pecuniary damage
73. The applicants argued that, had the BVG given formal
confirmation of its decisions within a reasonable time, they would have
stood a reasonable chance of success in their appeals, and this would
have meant that no contributions would have been due over the years
1984-86. In the alternative, the Appeals Tribunal or the Central
Appeals Tribunal ought to have annulled the decisions of the BVG on the
ground that there had been a violation of Article 6 para. 1 (art. 6-1)
in each case; this would have meant that, as a matter of Netherlands
law, the contributions under the various social-security schemes would
not have been due or, if already paid, would have been paid without
cause. In their submission, the sums paid should therefore be
refunded.
Mr Schouten paid the contributions claimed from him, amounting
to 85,327.47 Netherlands guilders (NLG), on 28 February 1989. He had
already paid NLG 12,888.70 in interest (see paragraph 31 above).
Mr Meldrum paid his contributions, totalling NLG 140,496.82,
on 26 May 1989.
Both applicants also claimed interest on the contributions paid
at the statutory rate, from the date of payment until 1 July 1994.
This came to NLG 48,067.80 in the case of Mr Schouten and NLG 75,399.97
in the case of Mr Meldrum.
74. The Commission expressed doubts as to whether the outcome of
the proceedings before the national authorities would have been more
favourable to the applicants if the violations of the Convention had
not taken place. The Government contested the claims for damages in
similar terms.
75. As regards the argument that the national tribunals should have
held the claims for contributions to be invalid by way of sanction for
the delays, the Court notes that it is in principle for the national
courts to decide what the appropriate sanction should be under their
legal system for a breach attributable to one of the parties of the
"reasonable time" requirement of Article 6 para. 1 (art. 6-1).
In the Court's opinion the basis for an award of pecuniary
damage can therefore only be the situation that would have obtained in
the absence of the violations found. In the present judgment it has
been held that the "reasonable time" requirement under Article
6 para. 1 (art. 6-1) was not complied with as regards the BVG's formal
confirmation of its initial decision; it has not been established that,
had the BVG confirmed its decisions any sooner, the judgments of the
tribunals would have been different. The Court cannot therefore base
its decision as to pecuniary damage on the assumption that the
contributions were not due. The claims under this head must
accordingly be rejected.
B. Costs and expenses
76. The applicants claimed reimbursement of the costs incurred in
the proceedings before the national tribunals and in the Strasbourg
proceedings. As regards the domestic proceedings, the costs amounted
to NLG 4,765 for Mr Schouten and NLG 12,607 for Mr Meldrum. The costs
incurred in the Strasbourg proceedings came to NLG 44,795.06 for both
applicants jointly, or NLG 22,397.53 each.
77. The Commission considered the applicants' claims excessive, as
did the Government, who moreover drew attention to the disparity
between the sums claimed in respect of the domestic proceedings and
those sought for the Strasbourg proceedings.
78. According to its settled case-law, the Court will award costs
and expenses in so far as these relate to the violation found (see, as
a recent authority, the Van de Hurk judgment previously cited, p. 21,
para. 66) and to the extent to which they have been actually and
necessarily incurred and are reasonable as to quantum (see, among other
authorities, the Megyeri v. Germany judgment of 12 May 1992, Series A
no. 237-A, pp. 14-15, para. 34).
The case was pleaded before the national courts on the basis
of alternative arguments, only one of which concerned the Convention.
The applicants cannot therefore be awarded the full costs incurred in
the domestic proceedings. As to the Convention proceedings, the Court
considers that, especially in view of the fact that the applicants did
not take part in the proceedings before it, the costs claimed are
unreasonable as to quantum.
Making an assessment on an equitable basis, the Court awards
each applicant NLG 10,000 under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) of the Convention is
applicable;
2. Holds that there has been a violation of that provision as
regards the "reasonable time" requirement;
3. Holds that there has been no violation of that provision as
regards "fairness";
4. Holds that the respondent State is to pay to each applicant,
within three months, 10,000 (ten thousand) Netherlands
guilders in respect of costs and expenses;
5. Dismisses the remainder of the claims for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 9 December 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar