CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 17112/90                       by M.S.                       against the Netherlands         The European Commission of Human Rights sitting in private on 30 November 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 9 July 1990 by M.S. against the Netherlands and registered on 3 September 1990 under file No. 17112/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS          The applicant is a Dutch citizen, born in 1941 and residing in Muiderberg, the Netherlands.   Before the Commission, she is represented by Mrs. M. van Laar, a lawyer practising in Utrecht.         The facts of the case, as submitted by the parties, may be summarised as follows.         Until 13 April 1981, when the applicant fell ill, she worked in a canteen for thirty hours a week.   In June 1981 she underwent surgery on her back, which was unsuccessful.         On the basis of the Sickness Benefits Act (Ziektewet) she received a benefit for one year.   As from 12 April 1982 this benefit was replaced by combined disability benefits under the General Labour Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet - hereinafter referred to as "AAW") and the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering - hereinafter referred to as "WAO"), on the basis of complete incapacity to work.          By letter of 20 December 1982, the Industrial Insurance Board for the building industry (Bedrijfsvereniging voor de Bouwnijverheid) informed the applicant of its decision to withdraw the benefits it had awarded to the applicant under the AAW and WAO as from 1 January 1983, as she was considered able to perform light work.         The applicant filed an appeal against this decision with the Appeals Tribunal (Raad van Beroep).   On 4 October 1983 the Appeals Tribunal quashed the decision by the Industrial Insurance Board in respect of the withdrawal of the applicant's benefits under the WAO and declared the remainder of the appeal ill-founded.         Both the Industrial Insurance Board and the applicant filed an appeal against this decision with the Central Appeals Tribunal (Centrale Raad van Beroep).         On 25 March 1986 the Central Appeals Tribunal requested Mr. v. G., a medical expert, to examine the applicant and to submit his recommendation.   Mr. v. G. examined the applicant on 15 September 1987. He submitted his report on 24 October 1989 to the Central Appeals Tribunal.   In the meantime the applicant's representative had urged the Central Appeals Tribunal several times, both by telephone and in writing, to inform her of the state of affairs in the applicant's case and to press Mr. v. G. to submit his report in view of the continuation of the proceedings.         Following a hearing before the Central Appeals Tribunal on 15 December 1989, it decided on 12 January 1990 to quash the decision of 4 October 1983 in favour of the applicant.         Subsequently the applicant was retroactively granted disability benefits under the AAW and WAO as from 1 January 1983 and received a payment of about 70,000 Dutch guilders in July 1990. RELEVANT DOMESTIC LAW   a.     General Features         Concerning health and disability insurance, social security in the Netherlands is managed jointly by the State, which in general confines itself to establishing the legal framework of the scheme and to seeing to co-ordination, by employers and by employees.         The branches of the economy are divided into sectors, each with an Industrial Insurance Board (bedrijfsvereniging) responsible for the implementation of the social security legislation.         These Boards are legal persons within the meaning of Article I of Book II of the Civil Code; the method of their establishment, their structure and their powers are laid down in the Social Security Organisation Act 1952 (Organisatiewet Sociale Verzekeringen).   They are subject to approval by the Minister for Social Affairs and Employment on the basis of their representative character.   The Minister may also decide of his own motion to set up such a Board; in that event, he determines and amends their articles of association as needed and he appoints, suspends and dismisses the members of their governing boards. In addition, he stipulates the assurances to be given for the discharge of the duties of the Industrial Insurance Boards and he receives from each of them an annual report and an annual statement of their accounts.         The Industrial Insurance Boards are semi-public institutions and operate like private insurance companies.         They may entrust to a common administrative office (Gemeenschappelijk Administratiekantoor), recognised by the Minister, the administrative work resulting from the application of social security law.         A Social Insurance Council (Sociale Verzekeringsraad), set up by the Government and comprising representatives of the State (/), employers (/) and employees (/), supervises the proper implementation of the legislation in question.         The statutory social insurances can be divided into two main groups, on the one hand the general insurances (volksverzekeringen), covering all persons residing in the Netherlands, and on the other hand the employees' insurances (werknemersverzekeringen), covering persons bound by an employment contract with a private of public employer or who can be assimilated to this category.   b.     The General Labour Disablement Benefits Act         The General Disablement Benefits Act (AAW), which came into force on 1 October 1976, insures every person, residing in the Netherlands, between the ages of 15 and 65 against negative financial consequences of incapacity for work which has lasted for more than one year.           The AAW premiums are fixed by the Board of the General Labour Disablement Insurance Fund (Algemeen Arbeidsongeschiktheidsfonds) subject to the approval of the Minister for Social Affairs and Employment following consultation with the Social Insurance Council. Until 1 January 1990 the AAW premiums were paid by the employers on the basis of a percentage of paid wages.   As from 1 January 1990 the premiums are collected through income tax.         Benefits awarded by the Industrial Insurance Board under the AAW are charged to the General Disablement Insurance Fund and are calculated according to a fixed base figure, which is linked to the statutory minimum wage, and to the degree of disability.   It therefore only provides a basic benefit, which is not linked to the income earned before disablement.   c.     The Labour Disablement Insurance Act         Under the Disablement Insurance Act (WAO), which came into force on 1 July 1967, insurance against incapacity to work lasting more than one year is compulsory for persons under 65, who are bound by a contract of employment with a public or private employer or who can be assimilated to this category.         The WAO premiums are fixed by the Board of the Disablement Insurance Fund (Arbeidsongeschiktheidsfonds) subject to the approval of the Minister of Social Affairs and Employment following consultation with the Social Insurance Council.   The premiums are calculated on the basis of an employee's salary and are paid to the Industrial Insurance Board, in part by the employees themselves and in part by their employers.         Benefits awarded by the Industrial Insurance Board under the WAO are charged to the Disablement Insurance Fund and are of a supplementary nature to benefits awarded under the AAW.   The amount of this supplementary benefit is calculated on the basis of the income earned before disablement and the degree of disability.         In regard to persons bound by a contract of employment, the benefits under the AAW and WAO are usually awarded in one combined decision by the competent Industrial Insurance Board, against whose decision an administrative appeal can be lodged with the Appeals Tribunal and subsequently the Central Appeals Tribunal.   COMPLAINTS         The applicant complains that the Central Appeals Tribunal failed to determine her case concerning disability benefits within a reasonable time as required by Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 9 July 1990 and registered on 3 September 1990.           On 9 November 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.         The Government's observations were submitted on 21 March 1991 and the applicant's observations in reply were submitted on 5 June 1991.     THE LAW         The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Central Appeals Tribunal did not decide her case concerning disability benefits within a reasonable time.         Article 6 para. 1 (Art. 6-1) of the Convention, in so far as relevant, provides:              "In the determination of his civil rights and            obligations (...) everyone is entitled to a            (...) hearing within a reasonable time by a            (...) tribunal (...)".         The Government contend, referring to the criteria set out in the Feldbrugge and Deumeland judgments of 29 May 1986 (Eur. Court H.R., Series A nos. 99 and 100), that entitlement to AAW benefits cannot be deemed a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, so that this provision is not applicable to the judicial proceedings concerning the determination of a person's entitlement to benefits under this Act.   In respect of the WAO the Government are of the opinion that the conclusion on the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to proceedings under this Act depends on the weight attached to the criteria set out in the Feldbrugge and Deumeland judgments.   The Netherlands Government consider that a clarification of the case-law on this point is highly desirable.         The Government finally admit that, if Article 6 para. 1 (Art. 6-1) is to be considered applicable to the present proceedings, the delay in the proceedings at issue in the present case was unreasonably long and that the State may be held accountable for the excessive time taken by these proceedings.         The Commission notes that the applicant complains of the length of the proceedings before the Central Appeals Tribunal concerning her entitlement to AAW/WAO benefits.         The Commission considers that the issues to be decided are whether Article 6 para. 1 (Art. 6-1) of the Convention is applicable to the proceedings at issue, and, if so, whether the "reasonable time" requirement within the meaning of this provision has been complied with.           After an examination of these issues in the light of the parties' submissions, the Commission considers that they raise questions of fact and law which are of such a complex nature that their determination requires an examination of the merits.   The application cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE       without prejudging the merits of the case.     Secretary to the Commission                  President of the Commission           (H.C. Krüger)                                 (C.A. Nørgaard)