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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FELDBRUGGE v. THE NETHERLANDS - 8562/79 [1986] ECHR 4 (29 May 1986)
URL: http://www.bailii.org/eu/cases/ECHR/1986/4.html
Cite as: (1986) 8 EHRR 425, 8 EHRR 425, [1986] 8 EHRR 425, [1986] ECHR 4
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In the Feldbrugge case*,
_______________
* Note by the registry: The case is numbered 8/1984/80/127. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court and composed of
the 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,
Sir Vincent 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 and
21 to 23 April 1986,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 October 1984,
within the period of three months laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention"). The case
originated in an application (no. 8562/79) against the Kingdom of the
Netherlands lodged with the Commission on 16 February 1979 under
Article 25 (art. 25) by a citizen of that State, Mrs. Geziena Hendrika
Maria Feldbrugge.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the Netherlands declaration recognising the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the
request was to obtain a decision by the Court as to whether the facts
of the case disclose a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the inquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, Mrs. Feldbrugge stated that she
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent her (Rule 30).
3. The Vice-President of the Court, acting as President, decided on
15 October 1984 that, in the interests of the proper administration of
justice, both the present case and the case of van Marle and Others
should be heard by a single Chamber (Rule 21 para. 6). The Chamber of
seven 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 by
lot, in the presence of the Registrar, the names of the five other
members, namely Mr. J. Cremona, Mr. J. Pinheiro Farinha,
Sir Vincent Evans, Mr. R. Bernhardt and Mr. J. Gersing (Article 43
in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Having assumed the office of President of the Chamber (Rule 21
para. 5), Mr. Ryssdal granted the lawyer for the applicant leave to
use the Dutch language in the proceedings (Rule 27 para. 3).
5. Through the Registrar, the President consulted the Agent of the
Netherlands Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant on the need for a written
procedure (Rule 37 para. 1). On 11 December 1984, he directed that
the Agent and the lawyer should each have until 31 January 1985 to
file a memorial, and that the Commission's Delegate should be entitled
to reply in writing within two months of the date on which the
Registrar transmitted to him whichever of the two memorials should
last be filed. On 12 February 1985, he extended the former time-limit
to 29 March 1985.
6. On 27 February 1985, the Chamber decided to relinquish jurisdiction
forthwith in favour of the plenary Court (Rule 50).
7. The applicant's memorial was received at the registry on 21 January
and the Government's on 9 April. On 24 April, the Secretary to the
Commission informed the Registrar that the Delegate would present his
submissions at the hearing.
8. On 8 March, after consulting, through the Registrar, the Agent
of the Government, the Delegate of the Commission and the lawyer for
the applicant (Rule 38), the President directed that the oral
proceedings 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 preparatory
meeting 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 Social
Affairs 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. Korthals
Altes and Mr.van Angeren for the Government, by Mr. Kiernan for the
Commission and by Mr. Schuitemaker for the applicant, as well as
their replies to questions put by the Court and several of its
members.
10. By letter received on 11 July, the Agent of the Government
provided 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 is
resident 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 and
did not consider herself sufficiently recovered to be fit to work.
On 11 April 1978, the Governing Board of the Occupational Association
of the Banking and Insurance, Wholesale Trade and Self-Employment
Sector (Bedrijfsvereniging voor Bank-en Verzekeringswezen, Groothandel
en Vrije Beroepen) in Amsterdam decided that as from 24 March 1978 she
was no longer entitled to the sickness allowances she had been
receiving until then, as the Association's consulting doctor had
judged 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 the
permanent medical experts attached to the Board, a gynaecologist
practising at Alkmaar, who examined the patient and gave her the
opportunity to comment. After consulting three other doctors (a
gynaecologist and two general practitioners, including
Mrs. 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 orthopaedic
specialist.
On 18 August 1978, another permanent medical expert, an orthopaedic
surgeon, examined the applicant and offered her the opportunity to
comment. He also sought the views of the three practitioners mentioned
above. In his report of 22 August 1978, he too found that
Mrs. Feldbrugge had been fit to resume employment as from 24 March of
that year.
On the basis of these two reports, the President of the Appeals Board
ruled against the applicant.
13. The applicant filed an objection (verzet), alleging that she had
not been given a fair hearing.
On 17 November 1978, the Appeals Board declared the objection
inadmissible as it fulfilled none of the grounds laid down in section
142 (1) of the Appeals Act (Beroepswet - see paragraph 19 below). In
an obiter dictum, it stated that the case had been given a fair
hearing, in that two permanent medical experts had examined the
applicant and allowed her to state her objections orally.
14. Mrs. Feldbrugge challenged this decision before the Central
Appeals Board (Centrale Raad van Beroep) at Utrecht. In particular,
she maintained that the limitations imposed by sections 141 and 142 of
the above-mentioned Act infringed the principle of a fair trial
enunciated in Article 6 (art. 6) of the Convention.
On 13 February 1980, the Central Appeals Board declared the appeal
inadmissible 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 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, including the liberal professions, are
divided into sectors, each with an occupational association
(bedrijfsvereniging) responsible for implementation of the social
security legislation.
These associations are legal persons within the meaning of Article I
of Book II of the Civil Code; the method of their establishment,
their structures 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 an
association; 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
occupational associations and he receives from each of them an annual
report and an annual statement of their accounts.
The occupational associations 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.
2. Health Insurance Act 1913
16. Under the Health Insurance Act 1913 (Ziektewet), as amended in
1967, insurance against sickness 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
(sections 3 and 20). Persons formerly bound by a contract of
employment who are unemployed and in receipt of unemployment benefits
are 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 person
receives an allowance of 80 per cent of his daily pay. He or she
applies directly to the occupational association to which his or her
employer belongs.
The entitlement to an allowance flows directly from the Act
(section 19).
17. The scheme is administered by the occupational associations (see
paragraph 15 above), and the funding is provided entirely by employers
and employees. The Act specifies the rates of contributions, which
are at present 1 per cent for the employee and 5.05 per cent for the
employer, calculated on a maximum daily wage of 262 guilders.
3. Appeals Act 1955
18. Disputes arising out of the application of the Health Insurance
Act 1913 are governed by the Appeals Act 1955 (as last amended on
17 October 1978). For disputes concerning fitness or unfitness for
work, there exists a simplified procedure known as the
permanent-medical-expert procedure (vaste deskundige procedure)
(sections 131 to 144). The expert - a doctor who is a specialist or a
general practitioner - is appointed for a year by the Minister of
Justice and he is placed under oath.
On the lodging of an appeal of this kind, the President of the Appeals
Board (there are twelve in the Netherlands) may immediately instruct
its permanent medical expert to carry out an enquiry (onderzoek) into
the matter (section 135).
Within three days of notification of the appeal, the authority that
delivered the decision which is challenged must submit all relevant
files on the case (section 136).
The permanent medical expert consults the private practitioner of the
person 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 Appeals
Board (section 140).
The President - who is a judge appointed for life - gives a reasoned
decision (beschikking) which refers to the conclusions of the medical
expert.
19. An appeal against the President's decision lies to the full
Appeals Board, but solely on one or more of the following four grounds
(section 142(1): that the expert knew the patient in another capacity
or failed to comply with the requirements of section 137 (see
paragraph 18 above); that the President's decision does not bear upon
the dispute or has not followed the expert's advice. Unless the
Appeals Board declares the appeal inadmissible or unfounded, the
normal procedure applies. The parties then have the opportunity of
studying the case-file on the premises of the Appeals Board at a time
determined by the clerk or of receiving copies. The President may
however decide, in the mental or physical interest of the appellant,
that he or she shall not have access to the medical reports but shall
be informed of their contents and may designate a competent person,
such as his or her private practitioner or lawyer, to inspect them on
the premises (section 142 (2) in conjunction with section 114 (4)
and (5)).
The Appeals Board gives its ruling after written pleadings have been
filed and oral submissions heard.
20. Its decision is not subject to appeal before the Central Appeals
Board (section 75 (2) of the Health Insurance Act). However,
according to that Board's established case-law, an exception is made
where rules of a formal nature have not been observed.
PROCEEDINGS BEFORE THE COMMISSION
21. In her application (no. 8562/79) lodged with the Commission on
16 February 1979, Mrs. Feldbrugge relied on Article 6 para. 1
(art. 6-1) of the Convention. She claimed that, in the determination
of her right to health insurance allowances, she had not received a
fair trial before the President of the Appeals Board in Haarlem.
22. The Commission declared the application admissible
on 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 not
applicable to the facts of the present case, that it was not necessary
to determine whether the proceedings compained of had complied with
that Article and, by eight votes to six, that the Article had not been
breached.
The full text of the Commission's opinion and of the two separate
opinions contained in the report is reproduced as an annex to the
present judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
23. In their memorial, the Government requested the Court "to decide
that there [had] been no violation of the Convention in the present
case".
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 reasonable
time by an independent and impartial tribunal established by law...."
The applicant claimed that she did not receive a fair hearing by a
tribunal in the determination of her right to sickness allowances.
In view of the submissions made, the first issue to be decided
concerns the applicability of paragraph 1 of Article 6 (art. 6-1), this
being a matter disputed by the majority of the Commission and by the
Government.
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 and
summarised in its Benthem judgment of 23 October 1985 (Series A
no. 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 Governing
Board of the Occupational Association of the Banking and Insurance,
Wholesale Trade and Self-Employment Sector in Amsterdam (see
paragraph 11 above). This "contestation" was genuine and serious, and
concerned the actual existence of the right asserted by the applicant
to continue receiving a sickness allowance. The outcome of the
relevant proceedings was capable of leading - and in the event did
lead - to confirmation of the decision being challenged, namely the
refusal of the President of the Haarlem Appeals Board to grant the
claimed allowance; it was thus directly decisive for the right in
issue.
The President of the Appeals Board thus had to determine a
contestation (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 'civil
rights and obligations' cannot be interpreted solely by reference to
the domestic law of the respondent State" (see the König judgment of
28 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 the
traditional sense, that is disputes between individuals or between an
individual and the State to the extent that the latter had been acting
as a private person, subject to private law", and not "in its
sovereign capacity" (see the same judgment, loc. cit., p. 30,
para. 90). "The character of the legislation which governs how the
matter is to be determined ... and that of the authority which is
invested with jurisdiction in the matter ... are ... of little
consequence": the latter may be an "ordinary court, [an]
administrative body, etc." (see the Ringeisen judgment of
16 July 1971, Series A no. 13, p. 39, para. 94). "Only the character
of the right at issue is relevant" (see the above-mentioned König
judgment, Series A no. 27, p. 30, para. 90).
27. As in previous cases, the Court does not consider that it has to
give on this occasion an abstract definition of the concept of "civil
rights and obligations".
This being the first time that the Court has had to deal with the
field of social security, and more particularly the sickness insurance
scheme in the Netherlands, the Court must identify such relevant
factors as are capable of clarifying or amplifying the principles
stated above.
(b) Supplementary factors disclosed by the subject matter of the
litigation
28. Under Netherlands legislation, the right in issue is treated as a
public-law right (see paragraphs 16-17 above). This classification,
however, provides only a starting point (see notably, mutatis
mutandis, the Engel and Others judgment of 8 June 1976, Series A
no. 22, p. 35, para. 82); it cannot be conclusive of the matter
unless corroborated by other factors. In its König judgment
of 28 June 1978, the Court stated in particular:
"Whether or not a right is to be regarded as civil ... must be
determined by reference to the substantive content and effects of the
right - and not its legal classification - under the domestic law of
the State concerned. In the exercise of its supervisory functions,
the Court must also take account of the object and purpose of the
Convention and of the national legal systems of the other Contracting
States ... ." (Series A no. 27, p. 30, para. 89)
29. There exists great diversity in the legislation and case-law of
the member States of the Council of Europe as regards the juridical
nature of the entitlement to health insurance benefits under social
security schemes, that is to say as regards the category of law to
which such entitlement belongs. Some States - including the
Netherlands - treat it as a public-law right, whereas others, on the
contrary, treat it as a private-law right; others still would appear
to operate a mixed system. What is more, even within the same legal
order differences of approach can be found in the case-law. Thus, in
some States where the public-law aspect is predominant, some court
decisions have nonetheless held Article 6 para. 1 (art. 6-1) to be
applicable to claims similar to the one in issue in the present case
(for example, the judgment of 11 May 1984 by the Brussels Labour
Court, Journal des Tribunaux 1985, pp. 168-169). Accordingly, there
exists no common standard pointing to a uniform European notion in
this regard. 30. An analysis of the characteristics of the Netherlands
system of social health insurance discloses that the claimed
entitlement comprises features of both public law and private law.
(i) Features of public law
31. A number of factors might tend to suggest that the dispute in
question should be considered as one falling within the sphere of
public law.
(1) Character of the legislation
32. The first such factor is the character of the legislation. 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.
In several cases (see notably König; Le Compte, Van Leuven and
De Meyere; Benthem), State intervention by means of a statute or
delegated legislation has nonetheless not prevented the Court from
finding the right in issue to have a private, and hence civil,
character. In the present case likewise, such intervention cannot
suffice to bring within the sphere of public law the right asserted by
the applicant.
(2) Compulsory nature of the insurance
33. A second factor of relevance is the obligation to be insured
against illness or, more precisely, the fact of being covered by
insurance in the event of fulfilling the conditions laid down by the
legislation (see paragraph 38 below). In other words, those concerned
can neither opt out of the benefits nor avoid having to pay the
relevant contributions.
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.
(3) Assumption by the State of responsibility for social protection
34. One final aspect to be considered is the assumption, by the State
or by public or semi-public institutions, of full or partial
responsibility for ensuring social protection. This was what happened
in the present case by virtue of the health insurance scheme operated
by the Occupational Association of the Banking and Insurance,
Wholesale Trade and Self-Employment Sector in Amsterdam. Whether
viewed as the culmination of or a stage in the development of the role
of the State, such a factor implies, prima facie, an extension of the
public-law domain.
On the other hand - and the Court will revert to the point later
(see paragraph 39 below) -, the present case concerns a matter having
affinities with insurance under the ordinary law, which insurance is
traditionally governed by private law. It thus seems difficult to
draw from the consequences of the extent of State intervention any
firm conclusion as to the nature of the right in issue.
35. In sum, even taken together the three foregoing factors, on
analysis, do not suffice to establish that Article 6 (art. 6) is
inapplicable.
(ii) Features of private law
36. In contrast, various considerations argue in favour of the
opposite conclusion.
(1) Personal and economic nature of the asserted right
37. To begin with, Mrs. Feldbrugge was not affected in her relations
with the public authorities as such, acting in the exercise of
discretionary powers, but in her personal capacity as a private
individual. She suffered an interference with her means of subsistence
and was claiming a right flowing from specific rules laid down by the
legislation in force.
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.
(2) Connection with the contract of employment
38. Secondly, the position of Mrs. Feldbrugge was closely linked with
the fact of her being a member of the working population, having been
a salaried employee. The applicant was admittedly unemployed at the
relevant time, but the availability of the health benefits was
determined by reference to the terms of her former contract of
employment and the legislation applicable to that contract.
The legal basis of the work that she had performed was a contract of
employment governed by private law. 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.
In addition, the sickness allowance claimed by Mrs. Feldbrugge was a
substitute for the salary payable under the contract, the civil
character of this salary being beyond doubt. This allowance shared
the same nature as the contract and hence was also invested with a
civil character for the purposes of the Convention.
(3) Affinities with insurance under the ordinary law
39. Finally, the Netherlands health insurance is similar in several
respects to insurance under the ordinary law. Thus, under the
Netherlands health insurance scheme recourse is had to techniques of
risk covering and to management methods which are inspired by those
current in the private insurance sphere. In the Netherlands, the
occupational associations conduct their dealings, notably with those
insured, in the same way as a company providing insurance under the
ordinary law, for example as regards collection of contributions,
calculation of risks, verification of fulfilment of the conditions for
receipt of benefits, and payment of allowances.
There exists a further feature of relevance. Complementary insurance
policies, taken out with friendly societies or private insurance
companies, allow employees to improve their social protection at the
price of an increased or fresh financial outlay; such policies
constitute in sum an optional extension of compulsory insurance cover.
Proceedings instituted in their connection are incontestably civil
proceedings. Yet in both cases the risk insured against (for
example, ill-health) is the same and, whilst the extent of the cover
increases, the nature of the cover does not change.
Such differences as may exist between private sector insurance and
social security insurance do not affect the essential character of the
link between the insured and the insurer. Finally, the Court would
draw attention to the fact that in the Netherlands, as in some other
countries, the insured themselves participate in the financing of all
or some of the social security schemes. Deductions at source are made
from their salaries, which deductions establish a close connection
between the contributions called for and the allowances granted.
Thus, when Mrs. Feldbrugge was working, her employer withheld from her
pay a sum paid over to the Occupational Association (see paragraph 17
above). In addition, her employer also bore a portion of the
insurance contributions, which were included in the firm's accounts
under the head of social insurance expenses. The Netherlands State,
for its part, was not involved in the financing of the scheme.
(c) Conclusion
40. Having evaluated the relative cogency of the features of public
law and private law present in the instant case, the Court finds the
latter to be predominant. None of these various features of private
law is decisive on its own, but taken together and cumulatively they
confer on the asserted entitlement the character of a civil right
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention,
which was thus applicable.
B. Compliance with Article 6 para. 1 (art. 6-1)
41. The Court must therefore inquire whether the proceedings before
the bodies responsible for determining Mrs. Feldbrugge's asserted
right satisfied the conditions laid down in Article 6 para. 1
(art. 6-1).
1. President of the Appeals Board
42. The applicant acknowledged that the President of the Appeals Board
constituted an "independent and impartial tribunal established by law"
and that he had heard her case "within a reasonable time". She
further conceded that in medical actions the rule of public
proceedings should yield before the respect due to the private life of
the patient whose case is being determined by the tribunal.
On the other hand, she submitted that she had been denied a "fair
hearing" before the President of the Appeals Board. In this
connection, she alleged a two-fold violation of the principle of
equality of arms with the Occupational Association. In the first
place, she had not had the opportunity of appearing - either in person
or represented by a lawyer - to argue her case. Secondly, the reports
of the two permanent medical experts had not been made available to
her (see paragraph 12 above), with the result that she had not been
able either to comment on them or, if thought necessary, to call for a
counter-expertise; yet in practice these documents provided the
President of the Appeals Board with the sole basis for his decision.
43. The Government replied that the President is not able himself to
enter into the merits of a medical dispute and is bound to confine
himself to verifying that the permanent medical expert has observed
the procedure prescribed by the Appeals Act, notably the obligation to
consult the doctors of both parties and to examine the person
concerned. In their submission, only an expert of this kind is
capable of deciding on an employee's unfitness to work for reasons of
illness. The permanent medical expert, who is in a way an extension
of the judge and enjoys the guarantees of impartiality above all
suspicion, performs quasi-judicial functions. In any event, the
Government concluded, the right to a fair trial safeguarded by
Article 6 para. 1 (art. 6-1) can in no wise be taken to embody either
the right to submit comments on the medical report drawn up by an
expert after examination of the patient and consultation of the
patient's doctor or the right to call for or produce a
counter-expertise.
44. It is not within the province of the Court to review in isolation
the Netherlands institution of the permanent medical expert (see,
mutatis mutandis, the Bönisch judgment of 6 May 1985, Series A no. 92,
p. 14, para. 27). The Court confines itself to noting that the
permanent medical expert cannot himself determine a dispute
(contestation) over a civil right. The sole reponsibility for taking
the decision falls to the President of the Appeals Board, even when
- as in the instant case - he does no more than ratify the opinion of
the expert.
Secondly, there has been no breach of the principle of equality of
arms inherent in the concept of a fair trial (see, mutatis mutandis,
the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15,
para. 28). The Occupational Association did not enjoy a procedural
position any more advantageous than Mrs. Feldbrugge's, in that had
the experts expressed an opinion unfavourable to its standpoint, the
Association would likewise have been unable to present oral or written
arguments or to challenge the validity of the unfavourable opinion.
No lack of fair balance thus obtained between the parties in this
respect.
On the other hand, the procedure followed before the President of the
Appeals Board by virtue of the Netherlands legislation was clearly not
such as to allow proper participation of the contending parties, at
any rate during the final and decisive stage of that procedure. To
begin with, the President neither heard the applicant nor asked her to
file written pleadings. Secondly, he did not afford her or her
representative the opportunity to consult the evidence in the
case-file, in particular the two reports - which were the basis of the
decision - drawn up by the permanent experts, and to formulate her
objections thereto. Whilst the experts admittedly examined
Mrs. Feldbrugge and gave her the opportunity to formulate any comments
she might have had, the resultant failing was not thereby cured. In
short, the proceedings conducted before the President of the Appeals
Board were not attended, to a sufficient degree, by one of the
principal guarantees of a judicial procedure.
2. Appeals Board and Central Appeals Board
45. Mrs. Feldbrugge attempted, unsuccessfully, to take her case to
the full Appeals Board and subsequently to the Central Appeals Board,
her action being declared inadmissible on both occasions (see
paragraphs 13 and 14 above).
Under the so-called permanent-medical-expert procedure, an objection
may only be lodged with an Appeals Board against the decision of the
President of the Board on one of the following four grounds: that the
expert knew the patient in another capacity or failed to comply with
certain procedural requirements; that the President's decision does
not bear upon the dispute or has not followed the expert's advice
(see paragraph 19 above).
Decisions of an Appeals Board in the context of this kind of procedure
are not subject to appeal before the Central Appeals Board save, as
has been held in the case-law of the latter Board, in the event of
non-observance of rules of a formal nature (see paragraph 20 above).
46. Framed as they were in such restrictive terms, the conditions of
access to the two Boards prevented Mrs. Feldbrugge from challenging
the merits of the decision by the President of the Appeals Board in
Haarlem. Accordingly, the shortcoming found to exist in respect of the
procedure before this judicial officer was not capable of being cured
at a later stage.
3. Conclusion
47. In conclusion, there has been a breach of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
48. At the hearings, the lawyer for the applicant and counsel for the
Government requested the Court, should it find a violation, to defer
its ruling on the possible award of just satisfaction.
Since therefore the question of the application of Article 50
(art. 50) is not ready for decision, it is necessary to reserve the
matter and to fix the further procedure, taking due account of the
possibility of an agreement between the respondent State and the
applicant (Rule 53 paras. 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT
1. Holds, by ten votes to seven, that Article 6 para. 1 (art. 6-1) was
applicable to the circumstances of the present case;
2. Holds, by ten votes to seven, that Article 6 para. 1 (art. 6-1) has
been violated;
3. Holds, unanimously, that the question of the application of
Article 50 (art. 50) is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Government and the applicant to submit, within the
forthcoming two months, their written comments on the said question
and, in particular, to notify the Court of any agreement reached
between them;
(c) reserves the further procedure and delegates to the President of
the Court power to fix the same if need be.
Done in English and in French, and delivered at a public hearing at
the Human Rights Building, Strasbourg, on 29 May 1986.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
A declaration by Mr. Pinheiro Farinha and, in accordance with
Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2
of the Rules of Court, the joint dissenting opinion of Mr. Ryssdal,
Mrs. Bindschedler-Robert, Mr. Lagergren, Mr. Matscher, Sir Vincent
Evans, Mr. Bernhardt and Mr. Gersing are annexed to the present
judgment.
Initialled: R.R.
Initialled: M.-A.E.
DECLARATION BY JUDGE PINHEIRO FARINHA
(Translation)
In my opinion, a distinction should be drawn between two sets of
circumstances:
(a) If the beneficiary has participated in or contributed to the
funding of the social insurance afforded, the resultant entitlements
are civil rights and disputes (contestations) relating to them fall
within the ambit of Article 6 (art. 6) of the Convention.
This was the position in the present case.
(b) If, on the contrary, the beneficiary has not so participated or
contributed, the facts come within the domain of public law and
Article 6 (art. 6) is not applicable (see my dissenting opinion in the
Deumeland case).
JOINT DISSENTING OPINION OF JUDGES RYSSDAL,
BINDSCHEDLER-ROBERT, LAGERGREN, MATSCHER, SIR VINCENT EVANS, BERNHARDT
AND GERSING
1. We agree with the view of the majority of the Court as to the
existence in the present case of a "contestation" (dispute) over a
right claimed by the applicant, Mrs. Feldbrugge. In our opinion,
however, the dispute did not involve the determination of her "civil
rights and obligations" ("droits et obligations de caractère civil"),
within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
Our conclusion, therefore, is that Article 6 para. 1 (art. 6-1) is not
applicable in the present case.
2. The majority finds that various "features of private law" comprised
in the particular social security benefit claimed by Mrs. Feldbrugge
so outweighed the "features of public law" as to confer on her claimed
entitlement the character of a "civil right" for the purposes of
Article 6 para. 1 (art. 6-1) (see paragraph 40 of the judgment). The
relevant "features of private law" identified by the majority are,
firstly, the personal and economic nature of the asserted right;
secondly, the connection with the contract of employment; and,
thirdly, the affinities with insurance under the ordinary law. In our
view, the weakness in this reasoning is that the majority is taking as
determining factors matters which may vary as between different social
security systems and even from one category of benefit to another
under the same system. We fear that this will give rise to
uncertainty as to the obligations undertaken by the Contracting States
in the field of social security by virtue of Article 6 para. 1
(art. 6-1) of the Convention.
3. Our reasons for finding Article 6 para. 1 (art. 6-1) to be
inapplicable to the kind of right asserted by Mrs. Feldbrugge are as
follows.
1. "Civil rights and obligations" - a limitative concept
4. Article 6 para. 1 (art. 6-1) lays down a procedural guarantee for
the adjudication of certain disputes. The use of the expression
"civil rights and obligations" must have been intended by the drafters
of the Convention to set some limit on the application of
Article 6 para. 1 (art. 6-1). The expression cannot be read as
applying to disputes over the whole range of "rights and obligations"
recognised by domestic law: the right or obligation in issue must be
one that can be qualified as "civil". This adjective, however, is
capable of bearing several meanings. The text of the Article is not
sufficiently clear for it to be said, without more, which meaning was
intended.
2. The Court's case-law
5. The Court's existing case-law gives some guidance as to where the
line is to be drawn.
6. The starting point must in each case be the character attributed to
the rights and obligations in question under the legal system of the
respondent State. This, however, provides no more than an initial
indication, as the notion of "civil rights and obligations" is an
"autonomous" one within the meaning of the Convention and "cannot be
interpreted solely by reference to the domestic law of the respondent
State": "whether or not a right is to be regarded as civil within the
meaning of this expression in the Convention must be determined by
reference to the substantive content and effects of the right - and
not its legal classification - under the domestic law of the State
concerned" (see the König judgment of 28 June 1978, Series A no. 27,
pp. 29-30, paras. 88-89).
For this purpose, account should also be taken of the legal systems of
the other Contracting States, notably to see whether there exists any
uniform concept of "civil rights and obligations" such as would either
embrace or exclude the facts of the present case (see the
above-mentioned König judgment, Series A no. 27, p. 30, para. 89).
7. The Court has held that the phrase "contestations" (disputes) over
"civil rights and obligations" covers all proceedings the result of
which is decisive for private rights and obligations, even if the
proceedings concern a dispute between an individual and a public
authority acting in its sovereign capacity and irrespective of whether
under the domestic legal system of the respondent State they fall
within the sphere of private law or of public law or indeed are of a
mixed character (see the Ringeisen judgment of 16 July 1971, Series A
no. 13, p. 39, para. 94; the above-mentioned König judgment, Series A
no. 27, pp. 30 and 32, paras. 90 and 94). Moreover, it is not enough
for the dispute or the proceedings to have a tenuous connection with
or remote consequences affecting civil rights or obligations: "civil
rights and obligations must be the object - or one of the objects - of
the 'contestation' (dispute); the result of the proceedings must be
directly decisive for such a right" (see the Le Compte, Van Leuven and
De Meyere judgment of 23 June 1981, Series A no. 43, p. 21, para. 47).
Beyond this, the Court has expressly reserved for future consideration
the question whether the concept of "civil rights and obligations",
within the meaning of Article 6 para. 1 (art. 6-1), extends beyond
those rights which have a private nature (see the above-mentioned
König judgment, Series A no. 27, p. 32, para. 95; and the
above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A
no. 43, p. 22, para. 48 in fine).
8. The Court's existing case-law has thus identified certain areas to
which Article 6 para. 1 (art. 6-1) is applicable, whilst leaving open
whether or not there might be other such areas.
3. Application of the Court's existing case-law to the particular
facts
9. Under Netherlands law, the entitlement to a sickness allowance
asserted by Mrs. Feldbrugge is not private in character but is
classified as a public-law right. Undoubtedly, under the statutory
insurance scheme to which Mrs. Feldbrugge was subject, certain
connections exist between the entitlement to health benefits and the
insured's current or former contract of employment, which contract
does clearly fall within the domain of private law. Nonetheless, the
provisions governing health benefits do not constitute clauses
incorporated by law in, or deriving from, the contract of employment;
the claim is enforceable against a third party not privy to the
contract; and the outcome of the claim does not directly affect the
private legal relationship between the employer and employee created
by the contract of employment, although it may have a certain
incidence on performance of that contract. Furthermore, in
Mrs. Feldbrugge's case there no longer existed at the relevant time
any contract of employment (see paragraph 11 of the judgment).
Hence it cannot be said that the proceedings brought by
Mrs. Feldbrugge to enforce her claim to a sickness allowance
concerned, or entailed a result directly decisive for, a private right
recognised by Netherlands law. Such consequences as there were for
private rights were, in our view, too remote and tenuous to attract
the application of Article 6 para. 1 (art. 6-1) on that ground alone.
10. We agree with the majority that the classification under
Netherlands law, whilst it provides an initial indication, cannot be
decisive, especially if it is out of line with the legal systems of
the other Contracting States. However, as the majority concluded in
paragraph 29 of the judgment, there exists no common European standard
as regards the juridical nature of entitlement to health benefits
under statutory social security schemes. In particular, such
entitlement is not generally recognised as being private in character.
11. Accordingly, the facts of the present case fall outside the
private-right criteria for the application of Article 6 para. 1
(art. 6-1) as established under the Court's existing case-law. What
remains to be determined is whether those facts nonetheless do come
within the scope of Article 6 para. 1 (art. 6-1) on other grounds.
4. Relevant principles of interpretation
12. In order to ascertain the meaning of the "autonomous" notion of
"civil rights and obligations" in Article 6 para. 1 (art. 6-1), regard
must be had to the object and purpose of the Convention (see the
above-mentioned König judgment, Series A no. 27, p. 30, para. 89). As
a matter of general approach, in the interpretation of the Convention,
which is an international treaty, it is appropriate for the Court to
be guided by the 1969 Vienna Convention on the Law of Treaties (see
the Golder judgment of 21 February 1975, Series A no. 18, p. 14,
para. 29). The "general rule of interpretation", as set out in
Article 31 para. 1 of the Vienna Convention, reads:
"A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose." Article 32 of the
Vienna Convention further specifies that
"recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of Article 31 ...".
The Court has also recognised the need to construe the European
Convention on Human Rights in the light of modern-day conditions
obtaining in the democratic societies of the Contracting States and
not solely according to what might be presumed to have been in the
minds of the drafters of the Convention (see, inter alia, the Marckx
judgment of 13 June 1979, Series A no. 31, p. 19, para. 41).
5. Characteristics of the asserted right
13. The right to a sickness allowance claimed by Mrs. Feldbrugge was
an economic right deriving, not from the private contract between
herself and her former employer, but from a collective scheme of
protection of the working population set up by the legislature. An
allocation of society's resources as generated within the employment
context has been decided upon by the domestic legislature; and the
applicant, as a member of the section of society concerned, was
compelled to participate in that scheme. Such schemes represent
performance of society's duty to protect the health and welfare of its
members; they are not merely examples of the State taking on or
regulating an insurance activity equally capable of being carried on
by the private sector.
Admittedly, concerning as it does the employment sphere, the
Netherlands statutory scheme of health insurance is bound to have some
repercussions on, connections with or features in common with "civil
rights and obligations" existing under the ordinary law in that
sphere. Thus, the availability of sickness allowances under the
relevant provisions of the Health Insurance Act 1913 is dependent upon
there having been at some time a contract of employment; the
allowance itself may be analysed as a kind of substitute for the
salary payable by the employer under the contract of employment;
recognition of entitlement to receipt of the allowance means
recognition of incapacity to work and hence inability to perform the
contract of employment; the statutory scheme of insurance could be
said to have some affinity with classic insurance in the private
sector. In our opinion, however, none of these factors alters the
essential public character of the relationship between the individual
and the collectivity which lies at the heart of the claimed statutory
entitlement.
6. Context, object and purpose
14. It must therefore be determined, in the context of the provision
and in the light of the object and purpose of the Convention, whether
this kind of entitlement, despite its essential public character, is
included within the notion of "civil rights and obligations", within
the meaning of Article 6 para. 1 (art. 6-1).
15. The object and purpose of the Convention as pursued in
Article 6 para. 1 (art. 6-1) are, to some extent, discernible from the
nature of the safeguards provided.
The judicialisation of dispute procedures, as guaranteed by
Article 6 para. 1 (art. 6-1), is eminently appropriate in the realm of
relations between individuals but not necessarily so in the
administrative sphere, where organisational, social and economic
considerations may legitimately warrant dispute procedures of a less
judicial and formal kind. The present case is concerned with the
operation of a collective statutory scheme for the allocation of
public welfare. As examples of the special characteristics of such
schemes, material to the issue of procedural safeguards, one might
cite the large numbers of decisions to be taken, the medical aspects,
the lack of resources or expertise of the persons affected, the need
to balance the public interest for efficient administration against
the private interest. Judicialisation of procedures for allocation of
public welfare benefits would in many cases necessitate recourse by
claimants to lawyers and medical experts and hence lead to an increase
in expenses and the length of the proceedings.
The nature of the safeguards afforded thus tends to show that the
object and purpose of Article 6 para. 1 (art. 6-1) do not go so far as
to guarantee judicial control of the administration of statutory
collective schemes for the distribution of public welfare.
16. We have not overlooked the fact that the overall object of the
Convention is the humanitarian one of the protection of the individual
and that, for the man or woman in the street, entitlement to social
security benefits is of extreme importance for his or her daily life.
However, as the Delegate of the Commission submitted, the economic
importance for Mrs. Feldbrugge's livelihood of the allowance claimed
is insufficient, on its own, to bring into play the applicability of
Article 6 para. 1 (art. 6-1) and its specific judicial guarantees. Of
course, it is equally essential that in the administrative field
justice should be done and the individual's claims should be
investigated in a responsible and objective manner in accordance with
the rules laid down, but that is not to say that all the various
requirements of Article 6 para. 1 (art. 6-1) of the Convention are
therefore applicable. Indeed, as pointed out above in the present
opinion (at paragraph 15), there exist underlying considerations
justifying special procedures in social welfare cases.
17. This being so, the juxtaposition of "civil" and "criminal" in the
context of Article 6 para. 1 (art. 6-1) cannot reasonably be taken to
be a comprehensive reference to all systems of adjudicative
proceedings under domestic law. On this construction, the use of the
adjective "civil" would not therefore imply the applicability of
Article 6 para. 1 (art. 6-1) to disputes over all matters other than
"criminal" even where, as in social security disputes, the outcome is
crucial for the personal life of the individual concerned.
18. These considerations point to the conclusion that, in principle,
the collective and public features of the statutory insurance scheme
giving entitlement are so predominant as to take the rights and
obligations in issue outside the "civil" domain, within the meaning of
Article 6 para. 1 (art. 6-1).
7. Supplementary means of interpretation
19. The foregoing analysis is corroborated by the fact that the
relevant legislation predates the elaboration of the Convention by
some decades, and there existed similar legislation predating the
Convention in many other of the Contracting States. It is therefore
reasonable to assume that the intention of the drafters of
Article 6 para. 1 (art. 6-1) was not to include such statutory schemes
of collective social protection within its ambit. On examination, the
drafting history confirms this reading of the text.
20. The adjective "civil" was added to the English version of
Article 6 para. 1 (art. 6-1) in November 1950 on the day before the
Convention was opened for signature, when a committee of experts
examined the text of the Convention for the last time and "made a
certain number of formal corrections and corrections of translations"
(Collected Edition of the Travaux préparatoires of the European
Convention on Human Rights, vol. VII, p. 12, para. 6). Whilst no
specific explanation was given for the last-minute change to
Article 6 para. 1 (art. 6-1), it is a fair inference that the reason
was merely to align the English text more closely with the language of
the French text: prior to the change, although the French version had
spoken, as now, of "droits et obligations de caractère civil", the
English version had read "rights and obligations in a suit of law"
(ibid., vol. V, p. 148).
These two expressions had first been introduced at a meeting
(March 1950) of the Committee of Experts on Human Rights of the
Council of Europe and were evidently taken directly from the
equivalent Article of the then existing draft of the International
Covenant on Civil and Political Rights of the United Nations (ibid.,
vol. II, p. 296; vol. III, pp. 30, 160, 284, 290, 316; vol. IV,
p. 60). It is therefore relevant to trace their history in the
travaux préparatoires of the International Covenant.
21. The crucial discussion on the draft International Covenant took
place on 1 June 1949 during the fifth session of the United Nations
Commission on Human Rights. The French and Egyptian delegations had
presented an amendment that referred to "droits et
obligations"/"rights and obligations", without qualification. The
reaction of the Danish representative (Mr. Sørensen) to this
amendment was reported as follows:
"The representatives of France and Egypt proposed that everyone should
have the right to have a tribunal determine his rights and
obligations. Mr. Sørensen considered that that provision was much
too broad in scope; it would tend to submit to judicial decision any
action taken by administrative organs exercising discretionary power
conferred on them by law. He appreciated that the individual should
be ensured protection against any abuse of power by administrative
organs but the question was extremely delicate and it was doubtful
whether the Commission could settle it there and then. The study of
the division of power between administrative and judicial organs could
be undertaken later. ... Mr. Sørensen asked the representatives of
France and Egypt whether the scope of the provision in question might
be limited to indicate that only cases between individuals and not
those between individuals and the State were intended." (summary
record of the 109th meeting, doc. E/CN.4/SR.109, pp. 3-4) The French
representative (Mr. Cassin), speaking in French, replied that "the
Danish representative's statement had convinced him that it was very
difficult to settle in that article all questions concerning the
exercise of justice in the relationships between individuals and
governments" (ibid., p. 9). He was therefore prepared to let the
words "soit de ses droits et obligations" in the first sentence of the
Franco-Egyptian amendment be replaced by the expression "soit des
contestations sur ses droits et obligations de caractère civil"
(rendered in the English version of the summary record as "or of his
rights and obligations in a suit of law"). He agreed that the problem
"had not been fully thrashed out and should be examined more
thoroughly".
Later the same day, a drafting committee produced a text which
contained the expressions "in a suit of law" in English and "de
caractère civil" in French (doc. E/CN.4/286). The formula employed
in this text is the one that was ultimately adopted for Article 14
of the International Covenant in 1966.
22. It thus seems reasonably clear that the intended effect of the
insertion of the qualifying term "de caractère civil" in the French
text of the draft International Covenant was to exclude from the scope
of the provision certain categories of disputes in the field of
administration "concerning the exercise of justice in the
relationships between individuals and governments".
8. State practice and evolutive interpretation
23. It is not the case that, since the entry into force of the
Convention, State practice has developed to the point where the
Contracting States can be said to treat entitlement to health benefits
under statutory social security schemes as giving rise to "civil
rights and obligations" for the purposes of Article 6 para. 1
(art. 6-1). Indeed, as noted above (see paragraph 10), no common
ground can be identified in the legal systems of the Contracting
States as to the "civil" or other character of such entitlement. In
sum, there is no uniform European approach in this regard such as to
run counter to the interpretation we have reached on the basis of the
other foregoing considerations. On the contrary, the diversity of
approach existing even today tends to show that whether judicial
protection of the kind guaranteed by Article 6 para. 1 (art. 6-1)
should be afforded to claims, such as Mrs. Feldbrugge's, for health
benefits is a policy decision for the Contracting States to take in
the light of the various merits and disadvantages involved, but it is
not as such required by Article 6 para. 1 (art. 6-1) itself.
24. Neither does an evolutive interpretation of Article 6 para. 1
(art. 6-1) lead to a different conclusion. The Convention is
selective in the protection it affords, as is shown by the recital in
the Preamble wherein the signatory Governments expressed their
underlying resolve to be "to take the first steps for the collective
enforcement of certain of the rights stated in the [United Nations]
Universal Declaration" of Human Rights (see the above-mentioned Golder
judgment, Series A no. 18, p. 16, para. 34). An evolutive
interpretation allows variable and changing concepts already contained
in the Convention to be construed in the light of modern-day
conditions (see, for example, the Tyrer judgment of 25 April 1978,
Series A no. 26, pp. 15-16, para. 31; the above-mentioned Marckx
judgment, Series A no. 31, pp. 19-20, para. 41; the Dudgeon judgment
of 22 October 1981, Series A no. 45, pp. 23-24, para. 60), but it does
not allow entirely new concepts or spheres of application to be
introduced into the Convention: that is a legislative function that
belongs to the member States of the Council of Europe. The
desirability of affording proper safeguards for the adjudication of
claims in the ever-increasing field of social security is evident.
There are, however, limits to evolutive interpretation and the facts
of the present case go beyond those limits as far as Article 6 para. 1
(art. 6-1) is concerned.
We do not find the considerable developments witnessed in the social
welfare field since the elaboration of the Convention to be such as to
alter the essential character of the rights and obligations in issue
in Mrs. Feldbrugge's case.
9. Conclusion
25. Having regard to the text of Article 6 para. 1 (art. 6-1), to its
object and purpose and to its drafting history, the conclusion of
principle which we draw is that there exist areas within the field of
public administration subject to special institutional regimes, such
as that relating to social security, under which the rights and
obligations of the individual not of a private nature may justifiably,
for various reasons (see paragraph 15 above), be determined by special
procedures of adjustment rather than by tribunals complying with all
the requirements of Article 6 para. 1 (art. 6-1). In our view, the
guarantees of Article 6 para. 1 (art. 6-1) attaching to
"contestations" (disputes) over "civil rights and obligations" do not
apply to disputes within such areas unless, as stated in the Court's
case-law (see paragraph 7 above), the outcome of the dispute is
directly decisive for private rights.
In the light of all the various considerations set out above, we
accordingly conclude that the proceedings brought by Mrs. Feldbrugge
before the Appeals Board in Haarlem did not involve determination of
her "civil rights and obligations", within the meaning of
Article 6 para. 1 (art. 6-1); and that the judicial guarantees of
this provision are therefore not applicable to the circumstances of
the instant case.