European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> KARNI v Sweden 11540/85 [1988] ECHR 27 (08 March 1988)
URL: http://www.bailii.org/eu/cases/ECHR/1988/27.html
Cite as: (1988) 55 DR 157, [1988] ECHR 27

[New search] [Help]

AS TO THE ADMISSIBILITY OF

Application No. 11540/85 by Haim KARNI against Sweden

The European Commission of Human Rights sitting in private on 8 March 1988, the following members being present:

MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS G. BATLINER J. CAMPINOS H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY

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 20 February 1985 by Haim Karni against Sweden and registered on 15 May 1985 under file N° 11540/85;

Having regard to:

- the first report provided for in Rule 40 of the Rules of Procedure of the Commission;

- the Commission's decision of 1 December 1986 to invite the Government to present written observations on the admissibility and merits of the application;

- the Government's observations dated 5 March 1987 and the applicant's reply dated 19 May 1987;

- the second report provided for in Rule 40 of the Rules of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the parties' submissions, may be summarised as follows.

The applicant is a Swedish citizen, born in 1917 and resident at Trelleborg. He is a doctor of medicine.

Particular facts of the case

The applicant moved from Switzerland to Sweden in 1982. After having retired in January 1983, and as his income from his pension was not sufficient, the applicant decided to open a private medical practice at Trelleborg.

On 21 August 1984 the applicant applied for affiliation to the social security system. According to the application the applicant intended to carry on medical practice at Trelleborg. The owner of the intended practice was Läkargruppen ABC-kliniken. The applicant did not intend to work full time but 30 hours a week. By letter of 17 September 1984, the Social Insurance Office of Malmöhus (Malmöhus allmänna försäkringskassa) informed the applicant that, as from 28 August to 31 December 1984, he had been entered on the list of private medical practitioners within the Office's area, who were affiliated to the social security system. The applicant was also informed of the fees he was entitled to charge his patients.

Following the affiliation to the social security system the applicant maintains that he set up his medical practice at Trelleborg. He signed a contract for the premises for his practice. He furnished it with an electrocardiograph and other special instruments. In all, he invested some 90.000 SEK.

By a letter dated 15 October 1984, the applicant received from the Social Insurance Office a preliminary notice as regards his affiliation to the social security system as from 1 January 1985. It read as follows:

"In view of the fact that new rules concerning affiliation to the social security system will enter into force as from January 1985 the Social Insurance Office informs you as follows.

The Social Insurance Office has found, after investigation, that you do not fulfil the conditions for continued affiliation to the rules on remuneration for medical care under the social security system. The Office therefore intends to strike you off its list at the end of 1984.

In the annexed notice concerning the new rules an account is inter alia given of the conditions for being entered on the Insurance Office's list after the new year and of the possible exemptions.

If, in view of the above, you intend to submit a request for exemption or otherwise have any objection against the Insurance Office's assessment you should do so immediately and at the latest within 14 days. It should be sent to the Social Insurance Office together with the documents you wish to invoke.

You will be informed later of the decision on the question of affiliation."

On 26 October 1984 the applicant telephoned the Social Insurance Office stating that he had made investments during the autumn and would submit documents to show these investments.

In an application of 27 November 1984 to the Insurance Office, the applicant requested to be allowed to continue as a doctor affiliated with the social insurance system also after 1 January 1985. He referred to conversations and correspondence with the County Council of the County of Malmöhus (Malmöhus läns landsting). The application also contained a copy of a letter from the applicant to the County Council, dated 27 November 1984.

In the letter to the County Council, the applicant requested to be allowed to continue as affiliated to the insurance system after 1 January 1985. Besides referring to a conversation during a visit to the County Council on 22 October 1984, the applicant also stated that he had been abroad and had only learned of the new regulations for affiliation after 1 January 1985 at the end of October 1984, and also that he had been granted affiliation without having been advised of the impending changes. He claimed that his arrangements for establishing the practice were substantially complete by the end of October and that he had invested considerable sums, including signing a year's contract for premises and the purchase of expensive apparatus and furniture. He claimed that his medical practice was a vital necessity for him; he had no alternative, since he was not entitled to any form of pension.

The Social Insurance Office made no decision concerning the applicant's affiliation after the decision notified in the preliminary notice of 15 October 1984, and no decison has followed his application of 27 November 1984. There is no explanation as to the reason for this silence. Nor has the Office taken any other measures concerning the applicant's affiliation. The National Social Insurance Board (riksförsäkringsverket) has not received any petition concerning the applicant's affiliation, neither from the applicant himself nor from the Insurance Office.

According to records kept at the Insurance Office, the applicant received insurance remuneration for 24 consultations during the book-keeping period of November 1984 and for 11 consultations during the book-keeping period of December 1984. The total remuneration amounted to just under 9,000 SEK.

By letter of 20 December 1984 the applicant received inter alia the following information from the County Council:

"Your application will be dealt with together with the other applications for new establishments and applications for continued private and leisure practice from the private and leisure practitioners who do not fulfil the basic conditions for continued affiliation to the Social Insurance Office. Thus, the intention is to make an overall assessment of the need of private medical care, the present medical resources under private and public regime and the financial consequences for the County Council.

Since the time limit for applications for continued private and leisure practice expires on 31 December 1984, the examination of your application can only be made in the beginning of 1985. According to the guidelines of the administrative committee, all applications shall have been examined by 31 March 1985.

Awaiting the outcome of your application you have the possibility to continue your practice from 1 January 1985 on the following conditions. Remuneration will be paid according to unchanged principles for a maximum of 200 consultations per month. The remuneration will be paid by the County Council and should therefore be accounted for on a special form which will be sent to you shortly.

The above permission does not imply any stand as to continued practice after 31 March 1985. If the application is rejected, no further prolongation will be granted."

By letter of 25 January 1985 the applicant informed the County Council that his affiliation to the social security system had been granted without mentioning the subsequent reorganisation of the rules. He also informed the Council of his investments in his practice.

By letter of 14 February 1985 the applicant was informed that on 13 February 1985 the Health and Social Delegation of the County Council had rejected his application for an agreement on a medical practice implying his affiliation to the social security system.

The applicant closed down his practice immediately.

On 17 February 1985 the applicant applied to the County Council for a contribution towards the costs for the closing down of his medical practice. This request was rejected by the County Council on 5 March 1985.

Legislation relevant to the application

Medical attendance in Sweden is mainly a matter for the public sector. Of 21,000 doctors in 1985, 18,500 were employed at hospitals and other medical institutions within the public sector. Another 1,000 were employed within the occupational health service. Of the remaining group some 1,000 are estimated to work as private practitioners.

Benefits for medical care are provided by the social insurance system which also covers, for example, pensions and child allowances. The system enables people with small economic resources and extensive medical care needs to take advantage of health care services on the same basis as others. The legal basis for the system is the 1962 Social Insurance Act (lagen om allmän försäkring).

This Act applies to Swedish citizens and those who, although not Swedish citizens, are resident in Sweden. The administration of the system is carried out by Social Insurance Offices and the National Social Insurance Board. Allowances for medical expenses are paid by local Social Insurance Offices pursuant to Chapter 2 of the Act, and include remuneration for out-patient medical care (läkarvård i öppen vård). Remuneration is paid if such care is provided by the State, a county council or a municipal authority not part of a county council (public medical care) or by a doctor affiliated to the social insurance system (alternative medical care). Most private practitioners are affiliated to the system. According to the Act remuneration is paid on grounds stipulated by the Government.

New rules came into force on 1 January 1985 regarding health insurance benefits for out-patient care and regarding the affiliation of private practitioners to the health insurance system.

Prior to 1 January 1985 remuneration was paid for each visit to the doctor. This applied to both public care and alternative care. The patient paid a stipulated maximum patient's fee, and the doctor affiliated to the social insurance system received a stipulated sum for each patient's visit, directly from the social insurance office. If the doctor was employed within public medical care, for instance by a County Council, the County Council received the corresponding sum.

The reform entailed the application of new rules for remuneration as from 1 January 1985. In order to limit social insurance expenses, and to achieve better regional distribution of care throughout Sweden and taking into consideration that the medical care principal (sjukvårdshuvudmannen) had the responsibility for medical care planning within its area, the previous form of remuneration calculated on the number of patient's consultations was replaced by a form of a more roughly estimated remuneration.

In the new system the sum is calculated on the basis of the number of inhabitants within the medical care area for which the medical care principal is responsible and covers medical care provided both by doctors employed by the medical care principals and by other doctors. The remuneration is paid to the medical care principal after deduction of the sum paid per consultation to private practitioners affiliated to the social insurance system.

To enable joint planning of medical care, and since a deduction is made on remuneration to the medical care principals for private medical care, the rules were at the same time changed for affiliation of private practitioners to the system. Prior to 1 January 1985, any doctor could upon application be affiliated to the social insurance system. The Insurance Office entered the doctor on a list kept by the offices for this purpose. Subsequent to 1 January 1985, private practitioners may in principle only be affiliated to the system at the recommendation of the medical care principal (not necessary in areas with very few doctors).

However, any private practitioner already affiliated when the new regulations came into force on 1 January 1985 was permitted to remain within the system without recommendation from the medical care authorities, provided the doctor's practice had been of a certain magnitude.

The reform was proposed in a Government Bill to the Parliament in April 1984 (Bill No. 1983/84:190). A main reason for the reform was to improve the possibilities for people living in those parts of Sweden which are sparsely populated - for example wide areas in the northern parts of Sweden - to get access to medical care. The Government saw this as a fulfilment of the aims set up in the 1982 Health and Medical Services Act (hälso-och sjukvårdslagen), which stipulates that the aim for the health and medical care is good health and medical care supplied on the same conditions to the whole population. In the sparsely populated areas there was a considerable lack of doctors in the public as well as in the private care. In the city regions the case was the reverse. In order to see to it that the population within the area for which the medical care principal is responsible gets access to good health and medical care, as prescribed in the Health and Medical Services Act, the medical care principals had to be made capable of estimating the range of the care supplied. It was therefore deemed necessary that also the activities of private practitioners affiliated to the social insurance system were co-ordinated with the activities of the medical care principals as far as planning was concerned. The medical care principals therefore were given a determining influence when deciding whether private practitioners can be affiliated to the social insurance system.

The Bill was approved by the Parliament on 5 June 1984. The proposed reform at that time had caused general debate in the newspapers and other massmedia. By approving the Bill the Parliament authorised the Government to regulate the basis for remuneration for medical treatment and also to issue directives as to what extent private practitioners shall be included in the lists kept by the Social Insurance Offices and thus affiliated to the insurance system. The amendments came into force on 1 January 1985.

The basis for remuneration to medical care principals laid down by the Government appear in the 1984 Ordinance on Certain Remuneration to Medical Care Principals from the Social Insurance under the Social Insurance Act. The basis for remuneration from the national social security system to private practitioners is stipulated by the Government in the 1974 Tariff of Medical Care Charges, as amended (läkarvårdstaxan), below referred to as "the tariff". The tariff states the conditions under which private practitioners may join the social security system by being entered on the Social Insurance Office list, thus being entitled to remuneration from the insurance. The tariff also stipulates the maximum fee which a doctor may charge for a treatment or consultation. Of that fee the doctor receives a fixed sum directly from the patient (the patient's fee in 1985 was 55 SEK). The remaining part of what has been charged is paid to the doctor from the Social Insurance Office. Such remuneration is paid to the doctor for each patient's visit even subsequent to the reform.

The new regulations in the tariff following the Parliamentary decision of 5 June 1984 were issued on 16 October 1984 (Ordinance No. 1984:767). As from 1 January 1985, a private practitioner thus may join the social insurance system only if recommended by the medical care principal. However, this requirement does not apply to a person taking over a practice from a doctor who is already affiliated to the system. Neither does it apply to the establishment of new practices in certain areas of Sweden in special need of doctors (Section 3 of the tariff). The areas concerned are the sparsely populated wide areas situated mainly in the northern parts of Sweden.

The Ordinance included certain transitional provisions relating to doctors affiliated to the national insurance system at the time when the new regulations came into force. The transitional provisions correspond to what was recommended in the Bill (pp. 32-33) and approved by Parliament, and read as follows:

"This legislation shall come into force on 1 January 1985.

1. A doctor who was included in the list kept by the social insurance offfice at the end of 1984 shall be deleted therefrom as from 1 January 1985, if he does not fulfil the requirements for remaining on the list.

2. A doctor who was included in the list at the end of 1984, and who is not employed full-time by the medical care principal, may continue to be included in the list without having to be recommended by the medical care principal, provided the practice is run at the same place and that, over the period July 1983 to March 1984, the doctor has carried out his practice to such an extent that he has received remuneration from the social insurance office corresponding to at least two months full-time activity. Should the doctor have been prevented by illness during this time from carrying on his practice to the extent required, this requirement shall in any case be considered to have been fulfilled. The same applies in the event of the practice not having been carried on for some other reason accepted by the National Social Insurance Board.

A doctor who established his practice too late to have been able to carry it on to a sufficient extent during the period stated in the first paragraph but who, prior to April 1984, has made considerable investments or taken other long-term measures regarding the practice may, upon special examination by the National Social Insurance Board, be permitted to remain on the list.

In the event of a doctor having taken over an existing practice in 1984 from a doctor who is already on the Social Insurance Office list, he may refer to the activities of the previous owner in order to fulfil the stipulated requirements.

3. Doctors referred to under point 2, who are not employed full-time by a medical care principal and who do not fulfil the requirements stipulated therein for remaining on the Social Insurance Office list, may remain until further notice, or for a certain period after the end of 1984, if recommended by the medical care principal."

In accordance with what was recommended in the Bill (p. 33), doctors not fulfilling the requirements for automatically remaining in the insurance system should be notified thereof as soon as possible after 1 July 1984 and advised of the conditions for affiliation after 1 January 1985. During autumn 1984 the National Social Insurance Board issued information to the local Social Insurance Offices, and the doctors affected were informed individually by these offices. According to the National Social Insurance Board, information should be issued from the local offices as follows.

A preliminary notice from the Insurance Office should be sent to the doctor stating that upon investigation it had been found that the doctor did not fulfil the requirements for continued affiliation to the insurance system and that the office therefore intended to delete the doctor from its list at the expiry of 1984. Information as to the new regulations, including the transitional provisions, was to be included with the notice.

The notice stated that a petition for exemption or objections to the assessment of the Insurance Office should be submitted immediately or within 14 days and should be addressed to the local Social Insurance Office. The preliminary notice should state that a decision concerning affiliation would be notified later.

The question of affiliation was examined by the insurance office. Petitions for exemption from the requirements stipulated by the transitional provisions point 2, regarding practice having been carried on prior to 1 April 1984, were forwarded to the National Social Insurance Board for examination.

As to the question of affiliation of new private practitioners to the insurance system during the period up to 1 January 1985, when the Act came into force, the Bill stated that decisions to include such practitioners in the Insurance Office's list after 1 July 1984 should apply only until the end of 1984 (the Bill p. 33). A provision to that effect was also included in an amendment to the transitional provisions to the tariff. In that provision, which entered into force on 1 July 1984, it was stipulated that a decision to enter a private practitioner on the list after 30 June 1984 was to apply only until the end of 1984. The establishment of new practices in areas in special need of doctors was exempted from the provision.

Pursuant to Chapter 20 Section 11 of the 1962 Social Insurance Act appeals can be lodged with the Regional Social Insurance Court (försäkringsrätten) against a decision of the Social Insurance Offices and of the National Social Insurance Board. Further appeals can be addressed to the Supreme Social Insurance Court (försäkringsöver- domstolen). However, an appeal may not be filed against the decision of a Social Insurance Office by an individual until the insurance office has reconsidered its decision pursuant to Chapter 20 Section 10 of the Social Insurance Act. An appeal lodged prior to the reconsideration of the decision shall be deemed to be a request for reconsideration. These provisions apply also to decisions not to include doctors in the list for doctors affiliated to the system.

COMPLAINTS

The applicant complains that his exclusion from the social security system was inconsiderate and inhuman. By refusing him remuneration the authorities became responsible for the applicant's financial troubles and misery. The applicant submits that the measures of the authorities preventing him from exercising his profession involved a punishment without a legal process.

The applicant invokes Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 February 1985 and registered on 15 May 1985.

On 1 December 1986 the Commission decided to communicate the application to the Government and to invite them to submit written observations on the admissibility and merits of the application.

The Government's observations were received by letter dated 5 March 1987 and the applicant's observations were dated 19 May 1987.

On 7 April 1987 the applicant was granted legal aid.

SUBMISSIONS OF THE PARTIES

A. The Government

1. The facts

During autumn 1984 the Social Insurance Office at Lund had notifications sent out to the doctors affiliated during the period July 1983 to March 1984 (the period under point 2 of the transitional provisions), but who had received preliminary notice that they did not fulfil the minimum activity required. The doctors who had been carrying on their practice during the period, although not to a sufficient extent under the transitional provisions of point 2, were allowed to remain affiliated to the insurance system until 30 June 1985, in accordance with point 3 of the transitional provisions due to a recommendation from the County Council. Those who had been affiliated to the system during this period, but who had not been active received notification that they would be deleted from the list of affiliated doctors as from 1 January 1985.

The applicant did not belong to any of these categories, since he was not at all affiliated during the period in question. The applicant was affiliated only for a limited period of time during a later period. Consequently, he did not receive any corresponding notification or decision.

The Government point out that the temporary permission from the County Council granted in the letter of 20 December 1984 did not entail an affiliation of the applicant to the insurance system. The County Council may only recommend or disapprove of an application for affiliation to the system. The decision only meant that the applicant was remunerated over a certain period in accordance with corresponding principles. It was not based on the transitional provisions. The remuneration received by the applicant for 1985 amounted to 3,587 SEK for 14 personal or telephone consultations. The administration of the remuneration from the County Council was effected by the Insurance Office.

It could be argued that the Insurance Office ought to have let its preliminary notice of 15 October 1984 be followed by some kind of message to the applicant about the final position taken by the Social Insurance Office. The applicant could also have been informed of the position taken by the Insurance Office in relation to his application to the Office of 27 November 1984 after the County Council had decided not to recommend his affiliation. However, any such notification would have meant that he could not be affiliated to the system after 31 December 1984. If the applicant had been informed, he could have made use of the right to appeal to the Regional Social Insurance Court, a right to which he was entitled. However, it should be noted that such an appeal would have meant no alteration of the Insurance Office's decision, since the applicant did not fulfil any of the requirements prescribed in the transitional provisions for being affiliated to the national insurance system after the expiry of 1984. His application was depending on recommendations from the County Council, and he had not received any such recommendation.

To sum up, the first application for affiliation submitted to the Insurance Office was granted with a certain time limit which expired at the end of 1984. The applicant was given no assurances or information indicating that the time limit was to be extended. This decision was in conformity with the new transitional provisions of the tariff. By that decision the question was finally decided upon, and it was not really necessary to notify the applicant by the preliminary notice of 15 October 1984 as was done. No appeal has been brought against that decision.

The second application of 27 November 1984 has not been examined and decided upon by the Social Insurance Office. However, since the County Council had not recommended an affiliation, there was no legal possibility to grant such an application.

Even if the transitional provisions would apply, the applicant did not fulfil the requirements prescribed therein.

In the Government's opinion it seems that the applicant started his practice in the autumn of 1984 without having checked the conditions for affiliation to the social insurance system or which provisions were to be applied.

2. The admissibility

Appeals can be made against decisions of the social insurance offices to a court. The applicant has filed no appeal against the first decision in September 1984 which limited his affiliation to the expiry of 1984. Since the applicant never received any decision regarding his application of 27 November 1984 he was never given an opportunity to make use of his right to appeal. It seems that the applicant was not aware of his right to make appeals. However, it would be useless for the applicant to bring his case to the courts and to do this after such a long time. The law is clear and the transitional provisions do not give the applicant any chance of having his application for affiliation to the social system granted in the way he wished. The courts which have to apply the new legislation and the transitional provisions thereto cannot possibly arrive at any other conclusion.

In these circumstances the Government leave it to the Commission to decide whether the domestic remedies have been exhausted in this case.

The Government maintain with reference to what is said below that the application should be declared inadmissible, as far as Article 6 is concerned, for being manifestly ill-founded and, as far as Article 1 of Protocol No. 1 is concerned, as being incompatible ratione materiae with the Convention for falling outside the scope of this provision or as being manifestly ill-founded.

3. The merits

3.1. Article 6 of the Convention

The applicant complains that the measures taken by the authorities, preventing him from exercising his profession, involved a punishment without a legal process.

The Government find no sort of punishment involved in not affiliating the applicant to the social insurance system after the expiry of 1984, and refer to the legislation. A procedure satisfying the conditions of Article 6 exists according to the Swedish legislation.

Thus, decisions concerning applications for affiliation to the social insurance system can be brought before the Regional Social Insurance Courts and further before the Supreme Social Insurance Court. These courts are independent and impartial tribunals, established by law, and competent to alter or revoke decisions of the Social Insurance Offices which they find not to be in accordance with law or for some other reason incorrect. In view of this the Government do not find it necessary to take any position as to the question whether the examination according to this procedure involves a determination of civil rights.

A remuneration claim for economic losses can always be examined by the general courts.

For these reasons the Government maintain that there has been no violation of Article 6 and that the applicant's complaint in this regard is manifestly ill-founded.

3.2. Article 1 of Protocol No. 1 to the Convention

The primary aim of the social insurance system is to secure everyone a satisfactory medical care at a reasonable price or free of charge. Since most private practitioners are affiliated to the system and thus depending on it to obtain a sufficient income, changes in the system can affect their financial situation. However, the right to work as a physician is not regulated in the social insurance system. Nothing prevents a physician from practising his occupation without being affiliated to the system, and the reform is not aimed at preventing any doctor from exercising his profession. In the Bill (p. 12) it is expressly stated that the reform does not entail any change in the right of private practitioners to practise their profession.

A physician not affiliated to the system must of course charge a fee from his patients which covers all his costs and gives him an income which is sufficient. This means that it becomes more expensive for the patient to visit a physician who is not affiliated to the social insurance system. However, there are some private practitioners exercising their occupation without being affiliated to the system, mainly specialists.

In order to establish whether Article 1 of Protocol No. 1 is applicable to the applicant's situation the meaning of the expression possessions must be examined, and whether there has been some kind of interference with the applicant's right in this regard.

Until the new legislation entered into force the applicant's income from the social insurance system amounted to a sum less than 9,000 SEK. That income has not been affected by the new legislation.

The new legislation affects only the income from fees which the applicant expected to receive as being affiliated to the social insurance system after the expiry of 1984. In other cases (for instance No. 8410/78, Dec. 13.12.79, D.R. 18 p. 216) the Commission has stated that a claim for fees can only be considered a possession within the meaning of Article 1 of Protocol No. 1 when such a claim has come into existence in a particular matter on the ground of services rendered on the basis of existing regulations on fees. A mere expectation that existing regulations on fees will not be changed in the future cannot be considered as a property right.

The case referred to concerned a notary's claim for fees regulated in the legislation of the State concerned. The Government are of the opinion that the same argument would apply to the applicant's case. The new legislation had no effect on services rendered by the applicant before 1 January 1985 when it entered into force. The fact that the applicant's expectation to be affiliated to the social insurance system also after the expiry of 1984, was not fulfilled does not imply an interference with the peaceful enjoyment of his possessions. This conclusion may be drawn since the provision in question protects only existing property and not the right to acquire property.

In the case of van Marle and others (Eur. Court H.R., van Marle and others judgment of 26 June 1986, Series A no. 101) the Court as well as the Commission found that Article 1 of Protocol No. 1 was applicable in principle. In that case (p. 13, para. 41) the Court emphasised that "by dint of their own work, the applicants had built up a clientèle" which according to the Court constituted an asset and thus a possession within the meaning of Article 1. The measures taken by the State in that case had, the Court found, radically affected the conditions of their professional activities and the scope of those activities was reduced. Their income fell as did the value of their clientèle.

Section 2 of the transitional provisions in the present case aims precisely at protecting those private practitioners who had built up a clientèle before the reform entered into force. That category of practitioners could remain affiliated to the system, provided their occupation during a preceding period had a certain volume.

In the Government's opinion the position taken by the Court in the van Marle case can apply only if the clientèle built up has reached a certain level and given the person concerned a certain level of income on a fairly regular basis. A clientèle consisting only of a few persons or a clientèle from which only limited payments are received must not necessarily constitute a possession within the meaning of Article 1. In the case of van Marle and others the applicants had carried out their profession for several years during which they had built up their clientèle giving them an income of which they must have been dependent for their support when their applications for registration as certified accountants were rejected. The applicant in the case now before the Commission had carried out his practice for about two months, during which he received less than 9,000 SEK from the Insurance Office. That income was based on fees for a total of 35 consultations. It is unknown to the Government whether these patients had visited him on a regular basis and intended to do so in the future, or whether they had visited him only occasionally. The facts submitted by the applicant are not sufficient to draw any conclusions in this regard.

With reference to the above the Government maintain that the applicant's complaint falls outside the scope of Article 1 of Protocol No. 1.

If the Commission would be of the opinion that the refusal to affiliate the applicant to the social insurance system, with the consequence that his patients would have to pay him the whole fee charged and that the number of patients would therefore decrease, would imply a deprivation of the applicant's possessions, it must be examined whether this deprivation has been made in the public interest and subject to conditions provided for by law and by general principles of international law. The Government submit that this is the case.

The conditions for affiliation of private practitioners to the social insurance system are provided by law. The conditions for private practitioners, affiliated to the system when the new legislation entered into force, to remain affiliated have been regulated in detail in the transitional provisions to the new legislation.

The most important aims of the reform have been described. From this it appears that the reform was made in the public interest.

It remains to examine whether there is a fair balance between the measures taken by the authorities and the rights of the individual.

The legislation provides that private practitioners affiliated to the system prior to the reform, and who had built up a practice which gave them an income of a certain level or made large investments in a practice before a certain date, can remain affiliated to the social insurance system. Among those who were refused affiliation after the reform were those who had started their practice shortly before the legislation entered into force, like the applicant, or those who applied for affiliation after that date and could not get a recommendation from the medical care principal when such a recommendation was required. These practitioners had and still have the possibility to be affiliated to the system, provided that they open up practice in a district where a recommendation of the medical care principal is not required. This possibility is still open to the applicant. A refusal to affiliate a doctor only applies for those counties in which the medical care principals are entitled to and actually do refuse to give a recommendation for affiliation.

Thus, the reform has only entailed a limitation of the right of a private practitioner to be affiliated to the system. He can no longer be affiliated at any place where he wants to open his practice. In view of the purpose of the reform such an interference in the individual's rights must be regarded as justified.

Regarding the applicant's case the Government emphasise the following. Already when he started his practice, the applicant had been informed that he had been affiliated to the social insurance system only until the end of 1984, all in accordance with the applicable provisions of the tariff. He was given no information indicating that he could count on affiliation after that day; as already mentioned this was not possible according to the new legislation. The applicant must have been fully aware of this time limit and he had no reason to believe that he would have his affiliation renewed. It seems as if the applicant has started his practice without having checked the conditions for being affiliated to the system according to the new legislation. Even if the applicant was living abroad, the Government find it remarkable that the applicant in the beginning of the autumn of 1984 had no idea of the reform. The decision had already been taken and had caused a lively debate in the mass media and among Swedish doctors. In view of this and the limited income the applicant had received from his practice, the Government maintain, should the Commission arrive at the conclusion that an interference with possessions has taken place in the applicant's case, that this interference was justified.

For these reasons the Government contest the applicant's allegation that there has been a violation of Article 1 of Protocol No. 1. The complaint is also in this regard manifestly ill-founded.

4. Conclusions

The Government conclude:

- concerning the admissibility that the application should be declared inadmissible, if not for failure to exhaust domestic remedies, for being manifestly ill-founded, alternatively, as far as Article 1 of Protocol No. 1 is concerned, for being incompatible ratione materiae with the provisions of the Convention, and

- concerning the merits that there has been no violation of the Convention.

B. The applicant

1. The facts

The applicant had worked as a physician in Switzerland. He returned to Sweden and acquired a small house outside Trelleborg. His daughter stayed in Switzerland for her schooling. The applicant visited occasionally Switzerland in order to keep contact with his daughter.

The applicant has studied in Sweden and he is a Swedish doctor of medicine. He was also a senior lecturer in internal medicine at the Karolinska Institute in Stockholm. He is a specialist in internal medicine.

Because of his long stay abroad his pension was very small since January 1983. Being still vital he wished to continue his work as a doctor. In order to earn his living and to be able to support his daughter he decided to start a small private practice of internal medicine at Trelleborg. His aim was to work about 75% of full time.

Trelleborg is a small industrial town with a population of about 25,000 inhabitants. In order to have patients it is necessary for the private practitioner to be affiliated to the social insurance system. Doctors outside this system in Sweden of today are rare, if any. The applicant realised the necessity to be affiliated to the system.

Before 1985 a doctor could easily be affiliated to the social insurance system. He only had to make an announcement to the Insurance Office and he was affiliated with no condition other than the necessity to apply the obligatory tariff.

During 1984, not having got any temporary post, the applicant spent a part of the year with his daughter. He announced his affiliation to the social insurance system, which was accepted in September 1984. The applicant was not informed that the regulations for the affiliation were to be changed. During September - October 1984 he acquired apparatus and furniture for his planned practice. He also signed a contract for the consultation room. He invested an amount of about 100,000 SEK. His affiliation was valid to the end of 1984. Being informed by some colleagues that such an affiliation was always given for the running year only he was convinced that the affiliation would automatically be prolonged. He started his practice at the beginning of November 1984. Shortly thereafter he was informed in writing by the Insurance Office that his affiliation would not be prolonged after the end of 1985. The applicant became anxious. As a result of the rules of that time he considered the affiliation as a pure formality. In order to have his affiliation secured after the new year 1985 he took contact with persons in the county administration who had the competence to pass a resolution and wrote petitions to the Regional Insurance Office and to the County Council. All his measures resulted only in a limited prolongation of the affiliation until 31 March 1985. The applicant terminated his practice in February 1985. The activity, which had hardly begun, was in a phase of building up and not of any considerable proportions.

The applicant's petitions to the authorities were partly an appeal against not being affiliated, partly an application to be affiliated under the new rules valid from 1 January 1985.

2. The new legislation

Practically all medical care was and is still at the expense of the public administration. Swedish citizens consider this as natural because of the high taxes. They do not want to pay much for the medical care irrespective of whether they consult a private doctor or one engaged in the public health care. It is also considered as a natural right of the citizen to choose his doctor.

During the early 1980's the volume of the private care increased considerably. The main aim of the 1985 reform was to limit the activity of the private practitioners and to favour the public care. The purpose was to socialise the medical care. The reform was much discussed in the media. However, the applicant was not informed about the Government Bill in connection with the start of his practice. As previously mentioned the applicant stayed part of the time in Switzerland with his daughter. With the reform the authorities aimed at limiting the competition of the private doctors in two ways. First, the rules regarding State subsidies to the County Council were changed. A lump sum had to cover all medical care, public as well as private, instead of paying for the number of consultations. Secondly, the free regulations for the affiliation to the social insurance system were restricted since a recommendation from the County Council was required.

The applicant emphasises that the new rules had a very harmful impact on the working conditions of the private doctors. Prior to the reform only an announcement was necessary for the affiliation. Under the new rules a recommendation of the County Council is necessary. As a result of the payment of a lump sum the financial situation of the County Council has been impaired. The radical change of the rules for the affiliation to the insurance system called for extensive transitional provisions. The Ordinance (the Tariff) was issued on 16 October 1984. According to the new regulations all doctors who were registered as affiliated to the social insurance system would be struck off the list if they did not comply with the new conditions.

The applicant had principally two possibilities to retain his affiliation. First, he could apply for a new affiliation according to the new rules. For this purpose it was necessary to have a recommandation of the County Council. Such a recommendation is a political decision. The County Council is not a court. A refused recommendation cannot be appealed to a court for reconsideration. There is no right to complain. The applicant has sent applications to the Regional Insurance Office and to the County Council.

Another possibility was to request that the transitional provisions would apply for a continued affiliation. Such issues were dealt with by the National Social Insurance Board. A decision of this Board could be appealed to the Insurance Court. According to the transitional provisions an examination by a court was possible. The applicant has sent several applications to the County Council and to the Regional Insurance Office in order to have his affiliation prolonged. For some inexplicable reason these applications have never been forwarded to the National Social Insurance Board. It was the duty and responsibility of the Council and of the Office to forward these applications to the National Social Insurance Board. There are special regulations according to which the Regional Insurance Office has to forward applications to the competent body. Consequently in this case the authorities have without any reason failed to take a decision. This is very grave, because his case could not be examined. Since no decision was given there was no decision to appeal against. The way the authorities dealt with this case was strange, especially having regard to the fact that the applicant was extraordinarily active to maintain his rights. He contacted personally the authorities to which he described his situation. He has also sent a petition to the Minister of Social Affairs and to each leader of the political parties. Against this background it is completely exceptional that his case was not even dealt with by the authorities. The obstruction the applicant was exposed to is so astounding that it can only be explained by a conscious aversion against his person.

From the above it can be concluded that the views of the Government concerning the possibility to appeal and have examined the case as well as to complain to a court are misleading and partly wrong.

The applicant had announced his aim to start a private practice when he was affiliated. At that time he was not informed of the new regulations. However, these were well known to the authorities at the Insurance Office. Nevertheless, they failed to inform the applicant about the new rules. It is obvious that if he had been correctly informed he would not have made those investments and efforts for the practice activity for only a couple of months in 1984.

The applicant received the preliminary notice of not being affiliated after 1 January 1985 at the end of October 1984. He protested personally on 22 October 1984 to chairman Holgersson at the County Council, who assured the applicant that he could count on a continuation of his affiliation. In November 1984 the applicant sent applications to the Regional Insurance Office and to the County Council. None of these applications have been dealt with properly since they have not been forwarded to the National Social Insurance Board. His letter of 25 January 1985 has not been treated properly either.

The applicant has not appealed against the decision of September 1984 to affiliate him only to the end of 1984. It was the common practice to sign a contract for the running year only. The applicant supposed that the affiliation would be prolonged automatically for the next year. Despite his efforts through letters and personal contacts, he has not been informed of the content of the transitional provisions.

The Government assert that it is insignificant that the applicant did not have the final decision on his application for continuation of the affiliation because he nevertheless does not fulfil the conditions in the transitional provisions. This is wrong. Certain regulations allow a possibility for continuation of the affiliation in the case of the applicant. In any case it is not possible to know the outcome if his applications had been dealt with by the National Social Insurance Board or reconsidered by the Court.

The applicant has requested remuneration for the financial loss the treatment has caused him. It is correct that the ordinary courts may examine a remuneration claim against the State. In the case of the applicant such a possibility does not exist, since there is no decision as a basis for the remuneration claim. The applicant lacks the possibility to have his remuneration claim examined.

3. The admissibility

Regarding the question of exhaustion of domestic remedies it is necessary to distinguish between the examination under the transitional provisions and under the new legislation. As to the transitional provisions the applicant never received any final decision and no notice of appeal which is obligatory. In spite of all efforts his case was never transferred to the National Social Insurance Board. By neglecting their responsibility the authorities deprived the applicant of his right to have his case examined. This is remarkable.

Regarding the new legislation the decision of the County Council cannot be appealed to a court. Under the new rules such a case cannot be examined by a court. The County Council is not a court but a political organ.

Consequently, the application is well-founded. Since the affiliation was important for his practice and his possibility to earn a living this is a question of his "civil rights". Consequently the applicant has been prevented from working in his profession. He maintains that Article 6 of the Convention and Article 1 of Protocol No. 1 have been violated.

The applicant invokes in support of his application the Benthem case (Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97) and the van Marle case (quoted above).

THE LAW

1. The applicant alleges a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention in that he was excluded from affiliation to the social security system, and no remuneration was paid for his having to close down his medical practice. The Government submit that the complaint is incompatible ratione materiae with the provisions of the Convention, or manifestly ill-founded.

Article 1 of Protocol No. 1 (P1-1) reads:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalities."

The Commission considers that the vested interests in the applicant's medical practice may be regarded as "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1). The question of affiliation to the social insurance system was a decisive element for the running of the practice. However, the affiliation which had been granted to the applicant was limited until the end of 1984. The first issue which arises is whether the fact that the applicant's affiliation was not prolonged after 1984 can be regarded as an interference with his rights under Article 1 of Protocol No. 1 (P1-1).

However, the Commission considers that it can leave open this question because, even if it is assumed that the facts of the case constituted an interference with the applicant's rights under Article 1 of Protocol No. 1 (P1-1), any such interference would be justified under that provision for the following reasons.

The interference cannot be regarded as a "deprivation" of property. The provisions of the Health and Medical Services Act and the Tariff lay down, inter alia, regulations as to the provision of medical services in general and the affiliation of private practitioners to the social security system. The refusal of an affiliation does not prevent the doctor from practising privately. It only means that the costs of the consultations given by the doctor will not be covered by the social security system, the effect being that the patients will have to pay the full fee for the consultations. Although the question of affiliation to the social security system may be decisive for the possibility of running a profitable practice, any interference resulting from a refused affiliation must, in the Commission's view, be characterised as a "control (of) the use of property" and not as a "deprivation" of property. Accordingly, it is the second paragraph of Article 1 of Protocol No. 1 (P1-1) which is material (cf. mutatis mutandis Comm. Report, 10.11.87, Tre Traktörer Aktiebolag v. Sweden, paras. 111-114).

Under the second paragraph of Article 1 (P1-1-2) the Commission must examine whether the refusal to prolong the applicant's affiliation to the social security system was "necessary to control the use of property in accordance with the general interest". The task of the Commission in this context is to examine the lawfulness, purpose and proportionality of the measures taken by the domestic authorities (cf. e.g. No. 10378/83, Dec. 7.12.83, D.R. 35 p. 235). The question of proportionality requires a determination as to whether there was a reasonable relationship between the means employed and the aim sought to be realised or, in other words, whether a fair balance has been struck between the demands of the general interest and the interest of the individual. In determining whether a fair balance exists, the State enjoys a wide margin of appreciation with regard both to choosing means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the measure in question (see Eur. Court H.R., Agosi judgment of 24 October 1986, Series A no. 108, p. 18, para. 52).

The new legislation which is at issue was adopted by Parliament on 5 June 1984 following a Government Bill presented in April the same year. The provisions concerning affiliation to the social insurance system after 1984 were contained in the amended medical care tariff which was issued on 16 October 1984. The provisions correspond to what was proposed in the above-mentioned Bill (pp. 32-33). Moreover, a transitional provision to the tariff, which had entered into force on 1 July 1984, provided that a decision to enter a private practitioner on the Social Insurance Office's list after 30 June 1984 was to apply only to the end of 1984.

Point 3 of the transitional provisions provided that a doctor, in the applicant's situation, could be entered on the Social Insurance Office's list after the end of 1984 only if he had been recommended by the medical care prinicpal, i.e. the County Council. The applicant has not been so recommended.

The Commission is satisfied that the non-affiliation of the applicant was lawful under Swedish law and that it was in the "general interest" as part of a more comprehensive reform of the health and medical services.

As regards the proportionality, the Commission recalls that the original affiliation of the applicant was limited in time, and under the applicable law there was no guarantee of a prolongation of the affiliation after 1984. Even if the applicant was not actually informed of the situation, he could have been so if he had taken appropriate advice before setting up his practice. The Commission considers that, in these circumstances, and having regard to the wide margin of appreciation enjoyed by States in this regard, the non-affiliation of the applicant under the new legislation was not disproportionate to the aims pursued.

Accordingly, any interference, by the non-affiliation, with the applicant's right to the peaceful enjoyment of his possessions was justified under the terms of the second paragraph of 1 of Protocol No. 1 (P1-1).

It follows that, in this respect, the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, in that he was refused continued affiliation to the social security system without legal process. The Government submit that this complaint is manifestly ill-founded.

Article 6 para. 1 (Art. 6-1) first sentence reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The Commission considers that there are three different sets of proceedings which must be taken into account in the examination of the above complaint under Article 6 (Art. 6) of the Convention:

- the Social Insurance Office's preliminary notice of 15 October 1984 which was not, contrary to the text of the notice, followed by a final decision on the question of the applicant's affiliation to the social security system after 1984;

- the applicant's request to the Social Insurance Office of 27 November 1984 for affiliation to the social security system after 1984;

- the applicant's request to the County Council of 27 November 1984 for affiliation to the social security system ater 1984.

The first issue which arises is whether in one or more of these proceedings the applicant was seeking a determination of his "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. If this were so, it would then have to be decided whether the applicant had the possibility of bringing any dispute relating to his "civil rights" before a tribunal within the meaning of Article 6 para. 1 (Art. 6-1).

The Commission has made a preliminary examination of these issues in the light of the parties' submissions. It considers that these issues raise questions of fact and law which are of such an important and complex nature that their determination requires an examination of the merits. This complaint is therefore admissible, no other ground for declaring it inadmissible having been established.

For these reasons, the Commission

DECLARES INADMISSIBLE the complaint of a violation of the right to property (Article 1 of Protocol No. 1 (P1-1) to the Convention);

DECLARES ADMISSIBLE, without pre-judging the merits, the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRUGER)

(C. A. NØRGAARD)