THIRD SECTION
DECISION
Application no. 34880/12
Johan Coenraad RAMAER and Johannes Meindert VAN WILLIGEN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on
23 October 2012 as a Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Marialena Tsirli, Deputy Section
Registrar,
Having regard to the above application lodged on 7 June 2012,
Having regard to the decision to grant priority to the above
application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Johan Coenraad Ramaer and Mr
Johannes Meindert van Willigen, are Netherlands nationals. Mr Ramaer, who was
born in 1926, lives in Alicante, Spain. Mr van Willigen, who was born in 1942,
lives in Hoeilaart, Belgium. The applicants were represented before the Court
by Mr T. Barkhuysen and Mr A.W. Bos, lawyers practising in Amsterdam.
The facts of the case, as submitted by the
applicants, may be summarised as follows.
A. Background
1. Situation before 1 January 2006
(a) Basic health insurance
Before 1 January 2006 basic health insurance in
the Netherlands was organised in two separate statutes.
The first, the Health Insurance Act (Ziekenfondswet),
set up a public health insurance system which covered categories of persons
that may be broadly described as employees and old age pensioners up to a
certain income limit, as well as those in receipt of social-security or
unemployment benefits, with their families. They were compulsorily insured by public
health care funds (ziekenfondsen), to which they paid contributions
withheld from their wages, pensions or benefits respectively.
The second, the 1998 Health Insurance (Access)
Act (Wet op de toegang tot ziektekostenverzekeringen 1998), ensured the
availability of private health insurance at a level equivalent to that provided
under the Health Insurance Act for persons not covered by the Health Insurance
Act. To that end it imposed an obligation on insurers providing this kind of
insurance to insure persons who were resident in the Netherlands or elsewhere
in the European Union (EU), the European Economic Area (EEA), Switzerland or
another State with which the Netherlands had entered into a treaty concerning
social security, provided that Netherlands social security legislation applied
to them by virtue of European Union Council Regulation 1408/71 (EC) or that
treaty.
The Private Health Insurance (Reimbursements)
Decree (Vergoedingenbesluit particulier verzekerden) provided for
reimbursement to insured persons resident in other EU or EEA member States of
insured medical costs incurred in those States, up to the same amounts that
would have been refundable had the care been provided in the Netherlands
(section 19), and for reimbursement of the cost of urgent hospitalisation
in hospitals abroad for up to 365 days to an amount up to double that which
would be refundable had the care been provided in the Netherlands.
(b) Complementary public insurance
The General Exceptional
Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten, “AWBZ”)
provided, and provides, a complementary compulsory insurance scheme covering
all those lawfully resident or employed in the Netherlands.
Before 2006, persons who
had been affiliated to this scheme for at least a year could continue their
affiliation on a voluntary basis if they emigrated, provided inter alia
that they were not employed abroad (section 32a of the Act).
According to detailed rules given in the General Exceptional Medical Expenses Act (Benefits in kind)
Ordinance (Besluit zorgaanspraken AWBZ), the AWBZ covered certain medical and other health care expenses not covered by
the above-mentioned insurance schemes, including hospitalisation beyond 365
days, medical or non-medical home care and psychotherapy.
The AWBZ system was, and
is, contributory. Contributions are calculated based on income and levied by
the tax authorities together with wage tax (loonbelasting) or income tax
(inkomstenbelasting) as the case may be.
2. Situation as from 1 January 2006
(a) Netherlands residents
On 1 January 2006 the Health Care Insurance Act
(Zorgverzekeringswet) entered into force. It replaced the dual regime
for basic health care under the Health Insurance Act and the Health Insurance
(Access) Act by a single regime applicable to all.
Complementary health care continues to be provided under the AWBZ.
Save for military personnel, who are subject to
a separate regime, and those who object to insurance on religious grounds, who
pay a tax in lieu of premium, all those who are compulsorily insured under the
AWBZ are now obliged to take out health care insurance in accordance with the
Act (section 2(1)). Health care insurers, now all private entities, have a duty
to offer insurance on standard terms to all who so request (section 3).
Those compulsorily insured are all Netherlands
residents, persons paying wage tax through being employed in the Netherlands or
on the Netherlands continental shelf (section 5), and those whose insurance
under the AWBZ is a consequence of the application of provisions of a treaty or
a decision of an international organisation (van wie de verzekering op grond
van deze wet voortvloeit uit de toepassing van bepalingen van een verdrag of
van een besluit van een volkenrechtelijke organisatie) (section 5b(1)).
This excludes pensioners resident in EU countries other than the Netherlands, to whom the AWBZ is no longer directly applicable.
Netherlands residents pay a standard basic
premium plus an income-dependent additional sum to the health care insurer of
their choice, who is obliged to accept them. Any
additional private health care insurance is optional.
(b) Treaty beneficiaries
The case concerns the effects of the changes
introduced on 1 January 2006 on retired Netherlands nationals
formerly insured under the private insurance system and who are residents of
European Union Member States other than the Netherlands; such persons are
stated by the applicants to number some 40,000. By virtue of European Union
Council Regulation 1408/71 (EC), Annex VI, heading R, paragraph 1, point
(a)(ii), they are entitled to health care in their state of residence, the
costs being borne by the Netherlands. Similar arrangements apply to Netherlands nationals resident in European Economic Area (EEA) countries and - under a separate
treaty - Switzerland. Persons in this position are referred to as “treaty
beneficiaries” (verdragsgerechtigden).
Treaty beneficiaries are required to register
with the Health Care Insurance Board (College voor zorgverzekeringen),
to which they pay a contribution which is deducted at source from their Netherlands income. They must also register with the health care authority of their country
of residence to establish their actual entitlement to health care.
(c) Payments by the Netherlands
From figures published by the Ministry for Health, Welfare and Sport (Ministerie van Volksgezondheid, Welzijn en Sport),
quoted in the judgment given by the Provisional Measures Judge (voorzieningenrechter)
of the Regional Court (rechtbank) of The Hague on 31 March 2006 (see
paragraph 36 below), it appears that at the relevant time the annual sum paid
by the Netherlands for pensioners subject to the measures in issue and members
of their families was 3,450 euros (EUR) per person for those resident in
Belgium and EUR 2,586 per person for those resident in Spain.
B. The applicants’ cases
1. Mr Ramaer
Mr Ramaer and his wife have been resident in Belgium since 1983, Mr Ramaer having been stationed there by his Netherlands employer at the time.
He now pays his taxes in Belgium.
Before 1 January 2006, he had private health
care insurance from an insurer based in the Netherlands, IAK, under a
collective contract negotiated through his former employer. This contract entitled
him to care of a standard comparable to that available in the Netherlands under private insurance plus the AWBZ. On 1 January 2006 the collective
contract with IAK was terminated and Mr Ramaer’s entitlements under the AWBZ
came to an end.
On an unknown date in December 2005 Mr Ramaer
received a letter from the Health Care Insurance Board informing him that he
and his wife were henceforth entitled to health care in their country of
residence and bound to register with the Health Care Insurance Board itself. Mr
Ramaer lodged an objection, which the Health Care Insurance Board dismissed on
8 August 2006. Mr Ramaer then lodged an appeal with the Administrative
Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak
van de Raad van State - see below).
Mr Ramaer registered with the Health Care
Insurance Board under protest. He declined IAK’s offer of complementary
insurance, which would have cost him EUR 2,042 per insured person per year.
Instead, making use of a special offer available for a limited period, he took
out complementary insurance with a Belgian health care insurer, Partena; this
cost him an additional EUR 543 per year.
Mr Ramaer states that in order to obtain health
care of the same standard as before 1 January 2006, he now has to pay the
contribution to the Health Care Insurance Board, the premium to the Belgian
insurance company and non-refundable portions (Flemish: remgeld, French:
ticket modérateur) of certain expenses including the cost of assistance
of a general practitioner, internal medicine, the assistance of an optician and
physiotherapy.
Mr Ramaer calculates his annual medical expenses
(based on 2006 figures) as follows (in EUR):
|
Basic contribution to Health Care Insurance Board
|
|
|
969
|
|
|
Income-dependent contribution to Health Care Insurance Board
|
|
|
1,451
|
|
|
AWBZ contribution
|
|
|
2,823
|
|
|
Sub-total
|
|
|
5,234
|
|
|
Country of residence correction factor for Belgium
|
x 0.6168
|
|
|
3,234
|
|
Complementary insurance (Partena)
|
|
|
|
543
|
|
Total
|
|
|
|
3,777
|
which total sum does not include non-refundable portions
payable for Belgian health care.
Mr Ramaer calculates that, had he had no option
but to take out complementary insurance with IAK instead of Partena, it would
have cost him EUR 2,042 instead of EUR 543, raising the total sum to EUR 5,276.
He also calculates that a Netherlands resident in his position paid EUR 950 per year for basic health care insurance
plus an additional income-dependent contribution in an amount of EUR 1,451, or
EUR 2,401 in total.
In May or April 2007 the Health Care Insurance
Board sent Mr Ramaer a provisional settlement note (jaarafrekening)
covering the contributions due for 2006. Mr Ramaer lodged an objection, which
the Health Care Insurance Board dismissed on 17 July 2007. Mr Ramaer appealed
to the Regional Court of Amsterdam, Administrative Law Division (Sector
bestuursrecht - see below).
2. Mr van Willigen
Mr van Willigen has been resident in Spain since 1999. Formerly in receipt of disability benefits under the Labour Disablement Insurance Act (Wet
op de Arbeidsongeschiktheidsverzekering - “WAO”), since
1 March 2007 he enjoys an old age pension under the General Old Age
Pension Act (Algemene Ouderdomswet; “AOW”) and a complementary pension.
Until 1 January 2006 Mr
van Willigen was insured privately by the insurance company Delta Lloyd, to
whom he paid EUR 2,271 per annum. On 1 January 2006 this insurance contract was
terminated ex lege. Delta Lloyd replaced it automatically by a new
contract at an annual cost of EUR 4,436, this sum being payable in
addition to the compulsory contributions due to the Health Care Insurance
Board.
Mr van Willigen protested
to Delta Lloyd against this increase. In September 2006 Delta Lloyd made him a
new offer of complementary insurance for an annual sum of EUR 2,042.
In the meantime, however, Mr van Willigen had
accepted a special offer made by the Spanish insurance company Sanitas, who
offered him complementary insurance for EUR 828 annually. Mr van Willigen states
that this premium has now gone up to EUR 2,160 per year for 2012.
Although this entitles Mr van Willigen to
private health care as distinct from Spanish public health care, which he
describes as “mediocre”, certain expenses remain non-refundable. These include,
among others, the cost of medicines prescribed outside hospitals and part of
the cost of consulting a doctor.
Mr van Willigen calculates his annual medical
expenses (based on 2006 figures) as follows (in EUR):
|
Basic
contribution to Health Care Insurance Board
|
|
|
|
|
|
Income-dependent
contribution to Health Care Insurance Board
|
|
|
,451
|
|
|
AWBZ
contribution
|
|
|
,823
|
|
|
Sub-total
|
|
|
,234
|
|
|
Country of
residence correction factor for Spain
|
x 0.3557
|
|
|
,865
|
|
Complementary
insurance (Sanitas)
|
|
|
|
|
|
Total
|
|
|
|
,693
|
not including non-refundable expenses.
Mr van Willigen calculates that, had he had no
option but to accept the terms offered by Delta Lloyd in early 2006, it would
have cost him EUR 6,301 annually.
On 26 June 2007 the Social
Insurance Bank (Sociale Verzekeringsbank), the body administering, among others, the AOW, informed Mr
van Willigen of the decision to withhold the contributions due under the Health
Care Insurance Act from his AOW pension. Mr van Willigen lodged an objection
with the Social Insurance Bank, which dismissed it on 24 August 2007.
C. Domestic proceedings
1. Proceedings before the Provisional Measures Judge
A non-governmental organisation, the Foundation
for the Protection of the Interests of Netherlands Pensioners Abroad (Stichting
Belangenbehartiging Nederlandse Gepensioneerden in het Buitenland, “SBNGB”)
and a group of individuals affected by the matters in issue, including Mr
Ramaer, summoned the Netherlands State before the Provisional Measures Judge of
the Regional Court of The Hague seeking, as relevant to the case before the
Court, an order to ensure that the contributions provided for by section 6.3.1
of the Health Care Insurance Rules (see below) be not levied from them and
their health care insurance contracts existing before 1 January 2006 be
continued beyond that date.
The Provisional Measures Judge gave judgment on
31 March 2006 ordering the State not to implement section 6.3.1 of the Health
Care Insurance Rules to the extent that the sums payable by the insured persons
exceeded the sums paid by the Netherlands to the country of residence and
instruct the Health Care Insurance Board accordingly. This order, which was of
a provisional nature, would lapse if proceedings on the merits were not brought
within one month.
However, this judgment led the Minister for Health, Welfare and Sport to amend section
6.3.1 of the Health Care Insurance Rules and introduce the
“country of residence correction factor” with retroactive effect until 1
January 2006.
2. Proceedings before the Administrative Jurisdiction
Division of the Council of State
Mr Ramaer lodged an appeal with the
Administrative Jurisdiction Division of the Council of State against the
dismissal of his objection by the Health Care Insurance Board (see paragraph 20
above).
On 25 April 2007 the Administrative Jurisdiction
Division declared the appeal inadmissible on the ground that the Health Care
Insurance Board’s original letter of December 2005 was merely informative in
nature and was therefore not a decision against which an objection or an appeal
would have been possible.
3. Proceedings before the Regional Court of Amsterdam
(a) The appeals
Mr Ramaer appealed to the Regional Court of
Amsterdam, Administrative Law Division, against the decision which the Health
Care Insurance Board had given on 17 July 2007 (see paragraph 26 above), as did
two other recipients of similar decisions.
Mr van Willigen appealed to the Regional Court
of Amsterdam, Administrative Law Division, against the decision which the
Social Insurance Bank had given on 24 August 2007 (see paragraph 34 above), as
did two other recipients of similar decisions.
The complaints and arguments were essentially
the same in both cases. The appellants argued that Articles 28 and 28a of
Council Regulation 1408/71 and Article 29 of Council Regulation 574/72 offered them
the choice to opt out of the social-security regime of their home country. In
the alternative, they argued that the absence of such a choice violated Article
18 or Article 39, or both, of the Treaty establishing the European Community;
in the further alternative, they argued that the method used to calculate the
country of residence correction factor was flawed.
(b) The decisions of the Regional Court
The Regional Court gave its decisions on 1
February 2008.
In Mr Ramaer’s case, it held that Article 28 of
Regulation 1408/21 provided a conflict rule, not an option. Article 29 of
Council Regulation 574/72 did not suggest otherwise; moreover, the latter
regulation related to the application of Regulation 1408/21. There was no
violation of Article 18 or Article 39 of the Treaty establishing the European
Community: since the appellants were not put at a disadvantage as compared to
those already employed or self-employed in the member States concerned, and
since the appellants were not made to pay contributions without any
corresponding entitlements, and since, moreover, their contributions were
subject to a country of residence correction factor, there was no interference
with the right to freedom of movement. Finally, the situation was not the same
as that which the provisional measures judge of the Regional Court of The Hague
had considered in the judgment of 31 March 2006: not only were the applicants
foreign residents, from which it followed that they were not in a relevantly
similar situation to Netherlands residents and therefore subject to different
health care regimes, but country-specific country of residence correction
factors had been introduced which removed any equal treatment of fundamentally
unequal cases. The calculation of the country of residence correction factors
was not arbitrary; the Netherlands legislature had remained within its margin
of appreciation in its choice of method.
In Mr van Willigen’s case, it held that primary
responsibility for implementing the legislation in question was vested in the
Health Care Insurance Board rather than the Social Insurance Bank which had
little power of decision in the matter. As for the merits, it confined itself
to referring to the decision in the case of Mr Ramaer, which it appended to the
decision in Mr van Willigen’s case.
4. Proceedings before the Central Appeals Tribunal
Both applicants appealed, together with their
fellow appellants, to the Central Appeals Tribunal (Centrale Raad van Beroep)
against the decisions of the Amsterdam Regional Court.
On 1 August 2008 the Act on proceedings
concerning the withholding of contributions from treaty beneficiaries (Wet
rechtsgang bronheffing verdragsgerechtigden) entered into force. Its
effect, as relevant to the present case, was to substitute the Health Care
Insurance Board for the Social Insurance Bank as the defendant in the
proceedings brought by Mr van Willigen.
On 26 August 2009 the Central Appeals Tribunal
gave a decision noting that an entitlement to health care in the country of
residence under Articles 28 and 28a of Regulation 1408/71 arose only if the
person concerned had registered with the competent authority in accordance with
Article 29 of Regulation 574/72. This the person could refuse to do, which
raised the question whether in case of such refusal Article 33 of Regulation
1408/71 could be construed as nonetheless justifying the deduction of
contributions from their pension. At the same time, although since the
introduction of the country of residence correction factor there appeared no
longer to be any disadvantage preventing pensioners from settling in other
European Union member States, the applicants and their fellow appellants were
in a dissimilar position in that they had already been resident in other European
Union member States while the former system was still in existence and they
alleged that they were faced with higher costs for health care allegedly of a
lower standard. This might affect freedom of movement and residence, protected
by Articles 39 and 18 of the Treaty establishing the European Community (as in
force at the time).
The Central Appeals Tribunal therefore addressed
a request for a preliminary ruling under Article 234 of the Treaty establishing
the European Community to the Court of Justice of the European Communities in
the following terms:
“1. Should Articles 28, 28a and 33 of Regulation No
1408/71, the provisions of point 1(a) and (b) of section R of Annex VI to
Regulation No 1408/71, and Article 29 of Regulation No 574/72 be interpreted as
meaning that a national provision such as Article 69 of the [Health Care
Insurance Act] is incompatible therewith, in so far as a pensioner who in
principle has entitlements under Articles 28 and 28a of Regulation No 1408/71
is obliged to report to the [Health Care Insurance Board] and a contribution
must be deducted from that person’s pension even if no registration has taken
place under Article 29 of Regulation No 574/72?
2. Should Article 39 of the Treaty establishing the
European Community or Article 18 of the Treaty establishing the European
Community be interpreted as meaning that a national provision such as Article
69 of the [Health Care Insurance Act] is incompatible therewith in so far as a
citizen of the European Union who in principle has entitlements under Articles
28 and 28a of Regulation No 1408/71 is obliged to report to the [Health Care
Insurance Board], and a contribution must be deducted from that citizen’s
pension, even if no registration has taken place under Article 29 of Regulation
No 574/72?”
5. The preliminary ruling of the Court of Justice of the
European Union/Communities
50. The Court of Justice of the European
Union gave its preliminary ruling (case C-345/09, J.A. van Delft,
J.C. Ramaer, J.M. van Willigen, J.F. van der Nat, C.M. Janssen and O.
Fokkens v. College voor Zorgverzekeringen) on 14 October 2010. It
was in the following terms:
“1. Articles 28, 28a and 33 of Council Regulation
(EEC) No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed persons and to members
of their families moving within the Community, as amended by Regulation (EC) No
1992/2006 of the European Parliament and of the Council of 18 December 2006, in
conjunction with Article 29 of Council Regulation (EEC) No 574/72 of 21 March
1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on
the application of social security schemes to employed persons, to
self-employed persons and to members of their families moving within the Community,
as amended by Commission Regulation (EC) No 311/2007 of 19 March 2007, must be
interpreted as not precluding legislation of a Member State, such as that at
issue in the main proceedings, under which recipients of pensions payable under
the legislation of that State who reside in another Member State in which they
are entitled under Articles 28 and 28a of Regulation No 1408/71 to the sickness
benefits in kind provided by the competent institution of the latter Member
State must pay, in the form of a deduction from their pension, a contribution
in respect of those benefits even if they are not registered with the competent
institution of their Member State of residence.
2. Article 21 TFEU [i.e. Treaty on the Functioning
of the European Union] must be interpreted as not precluding legislation
of a Member State, such as that at issue in the main proceedings, under which
recipients of pensions payable under the legislation of that State who reside
in another Member State in which they are entitled under Articles 28 and 28a of
Regulation No 1408/71, as amended by Regulation No 1992/2006, to the sickness
benefits in kind provided by the competent institution of the latter Member
State must pay, in the form of a deduction from their pension, a contribution in
respect of those benefits even if they are not registered with the competent
institution of their Member State of residence.
On the other hand, Article 21 TFEU must be interpreted as
precluding such national legislation in so far as it induces or provides for -
this being for the national court to ascertain - an unjustified difference of
treatment between residents and non-residents as regards ensuring the
continuity of the overall protection against the risk of sickness enjoyed by
them under insurance contracts concluded before the entry into force of that
legislation.”
6. The final decisions of the Central Appeals Tribunal
The Central Appeals Tribunal gave separate final
decisions (in Mr Ramaer’s case: LJN (Landelijk Jurisprudentie Nummer, National Jurisprudence Number) BU7125; in Mr van Willigen’s case: LJN BU7135) on 13 December 2011. The
reasoning in the applicants’ cases was identical and extensive. It may be
summarised as follows.
In view of the Court of Justice of the European
Union’s answer to the first question, the Central Appeals Tribunal
found that a right to opt out of the withholding of contributions under section
69 of the Health Care Insurance Act did not exist.
In view of the answer to the second question, it
found that withholding contributions under section 69 of the Health Care
Insurance Act did not in itself impede European Union citizens’ freedom of
movement.
This left the Central Appeals Tribunal having to
ascertain “whether an unjustified difference of treatment between residents and
non-residents as regards ensuring the continuity of the overall protection
against the risk of sickness enjoyed by them under insurance contracts
concluded before the entry into force of that legislation” existed, given that
the applicants had been insured privately on 31 December 2005.
The Central Appeals Tribunal found that
provision had been made for a statutory transitional arrangement on the basis
of which private insurance contracts of residents and non-residents partially
lapsed ex lege, in comparable fashion, it being intended that for both
groups basic cover as it existed before 1 January 2006 should continue to
exist. There was in fact no disagreement on this point. However, for reasons of
practicability, further arrangements had been necessary between the insurance
companies and the persons concerned as to the remaining part of the insurance
contract or any new complementary insurance contract. This had effectively
compelled any persons concerned who wished to retain complementary cover of
their medical expenses in addition to the statutory basic system after
1 January 2006 to take out new complementary insurance. This,
however, applied equally to residents and non-residents. In this respect,
therefore, there was no difference in treatment between residents and
non-residents.
It then found that private insurers were under
no unconditional duty to offer insurance (acceptatieplicht)
complementary to basic cover. Pursuant to the statutory unconditional duty to
offer insurance, basic cover for health care was secured to residents based on
the Health Care Insurance Act. Non-resident treaty beneficiaries were entitled ex
lege to health care in their country of residence in accordance with the
basic health care regime of that country (woonlandpakket). To that
extent it could not be said that residents were treated more favourably than
non-residents. Given that there was no statutory duty to offer complementary
insurance either as regards residents or as regards non-residents, there was no
difference in treatment in that respect either. It was also relevant within the
framework of transitional law that a statutory duty to offer insurance was in
fact contained in section 2.5.2 of the Health Care Insurance Act (Introduction
and Adaptation) Act (Invoerings- en aanpassingswet Zorgverzekeringswet),
which applied to both residents and non-residents. Existing insurance contracts
were only terminated ex lege in so far as they coincided with the Netherlands basic insurance regime and the basic health care regime of the country of
residence, respectively. They continued to exist for the remainder. It followed
that even if a further contract or new complementary contract was entered into,
the insurer could not reject any person concerned who was insured on 31
December 2005 for that part of the contract which was not terminated ex lege.
In this, transitional law was actually more favourable than the new system per
se.
Nor could it
be found that an (unjustified) difference in treatment between residents and
non-residents had been caused by the Netherlands Government through means other
than legislation. In addition to studying the drafting history of
the new legislation and parliamentary discussions, the Central Appeals Tribunal
had held a hearing at which it had heard officials of the Ministry for Health, Welfare and Sport (Ministerie van Volksgezondheid,
Welzijn en Sport) who had actually been involved in determining the (legal)
position of resident and non-resident treaty beneficiaries and in the contacts
and negotiations with Netherlands insurance companies. From the information
given it had emerged that the Minister for Health,
Welfare and Sport had in fact
been concerned to secure for non-resident treaty beneficiaries insurance cover
comparable to that which they enjoyed before 1 January 2006 on reasonable
conditions. To that end, the Minister for Health,
Welfare and Sport had entered
into administrative agreements, through the umbrella organisation (koepelorganisatie)
Netherlands Health Care Insurers (Zorgverzekeraars Nederland), with the
public health care funds and the private insurers to make all their insured
clients an offer that was comprehensive and non-selective (i.e. without risk
selection) for health care insurance plus complementary insurance. It was not
possible for the Minister for Health, Welfare and Sport to compel the insurers to make an offer
for complementary insurance on definite, fixed-tariff conditions. Such
intrusive involvement with complementary insurance would have run counter to
European Union directives on non-life insurance (schadeverzekeringen)
(Directive 73/239/EEC, Official Journal 1973, L228.3; Directive 88/357/EEC,
Official Journal 1988, L172/1; and Directive 92/49/EEC, Official Journal 1992,
L228/1; as since amended), which did not admit of a legislative system in which
provision was made for the approval of tariffs for health care insurance other
than basic health care insurance.
The
legislature had thus designed a transitional arrangement aiming to preserve as
far as possible the global cover which residents and non-resident treaty
beneficiaries alike enjoyed before the entry into force of the Health Care
Insurance Act under their Netherlands private insurance. Despite the statutory
arrangement, under which only part of the contract was terminated, it had in
actual fact often been necessary, for practical reasons, to conclude new
contracts. For residents these contracts related to the statutory basic
insurance and one or more complementary insurance contracts in addition to that
basic insurance, and for treaty beneficiaries, to one or more complementary
insurance contracts in addition to the basic health care regime of the country
of residence. It had been necessary in order to facilitate this process to
reach administrative agreements with health care insurers. These had indicated
that they could hardly be expected to design cost-effective insurance for each
European Union or treaty country to meet the wishes of an often relatively
small number of insured Netherlands nationals per country concerned. Although
many insurers had in fact made reasonable offers, the fact remained that the
numbers of persons requiring complementary insurance as treaty beneficiaries
had decreased, and with them the financial base for the insurance. In addition,
it could not be ruled out that insurance cover in the respective countries of
residence was not up to Netherlands standards. That, however, was inherent in
the new system, which the Court of Justice of the European Union had found was
not in itself contrary to European Union law.
It could
not be ruled out that the insurers might in some cases not have complied, as
regards non-resident treaty beneficiaries, with the unconditional duty, set
forth in section 2.5.2 of the Health Care Insurance Act (Introduction
and Adaptation) Act, to accept them as
clients. Nor could it be ruled out that insurers might in some cases have
applied a risk selection on grounds of age and health to treaty beneficiaries,
in the sense that terms and conditions for renewal of complementary insurance
might have turned out (considerably) less favourable than those of the original
contract. That said, the Central Appeals Tribunal had not been made aware of a
demonstrable difference in treatment between residents and non-residents caused
by the Netherlands Government and implemented with their connivance by
insurance companies based in the Netherlands. Besides the fact that such a
difference had not been laid down in the statutory arrangement, there was no
appearance either of a ‘political’ agreement that had formed the basis for the
practice of insurance companies in offering insurance or setting tariffs as
regards complementary contracts with non-residents. Rather, the procedure
followed suggested the opposite. It did not follow from the possibility that in
retrospect there might have been a certain measure of administrative naiveté (bestuurlijke
naïviteit) that any premeditated intention of the Netherlands Government
unjustifiably to treat residents and non-resident treaty beneficiaries
differently could be found established.
The
Central Appeals Tribunal was not unaware that, in those cases where the basic insurance
regime in the country of residence offered lesser cover than the Netherlands
basic package, a reduction of the base of persons insured and thus the
financial base of the insurance coupled with the disappearance of the solidarity levy (solidariteitstoeslag)
provided for in the 1998 Health Insurance (Access) Act for basic
insurance might to that extent have had the effect of raising premiums for
complementary insurance. This was, however, inherent in the system introduced
with effect from 1 January 2006, which the Court of Justice of the European
Union had not considered in itself contrary to Community law, in which the
position of residents and non-residents was not the same, and for that reason
alone did not constitute an unjustified difference in treatment of residence in
relation to non-residents by which freedom of movement of European Union
citizens is restricted.
B. Relevant European Union law
1. The Treaty establishing the European Community and
the Treaty on the Functioning of the European Union
The Treaty establishing the European Community,
as in force until 1 December 2009, included the following provisions:
“Article 18
1. Every citizen of the Union shall have the right
to move and reside freely within the territory of the Member States, subject to
the limitations and conditions laid down in this Treaty and by the measures
adopted to give it effect.
2. If action by the Community should prove necessary
to attain this objective and this Treaty has not provided the necessary powers,
the Council may adopt provisions with a view to facilitating the exercise of
the rights referred to in paragraph 1. ...
3. Paragraph 2 shall not apply to provisions on
passports, identity cards, residence permits or any other such document or to
provisions on social security or social protection.
Article 39
1. Freedom of movement for workers shall be secured
within the Community.
2. Such freedom of movement shall entail the
abolition of any discrimination based on nationality between workers of the
Member States as regards employment, remuneration and other conditions of work
and employment.
3. It shall entail the right, subject to limitations
justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member
States for this purpose;
(c) to stay in a Member State for the purpose of
employment in accordance with the provisions governing the employment of
nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be
embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this article shall not apply to
employment in the public service.
Article 234
The Court of Justice shall have jurisdiction to give
preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the
institutions of the Community and of the ECB [European Central Bank];
(c) the interpretation of the statutes of bodies
established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of
a Member State, that court or tribunal may, if it considers that a decision on
the question is necessary to enable it to give judgment, request the Court of
Justice to give a ruling thereon.
Where any such question is raised in a case pending before a
court or tribunal of a Member State against whose decisions there is no
judicial remedy under national law, that court or tribunal shall bring the
matter before the Court of Justice.”
The Treaty establishing the European Community
was amended and re-named Treaty on the
Functioning of the European Union when the Treaty of Lisbon amending
the Treaty on European Union and the Treaty establishing the European Community
entered into force on 1 December 2009.
Article 19 of the Treaty establishing the European Community became
Article 21 of the Treaty on the Functioning
of the European Union; former Article 39 became Article 45; and former Article
234 became Article 267.
2. Council Regulation (EEC) No. 1408/71 on the
application of social security schemes to employed persons, to self-employed
persons and to members of their families moving within the Community
At the relevant time, European Union Council
Regulation 1408/71 (EC), in its relevant parts, read as follows:
“THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty
establishing the European Community, and in particular Articles 51 and 235
thereof,
Having regard to the proposal
from the Commission,
Having regard to the opinion of
the European Parliament,
Having regard to the opinion of
the Economic and Social Committee,
Whereas the provisions for
coordination of national social security legislations fall within the framework
of freedom of movement for workers who are nationals of Member Sates and should
contribute towards the improvement of their standard of living and conditions
of employment;
Whereas freedom of movement for
persons, which is one of the cornerstones of the Community, is not confined to
employed persons but also extends to self-employed persons in the framework of
the freedom of establishment and the freedom to supply services;
Whereas the considerable differences
existing between national legislations as regards the persons to whom they
apply make it preferable to establish the principle that the Regulation applies
to all persons insured under social security schemes for employed persons and
for self-employed persons or by virtue of pursuing employment or
self-employment;
Whereas it is necessary to
respect the special characteristics of national social security legislations
and to draw up only a system of coordination;
Whereas it is necessary, within
the framework of that coordination, to guarantee within the Community equality
of treatment under the various national legislations to workers living in the Member States and their dependants and their survivors;
...
Whereas employed persons and
self-employed persons moving within the Community should be subject to the
social security scheme of only one single Member State in order to avoid
overlapping of national legislations applicable and the complications which could
result therefrom;
Whereas the instances in which a person should be subject
simultaneously to the legislation of two Member States as an exception to the
general rule should be as limited in number and scope as possible;
Whereas with a view to guaranteeing
the equality of treatment of all workers occupied on the territory of a Member
State as effectively as possible, it is appropriate to determine as the
legislation applicable, as a general rule, that of the Member State in which
the person concerned pursues employment of self-employment;
Whereas in certain situations
which justify other criteria of applicability, it is possible to derogate from
this general rule;
...
Whereas the specific position of
pension claimants and pensioners and the members of their families calls for
the provisions governing sickness insurance to adapted to their situation;
...
Whereas it is necessary to lay
down special provisions which correspond to the special characteristics of the
national legislations in order to facilitate the application of the rules of
coordination,
HAS ADOPTED THIS REGULATION:
...
Article 28
Pensions payable under the legislation of one or more
States, in cases where there is no right to benefits in the country of
residence
1. A pensioner who is entitled to a pension under
the legislation of one Member State or to pensions under the legislation of two
or more Member States and who is not entitled to benefits under the legislation
of the Member State in whose territory he resides shall nevertheless receive
such benefits for himself and for members of his family, in so far as he would,
taking account where appropriate of the provisions of Article 18 and Annex VI,
be entitled thereto under the legislation of the Member State or of at least
one of the Member States competent in respect of pensions if he were resident
in the territory of such State. The benefits shall be provided under the
following conditions:
(a) benefits in kind shall be provided on behalf of
the institution referred to in paragraph 2 by the institution of the place of
residence as though the person concerned were a pensioner under the legislation
of the State in whose territory he resides and were entitled to such benefits;
(b) cash benefits shall, where appropriate, be
provided by the competent institution as determined by the rules of paragraph
2, in accordance with the legislation which it administers. However, upon
agreement between the competent institution and the institution of the place of
residence, such benefits may be provided by the latter institution on behalf of
the former, in accordance with the legislation of the competent State.
2. In the cases covered by paragraph 1, the cost of
benefits in kind shall be borne by the institution as determined according to
the following rules:
(a) where the pensioner is entitled to the said
benefits under the legislation of a single Member State, the cost shall be
borne by the competent institution of that State;
(b) where the pensioner is entitled to the said
benefits under the legislation of two or more Member States, the cost thereof
shall be borne by the competent institution of the Member State to whose
legislation the pensioner has been subject for the longest period of time;
should the application of this rule result in several institutions
being responsible for the cost of benefits the cost shall be borne by the
institution administering the legislation to which the pensioner was last
subject.
Article 28a
Pensions payable under the legislation of one or more of the
Member States other than the country of residence where there is a right to
benefits in the latter country
Where the pensioner entitled to a pension under the legislation
of one Member State, or to pensions under the legislations of two or more
Member States, resides in the territory of a Member State under whose
legislation the right to receive benefits in kind is not subject to conditions
of insurance or employment, nor is any pension payable, the cost of benefits in
kind provided to him and to members of his family shall be borne by the
institution of one of the Member States competent in respect of pensions,
determined according to the rules laid down in Article 28 (2), to the extent
that the pensioner and members of his family would have been entitled to such
benefits under the legislation administered by the said institution if they
resided in the territory of the Member State where that institution is
situated.
Article 33
Contributions payable by pensioners
1. The
institution of a Member State which is responsible for payment of a pension and
which administers legislation providing for deductions from pensions in respect
of contributions for sickness and maternity shall be authorized to make such
deductions, calculated in accordance with the legislation concerned, from the
pension payable by such institution, to the extent that the cost of the
benefits under Article 27, 28, 28a, 29, 31 and 32 is to be borne by an
institution of the said Member State.
2. Where,
in the cases referred to in Article 28a, the acquisition of benefits in respect
of sickness and maternity is subject to the payment of contributions or similar
payments under the legislation of a Member State in whose territory the
pensioner in question resides, by virtue of such residence, these contributions
shall not be payable.
Annex VI
R. NETHERLANDS
1. Health
care insurance
(a) As regards entitlement to benefits in kind under
Netherlands legislation, persons entitled to benefits in kind for the purpose
of the implementation of Chapters 1 and 4 of Title III of this Regulation shall
mean: (i) persons who, under Article 2 of the Zorgverzekeringswet (Health Care
Insurance Act), are obliged to take out insurance under a health care insurer,
and
(ii) insofar as they are not already included under
point (i), persons who are resident in another Member State and who, under this
Regulation, are entitled to health care in their state of residence, the costs
being borne by the Netherlands.
(b) The persons referred to in point (a)(i) must, in
accordance with the provisions of the Zorgverzekeringswet (Health Care
Insurance Act), take out insurance with a health care insurer, and the persons
referred to in point a(ii) must register with the College voor
zorgverzekeringen (Health Care Insurance Board).
(c) The provisions of the Zorgverzekeringswet
(Health Care Insurance Act) and the Algemene wet bijzondere ziektekosten ([General Exceptional Medical Expenses Act]) concerning
liability for the payment of contributions shall apply to the persons referred
to under point (a) and the members of their families. In respect of family
members, the contributions shall be levied on the person from whom the right to
health care is derived.
(d) The provisions of the Zorgverzekeringswet
(Health Care Insurance Act) concerning late insurance shall apply mutatis
mutandis in the event of late registration with the College voor
zorgverzekeringen (Health Care Insurance Board) in respect of the persons
referred to in point a(ii).
...”
3. Council Regulation (EEC) No 574/72 fixing the
procedure for implementing Regulation (EEC) No 1408/71 on the application of
social security schemes to employed persons and their families moving within
the Community
“Article 29
Benefits in kind for pensioners and
members of their families who are not resident in a Member State under whose legislation they are entitled to benefits
1. In order to receive benefits in kind in the
territory of the Member State in which he resides, under Article 28 (1) of the
Regulation [i.e. Council Regulation (EEC) 1408/71], a pensioner and the members
of his family shall register with the institution of the place of residence by
submitting a certified statement testifying that he is entitled to the said
benefits for himself and for the members of his family, under the legislation
or one of the legislations under which a pension is payable.
2. This certified statement shall be issued, at the
request of the pensioner, by the institution or one of the institutions
responsible for payment of the pension or, where appropriate, by the
institution empowered to determine entitlement to benefits in kind, as soon as
the pensioner satisfies the conditions for acquisition of the right to such
benefits. If the pensioner does not submit the certified statement, the
institution of the place of residence shall obtain it directly from the
institution or institutions responsible for payment of the pension or, where
appropriate, from the institution empowered to issue such certified statement.
Whilst awaiting the receipt of this certified statement, the institution of the
place of residence may, in the light of the documentary evidence accepted by
it, register the pensioner and the members of his family provisionally. This
registration shall not be applied by the institution responsible for the payment
of benefits in kind until the institution of the place of residence has
delivered the certified statement provided for in paragraph 1.
3. The institution of the place of residence shall
inform the institution which has issued the certified statement provided for in
paragraph 1 of every registration effected in accordance with the provisions of
the said paragraph.
4. When making any application for benefits in kind
the pensioner must prove to the institution of the place of residence, by means
of the receipt or the counterfoil of the money order of the last payment made,
that he is still entitled to a pension.
5. The pensioner or the members of his family shall
inform the institution of the place of residence of any change in their
situation which might alter their entitlement to benefits in kind, in
particular any suspension or withdrawal of the pension and any transfer of
their residence. The institutions responsible for the pension shall also inform
the institution of the pensioner’s place of residence of any such change.
6. The Administrative Commission shall, to the
extent necessary, fix the procedure for determining the institution which shall
bear the cost of the payment of benefits in kind, in the case referred to in
Article 28 (2) (b) of the Regulation.”
C. Relevant domestic law
1. The Health Care Insurance Act
As relevant to the present case, the Health Care
Insurance Act at the relevant time provided as follows:
“Section 69
1. Persons living abroad and their family members,
who pursuant to a Regulation of the Council of the European Communities or the
application of such Regulation pursuant to the Agreement on the European
Economic Area or a treaty on social security are entitled in case of need to
care or reimbursement of the costs thereof, as provided for in the legislation
on health care insurance of their country of domicile, shall, unless they are
subject to compulsory insurance under the present Act, register with the Health
Care Insurance Board.
2. The persons referred to in the first paragraph
shall owe a contribution to be determined by ministerial regulation, which for
purposes of the application of section 22 above and also, in respect of a
portion of that contribution to be determined by said regulation, for the
application of the Health Care Allowance Act (Wet op de zorgtoeslag)
shall be considered as a premium for health care insurance.”
The following is taken from the drafting history
of the Health Care Insurance Act (Explanatory memorandum (Memorie van
Toelichting), Lower House of Parliament, parliamentary year 2003-04, 29
763, no. 3):
"I Introduction
and summary
The aims of the Bill: Greater efficiency, less central
direction, good accessibility
By means of the bill for the Health Care Insurance Act the
Government wish to put an end, starting from 2006, to the present incoherent
situation (verbrokkelde situatie) by realising one statutory insurance
regime for all Netherlands residents. This net insurance regime should
contribute as much as possible to effective and high-quality health care. The
change in the system of health care insurance to be enacted by the Health Care
Insurance Act is not isolated, but is part of a wider oriented revision of the
direction (sturing) and division of responsibilities in the health care
field.
...
Greater freedom of choice and responsibility for insured
persons
The new Health Care Insurance Act will offer every resident the
possibility to enter into a contract of insurance with the health care insurer
of his choice. Solidarity within the system is expressed in obligatory
insurance (verzekeringsplicht) for the citizens and an unconditional
duty to offer insurance for the health care insurers. Health care insurers have
the duty to offer health care insurance to everyone, regardless of personal
characteristics, on the same terms. The law shall indicate what forms of health
care are covered by health care insurance.
...
In conclusion
Against the background of the reforms in the health care system
in the last fifteen years (such as the introduction of commercial competition
in health care insurance and the introduction of solidarity levies in private
insurance) the Government consider the statutory regulation of the new health
care insurance a logical and necessary follow-up rather than a breach with the
past. In view of the private elements which continue to characterise both
public and private health care insurance (zowel de ziekenfondsverzekering
als de particuliere verzekeringen) the Government make a deliberate choice
for a private-law structure of health care insurance. It is important in this
respect that the European Commission takes it to be self-evident that the
freedom of the member States of the European Union to organise their
social-security systems as they see fit also implies the freedom to leave cover
of the insurance risk to private insurance enterprises. Demands can be made on
these enterprises in the public interest. In this bill, space for private
initiative and entrepreneurship goes hand in hand with strong public preconditions.
In this way the social tradition of the public health care funds and the market
tradition of private insurance can be brought together. Both public health care
funds and private health care insurers can transform into insurance companies
which carry out the Health Care Insurance Act. In this way continuity in the
functioning of the health care system is sufficiently ensured. All insured
persons will be brought under the umbrella of the European social insurance
regulation. Insured persons who are resident or staying abroad can enjoy
medical health care there paid for by Netherlands insurance.
...
VI Cross-border
health care
The entry into force of the Health Care Insurance Act will draw
the entire population into a social health care insurance. This will put an end
to the Netherlands position, which is unique in Europe, in which 30 per cent of
the population is forced to take out private insurance on the free market. The
Health Care Insurance Act will be reported to the European Commission as a
social security scheme within the meaning of Council Regulation (EEC) No.
1408/71. From this it may follow that persons resident outside the Netherlands may become subject to Netherlands social security legislation and therefore find
themselves obliged to take out health care insurance. These persons will owe
premium pursuant to the Netherlands legislation.
There is also a category of persons who do not reside in the
Netherlands, but who, being entitled to a Netherlands pension, are entitled to
health care at the expense of the Netherlands as the consequence of the
application of the European social security regulation [i.e. Council Regulation
(EEC) No. 1408/71] or a social insurance treaty in the country of residence. As
against this treaty-based right to care, the international arrangements
concerned provide that the State which bears the expense of medical care may
charge premium therefor. The statutory base for thus charging premium is set
out in the bill. It is intended to set a nominal premium for this category,
based on the average premium charged in the Netherlands. The income-dependent
contribution will be levied the same way as is done in the case of persons
resident in the Netherlands.
Council Regulation (EEC) No. 1408/71 and the social security
treaties entered into by the Netherlands provide that the medical care to which
a person is entitled pursuant to the Regulation or a treaty shall be provided
in accordance with the rules in force under the social health care legislation
of the country where the care is provided. Accordingly, a Netherlands insured person resident or staying in, for example, France will receive medical care
from the French social health care insurance in accordance with French
legislation. The cost of such care will be borne by the Netherlands health care insurance. For those formerly insured by public health care funds
this is a familiar phenomenon, for those formerly insured privately this is a
new situation.
It will be provided for persons resident abroad and entitled to
health care at the expense of the Netherlands based on a social insurance
treaty entered into by the Netherlands with another country or on Council
Regulation (EEC) No. 1408/71 that they must register with the Health Care
Insurance Board. That Board will then see to the reimbursement of the expenses
which that other country incurs in providing medical care to the person
concerned. This situation differs from the present situation in public health
care insurance, in which the persons concerned are obliged to register with a
specific public health care fund. Because such an indication in the new
situation of the Health Care Insurance Act can be seen as a disturbance of
market relations and a health care insurer cannot influence health care use and
the expenses involved in the other country, a choice has been made for
registration with the Health Care Insurance Board. In this way, a ‘market
neutral’ solution has been found, in which, as regards the premium which the
persons concerned must pay, the profit component need not be taken into
account. The Health Care Insurance Board has so advised, at our request, in the
report ‘International aspects of the Health Care Insurance Act’ (Internationale
aspecten van de Zorgverzekeringswet) of 29 January 2004, consecutively
numbered 23098110.
...”
2. The Health Care Insurance Act (Introduction and
Adaptation) Act
In its relevant part, the Health Care Insurance
Act (Introduction and Adaptation) Act provides:
“Section 2.5.2
...
2. An agreement concerning insurance for medical care
or the costs thereof concluded for or with an insured person living abroad who,
by the application of a regulation of the Council of the European Communities
or the application of such a regulation pursuant to the Agreement on the
European Economic Area or to a treaty on social security, is entitled to health
care or to the reimbursement of the costs thereof, as provided in the
legislation on health care insurance of his country of residence, shall be
terminated as from 1 January 2006, to the extent that rights could be derived
from that agreement equivalent to those to which the person concerned is
entitled from that date by the application of such a regulation or treaty,
provided that before 1 May 2006 the insured person complied with the obligation
to register with the Health Care Insurance Board under section 69 of the Health
Care Insurance Act. ...”
3. The Health Care Insurance Rules
The Health Care Insurance Rules (Regeling
zorgverzekering), in their relevant part, provide as follows:
“Section 6.3.1
1. The contribution payable by a person referred to
in section 69(1) of the Health Care Insurance Act shall be calculated by
multiplying the basic contribution by the number arrived at by calculating the
ratio between the average healthcare expenditure for a person which is to be
borne by the social health care insurance in that person’s country of residence
and the average healthcare expenditure for a person which is to be borne by the
social healthcare insurance in the Netherlands.
2. The basis for the contribution shall be the sum
of:
a) an income dependent contribution calculated
according to [relevant provisions of the Health Care Insurance Act];
(b) an income dependent contribution calculated
in accordance with the premium due for the AWBZ pursuant to the Social
Insurance Financing Act (Wet financiering sociale verzekeringen) [with
reductions as may be required by the application of the 2001 Income Tax Act (Wet
inkomstenbelasting 2001)];
(c) from the first day of the calendar month
following the calendar month in which this person has reached the age of
eighteen, a monthly contribution corresponding to one-twelfth of the
provisionally determined premium for a person insured under health care
insurance in the year of the calculation (berekeningsjaar) ...
Section 6.3.2
The contribution referred to in section 6.3.1 for a person
referred to in section 69(1) of the Health Care Insurance Act who is entitled
to a pension, and for the members of his family, shall be deducted from that
pension by the institution which pays that pension and paid to the healthcare
insurance fund.”
COMPLAINTS
Basing their argument on the premise that their
entitlements related to the insurance premiums which they had paid qualified as
“possessions” within the meaning of Article 1 of Protocol No. 1, the applicants
complained that they had been faced with an interference with their peaceful
enjoyment thereof for which no justification in the public interest had been
suggested and which was moreover in any case disproportionate.
They complained under Article 14 of the
Convention taken together with Article 1 of Protocol No. 1 and under Article 1
of Protocol No. 12 that they had been the victims of discrimination compared to
Netherlands residents in that after the entry into force of the Health Care
Insurance Act health care insurance offering cover equivalent to that available
to Netherlands residents was no longer available to them on the same, more
favourable, conditions.
They also complained, under the same provisions,
that the premium for basic health care insurance was different depending on
their actual country of residence.
Finally, they alleged a violation of Article 6
in that the Central Appeals Tribunal, although not ruling out that there might
have been differences in treatment between Netherlands residents and
non-residents, and in particular that insurers might have been allowed through
“administrative naiveté” to renege on their promises to offer insurance to the
latter on reasonable terms, had nonetheless found that there had been no
discrimination of the applicants.
THE LAW
A. Scope of the case
The applicants stated that the events complained
of had affected the situation of some 40,000 Netherlands pensioners resident in
countries of the European Union outside the Netherlands, particularly Spain,
Portugal, France and Belgium. A number of those concerned had set up a
non-governmental organisation for the protection of their interests, namely the
Foundation for the Protection of the Interests of Netherlands Pensioners Abroad
(see paragraph 35 above), which had taken part in proceedings in the domestic
courts. The applicants submitted that the present application followed on from
these domestic proceedings and indicated that they considered their application
as a “test case” (proefproces).
The Court points out that
it may take into consideration only the case of the two applicants and not the
situation of other persons or of an association not having authorised them to
lodge an application in their name (Engel and Others v. the
Netherlands, 8 June 1976, § 106, Series A no. 22).
B. Article 1 of Protocol No. 1
The applicants complained that, firstly, their
health care insurance contracts had been annulled, as a result of which they
lost their entitlements under those contracts, and secondly, as non-resident
treaty beneficiaries they had had their entitlements reduced to basic public
health care in their countries of residence unless they were prepared to face
additional expense. They alleged a violation of Article 1 of Protocol No. 1,
which provides as follows:
“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 penalties.”
Whether there was a “possession”
The Court can only address
the merits of the applicants’ complaints under this Article if it determines
that the applicants can claim to have been the victims of an interference with
a right amounting to a “possession”, such as would bring Article 1 of Protocol
No. 1 into play.
“Possessions”, which
Article 1 of Protocol No. 1 protects, can be either “existing possessions” or
assets, including claims, in respect of which the applicant can argue that he
or she has at least a “legitimate expectation” of obtaining effective enjoyment
of a property right. It does not, however, guarantee the right to acquire
property (J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the
United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-III)
The applicants likened their health care
insurance contracts to social security arrangements. As in contributory social
security schemes, which created an entitlement once the insured situation
materialised for those who had lawfully contributed to them, they had enjoyed,
under their private insurance contracts, entitlements to health care until the
end of their lives since they had paid the insurance premiums stipulated. They
cited Gaygusuz v. Austria, 16 September 1996, Reports of Judgments
and Decisions 1996-IV and Kjartan Ásmundsson v. Iceland, no.
60669/00, ECHR 2004-IX.
The Court observes that the applicants claim as
“possessions” their entitlements under their former contracts of insurance,
which in their submission were more advantageous to them than the arrangements
foisted on them by the Health Care Insurance Act. These contracts were
terminated ex lege as from 1 January 2006, to the extent that rights
could be derived from them equivalent to those to which they were entitled from
that date by the application of Council Regulation (EEC) No. 1408/71 (section
2.5.2(2) of the Health Care Insurance Act (Introduction and Adaptation) Act,
see paragraph 66 above). In consequence, to that extent their entitlements were
extinguished, as indeed was the corresponding obligation to pay premiums to
their insurers.
The Court has gone so far as to recognise as an
“asset”, and therefore a “possession” in the sense of Article 1 of Protocol No.
1, a claim under civil law (see Pressos Compania Naviera S.A. and Others v.
Belgium, 20 November 1995, § 31, Series A no. 332). That case
concerned claims in tort, enforceable in domestic civil law from the moment the
damage occurred.
The present case is different. The applicants
were insured under contracts which, conditionally on the payment of premiums,
entitled them to certain benefits in the event that the insured situation came
about. They have not, however, demonstrated or even argued that after
31 December 2005 claims arising from their insurance companies and
existing on or before that date were extinguished or reduced. In this respect
the present case differs from Pressos Compania Naviera S.A. and Others.
It also differs from social-security cases like Gaygusuz, in which
Article 14 was found applicable together with Article 1 of Protocol No. 1 in
that a right to benefits was, in principle, directly recognised to persons in
the applicant’s position by the law but denied to the applicant on
discriminatory grounds, and Kjartan Ásmundsson, in which the termination
of an existing disability pension was found to be disproportionate in the
circumstances.
The applicants’ expectations were not based on a legal provision or a legal act such as a judicial
decision. Rather, they were based on the hope to see their insurance contracts
continued, or renewed, on terms no less favourable for them than those which
they enjoyed previously. The Court has already drawn attention to the
difference between a hope of securing an asset, however understandable that
hope may be, and a legitimate expectation, which must be of a nature more
concrete than a mere hope and be based on a legal provision or a legal act such
as a judicial decision (see, mutatis mutandis, Gratzinger and
Gratzingerova v. the Czech Republic
[GC] (dec.), no. 39794/98, § 73, ECHR 2002-VII; Kopecký
v. Slovakia [GC], no. 44912/98, § 49, ECHR 2004-IX; and Anheuser-Busch
Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007-I).
In the circumstances of
the present case there is no “possession”. It follows that this
complaint is incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 35 § 3 (a) and must be
rejected in accordance with Article 35 § 4.
C. Article 14 taken together with Article 1 of
Protocol No. 1 and Article 1 of Protocol No. 12
The applicants complained of the effects of the
introduction of the Health Care Insurance Act on them as treaty beneficiaries
resident in countries other than the Netherlands as compared to Netherlands residents, and as treaty beneficiaries resident in different countries outside the Netherlands. They also complained of an unjustified interference with the peaceful
enjoyment of their possessions, taking the view that their existing insurance
contracts qualified as such. They relied on Article 14 of the Convention taken
together with Article 1 of Protocol No. 1 and on Article 1 of Protocol No. 12.
Articles 14 of the Convention and 1 of Protocol
No. 12 read as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
Article 1 of Protocol No. 12
“1. The enjoyment of any right set forth by law
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any
public authority on any ground such as those mentioned in paragraph 1.”
1. Article 14 of the Convention taken together with
Article 1 of Protocol No. 1
The applicants took the view that the case came
within the ambit of Article 1 of Protocol No. 1, since the new system in which
they were compelled to participate was not only more expensive in terms of
premiums and contributions to be paid than the system that existed before
1 January 2006 but also less advantageous in that their insurance
cover was reduced. From this it followed, in their submission, that Article 14
of the Convention was applicable.
The Court reiterates that
Article 14 complements the other substantive provisions of the Convention and
the Protocols. It has no independent
existence since it has effect solely in relation
to “the enjoyment of the rights and freedoms” safeguarded by those provisions.
The application of Article 14 does not necessarily presuppose the violation of
one of the substantive rights guaranteed by the Convention. It is necessary but
it is also sufficient for the facts of the case to fall “within the ambit” of
one or more of the provisions in question. The prohibition of discrimination in
Article 14 thus extends beyond the enjoyment of the rights and freedoms which
the Convention and its Protocols require each State to guarantee. It applies
also to those additional rights, falling within the general scope of any
Article of the Convention, for which the State has voluntarily decided to
provide (see, as a recent authority among many others, Stummer v.
Austria [GC], no. 37452/02, § 81, ECHR 2011).
The Court has already found that Article 1 of
Protocol No. 1 is inapplicable in the absence of a proprietary right that can
properly be equated to a “possession”. It follows that Article 14 cannot apply
in combination with that Article. This complaint too is therefore incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with Article
35 § 4.
2. Article 1 of Protocol No. 12
Regardless of the applicability of Article 14,
the applicants argued that they were entitled to rely on Article 1 of Protocol
No. 12, since its applicability did not depend on any other substantive
provision of the Convention or its Protocols.
As the Court held in Sejdić and Finci v.
Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009:
“The notion of discrimination has been
interpreted consistently in the Court’s jurisprudence concerning Article 14 of
the Convention. In particular, this jurisprudence has made it clear that ‘discrimination’
means treating differently, without an objective and reasonable justification,
persons in similar situations (...). The authors used the same term,
discrimination, in Article 1 of Protocol No. 12. Notwithstanding the difference
in scope between those provisions, the meaning of this term in Article 1 of
Protocol No. 12 was intended to be identical to that in Article 14 (see the
Explanatory Report to Protocol No. 12, § 18). The Court does not therefore see
any reason to depart from the settled interpretation of ‘discrimination’, noted
above, in applying the same term under Article 1 of Protocol No. 12 (as regards
the case-law of the UN Human Rights Committee on Article 26 of the
International Covenant on Civil and Political Rights, a provision similar -
although not identical - to Article 1 of Protocol No. 12 to the Convention, see
Nowak, CCPR Commentary, N.P. Engel Publishers, 2005, pp. 597-634).”
The Court will therefore
apply the same test as it would have done had Article 14 been applicable.
Discrimination means
treating differently, without an objective and reasonable justification,
persons in similar situations. “No objective and reasonable justification”
means that the distinction in issue does not pursue a “legitimate aim” or that
there is not a “reasonable relationship of proportionality between the means
employed and the aim sought to be realised” (Sejdić and Finci,
§ 42; see also, among many other authorities, Stec and Others v. the United
Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-VI, and Stummer,
cited above, § 87).
Whether there has been a
difference in the treatment of persons in relevantly similar situations
(i) Difference in treatment
The applicants stated that, with effect from 1
January 2006, Netherlands residents had become entitled to health care
insurance offering them cover comparable to their previous contracts and at
comparable cost. In contrast, the new system had replaced their entitlement
under Netherlands health care legislation including the AWBZ by an entitlement
to the local basic health care regime, which generally offered much lesser
coverage, while increasing the cost of health care equivalent to that available
to Netherlands residents by creating a need for complementary health care
insurance and by exposing them to expenses that under the regimes of their
countries of residence could not be refunded. Moreover, the applicants
themselves were affected in different ways, depending on their respective
countries of residence.
The Court accepts that place of residence
constitutes “an aspect of personal status” for the purposes of Article 1 of
Protocol No. 12 as it does for those of Article 14 of the Convention (Carson
and Others v. the United Kingdom [GC], no. 42184/05, §§ 70-71, ECHR 2010).
The applicants are resident in countries of the
European Union other than the Netherlands, namely Belgium and Spain, respectively. The Court finds, in the light of all the facts of the case, that the
entry into force of the Health Care Insurance Act on 1 January 2006 has created
a situation in which they are treated differently from Netherlands residents, and also from each other depending on their respective countries of
residence.
(ii) Relevantly similar situations
It remains to be considered whether the
applicants are in a relevantly similar position to Netherlands residents and to
residents of each other’s country of residence.
The applicants submitted that they were. They
based their argument on the fact, as stated, that up to 1 January 2006 they had
paid the same insurance premiums as Netherlands residents. As long as they had
not themselves been in need of care, their premiums had benefited those who
were. Likewise, their health care needs were not different from those of other
pensioners merely because they were not Netherlands residents.
The Court observes that the applicants’ health
care insurance contracts were terminated with effect from 1 January 2006. They
no longer create entitlements for the applicants; nor do they any longer impose
obligations on the applicants. It is in the nature of private insurance that
the premiums paid by all, and any profits made from their investment, are used
to meet the immediate needs only of those whom the insured mishap befalls. The
applicants’ defunct insurance contracts are therefore irrelevant to the present
situation.
In Carson and Others, cited above, the
Court was called upon to consider differential treatment under a
publicly-funded pension system that treated pensioners resident in the United Kingdom differently from pensioners resident in other countries. It pointed out the
essentially national, in the sense of territorial, nature of the pension system
there in issue, which was designed specifically to meet the needs of United
Kingdom residents (loc. cit., §§ 85-86).
As is apparent from its drafting history (see
paragraph 65 above), the Health Care Insurance Act too is intended to provide
an essentially territorial system. The standard health care regime applies to
all persons who are lawfully resident in the Netherlands; they are required to
take out insurance which entitles them to health care according to standards
set by the Netherlands Government. To that extent, similar considerations apply
in the present case.
For the applicants, who are “treaty
beneficiaries” as a result of their choice to reside in other countries of the
European Union, it is provided, in accordance with Council Regulation (EEC) No.
1408/71, that they shall be entitled in their respective countries of residence
to health care under the same regime as the local population. The Government of
the country concerned is reimbursed for any health care thus provided by the
Netherlands Government, who in turn have the right to require the applicants to
contribute. Any complementary health care insurance is optional.
The Court accordingly finds that the applicants
are not in a relevantly similar situation to Netherlands residents, or to each
other. It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Article 6 § 1 of the Convention
The applicants complained that the reasoning of
the decisions of the Central Appeals Tribunal was deficient. They relied on
Article 6 § 1 of the Convention, which, in its relevant part, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The applicants’ argument was that despite
accepting the possibility that in some cases insurers might not have complied
with the unconditional duty to offer insurance on reasonable terms to
non-resident treaty beneficiaries, the Central Appeals Tribunal nonetheless
found that there was no demonstrable difference in treatment by the Netherlands
Government between residents and non-resident treaty beneficiaries. In the
applicants’ submission, this finding was incomprehensible given that the
Netherlands Government was responsible for the introduction of the legislation
that had given rise to the events complained of and for any mistakes in
negotiating agreements with the insurers.
The Court finds that the Central Appeals
Tribunal, after unusually protracted and complicated proceedings involving even
a preliminary ruling of the Court of Justice of the European Union, addressed
the applicants’ arguments in decisions which contain extensive reasoning on the
pertinent European Union law, the drafting history of the Health Care Insurance
Act and the history of the negotiations with the insurers and are not
arbitrary. More generally, and in relation to all these
complaints, the Court reiterates that it is not its function to deal with
errors of fact or law allegedly committed by the national courts, as it is not
a court of appeal - or, as is sometimes said, a “fourth instance” - from
these courts (see, among many other authorities, Het Financieele Dagblad
B.V. v. the Netherlands (dec.), no. 577/11, 28 June 2011; Melnychuk v. Ukraine (dec),
no. 28743/03, ECHR 2005-IX; and Kemmache v.
France (no. 3), 24 November 1994, § 44, Series
A no. 296-C).
It follows that this complaint too is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
