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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> FELDBRUGGE v. THE NETHERLANDS - 8562/79 [1986] ECHR 4 (29 May 1986)
URL: http://www.bailii.org/eu/cases/ECHR/1986/4.html
Cite as: [1986] 8 EHRR 425, 8 EHRR 425, (1986) 8 EHRR 425, [1986] ECHR 4

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In the Feldbrugge case*,

_______________

* Note by the registry: The case is numbered 8/1984/80/127. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, taking its decision in plenary

session in pursuance of Rule 50 of the Rules of Court and composed of

the following judges:

Mr. R. Ryssdal, President,

Mr. G. Wiarda,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mr. W. Ganshof van der Meersch,

Mrs. D. Bindschedler-Robert,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 31 May, 1 and 2 October 1985 and

21 to 23 April 1986,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The present case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 October 1984,

within the period of three months laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention"). The case

originated in an application (no. 8562/79) against the Kingdom of the

Netherlands lodged with the Commission on 16 February 1979 under

Article 25 (art. 25) by a citizen of that State, Mrs. Geziena Hendrika

Maria Feldbrugge.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the Netherlands declaration recognising the compulsory

jurisdiction of the Court (Article 46) (art. 46). The object of the

request was to obtain a decision by the Court as to whether the facts

of the case disclose a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the inquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, Mrs. Feldbrugge stated that she

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent her (Rule 30).

3. The Vice-President of the Court, acting as President, decided on

15 October 1984 that, in the interests of the proper administration of

justice, both the present case and the case of van Marle and Others

should be heard by a single Chamber (Rule 21 para. 6). The Chamber of

seven judges to be constituted included, as ex officio members,

Mr. G. Wiarda, the elected judge of Netherlands nationality

(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal,

Vice-President of the Court (Rule 21 para. 3 (b)). On 22 October 1984,

Mr. Wiarda, in his capacity as President of the Court, drew by

lot, in the presence of the Registrar, the names of the five other

members, namely Mr. J. Cremona, Mr. J. Pinheiro Farinha,

Sir Vincent Evans, Mr. R. Bernhardt and Mr. J. Gersing (Article 43

in fine of the Convention and Rule 21 para. 4) (art. 43).

4. Having assumed the office of President of the Chamber (Rule 21

para. 5), Mr. Ryssdal granted the lawyer for the applicant leave to

use the Dutch language in the proceedings (Rule 27 para. 3).

5. Through the Registrar, the President consulted the Agent of the

Netherlands Government ("the Government"), the Delegate of the

Commission and the lawyer for the applicant on the need for a written

procedure (Rule 37 para. 1). On 11 December 1984, he directed that

the Agent and the lawyer should each have until 31 January 1985 to

file a memorial, and that the Commission's Delegate should be entitled

to reply in writing within two months of the date on which the

Registrar transmitted to him whichever of the two memorials should

last be filed. On 12 February 1985, he extended the former time-limit

to 29 March 1985.

6. On 27 February 1985, the Chamber decided to relinquish jurisdiction

forthwith in favour of the plenary Court (Rule 50).

7. The applicant's memorial was received at the registry on 21 January

and the Government's on 9 April. On 24 April, the Secretary to the

Commission informed the Registrar that the Delegate would present his

submissions at the hearing.

8. On 8 March, after consulting, through the Registrar, the Agent

of the Government, the Delegate of the Commission and the lawyer for

the applicant (Rule 38), the President directed that the oral

proceedings should open on 29 May 1985.

9. The hearing was held in public at the Human Rights Building,

Strasbourg, on the appointed day, the Court having held a preparatory

meeting on the previous day.

There appeared before the Court:

- for the Government

Mr. G.W. Maas Geesteranus, Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mr. E. Korthals Altes, Landsadvocaat, Counsel,

Mr. J.A. van Angeren, Ministry of Justice,

Mr. C.J. van den Berg, Ministry of Social

Affairs and Employment, Advisers;

- for the Commission

Mr. B. Kiernan, Delegate;

- for the applicant

Mr. L.K.F. Schuitemaker, advocaat, Counsel.

The Court heard addresses by Mr. Maas Geesteranus, Mr. Korthals

Altes and Mr.van Angeren for the Government, by Mr. Kiernan for the

Commission and by Mr. Schuitemaker for the applicant, as well as

their replies to questions put by the Court and several of its

members.

10. By letter received on 11 July, the Agent of the Government

provided information on a point of fact raised at the hearing.

AS TO THE FACTS

I. Particular circumstances of the case

11. Mrs. Geziena Hendrika Maria Feldbrugge was born in 1945 and is

resident at Anna Paulowna. She is of Netherlands nationality.

In or about 1978, although she had been unemployed for some time,

Mrs. Feldbrugge ceased to register at the Regional Employment Exchange

(Gewestelijk Arbeidsbureau). This was because she had fallen ill and

did not consider herself sufficiently recovered to be fit to work.

On 11 April 1978, the Governing Board of the Occupational Association

of the Banking and Insurance, Wholesale Trade and Self-Employment

Sector (Bedrijfsvereniging voor Bank-en Verzekeringswezen, Groothandel

en Vrije Beroepen) in Amsterdam decided that as from 24 March 1978 she

was no longer entitled to the sickness allowances she had been

receiving until then, as the Association's consulting doctor had

judged her fit to resume work on that date.

12. She appealed to the Appeals Board (Raad van Beroep) in Haarlem.

The President of the Appeals Board sought the opinion of one of the

permanent medical experts attached to the Board, a gynaecologist

practising at Alkmaar, who examined the patient and gave her the

opportunity to comment. After consulting three other doctors (a

gynaecologist and two general practitioners, including

Mrs. Feldbrugge's), the expert concluded on 1 June 1978 that,

gynaecologically speaking, she had been fit for work since 24 March;

however, he felt it necessary also to consult an orthopaedic

specialist.

On 18 August 1978, another permanent medical expert, an orthopaedic

surgeon, examined the applicant and offered her the opportunity to

comment. He also sought the views of the three practitioners mentioned

above. In his report of 22 August 1978, he too found that

Mrs. Feldbrugge had been fit to resume employment as from 24 March of

that year.

On the basis of these two reports, the President of the Appeals Board

ruled against the applicant.

13. The applicant filed an objection (verzet), alleging that she had

not been given a fair hearing.

On 17 November 1978, the Appeals Board declared the objection

inadmissible as it fulfilled none of the grounds laid down in section

142 (1) of the Appeals Act (Beroepswet - see paragraph 19 below). In

an obiter dictum, it stated that the case had been given a fair

hearing, in that two permanent medical experts had examined the

applicant and allowed her to state her objections orally.

14. Mrs. Feldbrugge challenged this decision before the Central

Appeals Board (Centrale Raad van Beroep) at Utrecht. In particular,

she maintained that the limitations imposed by sections 141 and 142 of

the above-mentioned Act infringed the principle of a fair trial

enunciated in Article 6 (art. 6) of the Convention.

On 13 February 1980, the Central Appeals Board declared the appeal

inadmissible by virtue of section 75 (2) of the Health Insurance Act

(see paragraph 20 below).

II. Relevant legislation

1. In general

15. As far as health insurance is concerned, social security in the

Netherlands is managed jointly by the State - which in general

confines itself to establishing the legal framework of the scheme and

to seeing to co-ordination -, by employers and by employees.

The branches of the economy, including the liberal professions, are

divided into sectors, each with an occupational association

(bedrijfsvereniging) responsible for implementation of the social

security legislation.

These associations are legal persons within the meaning of Article I

of Book II of the Civil Code; the method of their establishment,

their structures and their powers are laid down in the Social Security

Organisation Act 1952 (Organisatiewet Sociale Verzekeringen). They

are subject to approval by the Minister for Social Affairs and

Employment on the basis of their representative character. The

Minister may also decide of his own motion to set up such an

association; in that event, he determines and amends their articles

of association as needed and he appoints, suspends and dismisses the

members of their governing boards. In addition, he stipulates the

assurances to be given for the discharge of the duties of the

occupational associations and he receives from each of them an annual

report and an annual statement of their accounts.

The occupational associations are semi-public institutions and operate

like private insurance companies.

They may entrust to a common administrative office (Gemeenschappelijk

Administratiekantoor), recognised by the Minister, the administrative

work resulting from the application of social security law.

A Social Insurance Council (Sociale Verzekeringsraad), set up by the

Government and comprising representatives of the State, employers and

employees, supervises the proper implementation of the legislation in

question.

2. Health Insurance Act 1913

16. Under the Health Insurance Act 1913 (Ziektewet), as amended in

1967, insurance against sickness is compulsory for persons under 65

who are bound by a contract of employment with a public or private

employer, or who can be assimilated to this category

(sections 3 and 20). Persons formerly bound by a contract of

employment who are unemployed and in receipt of unemployment benefits

are also treated as salaried employees for this purpose.

Self-employed workers may take out policies with private companies.

Sickness includes accidents, whether related to the employment or not.

In case of unfitness for work through sickness, an employed person

receives an allowance of 80 per cent of his daily pay. He or she

applies directly to the occupational association to which his or her

employer belongs.

The entitlement to an allowance flows directly from the Act

(section 19).

17. The scheme is administered by the occupational associations (see

paragraph 15 above), and the funding is provided entirely by employers

and employees. The Act specifies the rates of contributions, which

are at present 1 per cent for the employee and 5.05 per cent for the

employer, calculated on a maximum daily wage of 262 guilders.

3. Appeals Act 1955

18. Disputes arising out of the application of the Health Insurance

Act 1913 are governed by the Appeals Act 1955 (as last amended on

17 October 1978). For disputes concerning fitness or unfitness for

work, there exists a simplified procedure known as the

permanent-medical-expert procedure (vaste deskundige procedure)

(sections 131 to 144). The expert - a doctor who is a specialist or a

general practitioner - is appointed for a year by the Minister of

Justice and he is placed under oath.

On the lodging of an appeal of this kind, the President of the Appeals

Board (there are twelve in the Netherlands) may immediately instruct

its permanent medical expert to carry out an enquiry (onderzoek) into

the matter (section 135).

Within three days of notification of the appeal, the authority that

delivered the decision which is challenged must submit all relevant

files on the case (section 136).

The permanent medical expert consults the private practitioner of the

person concerned and the relevant occupational association doctor,

except where the file shows that they share his opinion

(section 137 (2)). He summons and examines the appellant

(section 137 (3)); he may consult another practitioner (section 138).

Finally, he makes a written report to the President of the Appeals

Board (section 140).

The President - who is a judge appointed for life - gives a reasoned

decision (beschikking) which refers to the conclusions of the medical

expert.

19. An appeal against the President's decision lies to the full

Appeals Board, but solely on one or more of the following four grounds

(section 142(1): that the expert knew the patient in another capacity

or failed to comply with the requirements of section 137 (see

paragraph 18 above); that the President's decision does not bear upon

the dispute or has not followed the expert's advice. Unless the

Appeals Board declares the appeal inadmissible or unfounded, the

normal procedure applies. The parties then have the opportunity of

studying the case-file on the premises of the Appeals Board at a time

determined by the clerk or of receiving copies. The President may

however decide, in the mental or physical interest of the appellant,

that he or she shall not have access to the medical reports but shall

be informed of their contents and may designate a competent person,

such as his or her private practitioner or lawyer, to inspect them on

the premises (section 142 (2) in conjunction with section 114 (4)

and (5)).

The Appeals Board gives its ruling after written pleadings have been

filed and oral submissions heard.

20. Its decision is not subject to appeal before the Central Appeals

Board (section 75 (2) of the Health Insurance Act). However,

according to that Board's established case-law, an exception is made

where rules of a formal nature have not been observed.

PROCEEDINGS BEFORE THE COMMISSION

21. In her application (no. 8562/79) lodged with the Commission on

16 February 1979, Mrs. Feldbrugge relied on Article 6 para. 1

(art. 6-1) of the Convention. She claimed that, in the determination

of her right to health insurance allowances, she had not received a

fair trial before the President of the Appeals Board in Haarlem.

22. The Commission declared the application admissible

on 15 November 1983. In its report of 9 May 1984 (Article 31)

(art. 31), it concluded that Article 6 para. 1 (art. 6-1) was not

applicable to the facts of the present case, that it was not necessary

to determine whether the proceedings compained of had complied with

that Article and, by eight votes to six, that the Article had not been

breached.

The full text of the Commission's opinion and of the two separate

opinions contained in the report is reproduced as an annex to the

present judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

23. In their memorial, the Government requested the Court "to decide

that there [had] been no violation of the Convention in the present

case".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

24. Article 6 para. 1 (art. 6-1) of the Convention reads as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law...."

The applicant claimed that she did not receive a fair hearing by a

tribunal in the determination of her right to sickness allowances.

In view of the submissions made, the first issue to be decided

concerns the applicability of paragraph 1 of Article 6 (art. 6-1), this

being a matter disputed by the majority of the Commission and by the

Government.

A. Applicability of Article 6 para. 1 (art. 6-1)

1. Existence of a "contestation" (dispute) over a right

25. As to the existence of a "contestation" (dispute) over a right,

the Court would refer to the principles enunciated in its case-law and

summarised in its Benthem judgment of 23 October 1985 (Series A

no. 97, pp. 14-15, para. 32).

In the present case, it appears clear that a "contestation" (dispute)

arose following the decision taken on 11 April 1978 by the Governing

Board of the Occupational Association of the Banking and Insurance,

Wholesale Trade and Self-Employment Sector in Amsterdam (see

paragraph 11 above). This "contestation" was genuine and serious, and

concerned the actual existence of the right asserted by the applicant

to continue receiving a sickness allowance. The outcome of the

relevant proceedings was capable of leading - and in the event did

lead - to confirmation of the decision being challenged, namely the

refusal of the President of the Haarlem Appeals Board to grant the

claimed allowance; it was thus directly decisive for the right in

issue.

The President of the Appeals Board thus had to determine a

contestation (dispute) concerning a right claimed by Mrs. Feldbrugge.

2. Whether the right at issue was a civil right

(a) Introduction

26. According to the case-law of the Court, "the notion of 'civil

rights and obligations' cannot be interpreted solely by reference to

the domestic law of the respondent State" (see the König judgment of

28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89). In addition,

Article 6 (art. 6) does not cover only "private-law disputes in the

traditional sense, that is disputes between individuals or between an

individual and the State to the extent that the latter had been acting

as a private person, subject to private law", and not "in its

sovereign capacity" (see the same judgment, loc. cit., p. 30,

para. 90). "The character of the legislation which governs how the

matter is to be determined ... and that of the authority which is

invested with jurisdiction in the matter ... are ... of little

consequence": the latter may be an "ordinary court, [an]

administrative body, etc." (see the Ringeisen judgment of

16 July 1971, Series A no. 13, p. 39, para. 94). "Only the character

of the right at issue is relevant" (see the above-mentioned König

judgment, Series A no. 27, p. 30, para. 90).

27. As in previous cases, the Court does not consider that it has to

give on this occasion an abstract definition of the concept of "civil

rights and obligations".

This being the first time that the Court has had to deal with the

field of social security, and more particularly the sickness insurance

scheme in the Netherlands, the Court must identify such relevant

factors as are capable of clarifying or amplifying the principles

stated above.

(b) Supplementary factors disclosed by the subject matter of the

litigation

28. Under Netherlands legislation, the right in issue is treated as a

public-law right (see paragraphs 16-17 above). This classification,

however, provides only a starting point (see notably, mutatis

mutandis, the Engel and Others judgment of 8 June 1976, Series A

no. 22, p. 35, para. 82); it cannot be conclusive of the matter

unless corroborated by other factors. In its König judgment

of 28 June 1978, the Court stated in particular:

"Whether or not a right is to be regarded as civil ... must be

determined by reference to the substantive content and effects of the

right - and not its legal classification - under the domestic law of

the State concerned. In the exercise of its supervisory functions,

the Court must also take account of the object and purpose of the

Convention and of the national legal systems of the other Contracting

States ... ." (Series A no. 27, p. 30, para. 89)

29. There exists great diversity in the legislation and case-law of

the member States of the Council of Europe as regards the juridical

nature of the entitlement to health insurance benefits under social

security schemes, that is to say as regards the category of law to

which such entitlement belongs. Some States - including the

Netherlands - treat it as a public-law right, whereas others, on the

contrary, treat it as a private-law right; others still would appear

to operate a mixed system. What is more, even within the same legal

order differences of approach can be found in the case-law. Thus, in

some States where the public-law aspect is predominant, some court

decisions have nonetheless held Article 6 para. 1 (art. 6-1) to be

applicable to claims similar to the one in issue in the present case

(for example, the judgment of 11 May 1984 by the Brussels Labour

Court, Journal des Tribunaux 1985, pp. 168-169). Accordingly, there

exists no common standard pointing to a uniform European notion in

this regard. 30. An analysis of the characteristics of the Netherlands

system of social health insurance discloses that the claimed

entitlement comprises features of both public law and private law.

(i) Features of public law

31. A number of factors might tend to suggest that the dispute in

question should be considered as one falling within the sphere of

public law.

(1) Character of the legislation

32. The first such factor is the character of the legislation. The

legal rules governing social security benefits in the context of

health insurance differ in many respects from the rules which apply to

insurance in general and which are part of civil law. The Netherlands

State has assumed the responsibility of regulating the framework of

the health insurance scheme and of overseeing the operation of that

scheme. To this end, it specifies the categories of beneficiaries,

defines the limits of the protection afforded, lays down the rates of

the contributions and the allowances, etc.

In several cases (see notably König; Le Compte, Van Leuven and

De Meyere; Benthem), State intervention by means of a statute or

delegated legislation has nonetheless not prevented the Court from

finding the right in issue to have a private, and hence civil,

character. In the present case likewise, such intervention cannot

suffice to bring within the sphere of public law the right asserted by

the applicant.

(2) Compulsory nature of the insurance

33. A second factor of relevance is the obligation to be insured

against illness or, more precisely, the fact of being covered by

insurance in the event of fulfilling the conditions laid down by the

legislation (see paragraph 38 below). In other words, those concerned

can neither opt out of the benefits nor avoid having to pay the

relevant contributions.

Comparable obligations can be found in other fields. Examples are

provided by the rules making insurance cover compulsory for the

performance of certain activities - such as driving a motor vehicle -

or for householders. Yet the entitlement to benefits to which this

kind of insurance contract gives rise cannot be qualified as a

public-law right. The Court does not therefore discern why the

obligation to belong to a health insurance scheme should change the

nature of the corresponding right.

(3) Assumption by the State of responsibility for social protection

34. One final aspect to be considered is the assumption, by the State

or by public or semi-public institutions, of full or partial

responsibility for ensuring social protection. This was what happened

in the present case by virtue of the health insurance scheme operated

by the Occupational Association of the Banking and Insurance,

Wholesale Trade and Self-Employment Sector in Amsterdam. Whether

viewed as the culmination of or a stage in the development of the role

of the State, such a factor implies, prima facie, an extension of the

public-law domain.

On the other hand - and the Court will revert to the point later

(see paragraph 39 below) -, the present case concerns a matter having

affinities with insurance under the ordinary law, which insurance is

traditionally governed by private law. It thus seems difficult to

draw from the consequences of the extent of State intervention any

firm conclusion as to the nature of the right in issue.

35. In sum, even taken together the three foregoing factors, on

analysis, do not suffice to establish that Article 6 (art. 6) is

inapplicable.

(ii) Features of private law

36. In contrast, various considerations argue in favour of the

opposite conclusion.

(1) Personal and economic nature of the asserted right

37. To begin with, Mrs. Feldbrugge was not affected in her relations

with the public authorities as such, acting in the exercise of

discretionary powers, but in her personal capacity as a private

individual. She suffered an interference with her means of subsistence

and was claiming a right flowing from specific rules laid down by the

legislation in force.

For the individual asserting it, such a right is often of crucial

importance; this is especially so in the case of health insurance

benefits when the employee who is unable to work by reason of illness

enjoys no other source of income. In short, the right in question was

a personal, economic and individual right, a factor that brought it

close to the civil sphere.

(2) Connection with the contract of employment

38. Secondly, the position of Mrs. Feldbrugge was closely linked with

the fact of her being a member of the working population, having been

a salaried employee. The applicant was admittedly unemployed at the

relevant time, but the availability of the health benefits was

determined by reference to the terms of her former contract of

employment and the legislation applicable to that contract.

The legal basis of the work that she had performed was a contract of

employment governed by private law. Whilst it is true that the

insurance provisions derived directly from statute and not from an

express clause in the contract, these provisions were in a way grafted

onto the contract. They thus formed one of the constituents of the

relationship between employer and employee.

In addition, the sickness allowance claimed by Mrs. Feldbrugge was a

substitute for the salary payable under the contract, the civil

character of this salary being beyond doubt. This allowance shared

the same nature as the contract and hence was also invested with a

civil character for the purposes of the Convention.

(3) Affinities with insurance under the ordinary law

39. Finally, the Netherlands health insurance is similar in several

respects to insurance under the ordinary law. Thus, under the

Netherlands health insurance scheme recourse is had to techniques of

risk covering and to management methods which are inspired by those

current in the private insurance sphere. In the Netherlands, the

occupational associations conduct their dealings, notably with those

insured, in the same way as a company providing insurance under the

ordinary law, for example as regards collection of contributions,

calculation of risks, verification of fulfilment of the conditions for

receipt of benefits, and payment of allowances.

There exists a further feature of relevance. Complementary insurance

policies, taken out with friendly societies or private insurance

companies, allow employees to improve their social protection at the

price of an increased or fresh financial outlay; such policies

constitute in sum an optional extension of compulsory insurance cover.

Proceedings instituted in their connection are incontestably civil

proceedings. Yet in both cases the risk insured against (for

example, ill-health) is the same and, whilst the extent of the cover

increases, the nature of the cover does not change.

Such differences as may exist between private sector insurance and

social security insurance do not affect the essential character of the

link between the insured and the insurer. Finally, the Court would

draw attention to the fact that in the Netherlands, as in some other

countries, the insured themselves participate in the financing of all

or some of the social security schemes. Deductions at source are made

from their salaries, which deductions establish a close connection

between the contributions called for and the allowances granted.

Thus, when Mrs. Feldbrugge was working, her employer withheld from her

pay a sum paid over to the Occupational Association (see paragraph 17

above). In addition, her employer also bore a portion of the

insurance contributions, which were included in the firm's accounts

under the head of social insurance expenses. The Netherlands State,

for its part, was not involved in the financing of the scheme.

(c) Conclusion

40. Having evaluated the relative cogency of the features of public

law and private law present in the instant case, the Court finds the

latter to be predominant. None of these various features of private

law is decisive on its own, but taken together and cumulatively they

confer on the asserted entitlement the character of a civil right

within the meaning of Article 6 para. 1 (art. 6-1) of the Convention,

which was thus applicable.

B. Compliance with Article 6 para. 1 (art. 6-1)

41. The Court must therefore inquire whether the proceedings before

the bodies responsible for determining Mrs. Feldbrugge's asserted

right satisfied the conditions laid down in Article 6 para. 1

(art. 6-1).

1. President of the Appeals Board

42. The applicant acknowledged that the President of the Appeals Board

constituted an "independent and impartial tribunal established by law"

and that he had heard her case "within a reasonable time". She

further conceded that in medical actions the rule of public

proceedings should yield before the respect due to the private life of

the patient whose case is being determined by the tribunal.

On the other hand, she submitted that she had been denied a "fair

hearing" before the President of the Appeals Board. In this

connection, she alleged a two-fold violation of the principle of

equality of arms with the Occupational Association. In the first

place, she had not had the opportunity of appearing - either in person

or represented by a lawyer - to argue her case. Secondly, the reports

of the two permanent medical experts had not been made available to

her (see paragraph 12 above), with the result that she had not been

able either to comment on them or, if thought necessary, to call for a

counter-expertise; yet in practice these documents provided the

President of the Appeals Board with the sole basis for his decision.

43. The Government replied that the President is not able himself to

enter into the merits of a medical dispute and is bound to confine

himself to verifying that the permanent medical expert has observed

the procedure prescribed by the Appeals Act, notably the obligation to

consult the doctors of both parties and to examine the person

concerned. In their submission, only an expert of this kind is

capable of deciding on an employee's unfitness to work for reasons of

illness. The permanent medical expert, who is in a way an extension

of the judge and enjoys the guarantees of impartiality above all

suspicion, performs quasi-judicial functions. In any event, the

Government concluded, the right to a fair trial safeguarded by

Article 6 para. 1 (art. 6-1) can in no wise be taken to embody either

the right to submit comments on the medical report drawn up by an

expert after examination of the patient and consultation of the

patient's doctor or the right to call for or produce a

counter-expertise.

44. It is not within the province of the Court to review in isolation

the Netherlands institution of the permanent medical expert (see,

mutatis mutandis, the Bönisch judgment of 6 May 1985, Series A no. 92,

p. 14, para. 27). The Court confines itself to noting that the

permanent medical expert cannot himself determine a dispute

(contestation) over a civil right. The sole reponsibility for taking

the decision falls to the President of the Appeals Board, even when

- as in the instant case - he does no more than ratify the opinion of

the expert.

Secondly, there has been no breach of the principle of equality of

arms inherent in the concept of a fair trial (see, mutatis mutandis,

the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15,

para. 28). The Occupational Association did not enjoy a procedural

position any more advantageous than Mrs. Feldbrugge's, in that had

the experts expressed an opinion unfavourable to its standpoint, the

Association would likewise have been unable to present oral or written

arguments or to challenge the validity of the unfavourable opinion.

No lack of fair balance thus obtained between the parties in this

respect.

On the other hand, the procedure followed before the President of the

Appeals Board by virtue of the Netherlands legislation was clearly not

such as to allow proper participation of the contending parties, at

any rate during the final and decisive stage of that procedure. To

begin with, the President neither heard the applicant nor asked her to

file written pleadings. Secondly, he did not afford her or her

representative the opportunity to consult the evidence in the

case-file, in particular the two reports - which were the basis of the

decision - drawn up by the permanent experts, and to formulate her

objections thereto. Whilst the experts admittedly examined

Mrs. Feldbrugge and gave her the opportunity to formulate any comments

she might have had, the resultant failing was not thereby cured. In

short, the proceedings conducted before the President of the Appeals

Board were not attended, to a sufficient degree, by one of the

principal guarantees of a judicial procedure.

2. Appeals Board and Central Appeals Board

45. Mrs. Feldbrugge attempted, unsuccessfully, to take her case to

the full Appeals Board and subsequently to the Central Appeals Board,

her action being declared inadmissible on both occasions (see

paragraphs 13 and 14 above).

Under the so-called permanent-medical-expert procedure, an objection

may only be lodged with an Appeals Board against the decision of the

President of the Board on one of the following four grounds: that the

expert knew the patient in another capacity or failed to comply with

certain procedural requirements; that the President's decision does

not bear upon the dispute or has not followed the expert's advice

(see paragraph 19 above).

Decisions of an Appeals Board in the context of this kind of procedure

are not subject to appeal before the Central Appeals Board save, as

has been held in the case-law of the latter Board, in the event of

non-observance of rules of a formal nature (see paragraph 20 above).

46. Framed as they were in such restrictive terms, the conditions of

access to the two Boards prevented Mrs. Feldbrugge from challenging

the merits of the decision by the President of the Appeals Board in

Haarlem. Accordingly, the shortcoming found to exist in respect of the

procedure before this judicial officer was not capable of being cured

at a later stage.

3. Conclusion

47. In conclusion, there has been a breach of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

48. At the hearings, the lawyer for the applicant and counsel for the

Government requested the Court, should it find a violation, to defer

its ruling on the possible award of just satisfaction.

Since therefore the question of the application of Article 50

(art. 50) is not ready for decision, it is necessary to reserve the

matter and to fix the further procedure, taking due account of the

possibility of an agreement between the respondent State and the

applicant (Rule 53 paras. 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT

1. Holds, by ten votes to seven, that Article 6 para. 1 (art. 6-1) was

applicable to the circumstances of the present case;

2. Holds, by ten votes to seven, that Article 6 para. 1 (art. 6-1) has

been violated;

3. Holds, unanimously, that the question of the application of

Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites the Government and the applicant to submit, within the

forthcoming two months, their written comments on the said question

and, in particular, to notify the Court of any agreement reached

between them;

(c) reserves the further procedure and delegates to the President of

the Court power to fix the same if need be.

Done in English and in French, and delivered at a public hearing at

the Human Rights Building, Strasbourg, on 29 May 1986.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

A declaration by Mr. Pinheiro Farinha and, in accordance with

Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2

of the Rules of Court, the joint dissenting opinion of Mr. Ryssdal,

Mrs. Bindschedler-Robert, Mr. Lagergren, Mr. Matscher, Sir Vincent

Evans, Mr. Bernhardt and Mr. Gersing are annexed to the present

judgment.

Initialled: R.R.

Initialled: M.-A.E.

DECLARATION BY JUDGE PINHEIRO FARINHA

(Translation)

In my opinion, a distinction should be drawn between two sets of

circumstances:

(a) If the beneficiary has participated in or contributed to the

funding of the social insurance afforded, the resultant entitlements

are civil rights and disputes (contestations) relating to them fall

within the ambit of Article 6 (art. 6) of the Convention.

This was the position in the present case.

(b) If, on the contrary, the beneficiary has not so participated or

contributed, the facts come within the domain of public law and

Article 6 (art. 6) is not applicable (see my dissenting opinion in the

Deumeland case).

JOINT DISSENTING OPINION OF JUDGES RYSSDAL,

BINDSCHEDLER-ROBERT, LAGERGREN, MATSCHER, SIR VINCENT EVANS, BERNHARDT

AND GERSING

1. We agree with the view of the majority of the Court as to the

existence in the present case of a "contestation" (dispute) over a

right claimed by the applicant, Mrs. Feldbrugge. In our opinion,

however, the dispute did not involve the determination of her "civil

rights and obligations" ("droits et obligations de caractère civil"),

within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.

Our conclusion, therefore, is that Article 6 para. 1 (art. 6-1) is not

applicable in the present case.

2. The majority finds that various "features of private law" comprised

in the particular social security benefit claimed by Mrs. Feldbrugge

so outweighed the "features of public law" as to confer on her claimed

entitlement the character of a "civil right" for the purposes of

Article 6 para. 1 (art. 6-1) (see paragraph 40 of the judgment). The

relevant "features of private law" identified by the majority are,

firstly, the personal and economic nature of the asserted right;

secondly, the connection with the contract of employment; and,

thirdly, the affinities with insurance under the ordinary law. In our

view, the weakness in this reasoning is that the majority is taking as

determining factors matters which may vary as between different social

security systems and even from one category of benefit to another

under the same system. We fear that this will give rise to

uncertainty as to the obligations undertaken by the Contracting States

in the field of social security by virtue of Article 6 para. 1

(art. 6-1) of the Convention.

3. Our reasons for finding Article 6 para. 1 (art. 6-1) to be

inapplicable to the kind of right asserted by Mrs. Feldbrugge are as

follows.

1. "Civil rights and obligations" - a limitative concept

4. Article 6 para. 1 (art. 6-1) lays down a procedural guarantee for

the adjudication of certain disputes. The use of the expression

"civil rights and obligations" must have been intended by the drafters

of the Convention to set some limit on the application of

Article 6 para. 1 (art. 6-1). The expression cannot be read as

applying to disputes over the whole range of "rights and obligations"

recognised by domestic law: the right or obligation in issue must be

one that can be qualified as "civil". This adjective, however, is

capable of bearing several meanings. The text of the Article is not

sufficiently clear for it to be said, without more, which meaning was

intended.

2. The Court's case-law

5. The Court's existing case-law gives some guidance as to where the

line is to be drawn.

6. The starting point must in each case be the character attributed to

the rights and obligations in question under the legal system of the

respondent State. This, however, provides no more than an initial

indication, as the notion of "civil rights and obligations" is an

"autonomous" one within the meaning of the Convention and "cannot be

interpreted solely by reference to the domestic law of the respondent

State": "whether or not a right is to be regarded as civil within the

meaning of this expression in the Convention must be determined by

reference to the substantive content and effects of the right - and

not its legal classification - under the domestic law of the State

concerned" (see the König judgment of 28 June 1978, Series A no. 27,

pp. 29-30, paras. 88-89).

For this purpose, account should also be taken of the legal systems of

the other Contracting States, notably to see whether there exists any

uniform concept of "civil rights and obligations" such as would either

embrace or exclude the facts of the present case (see the

above-mentioned König judgment, Series A no. 27, p. 30, para. 89).

7. The Court has held that the phrase "contestations" (disputes) over

"civil rights and obligations" covers all proceedings the result of

which is decisive for private rights and obligations, even if the

proceedings concern a dispute between an individual and a public

authority acting in its sovereign capacity and irrespective of whether

under the domestic legal system of the respondent State they fall

within the sphere of private law or of public law or indeed are of a

mixed character (see the Ringeisen judgment of 16 July 1971, Series A

no. 13, p. 39, para. 94; the above-mentioned König judgment, Series A

no. 27, pp. 30 and 32, paras. 90 and 94). Moreover, it is not enough

for the dispute or the proceedings to have a tenuous connection with

or remote consequences affecting civil rights or obligations: "civil

rights and obligations must be the object - or one of the objects - of

the 'contestation' (dispute); the result of the proceedings must be

directly decisive for such a right" (see the Le Compte, Van Leuven and

De Meyere judgment of 23 June 1981, Series A no. 43, p. 21, para. 47).

Beyond this, the Court has expressly reserved for future consideration

the question whether the concept of "civil rights and obligations",

within the meaning of Article 6 para. 1 (art. 6-1), extends beyond

those rights which have a private nature (see the above-mentioned

König judgment, Series A no. 27, p. 32, para. 95; and the

above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A

no. 43, p. 22, para. 48 in fine).

8. The Court's existing case-law has thus identified certain areas to

which Article 6 para. 1 (art. 6-1) is applicable, whilst leaving open

whether or not there might be other such areas.

3. Application of the Court's existing case-law to the particular

facts

9. Under Netherlands law, the entitlement to a sickness allowance

asserted by Mrs. Feldbrugge is not private in character but is

classified as a public-law right. Undoubtedly, under the statutory

insurance scheme to which Mrs. Feldbrugge was subject, certain

connections exist between the entitlement to health benefits and the

insured's current or former contract of employment, which contract

does clearly fall within the domain of private law. Nonetheless, the

provisions governing health benefits do not constitute clauses

incorporated by law in, or deriving from, the contract of employment;

the claim is enforceable against a third party not privy to the

contract; and the outcome of the claim does not directly affect the

private legal relationship between the employer and employee created

by the contract of employment, although it may have a certain

incidence on performance of that contract. Furthermore, in

Mrs. Feldbrugge's case there no longer existed at the relevant time

any contract of employment (see paragraph 11 of the judgment).

Hence it cannot be said that the proceedings brought by

Mrs. Feldbrugge to enforce her claim to a sickness allowance

concerned, or entailed a result directly decisive for, a private right

recognised by Netherlands law. Such consequences as there were for

private rights were, in our view, too remote and tenuous to attract

the application of Article 6 para. 1 (art. 6-1) on that ground alone.

10. We agree with the majority that the classification under

Netherlands law, whilst it provides an initial indication, cannot be

decisive, especially if it is out of line with the legal systems of

the other Contracting States. However, as the majority concluded in

paragraph 29 of the judgment, there exists no common European standard

as regards the juridical nature of entitlement to health benefits

under statutory social security schemes. In particular, such

entitlement is not generally recognised as being private in character.

11. Accordingly, the facts of the present case fall outside the

private-right criteria for the application of Article 6 para. 1

(art. 6-1) as established under the Court's existing case-law. What

remains to be determined is whether those facts nonetheless do come

within the scope of Article 6 para. 1 (art. 6-1) on other grounds.

4. Relevant principles of interpretation

12. In order to ascertain the meaning of the "autonomous" notion of

"civil rights and obligations" in Article 6 para. 1 (art. 6-1), regard

must be had to the object and purpose of the Convention (see the

above-mentioned König judgment, Series A no. 27, p. 30, para. 89). As

a matter of general approach, in the interpretation of the Convention,

which is an international treaty, it is appropriate for the Court to

be guided by the 1969 Vienna Convention on the Law of Treaties (see

the Golder judgment of 21 February 1975, Series A no. 18, p. 14,

para. 29). The "general rule of interpretation", as set out in

Article 31 para. 1 of the Vienna Convention, reads:

"A treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose." Article 32 of the

Vienna Convention further specifies that

"recourse may be had to supplementary means of interpretation,

including the preparatory work of the treaty and the circumstances of

its conclusion, in order to confirm the meaning resulting from the

application of Article 31 ...".

The Court has also recognised the need to construe the European

Convention on Human Rights in the light of modern-day conditions

obtaining in the democratic societies of the Contracting States and

not solely according to what might be presumed to have been in the

minds of the drafters of the Convention (see, inter alia, the Marckx

judgment of 13 June 1979, Series A no. 31, p. 19, para. 41).

5. Characteristics of the asserted right

13. The right to a sickness allowance claimed by Mrs. Feldbrugge was

an economic right deriving, not from the private contract between

herself and her former employer, but from a collective scheme of

protection of the working population set up by the legislature. An

allocation of society's resources as generated within the employment

context has been decided upon by the domestic legislature; and the

applicant, as a member of the section of society concerned, was

compelled to participate in that scheme. Such schemes represent

performance of society's duty to protect the health and welfare of its

members; they are not merely examples of the State taking on or

regulating an insurance activity equally capable of being carried on

by the private sector.

Admittedly, concerning as it does the employment sphere, the

Netherlands statutory scheme of health insurance is bound to have some

repercussions on, connections with or features in common with "civil

rights and obligations" existing under the ordinary law in that

sphere. Thus, the availability of sickness allowances under the

relevant provisions of the Health Insurance Act 1913 is dependent upon

there having been at some time a contract of employment; the

allowance itself may be analysed as a kind of substitute for the

salary payable by the employer under the contract of employment;

recognition of entitlement to receipt of the allowance means

recognition of incapacity to work and hence inability to perform the

contract of employment; the statutory scheme of insurance could be

said to have some affinity with classic insurance in the private

sector. In our opinion, however, none of these factors alters the

essential public character of the relationship between the individual

and the collectivity which lies at the heart of the claimed statutory

entitlement.

6. Context, object and purpose

14. It must therefore be determined, in the context of the provision

and in the light of the object and purpose of the Convention, whether

this kind of entitlement, despite its essential public character, is

included within the notion of "civil rights and obligations", within

the meaning of Article 6 para. 1 (art. 6-1).

15. The object and purpose of the Convention as pursued in

Article 6 para. 1 (art. 6-1) are, to some extent, discernible from the

nature of the safeguards provided.

The judicialisation of dispute procedures, as guaranteed by

Article 6 para. 1 (art. 6-1), is eminently appropriate in the realm of

relations between individuals but not necessarily so in the

administrative sphere, where organisational, social and economic

considerations may legitimately warrant dispute procedures of a less

judicial and formal kind. The present case is concerned with the

operation of a collective statutory scheme for the allocation of

public welfare. As examples of the special characteristics of such

schemes, material to the issue of procedural safeguards, one might

cite the large numbers of decisions to be taken, the medical aspects,

the lack of resources or expertise of the persons affected, the need

to balance the public interest for efficient administration against

the private interest. Judicialisation of procedures for allocation of

public welfare benefits would in many cases necessitate recourse by

claimants to lawyers and medical experts and hence lead to an increase

in expenses and the length of the proceedings.

The nature of the safeguards afforded thus tends to show that the

object and purpose of Article 6 para. 1 (art. 6-1) do not go so far as

to guarantee judicial control of the administration of statutory

collective schemes for the distribution of public welfare.

16. We have not overlooked the fact that the overall object of the

Convention is the humanitarian one of the protection of the individual

and that, for the man or woman in the street, entitlement to social

security benefits is of extreme importance for his or her daily life.

However, as the Delegate of the Commission submitted, the economic

importance for Mrs. Feldbrugge's livelihood of the allowance claimed

is insufficient, on its own, to bring into play the applicability of

Article 6 para. 1 (art. 6-1) and its specific judicial guarantees. Of

course, it is equally essential that in the administrative field

justice should be done and the individual's claims should be

investigated in a responsible and objective manner in accordance with

the rules laid down, but that is not to say that all the various

requirements of Article 6 para. 1 (art. 6-1) of the Convention are

therefore applicable. Indeed, as pointed out above in the present

opinion (at paragraph 15), there exist underlying considerations

justifying special procedures in social welfare cases.

17. This being so, the juxtaposition of "civil" and "criminal" in the

context of Article 6 para. 1 (art. 6-1) cannot reasonably be taken to

be a comprehensive reference to all systems of adjudicative

proceedings under domestic law. On this construction, the use of the

adjective "civil" would not therefore imply the applicability of

Article 6 para. 1 (art. 6-1) to disputes over all matters other than

"criminal" even where, as in social security disputes, the outcome is

crucial for the personal life of the individual concerned.

18. These considerations point to the conclusion that, in principle,

the collective and public features of the statutory insurance scheme

giving entitlement are so predominant as to take the rights and

obligations in issue outside the "civil" domain, within the meaning of

Article 6 para. 1 (art. 6-1).

7. Supplementary means of interpretation

19. The foregoing analysis is corroborated by the fact that the

relevant legislation predates the elaboration of the Convention by

some decades, and there existed similar legislation predating the

Convention in many other of the Contracting States. It is therefore

reasonable to assume that the intention of the drafters of

Article 6 para. 1 (art. 6-1) was not to include such statutory schemes

of collective social protection within its ambit. On examination, the

drafting history confirms this reading of the text.

20. The adjective "civil" was added to the English version of

Article 6 para. 1 (art. 6-1) in November 1950 on the day before the

Convention was opened for signature, when a committee of experts

examined the text of the Convention for the last time and "made a

certain number of formal corrections and corrections of translations"

(Collected Edition of the Travaux préparatoires of the European

Convention on Human Rights, vol. VII, p. 12, para. 6). Whilst no

specific explanation was given for the last-minute change to

Article 6 para. 1 (art. 6-1), it is a fair inference that the reason

was merely to align the English text more closely with the language of

the French text: prior to the change, although the French version had

spoken, as now, of "droits et obligations de caractère civil", the

English version had read "rights and obligations in a suit of law"

(ibid., vol. V, p. 148).

These two expressions had first been introduced at a meeting

(March 1950) of the Committee of Experts on Human Rights of the

Council of Europe and were evidently taken directly from the

equivalent Article of the then existing draft of the International

Covenant on Civil and Political Rights of the United Nations (ibid.,

vol. II, p. 296; vol. III, pp. 30, 160, 284, 290, 316; vol. IV,

p. 60). It is therefore relevant to trace their history in the

travaux préparatoires of the International Covenant.

21. The crucial discussion on the draft International Covenant took

place on 1 June 1949 during the fifth session of the United Nations

Commission on Human Rights. The French and Egyptian delegations had

presented an amendment that referred to "droits et

obligations"/"rights and obligations", without qualification. The

reaction of the Danish representative (Mr. Sørensen) to this

amendment was reported as follows:

"The representatives of France and Egypt proposed that everyone should

have the right to have a tribunal determine his rights and

obligations. Mr. Sørensen considered that that provision was much

too broad in scope; it would tend to submit to judicial decision any

action taken by administrative organs exercising discretionary power

conferred on them by law. He appreciated that the individual should

be ensured protection against any abuse of power by administrative

organs but the question was extremely delicate and it was doubtful

whether the Commission could settle it there and then. The study of

the division of power between administrative and judicial organs could

be undertaken later. ... Mr. Sørensen asked the representatives of

France and Egypt whether the scope of the provision in question might

be limited to indicate that only cases between individuals and not

those between individuals and the State were intended." (summary

record of the 109th meeting, doc. E/CN.4/SR.109, pp. 3-4) The French

representative (Mr. Cassin), speaking in French, replied that "the

Danish representative's statement had convinced him that it was very

difficult to settle in that article all questions concerning the

exercise of justice in the relationships between individuals and

governments" (ibid., p. 9). He was therefore prepared to let the

words "soit de ses droits et obligations" in the first sentence of the

Franco-Egyptian amendment be replaced by the expression "soit des

contestations sur ses droits et obligations de caractère civil"

(rendered in the English version of the summary record as "or of his

rights and obligations in a suit of law"). He agreed that the problem

"had not been fully thrashed out and should be examined more

thoroughly".

Later the same day, a drafting committee produced a text which

contained the expressions "in a suit of law" in English and "de

caractère civil" in French (doc. E/CN.4/286). The formula employed

in this text is the one that was ultimately adopted for Article 14

of the International Covenant in 1966.

22. It thus seems reasonably clear that the intended effect of the

insertion of the qualifying term "de caractère civil" in the French

text of the draft International Covenant was to exclude from the scope

of the provision certain categories of disputes in the field of

administration "concerning the exercise of justice in the

relationships between individuals and governments".

8. State practice and evolutive interpretation

23. It is not the case that, since the entry into force of the

Convention, State practice has developed to the point where the

Contracting States can be said to treat entitlement to health benefits

under statutory social security schemes as giving rise to "civil

rights and obligations" for the purposes of Article 6 para. 1

(art. 6-1). Indeed, as noted above (see paragraph 10), no common

ground can be identified in the legal systems of the Contracting

States as to the "civil" or other character of such entitlement. In

sum, there is no uniform European approach in this regard such as to

run counter to the interpretation we have reached on the basis of the

other foregoing considerations. On the contrary, the diversity of

approach existing even today tends to show that whether judicial

protection of the kind guaranteed by Article 6 para. 1 (art. 6-1)

should be afforded to claims, such as Mrs. Feldbrugge's, for health

benefits is a policy decision for the Contracting States to take in

the light of the various merits and disadvantages involved, but it is

not as such required by Article 6 para. 1 (art. 6-1) itself.

24. Neither does an evolutive interpretation of Article 6 para. 1

(art. 6-1) lead to a different conclusion. The Convention is

selective in the protection it affords, as is shown by the recital in

the Preamble wherein the signatory Governments expressed their

underlying resolve to be "to take the first steps for the collective

enforcement of certain of the rights stated in the [United Nations]

Universal Declaration" of Human Rights (see the above-mentioned Golder

judgment, Series A no. 18, p. 16, para. 34). An evolutive

interpretation allows variable and changing concepts already contained

in the Convention to be construed in the light of modern-day

conditions (see, for example, the Tyrer judgment of 25 April 1978,

Series A no. 26, pp. 15-16, para. 31; the above-mentioned Marckx

judgment, Series A no. 31, pp. 19-20, para. 41; the Dudgeon judgment

of 22 October 1981, Series A no. 45, pp. 23-24, para. 60), but it does

not allow entirely new concepts or spheres of application to be

introduced into the Convention: that is a legislative function that

belongs to the member States of the Council of Europe. The

desirability of affording proper safeguards for the adjudication of

claims in the ever-increasing field of social security is evident.

There are, however, limits to evolutive interpretation and the facts

of the present case go beyond those limits as far as Article 6 para. 1

(art. 6-1) is concerned.

We do not find the considerable developments witnessed in the social

welfare field since the elaboration of the Convention to be such as to

alter the essential character of the rights and obligations in issue

in Mrs. Feldbrugge's case.

9. Conclusion

25. Having regard to the text of Article 6 para. 1 (art. 6-1), to its

object and purpose and to its drafting history, the conclusion of

principle which we draw is that there exist areas within the field of

public administration subject to special institutional regimes, such

as that relating to social security, under which the rights and

obligations of the individual not of a private nature may justifiably,

for various reasons (see paragraph 15 above), be determined by special

procedures of adjustment rather than by tribunals complying with all

the requirements of Article 6 para. 1 (art. 6-1). In our view, the

guarantees of Article 6 para. 1 (art. 6-1) attaching to

"contestations" (disputes) over "civil rights and obligations" do not

apply to disputes within such areas unless, as stated in the Court's

case-law (see paragraph 7 above), the outcome of the dispute is

directly decisive for private rights.

In the light of all the various considerations set out above, we

accordingly conclude that the proceedings brought by Mrs. Feldbrugge

before the Appeals Board in Haarlem did not involve determination of

her "civil rights and obligations", within the meaning of

Article 6 para. 1 (art. 6-1); and that the judicial guarantees of

this provision are therefore not applicable to the circumstances of

the instant case.



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