EHRM, 23-10-2012, nr. 34880/12

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):

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).

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):

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.

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.

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.

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:

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:

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.

The Treaty establishing the European Community, as in force until 1 December 2009, included the following provisions:

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.

At the relevant time, European Union Council Regulation 1408/71 (EC), in its relevant parts, read as follows:

As relevant to the present case, the Health Care Insurance Act at the relevant time provided as follows:

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):

In its relevant part, the Health Care Insurance Act (Introduction and Adaptation) Act provides:

The Health Care Insurance Rules (Regeling zorgverzekering), in their relevant part, provide as follows:

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.

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.

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 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).