RAMAER AND VAN WILLIGEN v. THE NETHERLANDS

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicants , Mr PERSON and Mr PERSON , are GPE nationals . Mr PERSON , who was born in DATE , lives in GPE , GPE . PERSON , who was born in DATE , lives in GPE , GPE . The applicants were represented before the ORG by PERSON and PERSON , lawyers practising in GPE .

NORP Before DATE basic health insurance in the GPE was organised in CARDINAL separate statutes .

The first , ORG ( GPE ) , 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 , ORG ( Wet op de toegang DATE ) , ensured the availability of private health insurance at a level equivalent to that provided under LAW for persons not covered by LAW . To that end it imposed an obligation on insurers providing this kind of insurance to insure persons who were resident in the GPE or elsewhere in ORG ( ORG ) , ORG ( ORG ) , GPE or another ORG with which the GPE had entered into a treaty concerning social security , provided that GPE social security legislation applied to them by virtue of ORG Regulation CARDINAL/CARDINAL ( ORG ) or that treaty .

ORG ( Reimbursements ) Decree ( Vergoedingenbesluit particulier verzekerden ) provided for reimbursement to insured persons resident in other ORG or ORG member GPE of insured medical costs incurred in those GPE , up to the same amounts that would have been refundable had the care been provided in the GPE ( section CARDINAL ) , and for reimbursement of the cost of urgent hospitalisation in hospitals abroad for DATE to an amount up to double that which would be refundable had the care been provided in the GPE .

The General Exceptional Medical Expenses Act ( Algemene Wet Bijzondere Ziektekosten , “ PERSON ” ) provided , and provides , a complementary compulsory insurance scheme covering all those lawfully resident or employed in the GPE .

Before DATE , persons who had been affiliated to this scheme for DATE could continue their affiliation on a voluntary basis if they emigrated , provided inter alia that they were not employed abroad ( section GPE of the LAW ) .

According to detailed rules given in the General Exceptional Medical Expenses Act ( Benefits in kind ) Ordinance ( Besluit zorgaanspraken PERSON ) , the PERSON covered certain medical and other health care expenses not covered by the above - mentioned insurance schemes , including hospitalisation beyond DATE , medical or non - medical home care and psychotherapy .

The PERSON 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 .

On DATE ORG ) entered into force . It replaced the dual regime for basic health care under LAW and ORG by a single regime applicable to all . Complementary health care continues to be provided under the PERSON .

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 PERSON are now obliged to take out health care insurance in accordance with the LAW ( section CARDINAL(CARDINAL ) ) . Health care insurers , now all private entities , have a duty to offer insurance on standard terms to all who so request ( section CARDINAL ) .

Those compulsorily insured are all GPE residents , persons paying wage tax through being employed in the GPE or on the GPE continental shelf ( section CARDINAL ) , and those whose insurance under the PERSON is a consequence of the application of provisions of a treaty or a decision of an international organisation ( PERSON op grond van deze wet voortvloeit uit de toepassing van bepalingen van een verdrag of van een besluit van een volkenrechtelijke organisatie ) ( section CARDINALb(CARDINAL ) ) . This excludes pensioners resident in ORG countries other than the GPE , to whom the PERSON is no longer directly applicable .

NORP GPE 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 .

The case concerns the effects of the changes introduced on DATE on retired GPE nationals formerly insured under the private insurance system and who are residents of ORG Member GPE other than the GPE ; such persons are stated by the applicants to number CARDINAL . By virtue of ORG Regulation CARDINAL/CARDINAL ( ORG ) , ORG , heading R , paragraph CARDINAL , point ( a)(ii ) , they are entitled to health care in their state of residence , the costs being borne by the GPE . Similar arrangements apply to GPE nationals resident in ORG ( ORG ) countries and DATE under a separate treaty – GPE . Persons in this position are referred to as “ treaty beneficiaries ” ( verdragsgerechtigden ) .

Treaty beneficiaries are required to register with ORG ( College voor zorgverzekeringen ) , to which they pay a contribution which is deducted at source from their GPE income . They must also register with the health care authority of their country of residence to establish their actual entitlement to health care .

From figures published by ORG ( GPE PERSON , ORG ) , quoted in the judgment given by the Provisional Measures Judge ( voorzieningenrechter ) of ORG ( rechtbank ) of GPE on DATE ( see paragraph CARDINAL below ) , it appears that at the relevant time the DATE sum paid by the GPE for pensioners subject to the measures in issue and members of their families was QUANTITY ( ORG ) per person for those resident in GPE and ORG CARDINAL per person for those resident in GPE .

Mr Ramaer and his wife have been resident in GPE since DATE , Mr PERSON having been stationed there by his GPE employer at the time . He now pays his taxes in GPE .

DATE , he had private health care insurance from an insurer based in the GPE , ORG , under a collective contract negotiated through his former employer . This contract entitled him to care of a standard comparable to that available in the GPE under private insurance plus the PERSON . On DATE the collective contract with ORG was terminated and ORG entitlements under the PERSON came to an end .

On an unknown date in DATE Mr PERSON received a letter from ORG informing him that he and his wife were henceforth entitled to health care in their country of residence and bound to register with ORG itself . Mr PERSON lodged an objection , which ORG dismissed on CARDINAL DATE . PERSON then lodged an appeal with ORG of ORG ( GPE bestuursrechtspraak PERSON – see below ) .

Mr Ramaer registered with ORG under protest . He declined ORG ’s offer of complementary insurance , which would have cost him ORG CARDINAL per insured person per year . Instead , making use of a special offer available for a limited period , he took out complementary insurance with a NORP health care insurer , PERSON ; this cost him an additional ORG DATE .

Mr Ramaer states that in order to obtain health care of the same standard as DATE , he now has to pay the contribution to ORG , the premium to the NORP insurance company and non - refundable portions ( NORP : remgeld , NORP : 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 DATE medical expenses ( based on DATE figures ) as follows ( in ORG ) :

which total sum does not include non - refundable portions payable for NORP health care .

Mr Ramaer calculates that , had he had no option but to take out complementary insurance with IAK instead of ORG , it would have cost him ORG CARDINAL instead of ORG CARDINAL , raising the total sum to ORG CARDINAL,CARDINAL .

He also calculates that a GPE resident in his position paid ORG DATE for basic health care insurance plus an additional income - dependent contribution in an amount of ORG CARDINAL,CARDINAL , or EUR CARDINAL,CARDINAL in total .

In DATE or DATE ORG sent ORG a provisional settlement note ( jaarafrekening ) covering the contributions due for DATE . PERSON lodged an objection , which ORG dismissed on DATE . Mr PERSON appealed to ORG of GPE , ORG ( Sector bestuursrecht – see below ) .

Mr PERSON has been resident in GPE since DATE . Formerly in receipt of disability benefits under ORG ( Wet op de Arbeidsongeschiktheidsverzekering – “ PERSON ” ) , since DATE he enjoys an old age pension under LAW ( PERSON ; “ ORG ” ) and a complementary pension .

Until DATE Mr PERSON was insured privately by the insurance company ORG , to whom he paid ORG CARDINAL per annum . On DATE this insurance contract was terminated ex lege . ORG replaced it automatically by a new contract at an DATE cost of ORG CARDINAL , this sum being payable in addition to the compulsory contributions due to ORG .

Mr PERSON protested to ORG against this increase . In DATE Delta Lloyd made him a new offer of complementary insurance for an DATE sum of EUR CARDINAL .

In the meantime , however , PERSON had accepted a special offer made by the NORP insurance company ORG , who offered him complementary insurance for LAW DATE . Mr PERSON states that this premium has now gone up to ORG CARDINAL,CARDINAL per year for DATE .

Although this entitles Mr PERSON to private health care as distinct from NORP 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 PERSON calculates his DATE medical expenses ( based on DATE figures ) as follows ( in ORG ) :

not including non - refundable expenses .

Mr PERSON calculates that , had he had no option but to accept the terms offered by ORG in DATE , it would have cost him ORG CARDINAL DATE .

On DATE ORG ( ORG ) , the body administering , among others , the ORG , informed PERSON of the decision to withhold the contributions due under the Health Care Insurance Act from his ORG pension . Mr PERSON lodged an objection with ORG , which dismissed it on DATE .

A non - governmental organisation , the ORG for ORG PERSON in het Buitenland , “ ORG ” ) and a group of individuals affected by the matters in issue , including PERSON , summoned ORG before the Provisional Measures Judge of ORG of The GPE seeking , as relevant to the case before the ORG , an order to ensure that the contributions provided for by section CARDINAL.CARDINAL.CARDINAL of ORG ( see below ) be not levied from them and their health care insurance contracts existing before DATE be continued beyond that date .

The Provisional Measures Judge gave judgment on DATE ordering the ORG not to implement section CARDINAL.CARDINAL.CARDINAL of ORG to the extent that the sums payable by the insured persons exceeded the sums paid by the GPE to the country of residence and instruct ORG accordingly . This order , which was of a provisional nature , would lapse if proceedings on the merits were not brought within DATE .

However , this judgment led the Minister for ORG to amend section CARDINAL.CARDINAL.CARDINAL of ORG and introduce the “ country of residence correction factor ” with retroactive effect until DATE .

Mr Ramaer lodged an appeal with ORG of ORG against the dismissal of his objection by ORG ( see paragraph CARDINAL above ) .

On DATE ORG declared the appeal inadmissible on the ground that ORG original letter of DATE was merely informative in nature and was therefore not a decision against which an objection or an appeal would have been possible .

Mr Ramaer appealed to ORG of GPE , ORG , against the decision which ORG had given on DATE ( see paragraph CARDINAL above ) , as did CARDINAL other recipients of similar decisions .

Mr PERSON appealed to ORG of GPE , ORG , against the decision which ORG had given on DATE ( see paragraph CARDINAL above ) , as did CARDINAL other recipients of similar decisions .

The complaints and arguments were essentially the same in both cases . The appellants argued that CARDINAL and ORG and LAW CARDINAL/CARDINAL 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 LAW CARDINAL , or both , of LAW establishing ORG ; in the further alternative , they argued that the method used to calculate the country of residence correction factor was flawed .

ORG gave its decisions on DATE .

In Mr Ramaer ’s case , it held that LAW CARDINAL/CARDINAL provided a conflict rule , not an option . LAW CARDINAL/CARDINAL did not suggest otherwise ; moreover , the latter regulation related to the application of Regulation CARDINAL/CARDINAL . There was no violation of LAW establishing ORG : since the appellants were not put at a disadvantage as compared to those already employed or self - employed in the member GPE 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 ORG of The Hague had considered in the judgment of DATE : not only were the applicants foreign residents , from which it followed that they were not in a relevantly similar situation to GPE 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 GPE legislature had remained within its margin of appreciation in its choice of method .

In Mr PERSON ’s case , it held that primary responsibility for implementing the legislation in question was vested in ORG rather than ORG 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 PERSON , which it appended to the decision in Mr PERSON ’s case .

Both applicants appealed , together with their fellow appellants , to ORG ( ORG ) against the decisions of ORG .

On DATE the Act on proceedings concerning the withholding of contributions from treaty beneficiaries ( GPE rechtsgang bronheffing verdragsgerechtigden ) entered into force . Its effect , as relevant to the present case , was to substitute ORG for ORG as the defendant in the proceedings brought by PERSON .

On DATE ORG gave a decision noting that an entitlement to health care in the country of residence under LAW and CARDINALa of Regulation CARDINAL/CARDINAL arose only if the person concerned had registered with the competent authority in accordance with LAW CARDINAL/CARDINAL . This the person could refuse to do , which raised the question whether in case of such refusal LAW 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 ORG member GPE , the applicants and their fellow appellants were in a dissimilar position in that they had already been resident in other ORG member GPE 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 ORG DATE and CARDINAL of the LAW establishing ORG ( as in force at the time ) .

ORG therefore addressed a request for a preliminary ruling under LAW establishing ORG to ORG of ORG in the following terms :

“ CARDINAL . Should Articles CARDINAL , CARDINALa and CARDINAL of Regulation No CARDINAL/CARDINAL , the provisions of point CARDINAL ) and ( b ) of section R of ORG Regulation No CARDINAL/CARDINAL , and LAW No CARDINAL/CARDINAL be interpreted as meaning that a national provision such as LAW ] is incompatible therewith , in so far as a pensioner who in principle has entitlements under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL is obliged to report to the [ ORG ] and a contribution must be deducted from that person ’s pension even if no registration has taken place under LAW No CARDINAL/CARDINAL ?

Should Article CARDINAL of the LAW establishing ORG or Article CARDINAL of LAW establishing ORG be interpreted as meaning that a national provision such as LAW ] is incompatible therewith in so far as a citizen of ORG who in principle has entitlements under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL is obliged to report to the [ ORG ] , and a contribution must be deducted from that citizen ’s pension , even if no registration has taken place under LAW No CARDINAL/CARDINAL ? ”

ORG of ORG gave its preliminary ruling ( case C–CARDINAL/CARDINAL , PERSON , ORG , PERSON , PERSON , PERSON and PERSON v. College voor Zorgverzekeringen ) on DATE . It was in the following terms :

“ CARDINAL . Articles CARDINAL , CARDINALa and DATE of Council Regulation ( ORG ) No CARDINAL/CARDINAL of DATE on the application of social security schemes to employed persons , to self - employed persons and to members of their families moving within the ORG , as amended by ORG ( ORG ) No CARDINAL/CARDINAL of ORG and of ORG DATE , in conjunction with LAW ( ORG ) No CARDINAL/CARDINAL of DATE laying down the procedure for implementing ORG ( ORG ) No CARDINAL/CARDINAL on the application of social security schemes to employed persons , to self - employed persons and to members of their families moving within the ORG , as amended by ORG ( ORG ) No CARDINAL/CARDINAL of DATE , must be interpreted as not precluding legislation of a Member ORG , such as that at issue in the main proceedings , under which recipients of pensions payable under the legislation of that ORG who reside in another Member ORG in which they are entitled under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL to the sickness benefits in kind provided by the competent institution of the latter Member ORG 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 .

Article CARDINAL TFEU [ i.e. LAW on the Functioning of ORG ] 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 ORG who reside in another Member ORG in which they are entitled under LAW and CARDINALa of Regulation No CARDINAL/CARDINAL , as amended by Regulation No DATE , 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 , LAW 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 . ”

ORG gave separate final decisions ( in Mr Ramaer ’s case : PERSON ( ORG , ORG BUCARDINAL ; in Mr PERSON ’s case : PERSON ) on DATE . The reasoning in the ORG cases was identical and extensive . It may be summarised as follows .

In view of ORG of ORG answer to the first question , ORG found that a right to opt out of the withholding of contributions under LAW of ORG did not exist .

In view of the answer to the second question , it found that withholding contributions under LAW of ORG did not in itself impede ORG citizens’ freedom of movement .

This left ORG 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 DATE .

ORG 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 DATE 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 DATE 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 ORG . 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 CARDINAL.CARDINAL.CARDINAL of ORG ( Introduction and LAW ( Invoerings- en aanpassingswet PERSON ) , which applied to both residents and non - residents . Existing insurance contracts were only terminated ex lege in so far as they coincided with the GPE 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 DATE 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 ORG through means other than legislation . In addition to studying the drafting history of the new legislation and parliamentary discussions , ORG had held a hearing at which it had heard officials of ORG ( PERSON , ORG ) who had actually been involved in determining the ( legal ) position of resident and non - resident treaty beneficiaries and in the contacts and negotiations with GPE insurance companies . From the information given it had emerged that the Minister for ORG had in fact been concerned to secure for non - resident treaty beneficiaries insurance cover comparable to that which they enjoyed before DATE on reasonable conditions . To that end , the Minister for ORG had entered into administrative agreements , through the umbrella organisation ( koepelorganisatie ) ORG ( Zorgverzekeraars GPE ) , 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 ORG 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 ORG directives on non - life insurance ( schadeverzekeringen ) ( Directive CARDINAL/CARDINAL/EEC , Official Journal DATE , LCARDINAL.CARDINAL ; Directive CARDINAL/CARDINAL/EEC , Official Journal DATE , LCARDINAL/CARDINAL ; and Directive CARDINAL , Official Journal DATE , ORG ; 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 ORG under their GPE 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 CARDINAL or more complementary insurance contracts in addition to that basic insurance , and for treaty beneficiaries , to CARDINAL 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 ORG or treaty country to meet the wishes of an often relatively small number of insured GPE 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 GPE standards . That , however , was inherent in the new system , which ORG of ORG had found was not in itself contrary to ORG 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 CARDINAL.CARDINAL.CARDINAL of ORG ( Introduction and LAW , 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 , ORG had not been made aware of a demonstrable difference in treatment between residents and non - residents caused by ORG and implemented with their connivance by insurance companies based in the GPE . 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 ORG unjustifiably to treat residents and non - resident treaty beneficiaries differently could be found established .

ORG was not unaware that , in those cases where the basic insurance regime in the country of residence offered lesser cover than the GPE 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 ORG 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 DATE , which ORG of ORG 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 ORG citizens is restricted .

The LAW establishing ORG , as in force until DATE , included the following provisions :

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member GPE , subject to the limitations and conditions laid down in this LAW and by the measures adopted to give it effect .

NORP If action by the ORG should prove necessary to attain this objective and LAW has not provided the necessary powers , the ORG may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph CARDINAL . ...

Paragraph CARDINAL 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 .

Freedom of movement for workers shall be secured within the ORG .

NORP Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of GPE as regards employment , remuneration and other conditions of work and employment .

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 GPE for this purpose ;

( c ) to stay in a Member ORG for the purpose of employment in accordance with the provisions governing the employment of nationals of that ORG laid down by law , regulation or administrative action ;

( d ) to remain in the territory of a Member ORG after having been employed in that ORG , subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission .

The provisions of this article shall not apply to employment in the public service .

ORG shall have jurisdiction to give preliminary rulings concerning :

( a ) the interpretation of this LAW ;

( b ) the validity and interpretation of acts of the institutions of the ORG and of the ORG [ ORG ] ;

( c ) the interpretation of the statutes of bodies established by an act of the ORG , where those statutes so provide .

Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request ORG to give a ruling thereon .

Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before ORG . ”

The LAW establishing ORG was amended and re - named LAW on the Functioning of ORG when LAW amending LAW and LAW establishing ORG entered into force on DATE . Article CARDINAL of the LAW establishing ORG became LAW on the Functioning of ORG ; former LAW became LAW ; and former LAW became LAW .

At the relevant time , ORG Regulation CARDINAL/CARDINAL ( ORG ) , in its relevant parts , read as follows :

“ THE COUNCIL OF THE EUROPEAN UNION ,

Having regard to the LAW establishing ORG , and in particular Articles CARDINAL and CARDINAL thereof ,

Having regard to the proposal from the Commission ,

Having regard to the opinion of ORG ,

Having regard to the opinion of ORG ,

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 ORG and should contribute towards the improvement of their standard of living and conditions of employment ;

Whereas freedom of movement for persons , which is CARDINAL of the cornerstones of the ORG , 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 GPE and their dependants and their survivors ;

Whereas employed persons and self - employed persons moving within the ORG should be subject to the social security scheme of CARDINAL single Member ORG 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 CARDINAL Member GPE 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 ORG as effectively as possible , it is appropriate to determine as the legislation applicable , as a general rule , that of the Member ORG 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 :

Pensions payable under the legislation of MONEY , in cases where there is no right to benefits in the country of residence

A pensioner who is entitled to a pension under the legislation of CARDINAL Member ORG or to pensions under the legislation of CARDINAL or more Member GPE and who is not entitled to benefits under the legislation of the Member ORG 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 LAW , be entitled thereto under the legislation of the Member ORG or of CARDINAL of the Member GPE competent in respect of pensions if he were resident in the territory of such ORG . The benefits shall be provided under the following conditions :

( a ) NORP benefits in kind shall be provided on behalf of the institution referred to in paragraph CARDINAL by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the ORG 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 CARDINAL , 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 ORG .

NORP In the cases covered by paragraph CARDINAL , 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 ORG , the cost shall be borne by the competent institution of that ORG ;

( b ) where the pensioner is entitled to the said benefits under the legislation of CARDINAL or more Member GPE , the cost thereof shall be borne by the competent institution of the Member ORG 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 .

Pensions payable under the legislation of CARDINAL or more of the Member GPE 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 CARDINAL Member ORG , or to pensions under the legislations of CARDINAL or more Member GPE , resides in the territory of a Member ORG 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 CARDINAL of the Member GPE competent in respect of pensions , determined according to the rules laid down in LAW ) , 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 .

Contributions payable by pensioners

The institution of a Member ORG 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 LAW , CARDINALa , DATE , DATE and DATE is to be borne by an institution of the said Member ORG .

Where , in the cases referred to in LAW , 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 ORG in whose territory the pensioner in question resides , by virtue of such residence , these contributions shall not be payable .

R. NETHERLANDS

Health care insurance

( a ) As regards entitlement to benefits in kind under GPE legislation , persons entitled to benefits in kind for the purpose of the implementation of LAW of this Regulation shall mean : ( i ) persons who , LAW ( 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 ORG and who , under this LAW , are entitled to health care in their state of residence , the costs being borne by the GPE .

( b ) DATE The persons referred to in point ( a)(i ) must , in accordance with the provisions of ORG ) , take out insurance with a health care insurer , and the persons referred to in point a(ii ) must register with the College voor zorgverzekeringen ( ORG ) .

( c ) The provisions of ORG ) and the PERSON 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 ORG ) concerning late insurance shall apply mutatis mutandis in the event of late registration with the College voor zorgverzekeringen ( ORG ) in respect of the persons referred to in point a(ii ) .

Benefits in kind for pensioners and members of their families who are not resident in a Member ORG under whose legislation they are entitled to benefits

NORP In order to receive benefits in kind in the territory of the Member State in which he resides , under LAW ) of the Regulation [ i.e. Council Regulation ( ORG ) CARDINAL/CARDINAL ] , 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 CARDINAL of the legislations under which a pension is payable .

NORP 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 CARDINAL .

The institution of the place of residence shall inform the institution which has issued the certified statement provided for in paragraph CARDINAL of every registration effected in accordance with the provisions of the said paragraph .

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 .

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 .

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 LAW ) ( b ) of the Regulation . ”

As relevant to the present case , ORG at the relevant time provided as follows :

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 ORG 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 LAW , register with ORG .

NORP 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 CARDINAL above and also , in respect of a portion of that contribution to be determined by said regulation , for the application of ORG ( Wet op de zorgtoeslag ) shall be considered as a premium for health care insurance . ”

The following is taken from the drafting history of ORG ( Explanatory memorandum ( PERSON ) , ORG of ORG , parliamentary DATE , QUANTITY , no . CARDINAL ) :

" I Introduction and summary

The aims of the Bill : Greater efficiency , less central direction , good accessibility

By means of the bill for ORG wish to put an end , starting from DATE , to the present incoherent situation ( verbrokkelde situatie ) by realising CARDINAL statutory insurance regime for all GPE 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 ORG 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 ORG will offer every resident the possibility to enter into a contract of insurance with the health care insurer of his choice . ORG 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 DATE ( 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 ORG takes it to be self - evident that the freedom of the member GPE of ORG 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 ORG . 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 NORP social insurance regulation . Insured persons who are resident or staying abroad can enjoy medical health care there paid for by GPE insurance .

ORG - border health care

The entry into force of ORG will draw the entire population into a social health care insurance . This will put an end to the GPE position , which is unique in LOC , in which MONEY of the population is forced to take out private insurance on the free market . ORG will be reported to ORG as a social security scheme within the meaning of ORG ( ORG ) No . CARDINAL/CARDINAL . From this it may follow that persons resident outside the GPE may become subject to GPE social security legislation and therefore find themselves obliged to take out health care insurance . These persons will owe premium pursuant to the GPE legislation .

There is also a category of persons who do not reside in the GPE , but who , being entitled to a GPE pension , are entitled to health care at the expense of the GPE as the consequence of the application of the NORP social security regulation [ i.e. Council Regulation ( ORG ) No . CARDINAL/CARDINAL ] 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 ORG 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 GPE . The income - dependent contribution will be levied the same way as is done in the case of persons resident in the GPE .

ORG ( ORG ) No . CARDINAL/CARDINAL and the social security treaties entered into by the GPE provide that the medical care to which a person is entitled pursuant to the ORG 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 GPE insured person resident or staying in , for example , GPE will receive medical care from the NORP social health care insurance in accordance with NORP legislation . The cost of such care will be borne by the GPE 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 GPE based on a social insurance treaty entered into by the GPE with another country or on ORG ( ORG ) No . CARDINAL/CARDINAL that they must register with ORG . ORG 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 ORG can be seen as a disturbance of market relations and a health care insurer can not influence health care use and the expenses involved in the other country , a choice has been made for registration with ORG . 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 . ORG has so advised , at our request , in the report ‘ International aspects of ORG aspecten ORG ) of DATE , consecutively numbered DATE .

In its relevant part , ORG ( Introduction and LAW provides :

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 ORG or the application of such a regulation pursuant to the Agreement on ORG 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 DATE , 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 CARDINAL DATE the insured person complied with the obligation to register with ORG under section CARDINAL of ORG . ... ”

ORG ( Regeling zorgverzekering ) , in their relevant part , provide as follows :

NORP The contribution payable by a person referred to in LAW 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 GPE .

NORP The basis for the contribution shall be the sum of :

a ) an income dependent contribution calculated according to [ relevant provisions of ORG ] ;

( b ) an income dependent contribution calculated in accordance with the premium due for the PERSON pursuant to ORG ( LANGUAGE financiering sociale verzekeringen ) [ with reductions as may be required by the application of the DATE LAW ( LANGUAGE inkomstenbelasting DATE ) ] ;

( c ) from DATE of the calendar month following DATE in which this person has reached DATE , a DATE contribution corresponding to CARDINAL of the provisionally determined premium for a person insured under health care insurance in DATE of the calculation ( berekeningsjaar ) ...

The contribution referred to in section CARDINAL.CARDINAL.CARDINAL for a person referred to in section CARDINAL ) of ORG 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 . ”


The applicant was born in DATE and lives in LOC .

On DATE the ORG refused to grant the applicant a disability pension . On DATE ORG dismissed his appeal against that decision . On DATE ORG dismissed the applicant 's further appeal . The judgment was served on the applicant on DATE and DATE time - limit for lodging of a cassation appeal started to run on that date .

On DATE the applicant requested that a legalaid lawyer be assigned to the case for the purposes of lodging a cassation appeal with ORG . On DATE ORG granted his request for legal aid and requested ORG to assign a lawyer to the case . Subsequently , as the first lawyer assigned by ORG suffered from certain health problems at that time , on DATE ORG assigned another lawyer , PERSON PERSON , to the case . He was served with the letter informing him of the assignment on DATE .

Subsequently the lawyer requested ORG to serve on him its judgment of DATE . The judgment with the written grounds was served on him on DATE .

In a letter to the applicant dated DATE the lawyer explained in detail why he had found no grounds on which to prepare a cassation complaint in the case .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of the appellate courts are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL , DATE ; ORG v. GPE , no . CARDINAL/CARDINAL , DATE ; GPE v. GPE , no . CARDINAL , DATE .

On DATE amendments to LAW , adopted on DATE ( LOC o zmianie ustawy PERSON postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych ) , entered into force . Under the amended text of LAW , the time - limit for lodging a cassation appeal with ORG was extended DATE .

ORG has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination ( DATE , II CZ CARDINAL ; CARDINAL DATE , II UZ CARDINAL/CARDINAL ) . In a further series of decisions ORG considered that it would be unfair for the legally - aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within DATE counted from DATE of service of the judgment on the party . The parties waiting for legal - aid services can not be held at fault for shortcomings in the system . A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it . A request to appeal out of time should therefore be submitted within DATE from the date on which the legal - aid lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal ( DATE , II UZ CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ) , or from the date when the lawyer was informed that he had been assigned to the case by ORG DATE , PERSON ; CARDINAL DATE , II UZ DATE ; CARDINAL DATE , PERSON ;

In a resolution adopted by a bench of CARDINAL judges of ORG on DATE ( III CZP CARDINAL/CARDINAL ) that court acknowledged that there had been discrepancies in the manner in which the beginning of the DATE time limit for submitting an application for leave to appeal out of time by legally - assisted parties had been determined . The court was of the view that applications for leave served the purpose of making access to ORG for legally - aided parties genuine and effective . Hence , the beginning of the time - limit could not be determined in a mechanical manner in all cases . The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal .


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicants , Mr PERSON and CARDINAL others , are NORP nationals . Their names and personal details are listed in the annex at the end of this decision .

The applicants were born DATE with deformities of their upper and/or lower extremities and other malfunctions of inner organs , resulting from the fact that their mothers had taken the tranquilliser “ thalidomide ” , sold in GPE under the name “ LOC , during a certain , sensitive period of pregnancy . CARDINAL persons suffering from likewise impacts of the drug are living in GPE alone .

“ Contergan ” was produced by the pharmaceutical manufacturer PERSON ORG , a company with limited liability , from DATE until DATE . It was available on the NORP market without a medical prescription and was sold as an analgesic suitable to soothe discomforts caused by pregnancy .

In DATE the criminal proceedings for injuries caused by negligence against the management and the owners of the manufacturer company PERSON were stayed . Civil proceedings on compensation for damages lodged by some affected children or their parents were pending .

On DATE the pharmaceutical manufacturer PERSON covenanted to pay a lump sum of MONEY ( DEM - CARDINAL million euros ( ORG ) ) to the victims in order to settle all compensation claims .

On DATE a public law foundation “ Hilfswerk für behinderte NORP ” was established by federal law in order to facilitate a settlement with all persons affected and in order to provide a solid financial basis for benefit payments . The foundation received MONEY from the manufacturer and the same amount from the NORP ORG . Each person affected by “ GPE was eligible for a single payment of MONEY CARDINAL and at maximum DEM CARDINAL,CARDINAL and additionally DATE pensions CARDINAL and DEM CARDINAL . All payments from this fund were exempt from taxes and were not credited against other social benefits . All legal claims against the manufacturer expired by law . The law entered into force on DATE .

On DATE ORG found ORG of DATE henceforth : the DATE LAW to be compatible with the provisions of LAW , in particular compatible with the property protection of LAW . It held that the legislator voluntarily incurred a position as a creditor and was therefore constitutionally obliged to guarantee the liquidity of the foundation in future and to safeguard that the pensions to the victims were adequate .

In DATE and in DATE the financial funds of the foundation were supplemented by DEM CARDINAL and DEM CARDINAL by ORG . Since DATE the DATE pensions have been financed entirely from the federal budget . From DATE until DATE the height of the pensions had been raised CARDINAL times .

In DATE the foundation was renamed to ORG ( Conterganstiftung für behinderte NORP ) . The persons affected by “ GPE received a non - recurring capital sum and again a DATE life - long pension depending on the established degree of health impairment . Payments from the foundation could not be credited against any other social benefit payment in order to ensure that the aggrieved persons received the pension as an extra monetary benefit .

On DATE the DATE pensions were doubled by LAW . According to the legislator the higher pension should contribute to compensate for the increasing secondary health deterioration of the now middle - aged persons affected by “ GPE .

On DATE the Second Law on Amending the Contergan Foundation Law entered into force . The ORG was endowed with a further ORG CARDINAL of which MONEY were provided by the manufacturing company PERSON and the rest by GPE . The amendment slightly increased the DATE pensions ( now between ORG CARDINAL and ORG CARDINAL,CARDINAL ) which are still funded entirely from the federal budget and the non - recurring payment ( GPE ) between ORG CARDINAL,CARDINAL and ORG CARDINAL depending on the extent of the bodily damage caused by “ GPE . The law further introduced an DATE additional payment ( jährliche GPE ) from the capital interests gained by the foundation . The amount of this payment varies between EUR CARDINAL and ORG CARDINAL depending on the degree of disability . Furthermore , the increase of the DATE pension was tied to the adaptations of the general retirement pension scheme . By the amendment a further CARDINAL persons who had been previously time - barred to claim benefits became eligible for the benefits .

On DATE the applicants directly lodged a constitutional complaint in which they attacked the constitutionality of the DATE LAW and all subsequent legislation in that respect . They invoked a violation of their property rights and felt discriminated against in comparison to other vulnerable groups . They further complained about a legislative failure to act insofar as they did not receive benefits to the extent they would receive if the present laws on pharmaceutical liability were applied .

On DATE ORG , in a composition of a panel of CARDINAL judges , declined to review the constitutional complaint of the applicants . ORG held that the complaint was inadmissible for being time - barred insofar as LAW and LAW were challenged . Regarding the complaint on LAW the ORG found it inadmissible for reasons of subsidiarity of the constitutional complaint , as the applicants had not priorly objected against their pension with the competent administrative courts . ORG underlined that the applicants had failed to challenge the regulatory framework . The ORG further reasoned that the complaint as a whole was not sufficiently substantiated . Insofar as the applicants complained about a violation of their property rights the ORG held that the sum of all benefits the applicants had received since DATE was significantly higher than the amount of damages the applicants could have reasonably claimed against the manufacturing company of limited liability . The applicants had further failed to clarify why the present statutory provisions on liability for pharmaceutical products which had been enacted well after the “ FAC scandal ” had taken place should become applicable in this case . Furthermore , the current provisions on liability for pharmaceutical products provided for compensation only in cases which involved CARDINAL severely damaged persons , whereas the “ LOC case still affected CARDINAL persons . In regard to their complaint about arbitrary discrimination the ORG held it insufficient to compare just the amount of the payments and disregard the different legal and factual circumstances . All other groups in question like victims of warfare , war crimes as well as of criminal deeds and of contaminated blood preserves were compensated under significantly different factual and legal circumstances . The benefit payments from the “ LOC foundation were tax - free and not considered to be income or assets in order to guarantee that the benefits actually improved the financial situation of those affected by “ LOC .

Section CARDINAL § CARDINAL of ORG DATE henceforth DATE LAW ( ORG über die PERSON für behinderte PERSON “ ) provided that claims against the manufacturing company of limited liability , PERSON , or against its associates , managers or clerks of that company be extinct insofar as the claims relate to a damage which falls under the scope of LAW .

Section CARDINAL of the Second Law on Amending the Contergan Foundation Law stipulates that the benefits based on this law are exempt from income tax and are not considered to become part of the assets of the beneficiary . According to section CARDINAL LAW of the same law the obligation of other state authorities to provide for benefits is not affected . Authorities may not decline benefits provided for by law because the person receives benefits according to this law .

Section CARDINAL § CARDINAL of the Rules of Procedure of ORG ( Bundesverfassungsgerichtsgesetz ) stipulates that a constitutional complaint shall be lodged and substantiated within DATE after the final decision of the competent court . Section QUANTITY stipulates that a constitutional complaint on the constitutionality of a statutory law against which there is no other way of recourse must be lodged within DATE after the enactment of that law .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On DATE the ORG appointed the applicant to the function of a judicial liquidator of a limited liability company H. located in GPE .

On DATE the insolvency judge PERSON requested the commercial division of ORG to dismiss the applicant from his function . She submitted that the applicant had been involved in civil proceedings relating to his failure to pay salaries to employees of a company that he owned and that the court had found against him . Therefore he did not comply with the legal requirements that a judicial liquidator had to satisfy since he could not be considered trustworthy . Furthermore , until DATE he had failed to give notice to all the employees of the H. company . Consequently , he had not been performing his obligations in a satisfactory manner as required by law .

On DATE ORG , at a session held in camera , dismissed the applicant and appointed a new liquidator . The insolvency judge sat on the bench composed of CARDINAL professional judges that gave this decision . No party to the insolvency proceedings attended the session and the applicant was , likewise , not present , not having been informed of the session or summoned to attend it , as the law did not provide for it .

On DATE the applicant appealed against this decision . He submitted that , while it was true that no appeal could be filed against the decision to appoint a new liquidator , the law was not clear as to whether an appeal was available against his dismissal from his function . Furthermore , his good reputation as a lawyer and as an employer had been damaged both by the contents of judge PERSON ’s motion of DATE and by his subsequent dismissal . He argued that certain statements in the motion were incorrect as to the facts . Therefore he had to lodge an appeal in order to challenge them . He contested both the allegations that he was untrustworthy and that he had not been carrying out his duties properly . He further submitted that the insolvency judge , considering her own motion for his dismissal , had acted both as a claimant and as a member of the court , which called into question the court ’s impartiality .

By a decision of DATE ORG rejected the applicant ’s appeal . The court considered that LAW did not provide for an appeal against a dismissal of the judicial liquidator . Judge PERSON was entitled to sit on the bench of the commercial court , deciding about the applicant ’s dismissal , because LAW excluded participation of the insolvency judge in that court only in cases in which an appeal was available against a decision of that judge given in the insolvency proceedings .

The applicant appealed to ORG , submitting that ORG was wrong to hold that there was no appeal against his dismissal . He reiterated that he had been denied a possibility to have the allegations against him reviewed by an impartial court .

On DATE ORG dismissed the applicant ’s appeal , considering that under LAW , no appeal was possible against a decision by which a liquidator was dismissed and a new one appointed .

On DATE ORG convicted the applicant of misappropriation of the H. company ’s assets , sentenced him to DATE imprisonment and stayed the enforcement of the sentence for DATE .

On DATE ORG quashed this judgment and ordered that the case be reconsidered .

On DATE ORG convicted the applicant of misappropriation of the assets of H. company , sentenced him to DATE imprisonment and stayed the enforcement of the sentence for DATE .

On DATE ORG upheld this judgment .

The Ordinance of the President of Republic of Poland of DATE on GPE , as amended , sets out the rules governing insolvency proceedings . LAW , insofar as relevant , provides :

“ CARDINAL . Any business enterprise which is unable to pay its debts shall be declared insolvent ....

ORG Any public enterprise , co - operative ... [ or ] joint - stock company shall be declared insolvent if its assets are not sufficient to cover its liabilities . "

According to LAW , proceedings relating to an insolvency petition shall be instituted before the district commercial court , sitting as a bench of CARDINAL professional judges , in whose jurisdiction the insolvent debtor has its registered office .

Pursuant to LAW , the commercial court in insolvency proceedings shall call on creditors to submit their claims within a fixed time - limit and assign the insolvency judge to the case . The insolvency judge shall , first , appoint the judicial liquidator of the company , who shall take possession of the insolvent company ’s assets and , subject to certain prior decisions of the insolvency judge , distribute it among creditors so as to ensure that their debts be paid to the highest possible degree . The judge shall conduct the subsequent insolvency proceedings , supervise the actions of the liquidator of the company and determine in which instances the liquidator shall not be authorised to act without the judge ’s prior permission .

According to LAW , the liquidator alone has the capacity to sue or to be sued in all proceedings concerning claims against an insolvent estate .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants state that they are nationals of the “ GPE ” . Their names , dates of birth and places of residence are set out in the Annex . They are represented before the Court by Ms Y. PERSON , a lawyer practising in GPE .

NORP The facts of the cases may be summarised as follows . The applicants are relatives of NORP - Cypriot men who went missing in either DATE or DATE during incidents of mounting tension and violence in which NORP or NORP - NORP villages were targeted .

These men were listed as missing persons , the information being given to the NORP authorities , ORG and ORG .

The remains of the missing men have been found during exhumations carried out by ORG for Missing Persons ( “ CMP ” ) in DATE .

The Government have submitted that investigations had been commenced in all cases . The police had taken statements from relatives of the victims , taken steps to pursue investigation in the various localities and to trace police officers stationed there at the relevant time , to locate witnesses and to seek information from local inhabitants as to the transportation , murder and burial of the victims ;

The applicants have submitted that it is not apparent that any progress has been made in the investigations and that they have not been given any copies of reports , witness statements or information gathered from various sources .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE . At the time of filing his application , he was resident in a psychiatric clinic . According to an expert report drawn up during the domestic proceedings in this case , the applicant has a diagnosis of mental impairment and , prior to the facts giving rise to this case , had been admitted to psychiatric hospitals twice . He also had a number of convictions against him , including for indecent assault , burglary and theft .

The facts of the case , as submitted by the parties , may be summarised as follows .

In TIME of DATE , police in GPE were called out to deal with the applicant , who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner . He was arrested at TIME and transferred to a police station , where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required . His detention was authorised under LAW of LAW DATE ( see paragraph CARDINAL below ) . The police also went to the applicant ’s address , where they found his aunt with serious and extensive injuries to her face and upper body , inflicted by the applicant . She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung .

The applicant was examined in his cell at TIME by ORG , PERSON In view of the applicant ’s behaviour , speech and appearance , he assessed him as not fit to be interviewed or charged with any criminal offence . A formal assessment under LAW DATE was requested . This was done at TIME by the psychiatric specialist registrar on call , Dr O. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons .

A second assessment was carried out shortly after TIME by another psychiatric specialist , Dr. PERSON He too advised that the applicant be formally admitted to hospital for assessment . He also advised that the applicant be observed via closed circuit television , since the presence of a police officer outside his cell was causing him to become agitated . For the remainder of his time at the police station , the applicant remained under continuous observation by this means .

At TIME , the applicant was visited by an approved social worker , PERSON He was also seen by a community psychiatric nurse , Mr J. Both noted that the applicant was displaying clear signs of mental illness . The social worker filled out the relevant form for admission to a mental hospital , omitting just one point , the name of the establishment , which had yet to be determined .

At TIME members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to ORG , which had a medium secure unit . The police thereupon contacted PERSON to inform them of the situation . Shortly after TIME , PERSON , a consultant forensic psychiatrist at PERSON , called back and was informed of the situation concerning the applicant . According to the custody record , he stated that someone would be sent over from the clinic . According to PERSON own notes on the situation , which the ORG have provided , he then consulted with a number of colleagues . Believing that the applicant would be charged and remanded in custody and that an assessment from ORG would be required only afterwards , they considered that there was no need for their involvement before such time . At TIME the police received a call from PERSON informing them that the clinic would not be sending anyone to the station , but would liaise with the social worker .

The custody record for the applicant ’s first day at the police station refers at several points to his disturbed behaviour : clapping loudly , shouting , banging on the door , lowering his trousers and waving his testicles about , and licking the wall of his cell . PERSON noted that the applicant repeatedly hit his head against the wall , causing himself bruising . He was provided with , and accepted , food and drink at intervals throughout DATE .

DATE , DATE , there were further telephone contacts between the police station and PERSON regarding the applicant ’s case . The police also contacted other mental health officials , but admission to PERSON remained the only viable solution . During the morning PERSON spoke with the duty solicitor of ORG , who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody . In the event of no charge being brought , they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant DATE . In discussion with the clinical director of PERSON , PERSON noted that at that point there was no immediate action to be taken . He was later told by PERSON that the applicant would be charged with assault , and arranged an appointment to assess the applicant on DATE at ORG .

An entry in the custody record at TIME states that the duty solicitor of ORG had concluded that there was insufficient evidence to charge the applicant . An entry at TIME states that there was an “ internal argument ” between doctors and the social services regarding the applicant . At TIME an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant .

The applicant ’s behaviour was observed to deteriorate over the course of DATE . By TIME he had removed all of his clothing . Later he drank water from the bowl of the toilet in his cell . He accepted CARDINAL meals , in DATE , TIME and in TIME . He accepted a drink at TIME , but , according to the custody record , refused all further offers of food and drink for the remainder of DATE .

On DATE of the applicant ’s detention , DATE , the duty Inspector made an entry in the custody record at TIME noting his concern at the environment in which the applicant was detained , given his obvious illness . The applicant was still naked and was observed during TIME rocking to and fro on a bench , talking to himself , banging his chest and ranting .

Dr M. arrived at the police station shortly before TIME , accompanied by other mental health professionals from PERSON to assess the applicant . The police refused to open the door of the applicant ’s cell on the ground that this would endanger everyone ’s safety . The assessment was conducted through the hatch . PERSON noted that the applicant appeared agitated and was shouting loudly , and that his naked body appeared to be smeared with food or faeces . The applicant was elated , and his speech was incoherent at times . PERSON concluded that the applicant was clearly unwell and required inpatient treatment in a medium - secure setting with adequate nursing resources and a clear and effective care plan . He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems . The police indicated that their advice from ORG was that there could be no charge at that point in time , given the impossibility of interviewing the applicant . PERSON said he would endeavour to get a place for the applicant at PERSON , although it would not be possible to receive him there until TIME , i.e. beyond the CARDINAL limit laid down by LAW DATE . TIME , ORG spoke to the clinical director of ORG , who agreed to receive the applicant the same evening .

Informed of this , PERSON discussed the situation with nursing staff at PERSON . He was informed that the resources needed to admit the applicant could be made available for the following morning at TIME at the earliest . He considered that an admission in TIME , i.e. just before the expiry of the permitted period of detention , would pose unmanageable risks for all concerned . He suggested to ORG that the applicant could be transferred to PERSON at the end of the CARDINAL-hour period , but that police assistance would be required to maintain him in safe conditions until it was possible to admit him . He was informed that the presence of the police could not be guaranteed for the whole period .

At TIME a call was received from PERSON to say that the applicant could not be taken until TIME . TIME , an Approved ORG from PERSON came to the police station to complete the necessary forms for the application ’s admission under LAW DATE .

The applicant was provided with food and drink at TIME , and further drinks of water during DATE ( TIME and TIME ) . At the end of the TIME a meal was not offered because the applicant was sleeping . He requested food at TIME , which was provided but which he dropped on the floor . He refused an offer of a meal and a drink at TIME

On DATE , DATE , the applicant was released from police custody at TIME and escorted , in handcuffs , to ORG . According to the Government , it took CARDINAL members of the nursing staff to restrain him once admitted . He was assessed as having pressure of speech , flight of ideas , a labile mood , thought disorder and persecutory delusions . The diagnosis was of a manic episode with psychotic features . The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive , threatening manner . He received continued medication over DATE and showed sustained improvement .

On DATE , the applicant lodged claims against the GPE and ORG for negligence , for breaches of Articles CARDINAL and CARDINAL of the LAW , and for misfeasance in public office . The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding . A hearing was held on DATE before a District Judge . The applicant ’s counsel submitted a report prepared by a Consultant Forensic Psychiatrist , PERSON , who had not interviewed the applicant but had reviewed the relevant documents . Dr PERSON considered that Dr M. should have assessed the applicant within TIME of being made aware of the situation , since by that stage the applicant had been detained for TIME . The delay in assessing him and in admitting him to PERSON had in turn delayed the applicant ’s treatment and recovery .

The judge granted the order for summary judgment . He held that although the defendant had owed the applicant a duty of care , and that that duty had been breached , it had not caused the applicant any physical or psychological injury . The action in negligence therefore failed on causation and loss . In any event , any loss had been absolutely minimal . A delay of TIME in the hospitalisation of the applicant could only lead to minimal damages . The judge also rejected the claim based on LAW on the grounds that Dr M. could not be seen as a public authority for the purposes of the LAW , and that the situation did not meet the minimum level of severity inherent in LAW . The applicant ’s claim for damages based on LAW was also dismissed , the judge finding that this was not an exceptional case in which compensation would be justified . The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant , which he had not done .

The applicant was granted permission to appeal . The case was heard at ORG by Judge PERSON , who dismissed the appeal in a judgment of CARDINAL DATE . The judge described the applicant ’s claim in negligence as “ hopeless ” , there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant . It was unrealistic to suggest that a delay of a given number of TIME ( the applicant ’s counsel having conceded that the delay was considerably TIME ) in some way caused that number of TIME of psychosis .

In relation to the claim under LAW , the judge considered that Dr M. should be viewed in that context as a “ public authority ” . However , the claim failed because the situation did not fall within DATE . The applicant had been lawfully detained and his basic needs had been met . The fact that he had spent CARDINAL - CARDINAL hours at the police station did not make the situation so appalling as to breach LAW . The judge found that there had been no breach of LAW because there had been no arbitrary or deliberate interference with the applicant ’s rights . As regards the claim for malfeasance , he concurred with the decision of LOC .

In light of these findings , the applicant ’s legal representatives advised him that legal aid would not be available for him to appeal the decision further .

Section CARDINAL of LAW DATE provides :

“ Mentally disordered persons found in public places .

( CARDINAL ) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control , the constable may , if he thinks it necessary to do so in the interests of that person or for the protection of other persons , remove that person to a place of safety within the meaning of section CARDINAL above .

( CARDINAL ) A person removed to a place of safety under this section may be detained there for a period not exceeding CARDINAL TIME for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care . ”

A “ place of safety ” is defined in section CARDINAL(CARDINAL ) as follows :

“ In this section “ place of safety ” means residential accommodation provided by a local social services authority ... , a hospital as defined by this LAW , a police station , an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient . ”

The Code of Practice issued under LAW DATE provided at the relevant time :

“ The place of safety

CARDINAL The identification of preferred places of safety is a matter for local agreement . However , as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station . Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment . Once the person has been removed to a particular place of safety , they can not be transferred to a different place of safety .

Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital . ”

Extract from Report to the Government of GPE on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) from DATE to DATE :

“ CARDINAL . The ORG also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police . More than once , members of the ORG ’s delegation were told that the behaviour of some detained persons became so erratic that custody officers considered it necessary to tie them naked to a chair in order to prevent any acts of self - harm . Such treatment is clearly unacceptable and should be stopped immediately . In such cases police officers should immediately call a doctor and act in accordance with his instructions . Further , detained persons who display severe psychiatric disorders should be transferred without delay to a mental health facility .

The ORG recommends that immediate steps be taken to ensure that detained persons with mental health disorders , held in police stations , are provided with appropriate care and treatment , until they are transferred to a mental health facility . ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

On DATE the applicant , a medical doctor , was given CARDINAL administrative fines amounting in total to CARDINAL NORP levs ( ORG ) ( equivalent to MONEY ( ORG ) ) for failing to keep accurate patient records . The fines were imposed under the Administrative Offences and Sanctions Act DATE ( see paragraph CARDINAL below ) . The applicant sought judicial review of the fines , and his case was examined at CARDINAL levels of jurisdiction . He retained counsel , who charged him BGN CARDINAL ( equivalent to EUR CARDINAL.CARDINAL ) in fees . In a final judgment of DATE , ORG quashed the fines .

NORP In DATE the applicant brought a claim under the ORG and ORG DATE ( see paragraph CARDINAL below ) , seeking to recoup the legal fees he had incurred by way of damages . The claimed amount was smaller than the statutory DATE minimum wage in the country , which , at the relevant time , was the equivalent of around LAW .

In a judgment of DATE , ORG allowed the applicant ’s claim . It held that since the DATE Act was silent on awards of costs , the applicant could recoup those costs in proceedings under LAW . This was so because they had been incurred as a result of an unlawful administrative decision .

On appeal , in a final judgment of CARDINAL DATE ORG overturned the lower court ’s judgment . It held that since the DATE Act did not lay down any rules in respect of the award of costs , LAW DATE should be applied . However , the Code did not provide for an award of costs either . The court went on to say that the costs incurred by the applicant had not been a direct result of an unlawful administrative decision and could not be regarded as actionable damage under LAW , and dismissed the claim .

On an unspecified date the applicant was charged with forgery . He was accused of creating CARDINAL false records of medical examinations which had not in fact taken place and for which he had received payments from ORG .

On DATE ORG found the applicant guilty as charged , sentenced him to DATE imprisonment , and barred him from working as a medical doctor for DATE .

The applicant appealed , requesting , inter alia , the examination of CARDINAL additional witnesses and the gathering of further evidence . ORG turned down those requests in a decision of DATE and at a hearing held on DATE .

In a final judgment of DATE , ORG upheld the lower court ’s judgment . It held , inter alia , that in previous criminal cases against him the applicant had been acquitted because he had been charged with offences which could be committed by a person acting in an official capacity , which he did not have , whereas in the case at hand his official capacity or the lack of it was irrelevant to the charges and to the conviction .

In the course of the above criminal proceedings , on DATE the judge presiding over the panel of ORG dealing with the applicant ’s case interrupted the applicant ’s address while the applicant was saying that the prosecution was “ fantasising ” about the charges and that “ the court was alleging the same nonsense ” , and fined him ORG CARDINAL ( equivalent to EUR CARDINAL ) for contempt of court , on the grounds that he had been using insulting words and behaving rudely in the courtroom . The applicant then continued his address .

On DATE the applicant appealed against the fine before the president of ORG , who responded that he was not competent to examine the appeal .

On DATE the applicant asked the president of ORG to forward his appeal to the panel which was dealing with his case and was thus competent to examine it . It is not clear whether his appeal was examined .

On DATE the applicant sought judicial review of the fine by the administrative courts . In a final judgment of DATE , ORG dismissed his application , pointing out that the examination of a legal challenge against a fine for contempt of court was to be conducted using the procedure established by LAW , which provided that such fines were to be challenged before the panel dealing with the case in the course of which the fine had been given .

In DATE the applicant brought a claim for damages against PERSON , alleging that she had libelled him . On DATE ORG granted the applicant ’s application for reopening of the case and quashed the previously delivered judgments in the case .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s claim .

On appeal , at a public hearing held on DATE ORG turned down the applicant ’s request for an adjournment on health grounds . It noted that CARDINAL hearing had already been adjourned at the applicant ’s request , again on health grounds , and went on to say that the applicant ’s medical condition was not so serious as to prevent him from appearing in court . The court then admitted PERSON written submissions and evidence .

In a final judgment of DATE , ORG dismissed the applicant ’s claim .

The applicant again sought the reopening of the case . In a final judgment of DATE , ORG rejected the application , as it found that the case had already been reopened once on the applicant ’s application and that the applicant had not presented or requested the gathering of additional evidence after the reopening . The court went on to note that one hearing had been adjourned at the applicant ’s request and that his medical condition was not so serious as to prevent his appearance in court . It concluded that the applicant ’s procedural rights had not been breached and that by seeking adjournments he had been abusing those rights .

The Administrative Offences and Sanctions Act DATE lays down the procedure for establishing and punishing administrative offences . Orders imposing administrative sanctions are subject to judicial review by the district courts , whose judgments were , until DATE , subject to appeal before the regional courts ( sections CARDINAL and DATE ) . On DATE appellate jurisdiction LAW was transferred from the regional to the administrative courts . The LAW does not contain provisions on costs . LAW provides for the subsidiary application of LAW in respect of a number of matters not set out in the LAW , such as remuneration of experts and reimbursement of the expenses of witnesses , but counsel ’s fees are not mentioned .

The Code of Criminal Procedure DATE , in force until DATE , provided in LAW that when an accused was convicted the court had to order him to bear all the costs of the proceedings , including , inter alia , the fees of his or her court - appointed counsel . LAW provided that if the accused was acquitted or the criminal proceedings were discontinued the costs were to be borne by the ORG . In DATE those provisions were superseded by Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , whose wording is identical .

Article CARDINAL § § DATE PERSON provides that a judge presiding over a panel hearing a criminal case shall ensure order in the courtroom and may impose a fine of up to ORG CARDINAL ( equivalent to ORG CARDINAL ) on anyone breaching that order . The fine can be set aside by the panel as a whole .

LAW DATE provides that the ORG is liable for damage suffered by individuals or legal persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with administrative action . Section CARDINAL(CARDINAL)(CARDINAL ) provides for liability of the investigating or prosecuting authorities or the courts for damage resulting from the imposition of an administrative penalty where the penalty has been set aside . Section CARDINAL provides that the ORG is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned decision , action or omission .

NORP The question of costs for expert opinions and witnesses in proceedings under LAW was settled by ORG in a DATE interpretative decision ( see тълк. реш. № CARDINAL от CARDINAL април DATE г. по н. д. № CARDINAL/CARDINAL г. , ORG , ORG ) , in which it held that since the Act did not contain provisions in that respect , the provisions of LAW DATE should apply and that , in cases where a decision imposing an administrative sanction has been quashed , those costs are to be borne by the ORG . The interpretative decision did not deal with counsel ’s fees .

In an interpretative decision of DATE ( see тълк. реш. № CARDINAL от CARDINAL юни DATE г. по тълк. д. № DATE г. , PERSON , ORG ) ORG dealt with the question whether after DATE , when appellate jurisdiction under LAW was transferred from the regional to the administrative courts ( see paragraph CARDINAL above ) , the administrative courts should award costs in judicial review proceedings under LAW . The court observed that there existed a certain inconsistency in the administrative courts’ case - law on that point . Some courts awarded costs , whereas others did not , saying that they could be claimed by way of damages in separate proceedings under LAW . The court held that the administrative courts could not award costs in proceedings under LAW , as neither that LAW nor the DATE or DATE Codes of Criminal Procedure made provision for them to do so .