The authorl of the communication (initial l.tter dated 14 January 1988, furth.r lubmilsion dated 29 Dec.mb.r 1988) are B. d. B., G. B., C. J. K. and L. P. M. W., Cour Dutch citizens. Th.y claim tu be the victims of a violation by the Gov.rnm.nt oC the N.th.r1ands of artic1•• 14, paragraph 1, and 26 of the Int.rnational Cov.nant on Civil and Political Rights. They are represented by counlel.
Th. author. ar. joint own~rl of the T.ld.rsweg physiotherapy practice in Rott.rdam. Th.y al1.g. that th.y have b••n discriminated against by the Industrial Inluranc. Board for H.alth and for Mental and Social Interests (hereaft.r BVG) and the C.ntral App.als Board (C.ntra1. Raad van 8.ro.p) b.cause of the way in which locial I.curity contributions payable by th.m are regUlated under Netherlands locial I.curity l.gislation.
Th. authors state that the BVG, as the .xecutive organ of the social security inluranc. l.gislation, ha. the ta.k oC asses8ing social insurance claims and of Cixing the contributions payable by ~mploy.rl to financ. th.se employees' insurance loh.m.l. Until 1984, the BVG h.ld the view that part-time physiot)••rapists working on the basil of a collaboration contract with a pr&ctitioner were not in employm.nt, th.r. was thus no qu.stion of compulsory insurance for these more or 1.1. ind.p.nd.nt collaborators within the framework of the said employees' inluranc. sch.m••
This situation changed on 19 AJ?ril 1983, when the Central Appeals BOBI'd ruled, contrary to what the BVG had previously accftpted, that part-timA physinlherRplRts working on an ~nvoicing basis were in fact working in such 8 dependent socio-.conomic position ili..::.~ the owner or owners of the prod.ice that thoir work status was socially comp.nable to employment. and had thel'eCOl fl t.o be regluded aB such in the framework of social security insurance legir.latioll. 011 the hEl/lis of this ju~g.m.nt, the BVG informed the national profeRsionAl orgAni7.AI'ionA of physiotherapists that part-time physiotherapists working on an illvoicing basil; henc.forth would have to be insured and that. contr ibutions due would 1If.IVH lo hH pai~ by the owner of a physiotherapy practice as if he were an employer. 1'1 Ita
De,pite the B~G view that, from 1984 onwards, there was no longer any question of auch a apecial situation in re,pect of the obligation for owners of phy,iotherapy praatiaes to pay contribution" the authors maintain that phyaiotherapist. are atill treated differently with regard to the date of commencement of the obligation to contribute. Thus, it has become apparent that thOle physintherapy practices which, at an earlier stage, were unambiguously informed in writing by the association that there was no obligation to contribute, were regarded a, lJable to pay the fir.t contribution in 1986, whereas practice. that had not received a letter .ent directly by the BVG, in which they were informed that there was no such obligation, were required to pay contributions retroactively to January 1984.
A. Boon ~I the complainants learned that, in the former case, the requirement to pay their contributionl could have begun in 1986 and thus did not have retroactive effect to 1 January 1984, they invoked the principle of equality befol<. the law, by meana of the appeals procedure then prevailing in the Central Appeals Board. They argued that the situation in their practice had not been essentially different from that in other practice, which had learned directly from the BVG that no inaurance obligation waa required with regard to their part-time phy,iotberapist.. Tbe part-time physiotherapist who collaborated with the authors was al.o working on an invoicing ba.i., a. others who ·collaborated with practices that, before 1983, had learned directly from the BVG that there would be no que.tion of an in.urance obligation. 2.e Despite the invocation of the principle of equality before the law, the Central Appeal. Board held, in its final judgment in the case on 19 August 1087, that the decision by the BVG to demand contributions from the complainants wlth retroactive effect to 1984 wa. based on legal rules of compulsory nature which could not or mUlt not be telted against general principles of law.
To the author" the Central Appeals Board thereby implicitly cont'luded that the acknowledged difference in treatment in the manner of demands for contribution' between varioul phyliotherapy practices is in accordance with law. The authors point to what they consider an inconsistency in the Central Appeals Board's judgement. On the one hand, the Board appears to take the view that the application of compul,ory legal rules cannot or must not be tested against general principle. of lawl on the other hand, it appears from established case-law that such rules must not be applied if they are in conflict with the principle of confidence in the law, i.e. the principle of the certainty of the law. The authors question why owners of physiotherapy practices who were not directly informed by the BVG in the palt that part-time physiotherapists co-operating with them were not .ubj(~t to locial lecurity contributions should be subjected to dJfferent and less favourable treatment with respect to contributions duf' after 1904 thau those practitioners who had received such direct information.
The authors claim that since the principle of confidence in the law can, under certain circumstances, prevent the application of compUlsory legal rules, it is all the more surprising that this ~oes not apply to the principle of equality befure the law, enlhrined in 6rticle 1 of the Netherlands Constitution and article 2h of
By decision dated 15 Msrch 1988, the Working Group of the Human Rights Committee tranlmit.ted the communication to the State party under rule 91 of the Committee's provisional rules of procedure, I Gquesting information and observations relevant to the qu••tion of the admil.ibility of the communication. By note dated e July 1988, the State party requested an extension of three months for the submilsion of its observations.
In its submilsion under rule 91, dated 28 October 1988, the State party objects to the admi.libility of the communication on a num~er of grounds. Recapitulating the facts, it points out that the alleged victims are joint owners of a physiothlrapy practice where a part-time physiotherapist worked on the bas's of a co-operation contract as from 19821 she was paid by invoice, worked more or lel. independently and was not insured as an employee under social security legillation. The State party further indicates that there are three social security insurance schemes I schemes paid out of public funds, nationa. 4.nsurance Icheme. and employee insurance schemes. Unlike the first two, employee insurance .~hemel are only applicable where there is an employer/employee relationship. Both employer and employee pay part of the employment insurance contribution, determined in accordance with a Itandard formula. This contribution is calroulated as a certain percentage of the employee'l i~come and is payable to the competent indultrial insurance board.
The State party e.plains that for the purpose of determining who, as an employee, Ihou1d pay employment inluraD:e cont~ibutions, a broad definition of the term "employment" is used. It is not confined to situations in which there is an employment contract governed by civil law but also extends to co-operative relation.hips that meet certain criteria defined by the relevant act of parliament or the e.ecutive rule. and regUlation. bal.d on itl in accordance with these criteria, employment relationships not governed by employment contracts can be equated with those that entail, with all the relevant consequences concerning entitlement to benefits, an obligation to pay contributions.
In the past it had been generally assumed that, physiotherapist working for e phyliotherapy practice who was paid by invoice shou_~ not normally be r~gBrded as being employed by the practice. However, the Central Appeals Board took a 4ifferent view in itl judgment of 19 April 1983. The BVG is entrusted with the implementation of locia1 .ecurity legislation with regard to employees in the health sector and must determine the social insurance contributions of employers and employee. for employee insurance schemes such as medical insurance, disability inlurance and unemployment insurance contributions. As from 1 January 1984, the BVG claimed these contributions from the applicants for the aforementioned phyliotheraplst. The applicants did not agree that this date was correct and cont••ted the decillon on the grounds, iuter ali" that the princliple of equality had been violated becau.e other physiotherapists had only been required to pay contribution. as from 1986. The court of first instance, the Board of Appeals an~ 0 ••••
With r••pect to the requirement of e.h.ustion of domestic remedies, the St.te p.rty .cknowledge. th.t the .uthor. pur.ued legal proceedings up tu the court of l ••t inst.nce. It point. out, however, that the .uthors did not invoke either .rticle 26 or artiole 14, p.ragr.ph 1, beforl the Bo.rd of Appe~l .nd, on .ppeal, before the Centr.l App••l. Board. It w., merely in a ,upplementary petition to the Centr.l App••l. Board, d.t.d 29 April 1987, th.t the principle ~f equ.lity w•••1.0 mention.d, if only in gener.l term••nd without ,pecific referdnce to provision, of dom.,tic or intern.tion.l l.w. Nor w.re the articles of the C~ven.Dt invoked by the .uthor. in either of the judgements given in the c.se. In ~hese circumst.nce., the St.te party do•• not "considlr it to be .ltogether cle.r th.t the .pplic.nts h.ve e.hau.ted dom••tic remedie., a. they did not explicitly invoke .ny provilion. of the Coven.nt during dome.tic prooeedings". The St.te p.rty reque.ts the Committ.e to d.oid. on whether .nd to wh.t extent .uthors of a communication mu.t iDvoke the provi.ioD. of the Covenant purported to h.ve been viol.ted in the cour.e of dome.tic llg.l proc.eding••
With resp.ct to the .llug.d vio1.tions of .rticle 14, p.r.gr.ph 1, .nd .rtic1e 26, the State p.rty conte.t. th.t the .ctions com~l.inod of by the .uthors oan bl brought within the acope of .pplioation of these provision~ .nd thua con.ider. the commuDication to be In.dmi••ible pursu.nt to .rti~le. 2 and 3 of the Option.l Protocol. With r.apect to artiole 14, p.r.gr.ph 1, first lentence, it point, out th.t .rtiole 14 is concerned with procedur.l guar.nt.es for tri.ls .nd not with the aub.t.Doe of 'udgementl h.Dded down by the courts. Individu.la who believe th.t the l.w ha. beln wrongly .pp1ild to them in the Netherlands may seek rldr••• throu~h the o~urt.. Thl rule. goverDiDg .ppe.ls .g.in.t decisions under .ocial ••curity 1.gi.1ation .re laid down iD the Appe.1s Act of 19C~. The St.te p.rty empha.i••• th.t it h•• not been ~lleged th.t the 80.rd of Appe.l or the Clntr. App••la Bo.rd f.i1ed to ob.lrve the'e rule., which .re compatible with .rtic1e 14, .nd that there i. no evidence th.t the board. failed to ob.erve them.
With r••pect to the alleged viol.tion of .rtic1e 26, the St.te party question. thl .uthor.' appar.nt a••umptioD that .rtiole 26 .lso .pplies to the contributioDS th.t employer••Dd employees are required to m.ke, .nd iDvites the Committee to giv. it. opinioD on this queation. It furth.r indicatea th.t the authors do not .ppear to have oomp1.in.d about the aubatance of the statutory provisions cODcerning m.ndatory ,ocial in,urance bu~ ~D1y about the fact that the BVG set 1 January 1984 a. tb. d.t. from which contributions wIre payable. The issue thus il whether the .pp1ioation of a law whioh is not in itself discrimin.tory .nd which tbl Clntr.l Applal. 80ard oonaid.ra to h.ve been correct c.n run counter to .rtiole a6. lar1i.r communication. concerning Netherl.nds social security llgi.lation .ubmitt.d to the Committee AI rel.ted to provisions lai~ down by an act of par1iem.nt whicb the .utbor. d.lm.d to be dilcriminatory. The present oommunioatioD, bow.v.r, do•• not relate to the provision's subAtance, which is nlutr.l, but to the applic.tion of .ocial security legislation by an tndustrial iD.ur.noe bo.rd. The St.te party invite. the Committee to formul~t, ts opinion OD hi. point and refer. to the Committee's decision 1:1 communication Nu. 212/1986, where it wa••t.t.d, iot.r alia, th.t the scope of article 2~ 01. the Covenant does not e.tend to diff.rence. of re.~lt. in the application of common rules in the
The State party e.presBes doUbt.1 al to whether Bn action by an industrial inlurance board can be attributed tb itl Stale organl, in the sense that the State party could be held liable for it under the Covenent or the OptionBI Protocol thereto. In this context, it emphasiles that an industrial insurance board such as the BVG ia not a State organ I such boards are merely &Bsociations of employers and employeea eatabliahed for the specific purpose of implementing social security legillatioD, and the managerlent of luch a board consiyts exclusively of reprelentatlvel of the employerB' and employees' argani.ations. Industrial Inlurance boards operate independently and there is no way in which the State party'. authorltiel could influen~e concrete ~ecisions 8uch as that complained of by the authors.
Commentinq on the State party's observatiods, the autho~s, in a submission dated 29 DeQember 1988, affirm that it was ~ot ~ecessary for them to invoke either the principle of equality or article 26 of the Covenant in domestic proceedings. In Netherland. admini.trative law, the principle ot e1uality has traditionally been a legal .tandard against which the courts test the administrative practices of goveramental authorities. They consider it tv be unnecessary to invoke, in admini.trative procedures, sources of law that embody the principle of equality, lince the 'udge il bound to accept this principle and should ex officio test the ca•• a9aln.t it. The fact that the contested judg_ments do not refer to the provilions. of the Covenant i8, therefore, irrelevant.
With respect to the all~9.d violation of article 14, first sentence, of the Covenant, the autbors acknowledge that the provisicns of article 14 contain further quarantee. intended to secure the conduct of a fair trial and add that they have no realon to complain about the con~uct of the jUdicial proceedings 88 such. They relterate, however, that the juaicial review of general principles of justice in their ca•• by the Central Appeals Board was cont~·~dictory, and that the Board treated them dlff~r~ntly from others and, tberefore, unequally,
The authors f~rther reject the State party's c~ntenti~n that the communication Ihould be declared inadmissible because it was directsd against discriminatory application of legislation which in it.elf is neutral. They refer to the Committee'l decision in communication "0. 172/1984 ~I which stipUlated, inter alia, that "article 26 is concerned with the obligations imposed on States i~ regard to thwir legi8lation and the appli~ation ther.of". With respect to the State party's arqument that because it left tbe implementation of some aspects of social security legi.lation to industrial insur~~ce boards and is therefore unable to exercise influence on concrete decisious adopted by such boards, they argue that the mere inability to supervise the implem9ntation of Boeial security legislation by industrial insurance boards can~ot detract from the fact that the State party is re.ponlib1e for leeing to it that these bodies charged with the implementatiol1 of the law perform their statutory assi9nments in conformity with legal standarda. Where loopholes become apparent, it is for the legislator to eliminate them. Therefore, according to the authorr., the State party should not be allowed to claim that it cannot influence the decidions of bodies such as the BVG. Were this to be allowed, it would be el\sy for States parties to undermine the "basic rights" uf their citi.ens. The authors conclu4e that in their case, the State party seeks to deny its responsibility for the concrete application of sJ(:ial security legislation by invoking a situation which it had created itself.
The Committee has ascertained, as it is required to do under article 5, paragraph 2 (a), of'the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
With respect to the requirement of exhaustion of domestic remedies, the Committee has taken note of the State party's argument that it is doubtful whether the authors have complied with article 5, paragraph 2 (b), of the Optional Protocol, given that they did not invoke any provisions of the Covenant in the course of domestic proceedings. The Committee observes that whereas authors must invoke the substantive rights contained in the Covenant, they are not required, for purposes of the Optional Protocol, necessarily to do so by refer.ence to specific articles of the Covenant.
With regard to an alleged violation of article 14, paragraph 1, ~f the Covenant, the Committee notes that while the authors have complained about the outcome of the judicial proceedings, they acknowledge that procedural guarantees were observed in their conduct. The Committee observes that article 14 of the Covenant guarantees procedural equality but cannot be interpreted as guaranteeing equality of results or absence of error on the part of the competent tribunal. Thus, this aspect of the authors' comm~nication falls outside the scope of application of article 14 and is, therefore, inadmissible under article 3 of the Optional Protocol.
With regard to an alleged violation of artiCle 26, the Committee recalls that its firlt lentence stipUlates that "all persons are entitle~ without discrimination to th9 equal protection of the law". In this connection, it observes that this provision should be interpreted to cover not only entitlements which individuals entertain yis-a-yis the State but also obligations assumed by them pursuant to law. Concerning the State party's argument that the BVG is not a State organ and that the Government cannLt influence concrete decisions of industrial insurance boards, the Committee observes that a State party is not relieved of its obligations under the Couenant when some of its functions are delegated ~o other autonomous organs.
Tbe authors complain about the application to them of legal rules of a compulsory nature, which for unexplained reasons were allegedly not applied uniformly to some other physiotherapy practices; regardless of whether the apparent non-application of the compUlsory rules on insurance contributions in other cases may have been right or wrong, it has not been alleged that these rules were incorrectly applied to the authors following the Central Appeals Board's ruling of 19 April 1983 that part-time physiotherapists were to be deemed employees an1 that their emrloyers were liable for social security contributions; furthermore, the Committee is not competent to examine errors allegedly committell jll the iipp.lil:ation of laws concerning persons other than the authors 01: a communicHU (Ill,
The Committee also recalls that article 26, second senteuC'p. , provides th"t the law of States parties should "guarantoe to all persons equal and effective protection against discrimination on any ground such as race I co tlllll I sex I language, religion, political or other opinion, national or social origiu, property, birth or other status". The Commit.tee not.es t.hat the f\1l'.hon~ hiWt' lint.
The Human Rights Committee therefore decides: (a) That the communication is inadmissible; (b) That this decision shall be communicated to the State party and to the authors. Communications Nos. 172/1984 (Broeks), 180/1984 (Danning) and 182/1984 (Zwaan-de Vries), final views adopted on 9 April 1987 (twenty-ninth session). QI P. P. c. v. the Netherlands, inadmissibility decision adopted on 24 ~arch 1988 (thirty-second session), para. 6.2. ~I See note 1; Committee's final views (twenty-ninth session), para. 12.3. -292-