authors of a communication must invoke the provisions of the Covenant purported to have been violated in the
course of domestic legal proceedings.
4.5 With respect to the alleged violations of article 14, paragraph 1, and article 26, the State party contests that
the actions complained of by the authors can be brought within the scope of application of these provisions and thus
considers the communication to be inadmissible pursuant to articles 2 and 3 of the Optional Protocol. With respect to
article 14, paragraph 1, first sentence, it points out that article 14 is concerned with procedural guarantees for trials
and not with the substance of judgements handed down by the courts. Individuals who believe that the law has been
wrongly applied to them in the Netherlands may seek redress through the courts. The rules governing appeals against
decisions under social security legislation are laid down in the Appeals Act of 1955. The State party emphasizes that
it has not been alleged that the Board of Appeal or the Central Appeals Board failed to observe these rules, which are
compatible with article 14, and that there is no evidence that the boards failed to observe him.
4.6 With respect to the alleged violation of article 26, the State party questions the authors' apparent
assumption that article 26 also applies to the contributions that employers and employees are required to make, and
invites the Committee to give its opinion on this question. It further indicates that the authors do not appear to have
complained about the substance of the statutory provisions concerning mandatory social insurance but only about the
fact that the BVG set 1 January 1984 as the date from which contributions were payable. The issue thus is whether
the application of a law which is not in itself discriminatory and which the Central Appeals Boards considers to have
been correct can run counter to article 26. Earlier communications concerning Nether-lands social security
legislation submitted to the Committee1 related to provisions laid down by an act of parliament which the authors
deemed to be discriminatory. The present communication, however, does not relate to the provision's substance,
which is neutral, but to the application of social security legislation by an industrial insurance board. The State party
invites the Committee to formulate its opinion on his point and refers to the Committee's decision in communication
No. 212/1986, where it was stated, inter alia, that the scope of article 26 of the Covenant does not extend to
differences of results in the application of common rules in the allocation of benefits.2 This statement, according to
the State party, should apply all the more to situations in which social insurance contributions are determined by an
industrial insurance board.
4.7 The State party expresses doubts as to whether an action by an industrial insurance board can be attributed
to its State organs, in the sense that the State party could be held liable for it under the Covenant or the Optional
Protocol thereto. In this context, it emphasizes that an industrial insurance board such as BVG is not a State organ:
such boards are merely associations of employers and employees established for the specific purpose of
implementing social security legislation, and the management of such a board consists exclusively of representatives
of the employer's and employees' organizations. Industrial insurance boards operate independently and there is no
way in which the State party's authorities could influence concrete decisions such as that complained of by the
authors.
5.1 Commenting on the State party's observations, the authors, in a submission dated 29 December 1988, affirm
that it was not necessary for them to invoke either the principle of equality or article 26 of the Covenant in domestic
proceedings. In Netherlands administrative law, the principle of equality has traditionally been a legal standard
against which the courts test the administrative practices of governmental authorities. They consider it to be
unnecessary to invoke, in administrative procedures, sources of law that embody the principle of equality, since the
judge is bound to accept this principle and should ex officio test the case against it. The fact that the contested
judgements do not refer to the provisions of the Covenant is, therefore, irrelevant.
5.2 With
respect to the alleged violation of article 14, first sentence of the Covenant, the authors
66
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents