Central Appeals Tribunal, 29 May 1996, LJN: AL0666
Constitution of the Netherlands
Treaty provisions and decisions by public international law bodies whose scope may encompass everyone are binding after publication.
The legal provisions in force in the Kingdom are not applied if their application is incompatible with the provisions of treaties or decisions by public international law bodies whose scope encompasses everyone.
Maternity protection , Social security
Direct resolution of a dispute on the basis of international law
Maternity protection/ Post-natal care/ Social security/ Direct resolution of a dispute on the basis of international law
To encourage home deliveries, the order on hospital care and health insurance was amended in 1980 to introduce a provision (art. 3a) establishing personal contributions to the cost of postnatal care in hospitals, prescribed by a doctor. This provision was repealed in 1996 to meet the minimum standards set by international conventions. Several social insurees to whom that provision had been applied went to court. Their demands were declared unfounded. An appeal was therefore launched in which the parties cited ILO Conventions Nos. 102 and 103, the European Code of Social Security and the International Covenant on Civil and Political Rights as the basis for their action.
The Council established that under Articles 93 and 94 of the Constitution of the Netherlands, the provisions of those instruments were legally binding for all and that the plaintiffs could legitimately invoke the protection of those standards. The Council expressly cited Article 10, paragraph 1 b) and Article 49, paragraph 2, of Convention No. 102 and Articles 1, 3 and 4 of Convention No. 103, which set out the minimum benefits that must be guaranteed to pregnant women. The Council also cited direct requests from the ILO Committee of Experts in 1988, 1990 and 1999 to the Dutch government on the application of Conventions Nos. 102 and 103, in which the Committee emphasized the prohibition contained in the Conventions on requiring patients to contribute to the cost of postnatal care provided in hospital for medical reasons. The Council determined that Article 3a of that order on hospital care and health insurance was inconsistent with the universally binding provisions of ILO Conventions Nos. 102 and 103 and for that reason was not applicable. It therefore annulled the previous judgements.
1 ILO Convention Social Security (minimum standards), 1952 (No. 102); ILO Convention on Maternity Protection (Revised), 1952 (No. 103); International Covenant on Civil and Political Rights, 1966.