Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

With reference to its comments of 2002, the Committee notes the information supplied by the Government in its report for the period 2001–06, as well as in the annual reports on the application of the European Code of Social Security (ECSS). It also notes the comments made by the Trade Union Confederation of Middle and Senior Staff Unions in October 2006 on the Government’s reports concerning Conventions Nos 102 and 121.

Part II (Medical care) of the Convention. The Committee notes that the Netherlands health insurance system has undergone a radical reform which entered into force on 1 January 2006. The existing Health-Care Insurance Act has been repealed with the entry into force of the Health Insurance Act, which has instituted a new form of social health insurance for curative care for the entire population. The Committee would like the Government to specify to what extent the reform has affected the provision of medical care of a preventive nature and how such care is being guaranteed in the Netherlands in accordance with Article 7 of the Convention.

According to the 39th report on the ECSS, the Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten), which is also a form of social insurance for the entire population covering long-term nursing care, will remain in force alongside the Health Insurance Act. However, everybody who is insured for the Exceptional Medical Expenses Act is obliged to take out health-care insurance under the new Health Insurance Act. The Committee would like the Government to specify how, under the new provisions, the insurance coverage for short-term and long-term care ensures that the benefit is provided throughout the contingency, in accordance with Article 12 of the Convention, particularly in the case of diseases recognized as entailing prolonged care.

The 39th report stated that private health insurance companies who carry out the Health Insurance Act, are obliged to accept anybody who falls under this Act and applies for health insurance. The insurance package is specified by law, depending on the type of care to be provided under the package. The Committee would like the Government to specify, by reference to concrete sections of the law, to what extent the statutory insurance package covers the minimum package of benefits prescribed by Article 10(1) of the Convention, and to further specify whether the insurance contracts offered by private companies cover all the contingencies defined in Article 8 of the Convention, whether separate coverage is required for pregnancy and confinement, and whether any distinction is made on the basis of the cause of the morbid condition (e.g. alcohol or drug abuse, self-inflicted injury, environmental poisoning, terrorist attack, etc.).

According to the 39th report, the health-care insurers can themselves specify which person or institution shall provide the health care in question, as long as it is a person or institution which is legally entitled to provide such care. The health‑care insurers may provide the insured persons with benefits in kind (benefits-in-kind policy) or to reimburse them for the health-care costs they have incurred (reimbursement policy). In the latter case the health-care insurers are also obliged to inform the insured persons as to where they can receive the care in question. Health-care insurers may also provide certain forms of health care in kind and reimburse the insured persons for other forms of health care. Insured persons are free to choose which kind of policy they want. The Committee would like the Government to specify to what extent a protected person retains the right to free choice of a general practitioner, a specialist and a medical institution providing care, including the right of a woman to choose a gynaecologist and a hospital for confinement, and is encouraged to use the general public health services, in line with Article 10(4) of the Convention.

All insured persons aged 18 and older who have taken out health insurance pay their insurer a nominal premium. Persons aged up to 18 years are not obliged to pay a nominal contribution. The premium is unrelated to the person’s income. Care insurers may set their own premiums. Premium levels may differ for different variants of the insurance agreements they offer, but they must be the same for everybody who chooses the same variant. Health-care insurers must in all cases offer at least a care insurance policy with zero excess. They may also provide policies with statutorily determined portions with excess. A maximum of five portions may be covered at a value of 100 euros (€) each. The citizen may choose between all variants of care insurance offered by a health-care insurer and may switch his variant or health-care insurer on an annual basis. Together with the Health Insurance Act, the Health-Care Allowance Act (Wet op de zorgtoeslag) has entered into force. Pursuant to this Act, persons for whom the nominal contribution is too high in relation to their income may receive an allowance paid by the tax authorities. In judging whether a person comes into consideration for an allowance, the income of a possible partner is also taken into account. The Committee would like the Government to explain the difference in the quantity and quality of care offered with each of the five statutorily determined portions in excess of the basic care insurance policy with zero excess. Please indicate how hardship is avoided in practice to persons of small means (Article 71(1) of the Convention), using as a reference class the standard beneficiary selected in the report for the sickness benefit branch.

Besides receipts of nominal premiums, the Health Insurance Act is financed by levying an income-related contribution payable by persons under legal obligation to take out insurance. Employers deduct the income-related contribution from the part of an employee’s salary that is subject to payroll tax. The body that administers social security payments does the same for people who receive state benefits. The contributions are remitted to the Inland Revenue Service. People who are under an obligation to take out insurance but do not have income subject to payroll tax receive an assessment from the Inland Revenue Service for their income-related contributions. The income-related contribution is paid into the health-care insurance fund, together with the nominal contribution paid by the Government for persons under 18 years of age. The health-care insurer is paid an amount from this fund which is related to the insured person’s degree of risk. The Committee understands that the Health Insurance Act has established a mixed system of financing medical care – through individual nominal premiums which determine the differentiated scope of the private insurance coverage, and through a collective solidarity scheme based on income-related insurance contributions and government nominal contributions for persons under 18 years of age paid into the health-care insurance fund. To the extent that the system of nominal premiums fixed according to the insured person’s degree of risk departs from the system of collective financing, the Committee would like the Government to specify how such a mixed system is expected to contribute to social cohesion, solidarity, collective risk sharing and free access to the full range of quality medical services for all. Please explain how provisions of each Article of Part XIII of the Convention are being complied with.

Part IV (Unemployment benefit) in conjunction with Article 69(f) of the Convention. In its previous conclusions, the Committee observed that, under Article 69(f) of the Convention, sanctions in respect of claimants of unemployment benefit who are deemed to be “culpably unemployed” under Dutch law may apply only in cases where unemployment has been caused by the wilful misconduct of the person concerned, whereas passive behaviour by which this person omits or neglects to protest against dismissal may not necessarily be wilful. In reply, the Government indicates that, from 1 October 2006, unemployment benefit will no longer be refused due to the fact that the employee accepts or does not oppose his or her dismissal. The Committee welcomes this change in the regime of sanctions applied to claimants of unemployment benefit, which will permit better application of the corresponding provisions of the Convention. The Government further refers to the new definition of “culpable unemployment” in article 24(2) of the Unemployment Insurance Act, which, in its opinion, fulfils the obligations of the Convention: an employee is considered to be culpably unemployed when the unemployment occurred due to compelling reasons in the sense of the provisions of article 678 of Book 7 of the Civil Code and the employee is culpable for his or her unemployment. The Committee notes that, among the compelling reasons for the termination of employment, article 678(k) and (l) mentions cases when the employee “neglects his duties in a flagrant way” or “is not able to perform his duties due to his own recklessness”. Taking into account that neither the concept of neglect nor the concept of recklessness include explicitly “wilful misconduct” which may be sanctioned under Article 69(f) of the Convention, the Committee would like the Government to explain how these provisions are being applied in practice.

Part VIII (Maternity benefit). The Committee notes that the report does not reply to the question raised in its previous direct request in relation to the observation of 2003 on Convention No. 103, which related to the exclusion of certain categories of women workers who are covered by the Convention from the compulsory insurance scheme, and therefore from medical maternity benefits, due to the level of their remuneration or occupational activity. The Committee recalls that in June 2004, the Conference Committee on the Application of Standards expressed the hope that the Government would adopt the necessary measures to bring the legislation into conformity with Convention No. 103 and that it would provide statistics on the number of women workers who were covered and who were excluded from the compulsory insurance scheme. The Committee notes the entry into force on 1 January 2006 of the Health Insurance Act, which instituted a new form of social health insurance for the entire population. The statistics given in the Government’s latest report on Convention No. 102 under Part VIII (Maternity benefit) show that coverage is ensured to all workers employed in the country, including all women workers. As Article 48(a) of the Convention requires coverage for maternity medical benefit also of the dependent wives of male workers, the Committee would like the Government to explain whether such wives have to be insured by their husbands or are entitled to health insurance in their own right, whether the standard health insurance package of an employee includes maternity care or it has to be added and paid for separately by women only, and who pays the premiums for dependent wives who have no individual income. It would also like to receive a detailed reply to the questions raised by the Conference Committee on the Application of Standards in 2004 concerning coverage of the previously excluded categories of women workers.

The Committee notes from the publication of the Ministry of Health, Welfare and Sport: Health Insurance in the Netherlands: The new health insurance system from 2006 supplied with the Government’s report, that the new system is built on private law and health care is offered by private companies with a view to making a profit. In the private insurance market, as points out the Trade Union Confederation of Middle and Senior Staff Unions, “problems of uninsured persons are liable to arise as the result of payment problems. Several insurers have already excluded people from the complementary insurance scheme; it would seem to be merely a matter of time before the first expulsions from the basic insurance scheme are effected”. The Committee would like the Government to indicate in its next report whether such cases of expulsion from the basic insurance scheme have indeed occurred and have been brought before the Health Insurance Disputes Board or the Ombudsman.

The abovementioned publication states that insurance companies are not allowed to differentiate the premium according to personal characteristics like age, gender or medical situation. In return, insurers receive compensation from the Health Insurance Fund for accepting any applicant for health insurance, including less healthy and therefore higher risk clients, which minimizes the cost differences for insurers resulting from the health profiles of insured persons. The Committee would like to know whether this risk equalization system is used to offset higher insurance risks related to maternity care.

The Committee notes from the Government’s report that insured persons do not have to share in the costs of medical care during confinement in a hospital or special maternity centre, when this care is provided on medical advice. It would like the Government to specify whether all types of medical care mentioned in article 49(2) and (3) are covered by maternity care included in the standard health insurance package. It recalls that medical care covered by the Convention includes hospitalization only where necessary and should otherwise be provided outside hospitals or special maternity centres not only during confinement but also during prenatal and postnatal periods. The Committee therefore asks the Government to specify to what extent protected women are required to share in the cost of prenatal and postnatal care provided outside hospitals.

Part XI (Standards to be complied with by periodical payments) (a). The Committee recalls that while, according to Dutch law, sick pay, maternity benefit, unemployment benefit and invalidity benefit should amount to 70 per cent of the gross salary, the Government’s report calculates the level of the benefit as 70 per cent of the net reference wage. The replacement rate is determined by comparing the net amount of the benefit with the net amount of the reference wage and the net amount of the child benefit due to the standard beneficiary. The Committee would like the Government to explain how the net amounts of benefits are calculated out of the gross salary and to provide examples of the real calculations by the responsible agencies of these benefits paid out to an insured person whose gross salary corresponds to the gross wage of the skilled manual male employee. Please also indicate the rate of the general taxation and social security contributions applied to income received from employment as well as to income received from social benefits, including child benefit.

(b). Article 44. The Committee notes that the calculation of the total value of family benefits was made in relation to the net amount of the minimum legal wage (€1,176.47 per month), which, by definition, would be lower than the gross wage of an ordinary adult male labourer which should be used for this calculation. It would therefore like the Government to be asked to include in its next report updated calculations of the total value of family benefits in relation to the gross wage of an ordinary labourer as determined in accordance with the rules laid down in article 66.

(c). The Committee notes that calculations made in the 40th report (2007) on the ECSS include, in addition to the basic amount of the child benefit for two children born after 1 January 1995 (€118.60 net per month), also child tax credit (84.50) without indicating whether it is for one or two children. In comparison, the 38th report (2005) included, instead of the child tax credit, the general tax credit for the partner (152.08). The total amount of the family allowances taken into account in the 38th report was €269.83 net per month, which is much higher than the amount of €201.95 used in the 40th report for the calculation of the sickness, unemployment and maternity benefits or the amount of €203.10 (= 118.60 + 84.50) used for the calculation of the employment injury, invalidity and survivors’ benefits. The Committee further notes that statistics on family benefit given in the Government’s reports on Conventions Nos 102 and 128 differ from those given in the reports on the ECSS for the same time base. Thus, the report on Convention No. 102 for the period 2001–06 includes in the calculation of the sickness benefit for 2005 the family allowance of €117.75 net per month provided for two children between the ages of 0–6 born after 31 December 2004, while the report on Convention No. 128 for 2007 include in the calculation of both invalidity and survivors’ benefit the family allowance of €201.95 net per month as the “basic amount applicable to families with two children born on or after 1 January 1995 and between 0–5 years of age”. The Committee would be grateful if the Government would explain these differences, as well as the nature of the child tax credit, indicating in particular whether it is income tested.