STEINDEL v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Andreas Steindel, is a German national who was born in 1967 and lives in Achersleben. He was represented before the Court by Mr G. Jurczyk, a lawyer practising in Magdeburg. The applicant practices as an ophthalmologist. From January 2001 to 31 December 2004 he held a license as a statutory health insurance physician (Zulassung zur vertragsärztlichen Versorgung). Having renounced his licence, he exclusively treats patients in private practice. On 28 December 2004 the Association of Medical Practitioners (Ärztekammer Sachsen-Anhalt) ordered the applicant to participate in the medical emergency services organised by the Association of Statutory Health Insurance Physicians (Kassenärztliche Vereinigung Sachsen-Anhalt, KVSA). His duty was suspended until determination of the modalities of his remuneration. On 15 March 2005 the KVSA informed the applicant about the modalities of his remuneration during emergency services. He was further informed that, notwithstanding the fact that he was not a member of the KVSA, his services and remunerations within the framework of the emergency services were subject to the KVSA's supervision. On 17 March 2003 the applicant informed the KVSA that he refused to serve in the emergency service and would only be willing to serve in an emergency service which was organised by the Association of Medical Practitioners. On 21 March 2005 the Association of Medical Practitioners informed the applicant that he was statutorily obliged to participate in the emergency service. They pointed out that the emergency service was a common project by the KVSA and the Association of Medical Practitioners and that all pertinent decisions were taken jointly by both associations. On 22 July 2005 the applicant lodged a motion against the Association of Medical Practitioners. He argued that he was not obliged to participate in the emergency service organised by the KVSA, because he did not practice as a statutory health insurance physician. He further alleged that the order lacked a sufficient legal basis. On 21 March 2006 the Magdeburg Administrative Court (Verwaltungsgericht) dismissed the applicant's motion as being unfounded. According to that court, the impugned order was compatible with the pertinent law. The emergency service was set up jointly by the Association of Medical Practitioners and by the KVSA in order to avoid overlapping emergency services. The pertinent provisions did not violate the applicant's rights under the Basic Law. The infringement on the applicant's right to freedom of profession was neither disproportionate nor excessive. Furthermore, there was no violation of the right to equal treatment, as all medical practitioners were equally obliged to provide emergency services to their patients outside consultation hours. This duty constituted an intrinsic part of a medical practitioner's occupation. The organisation of emergency services released the medical practitioner from the obligation to be available for his patients “around the clock”, at nights and during the weekends. Having regard to the fact that all medical practitioners – and not only those who held a license as statutory health insurance physicians – profited from this service, it was justified to order all practitioners to participate in the emergency service. The fact that the emergency service was organised by the KVSA did not turn the applicant into a member of that organisation; he merely profited from its organisational structures. On 6 September 2006 the Saxony-Anhalt Administrative Court of Appeal (Oberverwaltungsgericht) refused to allow the applicant leave to appeal. Further to the administrative court's considerations, the Court of Appeal found that the duties imposed on the applicant were not excessive, as it was merely envisaged to oblige the applicant to serve on six days during a three-months-interval. The Court of Appeal further considered that it was justified to oblige all medical practitioners, irrespective of the fact if they were willing to assure “around the clock” availability to their own patients. The system could only function if, as a matter of principle, all physicians concerned took part in it. On 11 January 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint as there was no indication of a violation of the applicant's basic rights (application no. 1 BvR 2572/06). According to section 20 § 2 of the Law on the Associations of Medical Practitioners for Saxony-Anhalt (Gesetz über die Kammern für Heilberufe) the Medical Association is entitled to issue regulations on medical emergency service. Section 26 of the Medical Association's professional Code of Conduct (Berufsordnung der Ärztekammer Sachsen-Anhalt) provides that every resident medical practitioner is obliged to participate in emergency service. Regulations on the organisation of the emergency service have been jointly issued by the Medical Association, representing all medical practitioners, and by the KVSA, representing only those physicians practicing under the public health insurance scheme. Non-compliance with the obligations under the Medical Association's professional Code of Conduct can lead to disciplinary proceedings. The disciplinary court has the capacity to issue formal reprimands, impose fines and to advice the authorities to revoke a physician's license (sections 46 and 48 of the Law on the Associations of Medical Practitioners).